The Supreme Court announced Monday morning that it will not hear Competitive Enterprise Institute and National Review v. Michael E. Mann, a case with dire freedom-of-speech implications for National Review and all American media outlets that publish commentary on contentious public-policy debates.
Mann, a Penn State climatologist famous for the “hockey stick” global-warming graph, was targeted by CEI’s Rand Simberg in a 2012 blog post. Simberg criticized the methods Mann used to collect data for the study, in which Mann attempted to chart the earth’s temperature over the past 1,000 years and found a sharp uptick in global temperatures in the 20th century.
In 2010, Penn State investigated Mann for alleged data manipulation and university-ethics violations in regards to the study, but Mann was eventually cleared of any wrongdoing. Taking an opportunity to criticize both the scientist’s methodology and Penn State’s administration, Simberg drew a metaphor in his column between Mann’s case and the infamous Jerry Sandusky coverup, a comparison that then-syndicated columnist Mark Steyn referenced in a National Review column.
Writing in dissent, Justice Alito argued that the high court has an interest in taking up the case because it would help establish free speech standards around one of the most hotly debated issues of the time, climate change.
“Climate change has staked a place at the very center of this Nation’s public discourse. Politicians, journalists, academics, and ordinary Americans discuss and debate various aspects of climate change daily — its causes, extent, urgency, consequences, and the appropriate policies for addressing it,” Alito wrote. “The core purpose of the constitutional protection of freedom of expression is to ensure that all opinions on such issues have a chance to be heard and considered. I do not suggest that speech that touches on an important and controversial issue is always immune from challenge under state defamation law, and I express no opinion on whether the speech at issue in this case is or is not entitled to First Amendment protection. But the standard to be applied in a case like this is immensely important.”
Mann subsequently filed defamation lawsuits against all parties involved, alleging that the leveled accusations of scientific and data molestation were false statements of fact, rather than opinion.
In 2016, the D.C. Court of Appeals ruled in favor of Mann over the defendants, who argued on First Amendment grounds that the 2012 post represented “a subjective opinion about a matter of scientific or political controversy” and that “the evidence of record is that it actually has been proved to be false by four separate investigations.” The court also turned down a defense under the Anti-SLAPP Act, which intends to stop lawsuits aimed at silencing advocates on public issues.
Appeals of the decision, most recently in March, have also gone Mann’s way. The stakes are high. A decision in favor of Mann would set a precedent for political rhetoric moving forward: Parties could potentially sue public adversaries and rely on juries to settle differences of policy opinion.
In May, the defendants, joined by the Cato Institute, the Individual Rights Foundation, and the Reason Foundation, filed the petition the Supreme Court granted today. “In holding to the contrary, the decision below declares open season on all manner of speech offering analysis, interpretation and conjecture premised on reported fact, as the circumstances of this case illustrate,” they contend.