A Victory, but Miles to Go
If you wait nearly a decade, the courts might finally do what’s obviously been right all along.
That’s one of the lessons of the Superior Court of the District of Columbia granting National Review’s motion for summary judgment in Michael Mann’s seemingly interminable lawsuit against us.
For eight long years, we have watched as all remained quiet on the Western Front. Nothing had seemed to make a difference — not the anti-SLAPP laws that were designed to prevent this sort of legal harassment of publications, not all the amicus briefs in our behalf, not our motions and appeals going all the way to the Supreme Court, not the First Amendment itself. Instead, we were stuck in a grinding battle of attrition, in which the only change was the ever-growing size of our attorney fees — just as Mann intended.
The climate scientist launched the suit in response to a Mark Steyn blog post in 2012 criticizing his work, and boasted privately that the suit was an opportunity to “ruin” NR.
The ruling today is a victory for free speech, but a limited one. The court held that, as a publisher, we cannot be held to an “actual malice” standard for the words of a non-employee whose post wasn’t reviewed prior to publication. This is a commonsensical standard that is well-established in the law. If it were otherwise, it would significantly increase the legal exposure of publishers and chill free speech.
That Mann was able to bleed us of millions in legal fees for so long should be a blot on the American escutcheon. There are a host of provisions within American law designed to prevent precisely this sort of vexatious litigation, and yet almost none of them seemed to have fired properly in this case. The venue Mann chose is governed by an anti-SLAPP statute, the explicit purpose of which is to ensure that plaintiffs cannot try to “ruin” their political opponents by bleeding their finances dry. And yet it took nearly ten years before we were able to start to extricate ourselves from his web.
The First Amendment exists to ensure that imperious and thin-skinned figures such as Mann are unable merely to declare what is true and what is false and silence anyone who dares to disagree. And yet, until now, our repeated appeals to its authority were left hanging.
As Justice Alito observed in his dissent from the Supreme Court’s denial of certiorari, “a journalist who prevails after trial in a defamation case will still have been required to shoulder all the burdens of difficult litigation and may be faced with hefty attorney’s fees,” which, after a while, would “deter the uninhibited expression of views that would contribute to healthy public debate.”
Having spent so much in our defense, we know exactly what Alito means.
If today is good news, it would have been much better if Mann’s suit had been dismissed in its entirety. Instead, Mann’s meritless and vindictive pursuit of Mark Steyn and the Competitive Enterprise Institute continues (Steyn quoted a CEI critique of Mann in his post). Friends of the First Amendment, whether right, left, or center, should rally to the defense of Steyn and CEI.
As for NR, this saga is far from over for us. Mann may well appeal today’s ruling. Also, Mark Steyn’s legal fees have always been covered by our legal insurance, and still are. Finally, we have the presumptive right for Mann to pay our legal fees for some of the case, an option that, as it happens, would require even more expenditures in the short term.
Our legal insurance has never covered all of our fees, and the policy is not inexhaustible. So, perversely, even after Mann’s suit has finally been found by a judge to fail a threshold standard, he is still going to be able to drain us of time and resources — which, once again, is his purpose.
This lawsuit has been a disgrace from beginning to end. It’s good that a judge has ruled against a big part of it, but justice won’t truly be done until the entire thing is discarded and crushed under foot.