The Supreme Court severely undermined free speech on Monday. It erred by refusing to hear an appeal of a defamation suit filed by a controversial climate scientist against the conservative publication National Review.
At issue was whether courts should allow the suit to reach a jury or whether instead, the magazine should enjoy what Justice Samuel Alito called “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 dissented eloquently from the court’s refusal to review the case. Alito was absolutely right.
In 2012, National Review published a short, caustic blog post by Canadian writer Mark Steyn that semi-favorably cited an even more caustic third-party blog post criticizing Michael Mann, a professor of meteorology at Pennsylvania State University. The other blogger, Rand Simberg, used hyperbole and wordplay to compare a disputed climate-change graph published by Mann to the child sex-abuse scandal, also at Penn State, involving football coach Jerry Sandusky.
“Mann could be said to be the Jerry Sandusky of climate science,” wrote Simberg, “except that instead of molesting children, he has molested and tortured data in the service of politicized science.”
Notably, Steyn rejected the analogy — but not Simberg’s underlying point: “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.” Steyn said the same administration that originally cleared Sandusky of wrongdoing was the one that decided Mann committed no scientific misconduct. His point was that the administration’s own judgment and standards could not be trusted, and therefore its supposed exoneration of Mann did not preclude further debate about Mann’s graph.
For publishing a blog post opining that his climate-change graph was “fraudulent” while quoting the distasteful “molestation” analogy, Mann sued National Review. (He also sued the Competitive Enterprise Institute, which published Simberg’s original blog post.)
Liberal lower-court judges ruled that Mann’s suit should be allowed to go forward. National Review appealed. It cited copious precedent that the First Amendment protects vigorous debate and hyperbolic language in opinion journalism. As editor Rich Lowry rightly noted, “in common polemical usage, ‘fraudulent’ doesn’t mean honest-to-goodness criminal fraud. It means intellectually bogus and wrong.” As such, it should not be subject to jury review for possible defamation, because it is not a verifiable or falsifiable assertion of fact.
In this case, the word fraudulent was clearly within the realm of reason anyway, considering that a review by the University of East Anglia, which published research based on Mann’s graph, found some of Mann’s reporting methodology “misleading.” In short, this is a classic case of two sides arguing about the validity of data, which is standard, constitutionally protected political discourse. As such, it should be protected by the First Amendment, without ever reaching a jury.
As Alito wrote, “Whether an academic’s use and presentation of data falls within the range deemed reasonable by those in the field is not an easy matter for lay jurors to assess. … [Also,] [w]hen allegedly defamatory speech concerns a political or social issue that arouses intense feelings, selecting an impartial jury presents special difficulties.”
By refusing to consider the First Amendment issues now, as National Review argued in its legal brief, “the court here exposed every editorial page, political activist, and social-media pundit to a libel suit.” And: “The result would be to insert courts and juries into every hot-button political and scientific dispute, to allow politicians to sue their critics at will, and ultimately to chill and deter the robust debate that is the lifeblood of our republic.”
Sure, nothing precludes the Supreme Court from deciding later that National Review’s free-press rights were violated as the trial progresses. Alito’s point, though, is that the high court should determine the First Amendment question now, because it is already ripe and because the trial itself, whatever the outcome, harms the rights at issue.
“A journalist who prevails after trial in a defamation case,” Alito wrote, “will still have been required to shoulder all the burdens of difficult litigation and may be faced with hefty attorney’s fees. Those prospects may deter the uninhibited expression of views that would contribute to healthy public debate.”
Exactly. One might even opine that the other justices’ reasoning to the contrary is, well, fraudulent.
