Making Defamation Law Great Again: Michael Mann’s Suit May Continue

Jonathan Adler of The Volokh Conspiracy blog covers the D.C. Court of Appeals ruling in Michael Mann’s defamation suit against Rand Simberg, Mark Steyn, National Review and the Competitive Enterprise Institute. 

Thursday morning the D.C. Court of Appeals ruled that Michael Mann’s defamation suit against Rand Simberg, Mark Steyn, National Review and the Competitive Enterprise Institute over blog posts written by Simberg and Steyn may proceed. More than two years since hearing oral argument, the court sided with the defendants on a procedural question, but ultimately rejected their effort to have the defamation suit dismissed (with one small exception). However intemperate the original blog posts at issue, this decision is tremendously unfortunate, as it threatens to make it too easy for public figures to file lawsuits against their critics and, as a consequence, threatens to chill robust political debate.

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While a direct accusation of scientific fraud may be actionable — particularly when made against a non-public figure — challenges to scientific conclusions and interpretations of scientific studies are clearly protected by the First Amendment. So are erroneous interpretations of scientific conclusions and — particularly relevant here — criticisms of the conclusions of investigatory bodies.

In refusing to dismiss claims against Steyn and Simberg, the D.C. Court of Appeals placed tremendous weight on the fact that Penn State and other institutions investigated Mann and did not find evidence of academic misconduct. Yet it is the alleged inadequacy of Penn State’s investigation that was the focus of the very posts at issue. Indeed, this was the whole point of the Sandusky comparison. Both Simberg and Steyn believe that Penn State failed to conduct a thorough investigation of the allegations against Mann and that other investigations either did not focus on Mann’s conduct or relied too heavily on Penn State. They were explicit on this point, and they cited the reasons for their conclusions.

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It cannot be that once some official body has conducted an investigation of an individual’s conduct, that further criticism of that individual, including criticism that expressly questions the thoroughness or accuracy of the investigatory body, is off limits. By this standard it would be defamatory to express the opinion that George Zimmerman or Darren Wilson is a murderer, even if one also argued that the reason either was exonerated was because of structural racism in the criminal-justice system. After all, each was investigated, tried and found not guilty. Nor is it consistent with existing First Amendment doctrine to suggest that hyperbolic accusations of bad faith or dishonesty against public figures involved in policy debates are actionable. The court’s approach is particularly problematic here because both Simberg and Steyn offered reasoned (if also intemperate) explanations for why they did not credit the investigations and why they believed that these investigations failed to uncover the misconduct they believe occurred. Yet according to the court, the existence of these investigations could be sufficient for a jury to find, by “clear and convincing evidence,” that they acted with actual malice.

Read the full article at The Washington Post.