A Climate Change for Lawsuits
By William McGurn
When National Review founder William F. Buckley Jr. was alive, the American Civil Liberties Union was a frequent target of his barbs. Once he even devoted an episode of “Firing Line” to a debate on the proposition “Resolved: The ACLU is full of baloney.”
So give the ACLU credit for rising above policy differences. When a combative climatologist, Penn State’s Michael Mann, filed a defamation lawsuit in 2012 against National Review, Mark Steyn, the Competitive Enterprise Institute and Rand Simberg, the conservative magazine found itself fighting alongside the left-leaning civil-liberties outfit.
District of Columbia courts denied National Review’s motion to dismiss the case under the local anti-Slapp law, meant to thwart lawsuits aimed at silencing advocates on issues of public concern. The ACLU filed two friend-of-the-court briefs supporting the magazine’s appeals. One argued that the statements at issue are “constitutionally protected opinion and fair comment.” (News Corp, this newspaper’s owner, joined another brief on National Review’s behalf, filed by the Reporters Committee for Freedom of the Press.)
Thus far, alas, the courts have found largely in Mr. Mann’s favor, most recently in March. If the ruling by the District of Columbia Court of Appeals is allowed to stand, parties will have an incentive to sue their adversaries and ask juries to settle what are essentially differences of opinion.
The only hope now is that the Supreme Court—which considers National Review’s petition Oct. 1—will hear the case. The defendants say the statements in question were “a subjective opinion about a matter of scientific or political controversy,” protected by the First Amendment. Mr. Mann says they were false factual assertions. The D.C. judges say it’s up to a jury to distinguish fact from opinion.
Mr. Mann is famous in global-warming circles as the originator of the “hockey stick” graph. The graph charts the Earth’s temperatures since the year 1000, showing a slow, steady decline that turned sharply upward in the 20th century. Mr. Mann’s critics have questioned both his statistical methods and the proxies he used to estimate medieval surface temperatures.
In an inflammatory 2012 CEI blog post, Mr. Simberg likened Mr. Mann to a notorious Penn State figure: “Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.” Mr. Steyn quoted Mr. Simberg’s post on National Review’s website. Mr. Mann sued, saying he was being accused of “academic fraud.” He noted that academic and governmental investigations had cleared him of scientific wrongdoing.
The legal issue hinges on whether what Mr. Simberg said is subjective opinion that should be decided in public debate, as NR contends, or a factual assertion that a jury could find false and defamatory, as Mr. Mann claims. By sending the case to a jury, the D.C. Court of Appeals has rewarded Mr. Mann’s attempt to use the courts to settle the science and silence the criticism. That sets a dangerous precedent.
In some senses the Mann suit may represent the perfect storm for litigation because so many consider climate science beyond question. The opinion of the appellate court, for example, carries the whiff of a religious authority rendering final judgment—the idea being that university faculties and other authorities have spoken so debate must be closed.
There’s also the venue. This lawsuit didn’t go through the federal courts but through D.C.’s equivalent of state courts, where judges and juries probably aren’t the friendliest to conservatives. With so many publications, think tanks and activists keeping offices in the nation’s capital, it isn’t hard to see how Washington could quickly become the venue for similar lawsuits.
The larger point is that while so-called climate deniers might be the first defendants, they are unlikely to be the last. If the D.C. ruling stands, National Review asks in its petition to the high court, what’s to prevent, say, Charles Koch from suing Greenpeace for accusing him of having funded a “junk study . . . loaded with lies and misrepresentations of actual climate change science”? Or Steve Bannon from founding a deep-pocketed organization to sue Trump opponents, and then shopping for a venue where a friendly jury might agree that an over-the-top opinion is a defamatory statement of fact?
“The only way to protect free speech for our allies is to protect it for our adversaries,” says Art Spitzer, legal director for the ACLU of D.C. “Today it’s unacceptable to deny climate change, but yesterday it was unacceptable to deny that homosexuality was sinful, and tomorrow it may be unacceptable to deny that robots are better parents than humans. Society can’t progress unless people are free to express and consider heretical ideas, because there’s no way to predict which heretical ideas will be tomorrow’s truths.”
The ball’s in the Supreme Court—if the justices will take it.