The DC Circuit adopted the standard that the vast majority of states use for their anti-SLAPP statutes — the plaintiff only has to produce admissible evidence which, if accepted, is legally sufficient to win. That's the same standard courts apply to motions for summary judgment — motions in which the defendant argues that there's not enough evidence for the case to go to a jury. Practically that means that if the complaint is bogus as a matter of law (for instance, if it targets speech that is clearly just hyperbole or opinion), or if the plaintiff has no evidence to support it, the defendant wins — but if the complaint is legally plausible, and the plaintiff has any evidence to support it, the plaintiff wins.
Steyn's and CEI's Articles: The DC Court of Appeal held that the trial court was correct to deny the anti-SLAPP motion by Steyn, CEI, and Simberg. Mann won, and Steyn, CEI, and Simberg lost, that part of the appeal. The result is notable and, for several reasons, concerning.
There are two key elements to this part of the decision: the distinction between opinion and fact, and the question of what constitutes proof of malice.
Once again, only false statements of provable fact may be defamatory. Opinions, arguments, and hyperbole may not unless they imply false provable facts. "Ken is a jerk" can't be defamatory because it's not objectively provable; "I hacked Ken's email and he's a crook" might conceivably be defamatory because it could imply false facts.
Here, both Steyn's and Simberg's articles were replete with hyperbole, rather strongly signalling opinion. Moreover, they both disclosed the facts that they were relying upon — the hockey stick that another scientist [edited to correct: not Mann] called a "trick" to "hide a decline." I think — like others — that the better and more reasonable interpretation of these writings is that Steyn and Simberg were offering overt argument and opinion based on disclosed facts. You might disagree with the fairness of their conclusions — for instance, you might accept Mann's explanation of what the other scientist [edited: not Mann]meant by "trick," or believe that it's unreasonable not to agree with academic institutions that exonerated Mann — but conclusions based on data aren't defamatory even if they are unfair or unreasonable. That's classic protected speech.
The DC Court of Appeals, however, focused on a lack of overt signals like "in my view" or "in my opinion" or "I think" — silly formalism, in my view, but a pointer to practitioners of how one can manage libel risks. The court also focused on the fact that calling something "fraudulent" or "data manipulation" could possibly be interpreted as a statement of provable fact. The problem with this argument, I think, is that it is very selective about what context it considers. Steyn and Simberg are overtly operating in the context of a scientific culture in which someone has talked about a "trick" in presenting data in support of an argument to "hide" an inconvenient fact. That is the underlying fact framing their opinion. The fact is undisputed even if the interpretation of it is not. Their use of vivid and argumentative language helps establish that they are drawing conclusions, not asserting new (and unspecified) facts.
It's important to understand what the Court of Appeals found, though. It didn't find that Steyn's and Simberg's articles stated facts, let alone false ones. It simply found that Mann presented evidence that, if believed, could allow a jury to conclude that the articles stated facts rather than opinions. The court found he created an arguable issue, in other words. I don't agree, but that's much different than deciding that the articles were factual rather than opinion.
Next, the Court of Appeals found that Mann had presented evidence that was legally sufficient to show that Steyn and Simberg acted with malice. Malice, in this context, doesn't mean ill will — it means with knowledge that statements were false or recklessness about whether or not they were false. Mann has to meet that standard because he's a public figure — only false statements about him made with malice are defamatory. The court found that Mann had presented evidence of widely circulated studies and findings exonerating him, and that the existence of those studies could be accepted by a jury as adequate proof of knowledge that the factual allegations were false.
I think the Court's decision here was, at a minimum, badly framed. The entire point of Steyn's and Simberg's posts was quis custodiet ipsos custodes — that the scientific and academic community's policing of alleged wrongdoing by its own is incredible and unreliable when it is defending ideologically cherished consensus.
Saturday, January 14, 2017