The latest analysis, at the WSJ. We should know next week if SCOTUS will be taking up the case.
[Update Tuesday afternoon]
Someone posted the whole thing in comments, but that’s a copyright violation, and not fair use. So I’ll delete that comment, but excerpt it here:
The legal issue hinges on whether what Mr. Simberg said is subjective opinion that should be decided in public debate, as NR contends, or a factual assertion that a jury could find false and defamatory, as Mr. Mann claims. By sending the case to a jury, the D.C. Court of Appeals has rewarded Mr. Mann’s attempt to use the courts to settle the science and silence the criticism. That sets a dangerous precedent.
In some senses the Mann suit may represent the perfect storm for litigation because so many consider climate science beyond question. The opinion of the appellate court, for example, carries the whiff of a religious authority rendering final judgment—the idea being that university faculties and other authorities have spoken so debate must be closed.
There’s also the venue. This lawsuit didn’t go through the federal courts but through D.C.’s equivalent of state courts, where judges and juries probably aren’t the friendliest to conservatives. With so many publications, think tanks and activists keeping offices in the nation’s capital, it isn’t hard to see how Washington could quickly become the venue for similar lawsuits.
The larger point is that while so-called climate deniers might be the first defendants, they are unlikely to be the last. If the D.C. ruling stands, National Review asks in its petition to the high court, what’s to prevent, say, Charles Koch from suing Greenpeace for accusing him of having funded a “junk study . . . loaded with lies and misrepresentations of actual climate change science”? Or Steve Bannon from founding a deep-pocketed organization to sue Trump opponents, and then shopping for a venue where a friendly jury might agree that an over-the-top opinion is a defamatory statement of fact?
“The only way to protect free speech for our allies is to protect it for our adversaries,” says Art Spitzer, legal director for the ACLU of D.C. “Today it’s unacceptable to deny climate change, but yesterday it was unacceptable to deny that homosexuality was sinful, and tomorrow it may be unacceptable to deny that robots are better parents than humans. Society can’t progress unless people are free to express and consider heretical ideas, because there’s no way to predict which heretical ideas will be tomorrow’s truths.”
The ball’s in the Supreme Court—if the justices will take it.
I should note that it’s not just as NR contends, but as CEI contends as well. We’ll find out next week.