Mann v. National Review, Inc.

The Competitive Enterprise Institute (CEI) and a CEI commentator filed a petition for writ of certiorari seeking U.S. Supreme Court review of the D.C. Court of Appeals decision that allowed climate scientist Michael Mann’s defamation lawsuit to proceed against them in connection with articles that accused Mann of scientific misconduct. The questions presented are “[w]hether the First Amendment permits defamation liability for subjective commentary on true facts concerning a matter of public concern” and “[w]hether the determination of whether a challenged statement contains a provably false factual connotation is a question of law for the court or a question of fact for the jury.”

The U.S. Supreme Court denied two petitions for writ of certiorari seeking review of a D.C. Court of Appeals decision that allowed climate scientist Michael Mann to proceed with a defamation lawsuit against the authors and publishers of articles attributing scientific misconduct to Mann. Justice Alito issued a written dissent asserting that the questions raised by the petitioners “go to the very heart of the constitutional guarantee of freedom of speech and freedom of the press: the protection afforded to journalists and others who use harsh language in criticizing opposing advocacy on one of the most important public issues of the day.” Alito wrote that one of the questions raised—whether a court or a jury should determine the truth of allegedly defamatory statements—was a “delicate and sensitive” question that “has serious implications for the right to freedom of expression,” especially given the “highly technical” matter at issue in this case and the “intense feelings” that the issue of climate change arouses in the jury pool. Alito also said the petitioners raised the “very important question” of where to draw the line between “a pungently phrased expression of opinion regarding one of the most hotly debated issues of the day” (which Alito said would be protected by the First Amendment and “a statement that is worded as an expression of opinion but actually asserts a fact that can be proven in court to be false” (which the First Amendment would not protect). Alito noted that he recognized that the D.C. court’s decision was “interlocutory” and that an ultimate outcome adverse to the petitioners could be reviewed later, but he said requiring a “free speech claimant to undergo a trial after a ruling that may be constitutionally flawed is no small burden.”

National Review, Inc. filed a petition for writ of certiorari seeking U.S. Supreme Court review of the D.C. Court of Appeals decision that allowed climate scientist Michael Mann’s defamation lawsuit to proceed against them in connection with articles that accused Mann of scientific misconduct. National Review’s petition presents the question: “Is the question whether a statement contains a ‘provably false’ factual connotation a question of law for the court (as most federal circuit courts hold), or is that a question of fact for the jury when the statement is ambiguous (as many state high courts hold)?” The National Review petition also presents the question of whether the First Amendment permits “defamation liability for expressing a subjective opinion about a matter of scientific or political controversy, such as characterizing a statistical model about climate change as ‘deceptive’ and calling its creation a form of ‘scientific misconduct.’”

Two years after the District of Columbia Court of Appeals ruled that climate scientist Michael Mann could proceed with defamation claims against the authors and publishers of online articles, the appellate court responded to a petition for rehearing by issuing an amended opinion with only minor adjustments—the addition of one footnote and the revision of another. The appellate court thereby reaffirmed its conclusion that a reasonable jury could find that statements in two of the articles were false, defamatory, published by appellants to third parties, and made with actual malice. The articles accused Mann of scientific misconduct and compared his alleged misconduct to the conduct of Jerry Sandusky, a football coach at Penn State who was convicted of child sexual abuse.

The District of Columbia Court of Appeals dismissed the appeals of the D.C. Superior Court’s decisions as moot, given that Mann had filed an amended complaint and defendants had filed new motions to dismiss.

In a case brought by climate scientist Michael Man in which a jury found two writers liable for defamation, the District of Columbia Superior Court denied Mann’s motion to reconsider the court’s March 2025 order granting in part the two defendants’ motions for sanctions for “bad faith litigation tactics.” The conduct related to Mann’s attorneys’ use at trial of a demonstrative regarding the amount of losses attributable to the defendants’ defamatory statements. The demonstrative included the amount of $9,713,924.00, when the correct amount was $112,000. The court said that Mann and his attorneys “provided no explanation why they prepared a demonstrative that contained incorrect figures to be used at trial, when they could have very well prepared a demonstrative with the correct figures.” The court found that the attorneys’ explanations for the use of the demonstrative, including that they knew the defendants would make corrections during re-cross examination, “strain credulity”; the court also found that Mann was “ultimately responsible for the conduct of the litigation of his case and it was his responsibility to ensure that the facts of his case were presented truthfully and straightforwardly.” The court ordered Mann to pay one of the defendants $16,762.82 in fees, costs, and fees on fees, and the other defendant $11,404.80.

The court denied defendants' motions for judgment as a matter of law and granted defendant Steyn's alternative motion for remittitur of punitive damages. The court vacated the judgment against Steyn for punitive damages in the amount of $1 million and entered judgment against Steyn for punitive damages in the amount of $5,000. The court also denied Steyn's motion for a new trial.