Ruiz, Senior Judge:
These appeals present us with legal issues of first impression concerning the special motion to dismiss created by the District of Columbia's Anti-Strategic Lawsuits Against Public Participation (Anti-SLAPP) Act, D.C. Code §§ 16-5501 to -5505 (2012 Repl.): whether denial of a special motion to dismiss is immediately appealable and the standard applicable in considering the merits of an Anti-SLAPP special motion to dismiss.
Appellee Michael E. Mann is a well-known climate scientist whose research in studying the "paleoclimate," or ancient climate, has featured prominently in the politically charged debate about climate change. Dr. Mann filed an action for defamation and intentional infliction of emotional distress against Competitive Enterprise Institute (CEI), Rand Simberg, National Review, Inc. (National Review), and Mark Steyn based on articles written by Mr. Simberg, Mr. Steyn, and National Review's editor Rich Lowry that appeared on the websites of CEI and National Review. Dr. Mann's complaint claimed that the articles which criticized Dr. Mann's conclusions about global warming and accused him of deception and academic and scientific misconduct contained false statements that injured his reputation and standing in the scientific and academic communities of which he is a part.
Defendants argued that Dr. Mann's lawsuit infringes on their First Amendment right of free speech and moved for dismissal under the Anti-SLAPP Act and, alternatively, under Superior Court Rule 12 (b)(6). The trial court ruled that Dr. Mann's claims were "likely to succeed on the merits" — the standard established in the Anti-SLAPP Act to defeat a motion to dismiss — and denied appellants' motions to dismiss and their subsequent motions to reconsider. Appellants — CEI, National Review and Mr. Simberg — sought interlocutory review in this court of the trial court's denial of their motions to dismiss.
As a preliminary matter, we hold that we have jurisdiction under the collateral order doctrine to hear appellants' interlocutory appeals of the trial court's denial of their special motions to dismiss filed under the Anti-SLAPP Act. We further hold that the Anti-SLAPP Act's "likely to succeed" standard for overcoming a properly filed special motion to dismiss requires that the
I. Statement of the Case
A. Factual Background
The facts presented in the complaint and subsequent pleadings filed with the court are as follows. Dr. Mann is a graduate of the University of California at Berkeley (B.S. Physics and Applied Math) and Yale University (M.S. Physics; Ph.D. Geology and Geophysics), and has held faculty positions at the University of Massachusetts's Department of Geosciences and the University of Virginia's Department of Environmental Sciences. He is a Distinguished Professor of Meteorology and the Director of the Earth System Science Center at Pennsylvania State University (Penn State).
In 1998 and 1999, Dr. Mann and two colleagues
The 1999 paper included a graph depicting global temperatures in the Northern Hemisphere for a millennium, from approximately 1050 through 2000. The graphical pattern is roughly horizontal for 90% of the temperature axis — reflecting a slight, long-term cooling period between 1050 and 1900 — followed by a sharp increase in temperature in the twentieth century. Because of its shape resembling the long shaft and shorter diagonal blade of a hockey stick, this graph became known as the "hockey stick."
In 2001, the Intergovernmental Panel on Climate Change (IPCC),
In November 2009, thousands of emails from the Climate Research Unit (CRU) of the University of East Anglia in the United Kingdom — some between Dr. Mann and CRU climate scientists — were somehow obtained and anonymously published on the Internet, shortly before the U.N. Global Climate Change Conference was to begin in Copenhagen in December 2009. In a controversy dubbed "Climategate," some of these emails were cited as proof that climate scientists, including Dr. Mann, falsified or manipulated their data, in collusion with government officials, to produce the hockey stick result. The emails led to public questioning of the validity of the research leading to the hockey stick graph and to calls for evaluation of the soundness of its statistical analysis and the conduct of the scientists involved in the research, including, specifically, Dr. Mann.
Following disclosure of the emails and the questions raised, Penn State, the University of East Anglia, and five governmental agencies — the U.K. House of Commons Science and Technology Committee, the U.K. Secretary of State for Energy and Climate Change, the Inspector General of the U.S. Department of Commerce, the U.S. Environmental Protection Agency, and the U.S. National Science Foundation — issued reports after conducting inquiries into the validity of the methodology and research underlying the hockey stick graph and investigating the allegations impugning the integrity of Dr. Mann's and other climate scientists' conduct. The inquiries that considered the science largely validated the methodology underlying the hockey stick graph. None of the investigations found any evidence of fraud, falsification, manipulation, or misconduct on the part of Dr. Mann.
On July 13, 2012, Mr. Simberg authored an article entitled "The Other Scandal in Unhappy Valley," which was published on OpenMarket.org, an online blog of CEI. Comparing "Climategate" with the then-front-page news of the Penn State sexual
(strike-through in original).
On July 15, 2012, Mr. Steyn authored an article titled "Football and Hockey," which appeared on National Review's online blog "The Corner." In his article, Mr. Steyn quoted from Mr. Simberg's July 13 article:
Mr. Steyn then added:
Dr. Mann's counsel wrote to appellants requesting an apology and retraction of the statements, and threatening litigation if the articles were not removed from their respective websites. The letter stated that the allegations of data manipulation and misconduct were false, and pointed to the investigations that had concluded Dr. Mann had not engaged in wrongdoing or manipulated data in a deceptive manner. No apology was forthcoming, nor were the posted statements withdrawn. Instead, on August 22, 2012, Mr. Lowry wrote an editorial on National Review's website titled "Get Lost" that referred to "Michael Mann of Climategate infamy," characterized his threatened litigation as "a nuisance lawsuit," and included a link to National Review's lawyer's response rejecting Dr. Mann's counsel's request for a retraction. Mr. Lowry explained that "[i]n common polemical usage, `fraudulent' doesn't mean honest-to-goodness criminal fraud. It means intellectually bogus and wrong." The editorial concluded: "[Dr. Mann is] going to go to great trouble and expense to embark on a losing cause that will expose more of his methods and maneuverings to the world. In short, he risks making an ass of himself. But that hasn't stopped him before." The underlying lawsuit followed.
B. Trial Court Proceedings
Dr. Mann filed his initial complaint on October 22, 2012, alleging libel and intentional infliction of emotional distress based on appellants' statements accusing him of improperly manipulating data to reach a preordained conclusion, deception, fraud, and misconduct. Appellants filed special motions to dismiss the complaint pursuant to the D.C. Anti-SLAPP Act and motions to dismiss for failure to state a claim under Superior Court Rule 12 (b)(6). Dr. Mann opposed the motions. On July 19, 2013, Judge Natalia Combs Greene denied the motions. She determined that the subject of appellants' challenged statements brought them within the ambit of the Anti-SLAPP Act, but that Dr. Mann had made the required showing under the Act to defeat the special motions to dismiss. First, the trial court interpreted the "likely to succeed" standard in the Act as substantively similar to the standard for prevailing on a motion for summary judgment or motion for judgment as a matter of law. Second, the trial court concluded that Dr. Mann met this burden by making a prima facie showing that appellants' statements were defamatory and not sheltered by the fair comment privilege, and by providing sufficient evidence for the court to find that "discovery may uncover" that appellants acted with actual malice. Third, the trial court determined that Dr. Mann also
Appellants asked the trial court to vacate the denials of their motions to dismiss and, after the trial court denied this request, appellants moved for certification of the trial court's orders for interlocutory appeal. The trial court denied the motions for certification. Appellants then appealed to this court, which issued an order to show cause as to why the appeals should not be dismissed for lack of jurisdiction as having been taken from non-appealable orders. On December 19, 2013, these appeals were dismissed as moot because Dr. Mann filed an amended complaint on June 28, 2013.
The amended complaint is substantially the same as the original complaint, with the addition of one count of libel based on the comment comparing Dr. Mann to Jerry Sandusky, which, in the original complaint, supported only the intentional infliction of emotional distress claim. Appellants renewed their motions to dismiss, and Dr. Mann opposed them. On January 22, 2014, Judge Frederick Weisberg denied the motions, reasoning that Judge Combs Greene's order denying the original motions to dismiss was the law of the case, and adding an analysis of the new defamation count. Appellants again filed motions seeking vacatur of the denial of their motions to dismiss and certification for interlocutory appeal, which were, again, denied by the trial court.
Appellants filed notices of appeal to this court, and Dr. Mann moved to dismiss the appeals on the ground that they seek review of non-final orders that are not immediately appealable, or, in the alternative, to expedite the appeal. The court ordered appellants to show cause as to why the court has jurisdiction to hear these interlocutory appeals. Appellants filed a response, as did Dr. Mann. The court ultimately reserved the jurisdiction question, expedited the appeal, and ordered the parties to file briefs addressing the court's jurisdiction as well as the merits. The District of Columbia and non-appealing defendant Mr. Steyn filed a brief as amicus curiae in favor of the court's jurisdiction to hear the interlocutory order on appeal.
II. SLAPP Actions and the D.C. Anti-SLAPP Act
A "SLAPP" (strategic lawsuit against public participation) is an action "filed by one side of a political or public policy debate aimed to punish or prevent the expression of opposing points of view." Council of the District of Columbia, Report of Committee on Public Safety and the Judiciary on Bill 18-893, at 1 (Nov. 18, 2010) (hereinafter Report on Bill 18-893). Thus, the goal of a SLAPP "is not to win the lawsuit but to punish the opponent and intimidate them into silence." Id. at 4 (citing George W. Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 PACE ENVTL. L. REV. 3, 3, 9-11 (1989)). Enacted in 2012, the D.C. Anti-SLAPP Act was designed to protect targets of such meritless lawsuits by creating "substantive rights with regard to a defendant's ability to fend off" a SLAPP. Report on Bill 18-893, at 1. The rights created by
Under the District's Anti-SLAPP Act, the party filing a special motion to dismiss must first show entitlement to the protections of the Act by "mak[ing] a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest." D.C. Code § 16-5502 (b). Once that prima facie showing is made, the burden shifts to the nonmoving party, usually the plaintiff,
Denial of a special motion to dismiss filed under the Anti-SLAPP Act does not end the litigation and is not a final order. To the contrary, it signals that the litigation will continue.
The test for application of the collateral order doctrine is "stringent." McNair Builders, 3 A.3d at 1136 (quoting Will v. Hallock, 546 U.S. 345, 349-50, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006)). For an order to qualify for interlocutory review under the doctrine, "(1) it must conclusively determine a disputed question of law, (2) it must resolve an important issue that is separate from the merits of the case, and (3) it must be effectively unreviewable on appeal from a final judgment." Id. at 1135-36 (quoting, and overruling on other grounds, Finkelstein, Thompson & Loughran v. Hemispherx Biopharma, Inc., 774 A.2d 332, 339-40 (D.C. 2001)). "Effective" unreviewability encompasses the notion that the matter at stake concerns an issue of "substantial public interest." Id. at 1137. We conclude that these criteria are met where a special motion to dismiss filed under the Anti-SLAPP Act is denied as they are in the case of denial of a special motion to quash filed under the Act. See Burke I, 91 A.3d at 1038 ("[The] determination that an order is appealable under [these criteria] is `not directed at the individual case, but to the entire category to which a claim belongs.'") (quoting McNair Builders, 3 A.3d at 1140 n.9)).
First, a trial court's order denying a special motion to dismiss under the Anti-SLAPP Act "conclusively determine[s] a disputed question of law," McNair Builders, 3 A.3d at 1135: whether the movant is entitled to dismissal under the Act. In analyzing whether the denial of a special motion to quash under the Act is immediately appealable, the Burke I court concluded that the "conclusivity element" of the collateral order doctrine is "satisfied when a trial court has determined the movant is ineligible for protection under the [Anti-SLAPP] statute." 91 A.3d at 1038 (quoting Godin v. Schencks, 629 F.3d 79, 84 (1st Cir. 2010)).
Second, a trial court's order denying a special motion to dismiss "resolve[s] an important issue that is separate from the merits of the case." McNair Builders, 3 A.3d at 1135. The issue in the case of a special motion to dismiss, once the threshold prima facie case has been met by the movant, is whether the movant has a statutory right to be free of the burdens of defending the litigation. Resolution of both issues — whether the claim arises from acts protected by the Act and whether the movant is entitled to dismissal — will involve some of the same facts relevant to the merits of the claim. That commonality, however, does not necessarily preclude interlocutory review of the denial of an Anti-SLAPP special motion to dismiss.
An analogy to qualified immunity is apt. "[I]t follows from the recognition that qualified immunity is in part an entitlement not to be forced to litigate the consequences of official conduct that a claim of immunity is conceptually distinct from the merits of the plaintiff's claim that his rights have been violated." Mitchell v. Forsyth, 472 U.S. 511, 527-28, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The special motion to dismiss created by the Anti-SLAPP Act "explicitly protects the right not to stand trial" in a SLAPP, which is intended as a "weapon to chill or silence speech." Burke I, 91 A.3d at 1033, 1039; see Report on Bill 18-893, at 4 (referring to "other jurisdictions, which have similarly extended absolute or qualified immunity for individuals engaging in protected actions"). This statutory right is analogous to qualified immunity for official conduct in that its application depends on the court's resolution of whether the acts complained of entitle the defendant not to stand trial "under certain circumstances." Mitchell, 472 U.S. at 525, 105 S.Ct. 2806. In this case we interpret the statutory standard ("likely to succeed on the merits") for determining special motions under the Act and, as discussed infra, conclude that the court must decide, as a matter of law, whether the plaintiff has produced (usually without the benefit of discovery) sufficient evidence to prevail on the claim. In other words, the circumstance under which the Anti-SLAPP Act creates immunity from trial is a meritless SLAPP. As we stated in Burke I, this "resolves a question separate from the merits in that it merely finds that such merits may exist, without evaluating whether the plaintiff's claim will succeed." 91 A.3d at 1039 (quoting Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir. 2003)).
We readily acknowledge that this inquiry is not completely separable from the merits, but it need not be where it serves a different purpose. See Henry v. Lake Charles Am. Press, 566 F.3d 164, 175 (5th Cir. 2009) (noting that purpose of Anti-SLAPP special motions is "distinct from [the purpose] of the underlying suit"). As the Supreme Court has recognized, "although sometimes practically intertwined with the merits, a claim of immunity nonetheless raises a question that is significantly different from the questions underlying plaintiff's claim on the merits (i.e., in the absence of qualified immunity)." Johnson v. United States, 515 U.S. 304, 314, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). As is the case with qualified immunity, the issue
Third, a trial court's denial of a special motion to dismiss is "effectively unreviewable on appeal from a final judgment." McNair Builders, 3 A.3d at 1135 (quoting Finkelstein, Thompson & Loughran, 774 A.2d at 339-40). Denial of immunity from trial is the quintessential unreviewable order because the core of immunity from suit "is its possessor's entitlement not to have to answer for his conduct in a civil damages action." Id. at 1137 (quoting Mitchell, 472 U.S. at 525, 105 S.Ct. 2806). The D.C. Anti-SLAPP Act provides not only immunity from having to stand trial but also protection from "expensive and time consuming discovery that is often used in a SLAPP as a means to prevent or punish" by "toll[ing] discovery while the special motion to dismiss is pending." Report on Bill 18-893, at 4. Consequently, the denial of a special motion to dismiss filed under the Act — a denial of the immunity from suit and pretrial burdens afforded by the statute — is the type of unreviewable order that falls squarely within the collateral order doctrine. Accord Henry, 566 F.3d at 178 (holding that denial of Anti-SLAPP motion to dismiss satisfies the third requirement of the collateral order doctrine because its purpose is to "provide[ ] a right not to stand trial"); see also Behrens, 516 U.S. at 308, 116 S.Ct. 834 (noting that the scope of protection afforded by qualified immunity, which includes the right to not stand trial and to avoid the burdens of pretrial matters, such as discovery, made denial of immunity claim immediately appealable).
D. Substantial Public Interest
Finally, and of particular importance in conducting a Cohen analysis, we
We conclude that denial of Anti-SLAPP special motions to dismiss meet the requirements of conclusivity, separability, and effective unreviewability established in Cohen, as further refined in Will, and is immediately appealable to this court. We come to this conclusion in light of the District of Columbia Anti-SLAPP Act's purpose to create a substantive right not to stand trial and to avoid the burdens and costs of pre-trial procedures, a right that would be lost if a special motion to dismiss is denied and the case proceeds to discovery and trial; our interpretation of the Act as requiring a judicial determination applying established principles of law in deciding a special motion to dismiss; and, most especially, the public interest in safeguarding important First Amendment rights in an expeditious manner as shown by the Council's evident desire to make denials of such motions, which must be filed and decided in the early stage of litigation, immediately appealable. See Henry, 566 F.3d at 176-78 (noting that a ruling on a special motion to dismiss under the Louisiana Anti-SLAPP statute meets every prong of the collateral order doctrine because the statute provides a right not to stand trial and bear the costs of defending a meritless defamation claim
As we have determined that we have jurisdiction, we have two further questions to address: (1) what is meant by the Act's language requiring the plaintiff to "demonstrate[ ] that the claim is likely to succeed on the merits," and (2) whether Dr. Mann has met this standard in the present case.
IV. The Anti-SLAPP Act's "Likely to Succeed on the Merits" Standard for Special Motions to Dismiss
The Anti-SLAPP Act's special motion to dismiss creates a burden-shifting procedure that is triggered by the party seeking to invoke the special protections afforded by the Act. See D.C. Code § 16-5502.
For the reasons that follow, we conclude that in considering a special motion to dismiss, the court evaluates the likely success of the claim by asking whether a jury properly instructed on the applicable legal and constitutional standards could reasonably find that the claim is supported in light of the evidence that has been produced or proffered in connection with the motion. This standard
We review questions of statutory interpretation de novo. Burke I, 91 A.3d at 1040.
But what does it mean that the evidence must demonstrate that the claim is "likely to succeed"? In common parlance, the term "likely" connotes a predictive quality, and its dictionary definition is "probable."
Appellants argue that we should look to a similar phrase, "a likelihood of success on the merits," that is used to evaluate requests for temporary stays and preliminary injunctions. In that context, "a likelihood of success" has been defined to mean a "substantial likelihood" though not a "mathematical probability," Ortberg v. Goldman Sachs Grp., 64 A.3d 158, 162 (D.C. 2013) (quoting In re Estate of Reilly, 933 A.2d 830, 837 (D.C. 2007)), and does not express a fixed measurement,
Lacking a statutory definition, clear dictionary definition, or application as a term of art that reasonably can be borrowed from another legal context, the Anti-SLAPP Act's "likely to succeed on the merits" leaves us with "textual uncertainty." Cass v. District of Columbia, 829 A.2d 480, 486 (D.C. 2003). Our task, therefore, is to interpret the ambiguous term in a manner "that makes sense of the statute as a whole" by reference to legislative history and other aids to construction, such as applicable canons of statutory interpretation. District of Columbia v. Reid, 104 A.3d 859, 868 (D.C. 2014) (quoting Cass, 829 A.2d at 482).
We begin with what the legislature said it was trying to accomplish: to deter SLAPPs by "extend[ing] substantive rights to defendants in a SLAPP, providing them with the ability to file a special motion to dismiss that must be heard expeditiously by the court." Report on Bill 18-893, at 4. The special motion to dismiss is a mechanism by which a SLAPP defendant can "expeditiously and economically dispense of litigation" to alleviate the burdens and cost of defending against a suit that is filed, not to succeed, but to "prevent or punish" the defendant's speech or advocacy. Id. To this end, a special motion to dismiss must be filed and decided in the early stage of litigation. D.C. Code § 16-5502 (a). If the trial court determines that the plaintiff has not met the statutory burden, the special motion to dismiss must be granted "with prejudice." Id. § 16-5502 (b) & (d). In short, the special motion to dismiss provision authorizes final disposition of a claim in a truncated proceeding, usually without the benefit of discovery, id. § 16-5502 (c), to avoid the toll that meritless litigation imposes on a defendant who has made a prima facie showing that the claim arises from advocacy on issues of public interest.
The dispositive nature of a court's grant of a special motion to dismiss after the claimant has been required to proffer evidence, but without a full opportunity to engage in discovery and before trial, is critical to our interpretation of the "likely to succeed" standard. An interpretation that puts the court in the position of making credibility determinations and weighing the evidence to determine whether a case should proceed to trial raises serious constitutional concerns because it encroaches on the role of the jury.
The standards against which the court must assess the legal sufficiency of the evidence are the substantive evidentiary standards that apply to the underlying claim and related defenses and privileges. As we discuss in the next section, in addition to the elements required to make out a claim for defamation under the law of the District of Columbia, there is a well-developed body of case law, originating with the Supreme Court, that establishes different levels of fault and proof that are designed to protect First Amendment rights. One example is the requirement to prove actual malice by clear and convincing evidence when the claimant is a public official or, as in this case, a limited public figure with respect to the issue that is the subject of speech claimed to be defamatory. Cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (holding that in evaluating motion for summary judgment under Rule 56, as in evaluating motion for directed verdict under Rule 50 (a), in a case requiring proof of actual malice by clear and convincing evidence, "the judge must view the evidence presented through the prism of the substantive evidentiary burden"). The precise question the court must ask, therefore, is whether a jury properly instructed on the law, including any applicable heightened fault and proof requirements, could reasonably find for the claimant on the evidence presented.
Our interpretation of the requirements and standard applicable to special motions to dismiss ensures that the Anti-SLAPP Act provision is not redundant relative to the rules of civil procedure. A defendant may still file a motion to dismiss a complaint at the onset of litigation under Rule 12, based solely on deficiencies in the pleadings. See Super. Ct. Civ. R. 12 (a) (requiring that motion for failure to state a claim must be filed within 20 days of service of complaint). The Anti-SLAPP Act gives the defendant the option to up the ante early in the litigation, by filing a special motion to dismiss that will require the plaintiff to put his evidentiary cards on the table and makes the plaintiff liable for the defendant's costs and fees if the motion succeeds. D.C. Code § 16-5502 (a) (requiring that special motion to dismiss be filed within forty-five days of service of the complaint); id. § 16-5504 (a) (providing for costs and fees). Even if the Anti-SLAPP special motion to dismiss is unsuccessful, the defendant preserves the ability to move for summary judgment under Rule 56 later in the litigation, after discovery has been completed, or for a directed verdict under Rule 50 after the presentation of evidence at trial.
V. Judicial Review for Legal Sufficiency
A court's review for legal sufficiency is a particularly weighty endeavor when First Amendment rights are implicated. The court must "examine for [itself] the statements in issue and the circumstances under which they were made to see ... whether they are of a character which the principles of the First Amendment... protect." N.Y. Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (quoting Pennekamp v. Fla., 328 U.S. 331, 335, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946)). The court must consider whether a properly instructed jury could find for the plaintiff "both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited." Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 505, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). This is a question of law, measured against constitutional standards, that does not involve the court in making credibility determinations or weighing the evidence. See Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 685, 690, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989) (considering findings of fact made by jury along with undisputed evidence in concluding evidence was legally sufficient to prove actual malice); see id. at 697-700, 109 S.Ct. 2678 (Scalia, J., concurring) (referring to appellate court's "independent assessment of whether malice was clearly and convincingly proved on the assumption that the jury made all the supportive findings it reasonably could have made"). With these principles in mind, we turn to a de novo review of the record to determine whether the evidence produced by Dr. Mann could support, with the clarity required by First Amendment principles, a jury verdict in his favor.
To succeed on a claim for defamation, a plaintiff must prove "(1) that the defendant made a false and defamatory statement concerning the plaintiff; (2) that the defendant published the statement without privilege to a third party; (3) that the defendant's fault in publishing the statement [met the requisite standard];[
1. False and Defamatory Statements
A statement is defamatory "if it tends to injure [the] plaintiff in his trade, profession or community standing, or lower him in the estimation of the community." Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d 580, 594 (D.C. 2000) (alteration in original) (quoting Howard Univ. v. Best, 484 A.2d 958, 989 (D.C. 1984)). The statement "must be more than unpleasant or offensive; the language must make the plaintiff appear `odious, infamous, or ridiculous.'" Rosen v. Am. Isr. Pub. Affairs Comm., Inc., 41 A.3d 1250, 1256 (D.C. 2012) (quoting Howard Univ., 484 A.2d at 989).
The important societal interest in vigorous debate over matters of public concern protected by the First Amendment has led to the development of constitutional standards for evaluating statements before liability may be imposed under state defamation laws. Because the First Amendment protects speech as an expression of the fundamental right to freedom of thought, constitutionally speaking, "there is no such thing as a false idea." Milkovich v. Lorain Journal Co., 497 U.S. 1, 18, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974)). Expressions of pure opinion, as embodiments of ideas, are generally entitled to constitutional protection. See id. (noting that "opinion" and "ideas" are equated). "However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Gertz, 418 U.S. at 339-40, 94 S.Ct. 2997. Therefore, under the First Amendment a statement is not actionable "if it is plain that a speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts." Guilford Transp. Indus., 760 A.2d at 597 (quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993)).
Although ideas and opinions are constitutionally protected, the First Amendment does not, however, "create a wholesale defamation exemption for anything that might be labeled `opinion.'" Milkovich, 497 U.S. at 18, 110 S.Ct. 2695. "[S]tatements of opinion can be actionable if they imply a provably false fact, or rely upon stated facts that are provably false." Guilford Transp. Indus., 760 A.2d at 597. Whether a defamatory statement of opinion is actionable often depends on the context of the statement in question. See id. "If, for example, an average reader would likely understand that particular words, in the context of an entire article, were not meant to imply factual data but, rather, were intended merely to disagree strongly with the views of the [plaintiff], those words would be protected despite their factual content." Sigal Const. Corp. v. Stanbury, 586 A.2d 1204, 1211 (D.C. 1991). Thus, statements that constitute "imaginative expression" and "rhetorical hyperbole" are not actionable because they "cannot reasonably be interpreted as stating actual facts about an individual." Guilford Transp. Indus., 760 A.2d at 596-97 (quoting Milkovich, 497 U.S. at 20, 110 S.Ct. 2695). Such statements are "used not to implicate underlying acts but `merely in a "loose, figurative sense'" to demonstrate strong disagreement" with another's ideas.
Appellants contend that all the statements on which Dr. Mann bases his defamation claims are protected under the First Amendment because they expressed appellant's opinions about climate change, a matter of widespread public concern that "must be resolved through the process of free and open debate, not through costly litigation." There is no dispute that the statements that Dr. Mann claims defamed him were made in the context of a broad disagreement between the parties about the existence and cause of global warming, a disagreement that reached a high level of intensity and rhetoric. Public discussion about whether there is a warming climate and, if so, its cause, involves scientific questions and policy prescriptions of general public interest. The First Amendment protects those engaged in a debate of such public concern in the expression of their ideas on the subject, even with pointed language, free of the chilling effect of potential civil liability. As a matter of constitutional principle, when the issue is whether liability may be imposed for speech expressing scientific or policy views, the question is not who is right; the First Amendment protects the expression of all ideas, good and bad.
But not all the statements cited in the complaint are necessarily cloaked by the First Amendment simply because the articles in which they appeared related to a matter of public concern. As we have discussed, the law distinguishes between statements expressing ideas and false statements of fact. To the extent statements in appellants' articles take issue with the soundness of Dr. Mann's methodology and conclusions — i.e., with ideas in a scientific or political debate — they are protected by the First Amendment. But defamatory statements that are personal attacks on an individual's honesty and integrity and assert or imply as fact that Dr. Mann engaged in professional misconduct and deceit to manufacture the results he desired, if false, do not enjoy constitutional protection and may be actionable. The Second Circuit's observation in Buckley v. Littell with respect to defamatory statements about a journalist made in the course of political debate is equally apt to defamatory statements about a scientist made in the course of scientific and policy debate:
539 F.2d 882, 896-97 (2d Cir. 1976).
Tarnishing the personal integrity and reputation of a scientist important to one side may be a tactic to gain advantage in a no-holds-barred debate over global warming. That the challenged statements were made as part of such debate provides important context and requires careful parsing in light of constitutional standards. But if the statements assert or imply false facts that defame the individual, they do not find shelter under the First Amendment
We apply these principles to the statements in the articles cited in the complaint, in the order in which they appeared. The articles, as they appeared on CEI and National Review's websites, are appended to this opinion.
Mr. Simberg's July 13, 2012 article on CEI's OpenMarket.org.
Mr. Simberg's article does not specifically criticize Dr. Mann's statistical techniques, except by calling him the "poster boy of the corrupt and disgraced climate science echo chamber."
A jury could find that the article accuses Dr. Mann of engaging in specific acts of academic and scientific misconduct in the manipulation of data, and thus conveys a defamatory meaning, because "to constitute a libel it is enough that the defamatory utterance imputes any misconduct whatever in the conduct of [plaintiff's] calling." Guilford Transp. Indus., 760 A.2d at 600 (alteration in original) (quoting RESTATEMENT (SECOND) OF TORTS § 569, cmt. (e)); see Tavoulareas v. Piro, 817 F.2d 762, 780 (D.C. Cir. 1987) (en banc) (holding that statement that "a father set up his son in business" accuses father of nepotism and is defamatory because it, "might `tend[ ] to injure [him] in his trade, profession or community standing, or lower him in the estimation of the community'" (quoting Afro-Am. Publ'g Co. v. Jaffe, 366 F.2d 649, 654 (D.C. Cir. 1966))). Moreover, a jury could find that by calling Dr. Mann "the [Jerry] Sandusky of climate science," the article implied that Dr. Mann's manipulation of data was seriously deviant for a scientist. These noxious comparisons,
Appellants contend that Mr. Simberg's article is more reasonably understood as a criticism of the hockey stick graph and the research that underlies it. This seems to be a forced interpretation — and one that a jury could easily reject — because the article does not comment on the specifics of Dr. Mann's methodology at all. Nor does the article purport to reveal previously unknown facts about Dr. Mann's methodology, which was apparent from his published work and numerous articles commenting on the hockey stick graph and its findings. In a different context, the article's use of the phrase "corrupt and disgraced climate science," could, as appellants argue, be interpreted as criticism of flawed scientific methodology. But when the phrase is used in conjunction with assertions that Dr. Mann engaged in "deception[ ]," "misconduct," and "data manipulation," and the article concludes that he should be further investigated, the cumulative import is that there are sinister, hidden misdeeds he has committed. These are pointed accusations of personal wrongdoing by Dr. Mann, not simply critiques of methodology of his well-known published scientific research. Cf. Milkovich, 497 U.S. at 21, 110 S.Ct. 2695 ("This is not the sort of loose, figurative or hyperbolic language which would negate the impression that the writer was seriously maintaining that the petitioner committed the crime of perjury."). We conclude that Mr. Simberg's article is capable of conveying a defamatory meaning.
Appellants do not argue that Mr. Simberg's article, if capable of conveying a defamatory meaning, is not actionable because the statements that Dr. Mann engaged in deception and misconduct are true. Their argument is that the statements are not verifiably false because they are simply Mr. Simberg's opinion. See Oparaugo, 884 A.2d at 76 (noting that defamation requires that statement be both defamatory and false). To be clear, the Supreme Court has rejected "an additional separate constitutional protection for `opinion'" as such, deeming that the dual constitutional requirements of falsity and fault, as well as a searching appellate judicial review, suffice "to ensure the freedom of expression guaranteed by the First Amendment." Milkovich, 497 U.S. at 20-21, 110 S.Ct. 2695. The reason a pure statement of opinion is not actionable is that, not being factual, it cannot be proved to be false. See id. at 20, 110 S.Ct. 2695. It is also clear, however, that "the First Amendment gives no protection to an assertion `sufficiently factual to be susceptible of being proved true or false' even if the assertion is expressed by implication in `a statement of opinion.'" Jankovic v. Int'l Crisis Grp. (Jankovic II), 593 F.3d 22, 27 (D.C. Cir. 2010) (quoting Milkovich, 497 U.S. at 20, 21, 110 S.Ct. 2695). We, therefore, turn to a close reading of Mr. Simberg's article to determine whether it asserts or implies a defamatory provable fact. See Moldea v. N.Y. Times Co. (Moldea I), 15 F.3d 1137, 1144 (D.C. Cir. 1994) (noting this is "a question of law for the court to determine as a threshold matter").
Mr. Simberg's article contains two principal defamatory assertions about Dr. Mann. The first is that Dr. Mann has been "shown" to have behaved in a "deceptive"
We note that in the article Mr. Simberg does not employ language normally used to convey an opinion, such as "in my view," or "in my opinion," or "I think."
Appellants attempt to find shelter in post-Milkovich appellate decisions recognizing that "a statement of opinion that is based upon true facts that are revealed to readers ... [is] generally ... not actionable so long as the opinion does not otherwise imply unstated defamatory facts." Moldea I, 15 F.3d at 1144. The theory is that when a writer discloses the facts upon which a statement is based, the reader will understand that the statement reflects the writer's view, based on an interpretation of the facts disclosed, such that the reader remains "free to draw his or her own conclusion based upon those facts." Id. at 1145. This argument is unavailing here. First, as we have discussed, a jury could reasonably interpret Mr. Simberg's article as asserting as fact that the CRU emails "show[ ]" that Dr. Mann engaged in deceptive data manipulation and academic and scientific misconduct. In this regard, this case is markedly different from Rosen, where we noted that because no specific
Second, to claim this form of protection from liability, the facts on which the purported opinion is based must be accurate and complete. See Milkovich, 497 U.S. at 18-19, 110 S.Ct. 2695 ("[E]ven if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect, or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact.").
In this, Mr. Simberg's article was inaccurate. As the NSF Report clearly lays out, in addition to "fully review[ing] all the reports and documentation the University provided," NSF reviewed "a substantial amount of publicly available documentation concerning both [Dr. Mann's] research
Even allowing for the use of hyperbole in the public discussion about global warming, we conclude that the statements in Mr. Simberg's article that Dr. Mann acted dishonestly, engaged in misconduct, and compared him to notorious persons, are capable of conveying a defamatory meaning with the requisite constitutional certainty and included statements of fact that can be proven to be true or false.
Mr. Steyn's July 15, 2012 article on National Review's "The Corner"
National Review argues that Mr. Steyn's statement that "Michael Mann was the man behind the fraudulent climate-change `hockey stick' graph" could be, and therefore should be, interpreted as expressing vigorous disagreement with the idea represented by the hockey stick graph and as criticism of the methodology that Dr. Mann used in gathering the data that led to the graph. As such, National Review contends that the statement is not actionable because it does not possess the clarity of defamatory meaning required by the Constitution. See Greenbelt Coop. Publ'g Ass'n v. Bresler, 398 U.S. 6, 13-14, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970) (noting that the word "blackmail," when used to describe a real estate developer's negotiating position, was not defamatory as "even the most careless reader must have perceived that the word was no more than rhetorical hyperbole" to express that the developer was being unreasonable where the description of the negotiations was "accurate and full"). At oral argument, counsel for National Review explained that "fraudulent" was intended to mean (or could reasonably be interpreted as meaning) that Dr. Mann's research is not reliable because he "cherry-picked" the data on which he relied and compared "apples to oranges" in producing the hockey stick graph, by first relying on temperature data derived from proxy sources (such as tree rings) and, after a certain date, using actual measured temperatures. We agree that if the use of "fraudulent" in this one sentence were the only arguably defamatory statement in Mr. Steyn's article, we would have to conclude that it is insufficient as a matter of law, as such an ambiguous statement may not be presumed to necessarily convey a defamatory meaning. In such a case, the First Amendment tips the judicial balance in favor of speech. See Bose, 466 U.S. at 505, 104 S.Ct. 1949.
Appellants would have us conclude that the comparisons of Dr. Mann to notorious individuals are merely exaggerated — if crass — depictions of a policy opponent. There is an important distinction, however, between generic labels with derogatory connotations and comparisons to specific individuals from which defamatory factual allegations can be inferred. Thus, in Buckley, the Second Circuit dismissed defamation claims that were based on statements in a book that described William F. Buckley, Jr.,
The statements in Mr. Steyn's article are similarly factual and specific in their attack on Dr. Mann's scientific integrity. As with Mr. Simberg's article, Mr. Steyn's is not about the merits of the science of global warming, but about Dr. Mann's "deceptions" and "wrongdoing." Like Mr. Simberg, Mr. Steyn compares Dr. Mann's alleged wrongdoing — "molesting" and "torturing" data to achieve a deceptive but desired result that will court funding for Penn State — to that of Sandusky, which suggests that their characters are similarly base. ("Whether or not he's `the Jerry Sandusky of climate change,' he remains the Michael Mann of climate change.") The accusation is bolstered by referring to the University's investigation as a "cover-up" of Dr. Mann's "wrongdoing" in order to
Mr Lowry's August 22, 2012 editorial for National Review
We come to a different conclusion with respect to the third in the series of articles that Dr. Mann claims defamed him, Mr. Lowry's editorial for National Review. In the editorial, Mr. Lowry is responding to Dr. Mann's threatened lawsuit after National Review rejected the request for an apology and retraction. The editorial refers and links to Mr. Steyn's article, characterizing it as "mild" and "f[a]ll[ing] considerably short of" Mr. Simberg's article; Mr. Lowry does not repeat Mr. Steyn's statements except to say that Mr. Steyn referred to the hockey stick graph as "fraudulent." The editorial does not disavow Mr. Steyn's use of the word "fraudulent" but puts a gloss on it, explaining that "[i]n common polemical usage, `fraudulent' doesn't mean honest-to-goodness criminal fraud. It means intellectually bogus and wrong." In sum, Mr. Lowry's editorial does not repeat or endorse the factual assertions that Dr. Mann engaged in deception and misconduct that we have found to be actionable in Mr. Simberg's and Mr. Steyn's articles.
Mr. Lowry's editorial ridicules Dr. Mann, repeatedly calling him "poor Michael," describing his letter as "laughably threatening" and "pathetically lame chest-thumping," and saying that if he proceeds with a lawsuit Dr. Mann "risks making an ass of himself." The editorial mocks the threatened lawsuit and even welcomes it, as a way of "teach[ing] [Dr. Mann] a thing or two about how the law and how free debate works in a free country." These statements, however belittling of Dr. Mann, are not statements of fact, but of Mr. Lowry's opinion of Dr. Mann and his threatened lawsuit. Even though the ultimate success or failure of Dr. Mann's lawsuit will eventually be a provable fact, it was not so at the time the editorial was written — it still is not so — and Mr. Lowry's opinions on the matter are protected
We emphasize that in conducting a review of the legal sufficiency of the evidence "it is the role of the court to determine whether the challenged statement[s] [are] `capable of bearing a particular meaning' and whether `that meaning is defamatory.'" Tavoulareas, 817 F.2d at 779 (quoting RESTATEMENT (SECOND) OF TORTS § 614 (1)). "The jury's proper function, in turn, is to determine whether a statement, held by the court to be capable of a defamatory meaning, was in fact attributed such a meaning by its readers." Id. at 780. As we conclude that Dr. Mann has demonstrated that Mr. Simberg's and Mr. Steyn's articles are capable of conveying a defamatory meaning and contain statements of fact that can be proven to be true or false, we continue to evaluate the legal sufficiency of the evidence with respect to the other elements of defamation.
"[A] cause of action for defamation requires proof of publication of the defamatory statement to a third party." Oparaugo, 884 A.2d at 73. Dr. Mann presented documentation showing that Mr. Simberg's article appeared on the website of CEI and Mr. Steyn's on the website of National Review. Notably, CEI and Mr. Simberg do not dispute that Mr. Simberg's blog post on CEI's website constituted publication.
National Review takes a different position. It argues that it cannot be held liable for any of the statements made by Mr. Simberg or Mr. Steyn that appeared on its website. According to National Review, it is shielded from liability by the Communications Decency Act of 1996 ("CDA"), because its website is a "provider... of an interactive computer service"
On the record before us, Dr. Mann met his burden of demonstrating that a jury could find that Mr. Simberg's and Mr. Steyn's articles were published to a third party.
3. Actual Malice
An essential safeguard of First Amendment rights is the "breathing space" for uninhibited expression, NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), afforded by the heightened showing of fault — actual malice — that must be proved in defamation cases that rely on statements made about public figures concerning matters of public concern,
A plaintiff may prove actual malice by showing that the defendant either (1) had "subjective knowledge of the statement's falsity," or (2) acted with "reckless disregard for whether or not the statement was false." Burke I, 91 A.3d at 1044. The "subjective" measure of the actual malice test requires the plaintiff to prove that the defendant actually knew that the statement was false. See N.Y. Times Co., 376 U.S. at 280, 84 S.Ct. 710. The "reckless disregard" measure requires a showing higher than mere negligence; the plaintiff must prove that "the defendant in fact entertained serious doubts as to the truth of [the] publication." St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968) ("[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing."). The plaintiff may show that the defendant had such serious doubts about the truth of the statement inferentially, by proof that the defendant had a "high degree of awareness of [the statement's] probable falsity." Harte-Hanks Commc'ns, Inc., 491 U.S. at 688, 109 S.Ct. 2678 (quoting Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964)). A showing of reckless disregard is not automatically defeated by the defendant's testimony that he believed the statements were true when published; the fact-finder must consider assertions of good faith in view of all the circumstances. St. Amant, 390 U.S. at 732, 88 S.Ct. 1323 ("[R]ecklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports."). Thus, in considering the evidentiary sufficiency of the plaintiff's response to a special motion to dismiss filed under D.C. Code § 16-5502 (b), the question for the court is whether the evidence suffices to permit a reasonable jury to find actual malice with convincing clarity.
There is a hefty volume of evidence in the record. Appellants' special motions to dismiss were accompanied by various investigatory reports cited in Dr. Mann's complaint and several articles by third parties that criticize the investigations underlying the reports. In his response, Dr. Mann also submitted extensive documentation from eight separate inquiries that either found no evidence supporting allegations that he engaged in fraud or misconduct or concluded that the methodology used to generate the data that resulted in the hockey stick graph is valid
Not all the evidence before the court was relevant to the question of whether appellants acted with the requisite malice in accusing Dr. Mann of engaging in deceptive behavior and misconduct. We set aside the reports and articles that deal with the validity of the hockey stick graph representation of global warming and its underlying scientific methodology. The University of East Anglia, the U.S. Environmental Protection Agency, and the U.S. Department of Commerce issued reports that concluded that the CRU emails did not compromise the validity of the science underlying the hockey stick graph. As we have explained, the expression of scientific and policy opinions in the debate over global warming that the hockey stick illustrates is speech protected by the First Amendment. Much as Dr. Mann's pride in his work may be wounded by criticisms of the hockey stick graph, appellants are entitled to their opinions on the subject and to express them without risk of incurring liability for defamation. The proper place for the discussion is the scientific community and the public sphere of policy prescriptions.
The reports that are relevant to the defamation claims are those that concern appellants' statements that Dr. Mann engaged in "dishonesty," "fraud," and "misconduct." The University of East Anglia Independent Climate Change Emails Review, Penn State University, the United Kingdom House of Commons, and the Office of the Inspector General of the U.S. National Science Foundation, all conducted investigations and issued reports that concluded that the scientists' correspondence in the 1,075 CRU emails that were reviewed did not reveal research or scientific misconduct. Appellants do not counter any of these reports with other investigations into the CRU emails that reach a contrary conclusion about Dr. Mann's integrity.
The issue for the court at this juncture is to determine whether the conclusions reached by these various investigations, when considered in view of all the evidence before the court, permit a jury to find, by clear and convincing evidence, that appellants either knew their accusations of misconduct were false or made those accusations with reckless disregard for their truth.
We begin our examination by noting that the results of the investigations that Dr. Mann says exonerate him of wrongdoing were made public; appellants do not claim they were unaware of them when they made the challenged statements. In assessing whether these reports provided appellants with "obvious reasons to doubt the veracity," St. Amant, 390 U.S. at 732, 88 S.Ct. 1323, of their subsequent statements that Dr. Mann engaged in misconduct, we consider (as would a jury) the source of the reports, the thoroughness of the investigations, and the conclusions reached. As the reports are extensive, we summarize the relevant portions in this opinion.
We are struck by the number, extent, and specificity of the investigations, and by the composition of the investigatory bodies. We believe that a jury would conclude that they may not be dismissed out of hand. Although we do not comment on the weight to be given to the various investigations and reports, which is a question for the jury, what is evident from our review is that they were conducted by credentialed academics and professionals.
The Penn State investigation report looked into "research misconduct" such as "manipulating data, destroying records and colluding to hamper the progress of scientific discourse"
1. Appellants' Honest Belief
Appellants contend that because the challenged statements reflect their subjective and honest belief in the truth of their statements, actual malice cannot be proven. This argument, however, presupposes what the jury will find on the facts of this case. The issue for the court is whether, taking into account the substantive conclusions of investigatory bodies constituted to look into the very evidence — the CRU emails — that appellants' statements claimed as factual proof of Dr. Mann's deception and misconduct, a jury could find, by clear and convincing evidence, that appellants acted with "actual malice." This is a determination the jury could reach by finding either that appellants knew their defamatory statements were false, or that appellants acted with reckless disregard for the truth of their statements. It is for the jury to determine the credibility of appellants' protestations of honest belief in the truth of their statements, and to decide whether such a belief, assuming it was held, was maintained in reckless disregard of its probable falsity.
2. Unreliability of Reports
As Mr. Simberg and Mr. Steyn make clear in their articles, they dismiss the Penn State investigation as biased, conducted by insiders with a vested interest in upholding Dr. Mann's reputation as a leading climate scientist. The articles describe the Penn State investigation as a "coverup" and a "whitewash," and argue they have a good basis for believing so in light of Penn State's shoddy investigation of Jerry Sandusky, in which he was cleared in the face of multiple allegations of sexually abusing children for which he was subsequently charged and convicted. Even if appellants' skepticism of the Penn State report were to be credited by a jury as a valid reason for not taking its conclusions seriously, that leaves three other reports, from separate investigatory bodies in academia and government, on both sides of
Appellants argue that the investigatory reports could not be relied upon by a jury because the investigations Dr. Mann claims exonerate him of misconduct "take no ultimate position," but only indicate that there was "no evidence" of fraud. This is a quibble about wording that does not call into question the import of the investigations' conclusions. An investigatory body can report only on what it has found; a determination that there is "no evidence" of fraud is an ultimate conclusion that investigation has not turned up any evidence of misconduct.
Appellants also contend that the investigatory reports cannot be relied upon to find that they purposely avoided the truth because the investigations do not, in fact, "exonerate" Dr. Mann. They point to the report of the University of East Anglia, which states that the hockey stick graph that was submitted for inclusion in the 1999 WMO Report and IPCC Third Assessment Report was "misleading." The UEA report does use the word "misleading." As that report makes clear, however, what it meant is not that the statistical procedures used to generate the hockey stick graph — which involved reconstructions of temperature through the use of proxies (such as tree rings) or splicing data from different sources — are themselves misleading, but that an explanation of those procedures should have been included in the graph itself or in immediately accompanying text. It is not an indictment of the deceptive use of data, but a comment on how the graph could and should have been presented to be more transparent to the readers of the WMO and IPCC Reports. With respect to the allegations of misconduct it investigated, the report of the University of East Anglia is unequivocal in its conclusion:
Appellants argue that the investigations of the University of East Anglia and the
3. Subjectivity of Reports
Appellants contend that the investigations' conclusions need not have alerted them to the probable falsity of their beliefs because the reports reflected no more than subjective and standardless opinions on the manner in which Dr. Mann and the other scientists conducted their work. A jury could well think otherwise. Each of the reports cites to specific standards for assessing the allegations of misconduct. The Penn State investigation refers to the University's Research Administration Policy No. 10; the National Science Foundation Office of Inspector General conducted a de novo review of the CRU emails and relevant documents against NSF Research Misconduct Regulation, 45 C.F.R. § 689.1 (plagiarism, fabrication, falsification), and other requirements applicable to federal awardees under federal statutes, such as the False Claims Act, 18 U.S.C. § 287, and False Statements Act, 18 U.S.C. § 1001; and the U.K. House of Commons investigation specifically inquired into charges of "dishonesty" and falsification of data for the purpose of exaggerating global warming arising out of the scientists' use of the phrases "trick" and "hide the decline" in the most-quoted CRU email referring to Dr. Mann's statistical technique; the University of East Anglia's investigation set out its analytic parameters for assessing the "honesty, rigour and openness" of the CRU scientists' handling of data as follows:
The fact that the standards applied to charges of scientific and research misconduct are primarily professional or ethical, not criminal, and that their application requires the exercise of judgment does not mean that they lack substantive content, real-life consequences, or make them incapable of verification.
As the preceding discussion demonstrates, appellants' objections to the reports can fairly be characterized as arguments that could be made to a jury as to why the reports' conclusions should not be credited or given much weight. We do not judge whether appellants' arguments will persuade a jury. Our task now is not to anticipate whether the jury will decide in favor of appellants or Dr. Mann, but to assess whether, on the evidence of record in connection with the special motion to dismiss, a jury could find for Dr. Mann.
We reviewed a comparable constellation of facts in Nader v. de Toledano, the first case considered by this court following the Supreme Court's adoption of the actual malice standard for defamation actions by public figures. 408 A.2d 31 (D.C. 1979). The case involved Ralph Nader, the well-known consumer advocate, who sued a journalist who wrote a newspaper column criticizing Nader, saying that it had been "demonstrate[d] conclusively that Nader falsified and distorted evidence" during hearings before a Senate subcommittee. Id. at 37-38. In support of this assertion, the column referred to a Senate Report, issued after an extensive investigation, that rejected the thrust of Nader's testimony as unsubstantiated. Id. at 37. The Report also stated, however, that the testimony had been presented "in good faith based on the information available" to Nader at the time. Id. On appeal of the trial court's grant of summary judgment to the journalist, the court reversed and remanded the case for trial. The court dismissed the argument that a finding of malice would be impermissible because the journalist asserted that he "honestly believed in the truth of his statement when he published it," concluding that the Report's "explicit, unambiguous finding" that Nader had acted in good faith afforded "a sufficient evidentiary basis from which a reasonable inference" could be drawn that the statement that Nader "falsified and distorted evidence" had been made with actual malice. Id. at 53.
We come to the same conclusion as in Nader. In the case before us now, not one but four separate investigations were undertaken by different bodies following accusations, based on the CRU emails, that Dr. Mann had engaged in deceptive practices and scientific and academic misconduct. Each investigation unanimously concluded that there was no misconduct. Reports of those investigations were published and were known to appellants prior to Mr. Simberg's and Mr. Steyn's articles continuing to accuse Dr. Mann of misconduct based on the emails that were the subject of the investigations. Applying the reasoning in Nader to the evidence now of record in this case, we conclude that a jury could find that appellants' defamatory statements were made with actual malice.
There is, in this case, another factor that a jury could take into account in evaluating appellants' state of mind in publishing the statements accusing Dr. Mann of misconduct and deception. As the articles that form the basis of Dr. Mann's complaint make clear, appellants and Mr. Steyn are
Just as this court's decision in Nader provides a useful comparison with the facts of this case, the D.C. Circuit's recent opinion in Jankovic v. Int'l Crisis Grp. (Jankovic III), 822 F.3d 576 (D.C. Cir. 2016), provides a useful contrast. After deciding in two previous appeals, during the twelve-year course of litigation, that a report stating that a Serbian businessman had supported the Milosevic regime in exchange for favorable treatment for his businesses was capable of conveying a defamatory meaning, see supra at 60, and that the statement was actionable because it was not purely an opinion but asserted a false fact as justification, see supra note 39, the court addressed the element of actual malice. The court evaluated the evidence to determine whether it would allow a jury to find, by clear and convincing evidence, that the International Crisis Group's (ICG) publication of the statement was made with actual malice. Concluding that the evidence was insufficient as a matter of law, the court noted the following facts: ICG considered that the writer of the report was an able analyst and expert on the Balkans; the writer had conducted research of published reports and Serbian press accounts, and had interviewed a number of confidential sources in government, business, and NATO embassies, before writing the report; and the report was reviewed and edited by the writer's supervisor, the head of research, and ultimately approved by ICG's president. Id. at 591-92.
The court stressed that because the plaintiff had not produced evidence that the writer had reason to doubt his research and sources, his failure to investigate further or question his sources did not show actual malice or a reckless disregard for the truth. "[I]t is only when a plaintiff offers evidence that `a defendant has reason to doubt the veracity of its source' does its `utter failure to examine evidence within easy reach or to make obvious contacts in an effort to confirm a story' demonstrate reckless disregard." Id. at 590 (quoting McFarlane v. Sheridan
What was present in Jankovic III that lent support to the claim of good faith belief is missing here. Unlike in Jankovic III, where the court noted that ICG had relied on an able analyst who had researched, reviewed and edited the report prior to publication, in this case there is, at this point, no similar evidence that Mr. Simberg, Mr. Steyn, CEI, or National Review conducted research or investigation that provided support for their defamatory statements that Dr. Mann engaged in deception and misconduct. The only support cited in the articles are the CRU emails, with primary reliance on the language in one email that referred to "Mike's Nature trick." But what the court noted was missing in Jankovic III to support a finding of actual malice is present here: evidence that there was reason to doubt the emails as a reliable source for the belief that Dr. Mann had engaged in misconduct. That evidence has been presented in the form of reports from four separate investigations that debunked the notion that the emails and, specifically the reference to Dr. Mann's "trick," revealed deception in the presentation of data and scientific misconduct.
On the current record, where the notion that the emails support that Dr. Mann has engaged in misconduct has been so definitively discredited, a reasonable jury could, if it so chooses, doubt the veracity of appellants' claimed honest belief in that very notion. A jury could find, by clear and convincing evidence, that appellants "in fact entertained serious doubts" or had a "high degree of awareness" that the accusations that Dr. Mann engaged in scientific misconduct, fraud, and deception, were false, and, as a result, acted "with reckless disregard" for the statements' truth when they were published. Nader, 408 A.2d at 41, 50-53.
B. Intentional Infliction of Emotional Distress
The complaint's claim for intentional infliction of emotional distress was based on the statement that compared Dr. Mann to Jerry Sandusky.
Our conclusion that the evidence presented suffices to permit a jury to find the constitutional requirement of actual malice also satisfies the mens rea element of the tort of intentional infliction of emotional distress. Arguably, appellants' statement comparing Dr. Mann to a convicted child sexual abuser could be considered to be not simply a serious departure from journalistic standards, but also "outrageous" and "extreme in degree," particularly where there was no legitimate need or urgency that might excuse it. Cf. Minch v. District of Columbia, 952 A.2d 929, 941 (D.C. 2008) (noting the pressure on police officers who publicly and prematurely identified a student as suspect in one murder as they confronted murder of a second student at undergraduate campus). We need not decide whether the statement permits a finding that appellants' conduct was "extreme and outrageous," because we conclude that Dr. Mann has not demonstrated that he is likely to succeed in proving that he suffered the severe emotional distress required to prevail on a claim for intentional infliction of emotional distress.
The complaint alleges that as a result of the defamatory statements "besmirching Dr. Mann's reputation and comparing him to a convicted child molester," Dr. Mann has suffered "extreme emotional distress," "mental anguish," and "personal humiliation." From the statement itself, a jury could infer that the comparison to Sandusky was particularly hurtful. Dr. Mann's requests for an apology and retraction, and his undertaking this litigation, would allow a jury to infer that he was so deeply aggrieved that he deemed it necessary to restore his public reputation. Dr. Mann has presented no evidence, however, that his understandable consternation met the high bar of "severe emotional distress," which requires a showing beyond mere "mental anguish and stress" and must be "of so acute a nature that harmful physical consequences are likely to result." Armstrong v. Thompson, 80 A.3d 177, 189-90 (D.C. 2013) (quoting Futrell, 816 A.2d at 808); see also Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 817 (D.C. 2011) (en banc) (noting that claim of negligent infliction of emotional distress requires showing of emotional distress that is "acute, enduring or life-altering"). We, therefore, conclude that, on the record before us, the evidence is insufficient to support a finding that Dr. Mann suffered "severe" emotional distress. See id. at 182, 189 (noting that plaintiff's "strong distress" resulting from false statements to prospective employer that plaintiff was under investigation "for suspected violations of both a criminal and administrative nature" that led to rescission of employment offer was insufficient to show "severe emotional distress"). As Dr. Mann has not produced or proffered evidence that he is likely to succeed in proving that he suffered severe emotional distress, appellants' special motions to dismiss the claim of intentional infliction of emotional distress should have been granted.
* * *
Concluding that we have jurisdiction pursuant to the collateral order doctrine to hear appellants' interlocutory appeal of the trial court's denial of their special motions to dismiss under the District's Anti-SLAPP Act, we hold that the Act's "likely to succeed on the merits" standard for overcoming a special motion to dismiss
The Other Scandal In Unhappy Valley
So it turns out that Penn State has covered up wrongdoing by one of its employees to avoid bad publicity.
But I'm not talking about the
To review, when the emails and computer models were leaked from the Climate Research Unit at the University of East Anglia two and a half years ago, many of the luminaries of the "climate science" community were
As a result, in November of 2009, the university issued a
Despite the fact that it was completely internal to Penn State, and they
Richard Lindzen of MIT
But their criticism was ignored, particularly after the release of the NAS report, which
Again, my emphasis. In other words, the NAS investigation relied on the integrity of the university to provide them with all relevant material, and was thus not truly independent. We now know in hindsight that it could not do so. Beyond that, there are still relevant emails that we haven't seen, two years later, because the University of Virginia continues to stonewall on a FOIA request, and it's
Michael Mann, like Joe Paterno, was a rock star in the context of Penn State University, bringing in millions in research funding. The same university president who resigned in the wake of the Sandusky scandal was also the president when Mann
investigated. We saw what the university administration was willing to do to cover up heinous crimes, and even let them continue, rather than expose them. Should we suppose, in light of what we now know, they would do any less to hide academic and scientific misconduct, with so much at stake?
It's time for a fresh, truly independent investigation.
Football and Hockey
By Mark Steyn — July 15, 2012
In the wake of Louis Freeh's report on
Not sure I'd have extended that metaphor all the way into the locker-room showers with quite the zeal Mr Simberg does, but he has a point. Michael Mann was the man behind the fraudulent climate-change "hockey-stick" graph, the very ringmaster of the tree-ring circus. And, when the East Anglia emails came out, Penn State felt obliged to "investigate" Professor Mann. Graham Spanier, the Penn State president forced to resign over Sandusky, was the same cove who investigated Mann. And, as with Sandusky and Paterno, the college declined to find one of its star names guilty of any wrongdoing.
If an institution is prepared to cover up systemic statutory rape of minors, what won't it cover up? Whether or not he's "the Jerry Sandusky of climate change", he remains the Michael Mann of climate change, in part because his "investigation" by a deeply corrupt administration was a joke.
My response to Michael Mann.
By Rich Lowry — August 22, 2012
So, as you might have heard, Michael Mann of Climategate infamy is threatening to sue us.
Mann is upset — very, very upset — with
So why threaten to sue us? I rather suspect it is because the Steyn post was savagely witty and stung poor Michael.
Possessing not an ounce of Steyn's wit or eloquence, poor Michael didn't try to engage him in a debate. He sent
All of this is transparent nonsense, as
Usually, you don't welcome a nuisance lawsuit, because it's a nuisance. It consumes time. It costs money. But this is a different matter in light of one word: discovery.
If Mann sues us, the materials we will need to mount a full defense will be extremely wide-ranging. So if he files a complaint, we will be doing more than fighting a nuisance lawsuit; we will be embarking on a journalistic project of great interest to us and our readers.
And this is where you come in. If Mann goes through with it, we're probably going to call on you to help fund our legal fight and our investigation of Mann through discovery. If it gets that far, we may eventually even want to hire a dedicated reporter to comb through the materials and regularly post stories on Mann.
My advice to poor Michael is to go away and bother someone else. If he doesn't have the good sense to do that, we look forward to teaching him a thing or two about the law and about how free debate works in a free country.
He's going to go to great trouble and expense to embark on a losing cause that will expose more of his methods and maneuverings to the world. In short, he risks making an ass of himself. But that hasn't stopped him before.
— Rich Lowry is the editor of NATIONAL REVIEW.
Other states have adopted similar approaches. California's Anti-SLAPP statute, which requires a showing "that there is a probability that the plaintiff will prevail on the claim," CAL. CIV. PROC. CODE § 425.16 (b)(1) (West 2015), has been interpreted as requiring the plaintiff to "state and substantiate a legally sufficient claim," by "demonstrat[ing]" that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." Rusheen v. Cohen, 37 Cal.4th 1048, 39 Cal.Rptr.3d 516, 128 P.3d 713, 718 (2006) (alterations in original omitted) (quoting Wilson v. Parker, Covert & Chidester, 28 Cal.4th 811, 123 Cal.Rptr.2d 19, 50 P.3d 733, 739 (2002)). See also Yount v. Handshoe, 171 So.3d 381, 387 n.4 (La. Ct. App. 2015) (commenting that Louisiana and California's Anti-SLAPP statutes match "word for word"); John v. Douglas Cty. Sch. Dist., 125 Nev. 746, 219 P.3d 1276, 1281 (2009)) (stating that under Nevada's statute requiring "clear and convincing evidence [of] a probability of prevailing on the claim," plaintiff must show genuine issue of material fact); OR. REV. STAT. § 31.150 (2010) (providing that if defendant makes prima facie showing speech is protected by statute, "the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case").
Abbas also stated that the special motion to dismiss created by D.C. Code § 16-5502 does not apply in federal court because it answers the same question as the Federal Rules of Civil Procedure — when a court must dismiss a case before trial — in a different way. Id. at 1336. Implicit in Abbas is that the special motion to dismiss is only procedural in nature rendering it inapplicable in federal court sitting in diversity. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78-79, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Burke v. Air Serv Int'l, Inc., 685 F.3d 1102, 1104 (D.C. Cir. 2012) (applying Erie doctrine to District of Columbia). Other federal appellate courts have come to a different conclusion and applied similar state Anti-SLAPP procedures. See, e.g., Liberty Synergistics, Inc. v. Microflo Ltd., 718 F.3d 138, 143-44 (2d Cir. 2013) (applying California Anti-SLAPP statute's "probability" standard); Price v. Stossel, 620 F.3d 992, 1000 (9th Cir. 2010) (same); Godin, 629 F.3d at 89 (applying Maine Anti-SLAPP statute's special motion to dismiss because it is "so intertwined with a state right or remedy that it functions to define the scope of the state-created right") (quoting Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., 559 U.S. 393, 423, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010) (Stevens, J., concurring)); Henry, 566 F.3d at 168-69 (applying Louisiana Anti-SLAPP statute's "nominally-procedural" special motion to dismiss "probability" standard). But cf. Royalty Network, Inc. v. Harris, 756 F.3d 1351, 1361-62 (11th Cir. 2014) (declining to apply Georgia Anti-SLAPP statute's verification requirement because it was procedural and conflicted with Federal Rules of Civil Procedure, which do not require verification).
The applicability of the Anti-SLAPP statute in federal court is not for this court to determine. Abbas recognized that at the time, this court "has never interpreted the D.C. Anti-SLAPP Act's likelihood of success standard to simply mirror the standards imposed by" Federal Rule 56. 783 F.3d at 1335. We do so now. This court's interpretation of the standard applicable to the special motion to dismiss under District of Columbia law will no doubt factor into future analysis of the dicta in Abbas concerning the applicability of the Anti-SLAPP Act in litigation brought in federal courts. See Abbas, 783 F.3d at 1339-1341 (dismissing complaint with prejudice under Rule 12 (b)(6) for failure to state a claim).
From the Penn State report: "[R]esearch misconduct does not include disputes regarding honest error or honest differences in interpretations or judgments of data, and is not intended to resolve bona fide scientific disagreement or debate." "We are aware that some may seek to use the debate over Dr. Mann's research conduct and that of his colleagues as a proxy for the larger and more substantive debate over the science of anthropogenic global warming and its societal (political and economic) ramifications. We have kept the two debates separate by only considering Dr. Mann's conduct."
From the report of the U.K. House of Commons, Science and Technology Committee: "The complaints and accusations made against CRU in relation to the scientific process come under two broad headings. The first is transparency.... The second is honesty: that CRU has deliberately misrepresented the data, in order to produce results that fit its preconceived views about the anthropogenic warming of the climate." "If there had been more time available before the end of this Parliament we would have preferred to carry out a wider inquiry into the science of global warming itself."
From the report of the National Science Foundation, Office of Inspector General: "Although [Dr. Mann's] data is still available and still the focus of significant critical examination, no direct evidence has been presented that indicates the Subject fabricated the raw data he used for his research or falsified his results.... Such scientific debate is ongoing but does not, in itself, constitute evidence of research misconduct."