Mann v. Simberg

In the climate scientist Michael Mann’s defamation case against two writers who authored blog posts characterizing Mann’s work as fraudulent and attributing misconduct to him, a jury in D.C. Superior Court found that statements made by the writers were defamatory, relied on provably false facts, and were false. For the defendant who called Mann “the Jerry Sandusky of climate science, except for instead of molesting children, he has molested and tortured data,” the jury found that the plaintiff proved that the defendant acted with reckless disregard for whether the fact was false. The jury awarded Mann $1 in compensatory damages and $1,000 in punitive damages against that defendant. The jury found that the plaintiff proved that the other defendant made the defamatory statements with knowledge of their falsity and reckless disregard for whether they were false. The statements included the defendant’s quotation of the other defendant’s comparison of Mann to Jerry Sandusky and a statement describing him as “the man behind the fraudulent climate-change ‘hockey-stick’ graph, the very ringmaster of the tree-ring circus.” The jury awarded $1 in compensatory damages and $1 million in punitive damages against this defendant.

In climate scientist Michael Mann’s defamation lawsuit against individuals and organizations that published blog posts that characterized his work as fraudulent and attributed misconduct to him, a District of Columbia Superior Court denied summary judgment motions by the defendants on the issue of the individual authors’ “actual malice” and by Mann on the issue of the falsity of the blog posts. The court found, however, that Mann failed to offer evidence establishing that Competitive Enterprise Institute (CEI)—which published one of the blogs—acted with “actual malice.” (The court made a similar ruling in March 2021 with respect to National Review, Inc. the publisher of the other blog.) The court said this failure to establish actual malice was the result of the nature of the blog, which was “designed for low-effort management on the part of CEI, where outside writers enjoy a platform for their opinions, with only cursory review by a relatively low-ranking CEI employee prior to publication.” With respect to the author of the post on CEI’s blog, the court found that Mann offered “significant evidence” that would allow a reasonable jury to find that the author acted with actual malice. The court denied summary judgment on the issue of whether the article was false.

The court denied a motion by the author of the blog post on the National Review’s website for summary judgment on the issues of protected speech concerning public opinions, actual malice, truth, and whether Mann should be awarded damages. The court also denied Mann’s motion for summary judgment on the issue of whether statements in the blog post were false.

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The D.C. Superior Court dismissed counterclaims brought by an individual writer against the climate scientist Michael Mann in Mann’s defamation lawsuit against National Review, the Competitive Enterprise Institute, and two individuals. The court said the writer had already availed himself of the remedy offered by D.C.’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute¬—i.e., a special motion to dismiss with lower burden of proof, a stay of discovery when the motion is pending, a special motion to quash discovery requests, and the recovery of attorneys fees. The court said the writer, having lost the special motion to dismiss, could not “seek the same remedy in the guise of a counterclaim”; the court concluded that the “Anti-SLAPP statute does not create an implied right to affirmatively assert a claim against the plaintiff.” The court also found that Mann’s lawsuit did not constitute state action and therefore dismissed the writer’s constitutional tort claim. In addition, the court found that the writer failed to allege elements of an abuse of process or a malicious prosecution claim. The court also declined to “create a new tort named abusive litigation.”

The District of Columbia Superior Court again denied motions to dismiss Mann’s lawsuit. The motions were directed at an amended complaint filed before the July 2013 decisions that denied motions by National Review and CEI to dismiss the original complaint. The “substantive” difference between the original complaint and the amended complaint was Mann’s assertion of one additional count, libel per se. In denying the motions, the new judge in the case (who replaced the retired Judge Combs Greene) ruled that, “regardless of whether the rulings embodied in the non-final orders of July 19, 2013, should be treated as ‘law of the case,’” he agreed with Judge Combs Greene’s conclusion that Mann had shown sufficient likelihood of success to defeat the special motion to dismiss the six counts in the original complaint under D.C.’s Anti-SLAPP (Strategic Lawsuit Against Public Participation) Act. With respect to the new libel per se count, the court said that while some of defendants’ statements about Mann and his research were protected as “opinions and rhetorical hyperbole,” other statements—such as statements that Mann “molested and tortured data” or statements calling Mann’s work “fraudulent”—were “assertions of fact” that would be defamatory if proven false and would be actionable if made with actual malice. The court found that “[v]iewing the facts in the light most favorable to plaintiff, a reasonable jury is likely to find in favor of the plaintiff.” National Review, CEI, and individual defendant Rand Simberg filed notices of appeal for the January 22 decision.

The court denied the Competitive Enterprise Institute defendants’ motion for reconsideration of the July 2013 decision denying their motion to dismiss.

The court denied the defendants’ joint motion to certify for appeal the court’s July 2013 orders denying their motions to dismiss. In an order signed by the new judge assigned to the case after Judge Natalia M. Combs Greene’s retirement, the court ruled that the order denying the motions to dismiss did not meet the criteria for interlocutory review. The court noted that while the case “undoubtedly involves complex and important issues at the intersection of the First Amendment and the common law of defamation as applied to public figures,” the controlling questions of law were “relatively settled.” The court further noted that D.C.’s Anti-SLAPP (Strategic Lawsuit Against Public Participation) Act did not provide for interlocutory appeal. While noting that certification for appeal followed by reversal of the July 2013 decision could hasten the termination of the lawsuit, the court stated that “in the court’s view, reversal is unlikely, and it is more likely that an interlocutory appeal would unnecessarily prolong the litigation.”

The District of Columbia Superior Court denied the National Review defendants’ motion for reconsideration of the court’s July 2013 decision denying their motion to dismiss. The court rejected the National Review defendants’ contention that the denial of the motion to dismiss was grounded in the court’s “mistaken belief” that the National Review defendants, as opposed to the Competitive Enterprise Institute (CEI) defendants, had induced EPA to investigate Mann’s work and had criticized Mann for many years. The court concluded that any confusion over whether it was the CEI defendants or the National Review defendants who criticized Mann and who induced the EPA investigation was not a “material mistake” because those facts were not the basis for the court’s July 2013 decision. The court reiterated its view that at this stage the evidence demonstrated “something more than mere rhetorical hyperbole” on the part of the National Review defendants in their criticisms of Mann. The court also rejected the argument that it should dismiss Mann’s claim for intentional infliction of emotional distress (IIED). The court found the absence of analysis of this claim in the earlier decision (which focused on the defamation claim) to be inconsequential, given the similarities between IIED and defamation.

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The District of Columbia Superior Court denied motions to dismiss the defamation lawsuit brought by the climatologist and Pennsylvania State University professor Michael Mann against National Review, the Competitive Enterprise Institute, and individual writers in connection with pieces published about Mann and his work that, among other things, called his work “intellectually bogus,” referred to Mann as the “ringmaster of the tree-ring circus,” and compared Penn State’s investigation of Mann’s work to the university’s handling of the Jerry Sandusky scandal. In orders denying motions to dismiss by the National Review defendants and the Competitive Enterprise Institute defendants, the court—though calling it a “very close case”—found that the defendants’ statements were “not pure opinion but statements based on provably false facts” and that the evidence demonstrated “something more and different tha[n] honest or even brutally honest commentary.” The court found that further discovery was warranted because there was “sufficient evidence to demonstrate some malice or the knowledge that the statements were false or made with reckless disregard as to whether the statements were false.”

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