Mann v. Steyn-- An Attack on Free Speech.

When internet surfers see more articles on the slugfest in the District of Columbia Superior Court that goes by the name of Mann v. Steyn, they may yawn and think it's all political and who cares?   The purpose of this post is to explain that while it is indeed political, you should care.  What I have found very little of in all the online discussions is any actual comprehension of the legal and factual issues involved.  So I now embark on an effort to provide an outline of those issues, which,  while highly simplistic is more or less accurate.

Two fields of law are involved here.  First, defamation law: Michael Mann alleges that Mark Steyn, Rand Simberg, the National Review magazine and the Competitive Enterprise Institute defamed him.  I will concentrate mostly on Steyn because what I am really trying to convey is LEGAL principles to people who are not lawyers (assuming, she vainly wishes, that lawyers will already understand those issues.).   

A suit for defamation is what you file when someone tells falsehoods about you and you suffer damage as a result.  It can be oral (slander) or written (defamation). In order for a statement to be considered defamatory, it must be a statement that seems to be a statement of fact, as opposed to a statement of opinion.  So “He stole money from his employer” appears to be a statement of fact and has the potential to be defamatory. “He is a rotten scumball” is most likely a statement of opinion. People are entitled to express derogatory opinions, and opinions can never be proved to be false.  Second, the allegedly defamatory statement must be a statement that is derogatory or would bring a person into disrepute.  So “He gave a million dollars to the Red Cross” is probably not defamatory even if false.

In the bad old days, before the U. S. Supreme Court started protecting the free-speech rights as effectively as it has recently, if you proved those two things and also proved that you had suffered some harm, you won.  

But then came the 60’s and New York Times vs. Sullivan.  The New York Times published an  advertisement signed by three black preachers, inter alia, who were civil rights activists.  There were a number of facts set forth in the advertisement about what was going on in the south with regard to sit ins and arrests and the like.  Some of the facts in the ad were wrong.  The plaintiff, who was the police commissioner in Montgomery, Alabama was awarded $500,000 by an all-white Alabama jury.  Even today, most people can see the potential such a judgment would have to cripple the civil-rights movement.  The case was appealed to the United States Supreme Court.  That court, noting that it was ruling for the first time on the intersection of the First Amendment, which protects speech, and defamation law that protects citizens from harm from false speech, ruled that where a person is a public figure, meaning a person who is widely known, he or she must prove not only that factually false and defamatory statements were made about him or her, but that the person making them knew that they were false when he made them or that he made the statements with a reckless disregard for the truth.  The court reasoned that public figures have access to the media and have an easy opportunity to get out their side of the story.  On the other hand, fear of being sued would certainly chill the open and robust debate that a free society needs and should have about issues.  So recently, Courtney Love was sued by her former lawyer for defamation.  Love had sent out a tweet that apparently accused her lawyer of taking a bribe from the people on the other side of the lawsuit.  No one at the trial even disputed that the lawyer had ever taken a bribe.  Everyone knew at that point that the lawyer was innocent of the charge.  But the question the jury was asked to answer was: Did Courtney Love believe that the claim was true when she made it?  The jury answered “yes,” that Love did believe the charge was true.  Love won the lawsuit even though she had made a false and defamatory statement about her lawyer.  

Here is the form for California jury instruction upon which instructions to the jury were modeled.  It is a fairly accurate statement of defamation law everywhere in the country. 

1700. Defamation per se—Essential Factual Elements (Public Officer/Figure and Limited Public Figure)
[Name of plaintiff] claims that [name of defendant] harmed [him/her] by making [one or more of] the following statement(s): [list all claimed per se defamatory statements]. To establish this claim, [name of plaintiff] must prove that all of the following are more likely true than not true:
Liability
That [name of defendant] made [one or more of] the statement(s) 
to [a person/persons] other than [name of plaintiff]; 
That [this person/these people] reasonably understood that the 
statement(s) [was/were] about [name of plaintiff]; 
[That [this person/these people] reasonably understood the statement(s) to mean that [insert ground(s) for defamation per se, e.g., “[name of plaintiff] had committed a crime”]]; and 
That the statement(s) [was/were] false. 
In addition, [name of plaintiff] must prove by clear and convincing evidence that [name of defendant] knew the statement(s) [was/were] false or had serious doubts about the truth of the statement(s).


Interpolating for Mann v. Steyn an accurate jury instruction might go like this

1700. Defamation per se—Essential Factual Elements (Public Officer/Figure and Limited Public Figure)
Michael Mann claims that Mark Steyn harmed him by making the following statement: “Michael Mann’s hockey stick is fraudulent.”
 To establish this claim, Michael Mann must prove that all of the following are more likely true than not true:
Liability
: That Mark Steyn made the statement to [a person other than Michael Mann]; 
That this person reasonably understood that the
Statement was about Michael Mann;That this person reasonably understood the statement to mean that Michael Mann had used  falsified data in creating his hockey stick graph.

In addition, Michael Mann must prove by clear and convincing evidence that Mark Steyn knew the statement was false or had serious doubts about the truth of the statement.

So Michael Mann has a heavy burden to shoulder in order to win. He (not Mark Steyn) has the burden of proving that the statements are false and he has to prove that Mark Steyn, at the time Steyn made the statements, believed them to be false or entertained serious doubts about their truth.

To all lawyers and pettifoggers, yes, I know this is oversimplified.  That is the whole point of this post.  To make it simple enough for people who do not practice law for a living to understand.

The second issue one must understand is Anti-Slapp law.  I have personal experience with this one ,having been the victim of a SLAPP suit and having been awarded the somewhat modest sum of $5000 in attorney fees and costs for having to go to the trouble of getting it thrown out. 

SLAPP stands for Strategic Lawsuit Against Public Participation.  Fortunately for me, California has just such a law and I was protected by it when the boyfriend of a party who was my opposition in a case decided to sue me.  He now owes my lawyer $5000. 

These laws were passed because dishonest lawyers and other people had been engaging in what some call “lawfare” to shut down public discussion of important issues.  In California this sometimes took the form of a developer suing a group of citizens who protested his planned development.  The legislature realized that by the time you have been dragged through the courts and spent literally hundreds of thousands of dollars to defend yourself, even if on paper you won,  in fact, you lost. In the meantime, citizens who protested the development were forced to shut up for fear of more expensive lawsuits that they couldn’t afford.   Thus the Anti-SLAPP motion was invented to allow defendants in mostly defamation cases to get rid of a frivolous lawsuit immediately and force the people filing the lawsuit to pay their attorney fees and costs.  Many states and the District of Columbia have adopted similar laws.  D. C.’s law is very similar to California’s .  Here is the text of the  D. C. law.




a A party may file a special motion to dismiss any claim arising from an act in furtherance of the right of advocacy on issues of public interest within 45 days after service of the claim.
b If a party filing a special motion to dismiss under this section makes 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, then the motion shall be granted unless the responding party demonstrates that the claim is likely to succeed on the merits, in which case the motion shall be denied.
c(1) Except as provided in paragraph (2) of this subsection, upon the filing of a special motion to dismiss, discovery proceedings on the claim shall be stayed until the motion has been disposed of.
2 When it appears likely that targeted discovery will enable the plaintiff to defeat the motion and that the discovery will not be unduly burdensome, the court may order that specified discovery be conducted. Such an order may be conditioned upon the plaintiff paying any expenses incurred by the defendant in responding to such discovery.
d The court shall hold an expedited hearing on the special motion to dismiss, and issue a ruling as soon as practicable after the hearing. If the special motion to dismiss is granted, dismissal shall be with prejudice.

I will confess that, other than looking up the statute itself, I haven’t done much research on D. C. cases interpreting D. C. Law.  But just scanning the summaries it appears that conservatives lose and liberals win.  This is not a good thing and perhaps I am wrong. But that will be the subject of another post after I have done the laborious work of reviewing all of these cases.

In California, which has a very similar statute, the cases have rarely involved such highly political issues as have been involved in D. C.  Further, the court has held that The filing of a lawsuit is, per se, an act of advocacy which brings the case under the Anti-Slapp rules.  Having said that, here are the basics of Anti-Slapp.

The moving party (i.e. the person who files the Anti-SLAPP motion, aka the defendant) only has to prove one thing: that the underlying case is an issue of public advocacy.  That is entire burden of proof on the moving defendant.

Once the defendant has proved that the case involves First Amendment rights, the burden shifts to the plaintiff in the underlying suit to prove that he or she is likely win the underlying lawsuit.  The plaintiff, of course, always has the burden of proving his case, but when an Anti-SLAPP motion has been filed, he must come up with enough proof to show that he is likely to win.  If he or she fails to come up with sufficient proof, then the motion must be granted and the case thrown out of court before it goes to discovery and trial.  

While it is easy enough for Michael Mann to come up with a gazillion people who think that he is a fine fellow, it appears that the D. C. Court addressed only the issue of whether the hockey stick was a fraud.  But, as we have seen in the Courtney Love case, he also has to prove that Mark Steyn believed that the hockey stick was not a fraud or entertained serious doubts about whether or not it was a fraud.  From what I have seen, the court simply skipped over this issue altogether.  The court said that the plaintiff had stated a cause of action.  To non-lawyers that sounds like the court did find that the plaintiff had come up with the evidence.  But lawyers know that stating a cause of action has nothing to do with evidence at all.  

When the court considers whether a plaintiff has stated a cause of action, the court is looking only at the written complaint.  It is not even allowed to look at evidence. Looking at the complaint, the court decides whether the plaintiff has managed to say things that show he is claiming a legal wrong has been committed.  When the court decides that a cause of action has been stated, it is not saying that there is even one little bit of evidence to support the statements made in the complaint.  It is only saying that if  the statements made by the plaintiff are true, then he is entitled to be compensated for his injuries.  

But there is no comment whatsoever being made about whether the statements are true.  Here is an example: Suppose you witnessed an auto accident and it really shook you up to see it.  You didn’t know any of the people in the cars, but bodies were flying and you can’t forget it.  So you sue the person who caused the accident.  The court will tell you that even if everything you say is true, you can’t sue that driver because you were not involved in the accident, period.  You have failed to state a cause of action.  But supposing that one of the people in the accident was your child, then you may have a cause of action. 

So let me put a little more context around this because it is important.  In any court, when a complaint has been filed against you, you may answer it or you may choose to challenge whether the complaint even states a cause of action against you.  In most state courts this is called a demurrer; in federal courts it is called a motion dismiss for failure to state a claim.  In ruling on such a motion, the court is not looking to see if there is any evidence at all to support the claims made against you.  The general rule in ruling on such a motion is that the court must assume that all the facts alleged are true because the purpose of such a motion is to get rid of claims that don’t even merit a hearing. For example, if a spoiled 18-year-old girl sues her parents for support, a court might say to the girl, “You are a grown up.  Support yourself.  I am not interested in why you think your parents should support you because you have no basis in law for forcing them to.”

On the other hand, sometimes a motion to dismiss in federal court is about whether or not there is any evidence to support the claims.  In California it is quite clear in Anti-SLAPP motions that the plaintiff has to produce actual evidence showing that his claims are true and has to show the court sufficient evidence  supporting his claims to persuade the the court  that the plaintiff is likely to win.  The reason for this rule is simple: Well-educated lawyers know how to draft a complaint that “states a cause of action.” Before Anti-SLAPP legislation was introduced, they could and would base the complaint on the flimsiest of evidence, or simply on a belief that there might be evidence.  Two years and a hundred thousand dollars in attorney fees later, it would be shown that there was no substantial evidence at all supporting the claims asserted in their frivolous complaints, but by that time, whatever it was they were trying to accomplish had succeeded and the people who were protesting against them had been sidelined fighting a frivolous lawsuit.  

This requirement is discussed in a recent California case, Hunter v. CBS (2013). The court notes that there is a two-pronged test in making an Anti-SLAPP decision.  The first question that must be answered is “Does this case arise from activity that is in furtherance of the exercise of freedom of speech?” In reaching this conclusion the court should not actually discuss the merits of the claims at all but, rather, whether the claims involve free speech or public advocacy on an issue.  Clearly Mark Steyn’s words were connected to his advocacy of a position on an issue of great public concern--global warming.  

If the court answers the first question “Yes”, it then proceeds to the second question: “Does the plaintiff have evidence showing he or she is likely to win?” Note that I said evidence, not allegations.  An allegation is something you say happened.  Evidence is proof that that thing actually happened.  We’ve all watched enough cop shows to know that there is a difference between allegations and evidence.  

So, you can sue someone for defamation involving a matter of public interest, but you have to demonstrate to the court, right in the beginning, that you have actual evidence sufficient to prove your claims.  In other words you have to have evidence to show that what you say in your complaint is true (at least in California).  In the CBS case referred to above, the California Court of Appeals noted that the trial court had not proceeded to the second step because it erroneously concluded that the hiring of a weather anchor was not a First Amendment issue.  

The Court of Appeals concluded that it was a First Amendment issue because it was a matter of public interest.  Since the trial court had not looked at the evidence supporting the plaintiff’s claim, the appellate court sent the case back to the trial court to look at the evidence.

Now you may think, ”Well, that’s California.  Why should a court in District of Columbia follow that rule?” The answer is that there is no reason for an Anti-SLAPP statute if courts are not required to look at the evidence on an Anti-SLAPP motion.  Any defendant in any case filed has been able to get a case thrown out of court rapidly if it fails to state a cause of action.  If how you wrote the complaint is the issue, then there is no need for an Anti-SLAPP statute.  Courts have been able to throw badly written complaints out literally for centuries.  There is even a very old fashioned word for it; as noted above, it’s called a demurrer.  

The reason for Anti-SLAPP statutes is to enable courts to throw out claims that are well written but lack substantial supporting evidence.  In the CBS case, CBS asserted that, contrary to the plaintiff’s claim of age and gender discrimination, three of its five weather anchors were male and over the age of 40.  That tends to show that CBS does not discriminate based on age and gender.  That is, it tends to show that the evidence does not support the plaintiff’s claim of age and gender discrimination. In nonSLAPP cases, plaintiffs don’t have to prove their claims until much later in the process, but in SLAPP cases they do have to prove that they have substantial evidence supporting their claims very early in the process.  That is the reason for putting Anti-SLAPP legislation on the books: to prevent the filing of non-meritorious claims that discourage the exercise of First Amendment rights.  But that only works when plaintiffs have to first provide evidence that shows they are likely to win.  Anyone with a good lawyer can file a complaint that will pass muster on a motion to dismiss for failure to state a cause of action.  The Anti-SLAPP statutes are designed or should be designed to require more, otherwise there is no point to them.

So, a recap.  What Judge Weisberg should have done in writing his decision was to address the following questions in the following order: 

First, is this a case arising from an act in furtherance of the right of advocacy on issues of public interest?  If the answer to the first question is yes, he should have proceeded to the second question; Has the plaintiff (Michael Mann) demonstrated that his claim is likely to succeed on the merits?  Proving that your claim is likely to succeed on the merits is a question of both fact and law.  Questions of fact are decided based on evidence.  Such evidence can be submitted in the form of sworn declarations, as CBS did in the case described above.  

Judge Weisberg, in his decision denying Steyn’s Anti-SLAPP motion, based his conclusions entirely on the allegations of the complaint. You can read Judge Weisberg’s order here.  No evidence was cited in his decision showing that the allegations of the complaint were true other than a reference to the fact that many people agree with Michael Mann about Global Warning.  None.  He did not even address the intent issue, which is critical in a defamation claim against a public figure.  He did not decide whether Michael Mann is a public figure.  He did not decide whether Michael Mann had any evidence to support his claim that Steyn acted with reckless disregard for the truth.  

What he did was a major error, in my view.  He decided the motion as if it were a motion to dismiss for failure to state a cause of action.  He stated explicitly in his order that he was assuming that all of the facts alleged by the plaintiff were true.    He wrote, ”Viewing the alleged facts in
 the light most favorable to plaintiff, as the court must on a motion to dismiss, a reasonable jury is likely to find the statement that Dr. Mann “molested and tortured data” was false, was published with knowledge of its falsity or reckless disregard of whether it was false or not, and is actionable as a matter of law irrespective of special harm”  [emphasis added].  In other words, he mistook an Anti-SLAPP motion to dismiss for an ordinary motion to dismiss.  


That is a basic and egregious error.  If Anti-SLAPP motions are judged on the same basis as ordinary motions to dismiss, what is the point of having an Anti-SLAPP statute?


The Weisberg order does not point to a shred of evidence that Steyn did not believe what he said was true. Yes, there are thousands of people with degrees in science who apparently think the hockey stick is good science.  But there are also thousands of people who have degrees in science who think it is hooey.  The point is not what all those people believe but what Mark Steyn believed when he made the statement.  You may think, ”But that’s an impossibly high standard for a plaintiff to meet in a defamation case.”  It is high but not impossibly so.  Plaintiffs may have proof of bad intent in previous statements made by the defendant or statements made that show the defendant does not really believe what he is saying or is saying it to extort money.  But it is a very rare thing for a public figure to win a defamation lawsuit.  And that is exactly what the United States Supreme Court intended when it decided New York Times v. Sullivan.  Let's go back to that case.  The people who ran that ad, and the New York Times, were taking a position that was unpopular at the time.  They were supporting sit ins and peaceful resistance to racial segregation.  They were trying to raise money to support their work, work that was extremely unpopular in the South.  The court noted in reaching its decision that its rule would protect unpopular minorities and that it was intended to to do exactly that.  Its rule was intended to protect the public debate.  The court recognized that the use of libel and defamation suits could silence such debate and said that the silencing of such debate was not a good thing.

To summarize, the purpose of an Anti-SLAPP law is to prevent shutting down legitimate debate on issues of public importance. In failing to recognize such a purpose, and allowing the defendants in this case to have to continue to appeal, or face an expensive and time-consuming trial, while ignoring the lack of evidence that it would be likely to succeed for the plaintiff, Judge Weisberg made a grievous judicial error that, if upheld by the appellate court, would eviscerate and render meaningless the Anti-SLAPP law passed by the District of Columbia.