National Review, Inc. v. Mann

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.’”