SLAPPing The Mann Again

We filed our final response to Michael Mann’s ridiculous lawsuit on Friday. It’s the last filing prior to a hearing on the motions to dismiss, which will likely occur in April. CEI General Counsel notes:

As our reply demonstrates, while Mann paints himself as a reluctant warrior in the global warming debate, he’s quick to fling epithets at his critics. Mann characterizes his opponents and their positions, variously, as “pure scientific fraud,” “bogus,” “hired assassin,” “shills,” “crimes against humanity,” and the ever-useful smear of “denier.” The professor claims that he’s been exonerated by numerous investigations, but those reports raise more questions than they answer. And his view of First Amendment freedoms is so incorrect that, in addition to the Nobel Prize he wrongly thinks he won, he may now end up with a Pulitzer — but it won’t be for nonfiction.

From the filing itself:

It is telling that Mann does not mention or address his repeated statements that this lawsuit’s purpose is to harass and silence his ideological opponents — statements that are proof positive of a classic SLAPP suit. He does not deny that he launched this litigation to intimidate “groups seeking to discredit the case for concern over climate change,” with the intent to “silence” them. That is the precise kind of abuse of legal process that the D.C. Anti-SLAPP Act was enacted to curtail or, barring that, punish.

Mann’s suit should be dismissed at this stage because the statements he challenges are protected expressions of opinion as a matter of law. The principal defect in Mann’s reasoning is that he ignores context. In the context of the Blog Post, it is apparent that the statements Mann challenges are expressions of opinion critical of his research, not accusations of unlawful conduct. And in the context of the heated global warming debate, the statements of which Mann complains are actually quite temperate. Any doubt on that score may be allayed by consulting Mann’s routine use of far harsher language (including express accusations of “scientific fraud” and “bogus” research) directed at CEI and other “deniers.” In this context, name calling is the norm.

Because Mann ignores context, he proffers an interpretation of the Blog Post that could be shared by no reasonable reader. If, as Mann contends, the Blog Post were asserting that he committed criminal fraud or made up data, why would it link to criticisms of his scientific methodology? Why would it link to investigation reports that it describes as “declar[ing] him innocent of any wrongdoing” and that Mann claims “exonerate” him? And why would it conclude by calling for “a fresh, truly independent investigation” of Mann’s research, rather than simply demand that he be fired? The only reasonable reading is that the Blog Post is a critical commentary on Penn State’s “whitewash[ed]” investigation of Mann.

It is therefore protected under the First Amendment as a supportable interpretation of underlying facts and under District of Columbia law as a fair comment. Mann’s response to this point is to assert that the usual legal standard in such cases — whether “no reasonable person could find that the [defendant’s] characterizations were supportable interpretations” of true underlying facts, applies only to “evaluations of a literary work.” That is false. But even if that claim were not dismissed on the merits, it would have to be dismissed under Rule 12(b)(6) for failure to state a claim, because Mann identifies no allegation in his Complaint that supports the required element of actual malice. His libel claims fail on the same ground.

Finally, Mann’s request for attorneys’ fees and costs lacks any merit, as it simply repeats several of the more overheated charges from elsewhere in his brief. While plainly frivolous on the merits, it does serve as a timely reminder of Mann’s admitted aim in this litigation: to silence his critics through the abuse of legal process and risk of liability. The Court should not allow itself to be used to facilitate Mann’s attempt to muzzle opposing points of view on an important issue of intense public interest. Instead, it should carry out the purpose of the D.C. Anti-SLAPP Act and the First Amendment by dismissing his claims against the CEI Defendants.

I particularly like this argument against his attempt to get legal fees from us:

If the D.C. Anti-SLAPP Act awarded fees and costs for chutzpah, Mann would have a strong case. He began this case by filing a Complaint containing outright falsehoods regarding his status as a Nobel Laureate and seeking legal sanctions for the same kind of heated rhetoric in which he often traffics. While many suspected that this lawsuit was intended principally to harass and silence his critics, Mann stepped forward to confirm that this was so, telling the Atlantic that this case “is about saying ‘enough is enough’” and harassing those who “want to attack this iconic graph.” He posted a message for his Facebook followers describing this lawsuit as part of a “larger battle”against “groups seeking to discredit the case for concern over climate change,” and expressing his hope that such groups will be “silenced.” Ex. 9; Ex. 10. And after he saw that the CEI Defendants were monitoring his public Facebook page, in December he began systematically deleting public posts and comments relating to the subject matter of this litigation, including a comment published there for months stating that those who disagree with the theory of man-made global warming “are comparable to Jerry Sandusky.” Ex. D. And now, in the same filing in which he abandons his emotional distress claim, (see supra §§ II.B.6, III.B), and silently abandons his challenge to several statements mentioned in his Complaint, (see supra § II), he seeks attorneys’ fees and costs from the CEI Defendants, claiming that their attempt to take advantage of the D.C. Anti-SLAPP Act, in a lawsuit that he concedes is subject to the Act, is somehow illegitimate. Opp. at 61-62.

Unfortunately for Mann, chutzpah is not the governing standard. Mann’s burden is to show that the CEI Defendants’ motion “is frivolous or is solely intended to cause unnecessary delay.”D.C. Code § 16-5504(b). It is plainly not, given that Mann concedes that the CEI Defendants have made a prima facie showing that the Act applies, Opp. at 37, and given that, in response to the CEI Defendants’ motion, Mann narrowed his claims. Mann’s principal argument to the contrary is that he is not only right on the merits, but that the merit of his claims is “abundantly clear.” Opp. at 61. The CEI Defendants respectfully disagree and believe that the law and facts are on their side on that point. (see supra §§ I-III).

As for Mann’s assertion that the CEI Defendants “deliberately misled the Court, mischaracterized the facts underlying the lawsuits, and . . . simply ignored highly material facts,” it is offensive and incorrect, but it is also of a piece with the remainder of his brief, which is long on rhetoric and short on legal argument and detail. The CEI Defendants are honestly puzzled by Mann’s strange fixation on the EPA’s decision to deny reconsideration of its Endangerment Finding, given that the agency did not purport to pass on any issue now raised in this litigation and given that, faced with challenges to Mann’s research, the agency chose to throw it under the bus rather than to defend it.

Finally, there is nothing “cynical,” Opp. at 62, about the CEI Defendants’ attempt to defend themselves against Mann’s attempt to silence his critics through abuse of legal process. The debate over global warming is vigorous, it accommodates many disparate views, and it is vitally important to the choices that our Nation will make in the years ahead. This lawsuit seeks to stifle that debate. The CEI Defendants seek to protect their own free speech rights and those of others — whether or not they agree or disagree with CEI — to speak freely on this issue without fear of being sued. Their belief that this kind of uninhibited debate is necessary to our system of self-government is not cynical but heartfelt.

Definitely. I think that he is projecting when he calls us “cynical.”

6 thoughts on “SLAPPing The Mann Again

    1. MfK

      More like the Michael Vick…with all of humanity as his dogs.

      …is what I would have said if I weren’t a newly -minted Leftist Democrat.

  1. Karl Hallowell

    The CEI Defendants are honestly puzzled by Mann’s strange fixation on the EPA’s decision to deny reconsideration of its Endangerment Finding, given that the agency did not purport to pass on any issue now raised in this litigation and given that, faced with challenges to Mann’s research, the agency chose to throw it under the bus rather than to defend it.

    Does anyone have a link to the actions the EPA is claimed to have done here? I’m aware of its “endangerment finding” on greenhouse gases. I just wonder about the “throws under the bus” part.

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