Competitive Enterprise Institute and Rand Simberg v. Michael Mann

• Court: District of Columbia Court of Appeals
• Decided: December 13, 2018
• Docket: 14-CV-101
• Status: Published

Opinion

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 14-CV-101

COMPETITIVE ENTERPRISE INSTITUTE AND RAND SIMBERG, APPELLANTS,

V.

MICHAEL E. MANN, APPELLEE,

NO. 14-CV-126

NATIONAL REVIEW, INC., APPELLANT,

MICHAEL E. MANN, APPELLEE.

Appeals from the Superior Court of the District of Columbia (CAB-8263-12)

(Hon. Natalia M. Combs Greene, Trial Judge) (Hon. Frederick H. Weisberg, Trial Judge)

(Argued November 25, 2014 Decided December 22, 2016)

(Amended December 13, 2018) *

* This appeal was decided by an opinion issued on December 22, 2016, 150 A.3d 1213. This amended opinion adds a new footnote 39 and revises former footnote 45 (now 46). 2

Andrew M. Grossman, with whom David B. Rivkin, Jr., and Mark I. Bailen were on the brief, for appellants Competitive Enterprise Institute and Rand Simberg.

Michael A. Carvin, with whom David M. Morrell and Anthony J. Dick were on the brief, for appellant National Review, Inc.

John B. Williams, with whom Peter J. Fontaine and Catherine Rosato Reilly were on the brief, for appellee Michael E. Mann.

Ariel B. Levinson-Waldman, Senior Counsel to the Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia at the time the brief was filed, and Todd S. Kim, Solicitor General, were on the brief, for amicus curiae the District of Columbia, in support of the court’s appellate jurisdiction to review interlocutory order.

Michael J. Songer and Daniel J. Kornstein were on the brief for amicus curiae Mark Steyn, in support of the court’s appellate jurisdiction to review interlocutory order.

Ilya Shapiro, Nicholas C. Dranias, Bradley A. Benbrook, and Stephen M. Duvernay were on the briefs, in support of appellants, for amici curiae The Cato Institute, Reason Foundation, Individual Rights Foundation, and Goldwater Institute.

Gregg P. Leslie, Cynthia A. Gierhart, Seth D. Berlin, Shaina Jones Ward, and Mara J. Gassmann were on the brief, in support of appellants, for amici curiae The Reporters Committee for Freedom of the Press; The American Civil Liberties Union of the Nation’s Capital; American Society of News Editors; Association of Alternative Newsmedia; The Association of American Publishers, Inc.; Bloomberg L.P.; The Center for Investigative Reporting; First Amendment Coalition; First Look Media, Inc.; Fox News Network, LLC; Gannett Co., Inc.; The Investigative Reporting Workshop; The National Press Club; National Press Photographers Association; NBCUniversal Media, LLC; Newspaper Association of America; North Jersey Media Group, Inc.; Online News Association; Radio Television Digital News Association; The Seattle Times Company; Society of Professional Journalists; Stephens Media LLC; Time Inc.; Tribune Publishing; The Tully Center for Free Speech; D.C. Communications, Inc., d/b/a Washington City Paper; and WP Company LLC d/b/a The Washington Post. 3

David A. Cortman, Kevin H. Theriot, Christopher Byrnes, and Kurt Van Sciver were on the brief, in support of appellants, for amicus curiae Alliance Defending Freedom.

Phillip C. Chang, Jonathan E. Buchan, E. Duncan Getchell, and Amy Miller were on the brief, in support of appellants, for amici curiae Newsmax Media, Inc.; Free Beacon, LLC; The Foundation for Cultural Review; The Daily Caller, LLC; PJ Media, LLC; and The Electronic Frontier Foundation.

Before BECKWITH and EASTERLY, Associate Judges, and RUIZ, Senior Judge.

RUIZ, Senior Judge: These appeals present us with legal issues of first

impression concerning the special motion to dismiss created by the District of

Columbia’s Anti-Strategic Lawsuits Against Public Participation (Anti-SLAPP)

Act, D.C. Code §§ 16-5501 to -5505 (2012 Repl.): whether denial of a special

motion to dismiss is immediately appealable and the standard applicable in

considering the merits of an Anti-SLAPP special motion to dismiss.

Appellee Michael E. Mann is a well-known climate scientist whose research

in studying the “paleoclimate,” or ancient climate, has featured prominently in the

politically charged debate about climate change. Dr. Mann filed an action for

defamation and intentional infliction of emotional distress against Competitive

Enterprise Institute (CEI), Rand Simberg, National Review, Inc. (National

Review), and Mark Steyn based on articles written by Mr. Simberg, Mr. Steyn, and

National Review’s editor Rich Lowry that appeared on the websites of CEI and 4

National Review. Dr. Mann’s complaint claimed that the articles which criticized

Dr. Mann’s conclusions about global warming and accused him of deception and

academic and scientific misconduct contained false statements that injured his

reputation and standing in the scientific and academic communities of which he is

a part.

Defendants argued that Dr. Mann’s lawsuit infringes on their First

Amendment right of free speech and moved for dismissal under the Anti-SLAPP

Act and, alternatively, under Superior Court Rule 12 (b)(6). The trial court ruled

that Dr. Mann’s claims were “likely to succeed on the merits” — the standard

established in the Anti-SLAPP Act to defeat a motion to dismiss — and denied

appellants’ motions to dismiss and their subsequent motions to reconsider.

Appellants — CEI, National Review and Mr. Simberg — sought interlocutory

review in this court of the trial court’s denial of their motions to dismiss. 1

As a preliminary matter, we hold that we have jurisdiction under the

collateral order doctrine to hear appellants’ interlocutory appeals of the trial court’s

denial of their special motions to dismiss filed under the Anti-SLAPP Act. We

1 Defendant Steyn did not appeal the trial court’s denial of his motions to dismiss the complaint. 5

further hold that the Anti-SLAPP Act’s “likely to succeed” standard for

overcoming a properly filed special motion to dismiss requires that the plaintiff

present evidence — not simply allegations — and that the evidence must be legally

sufficient to permit a jury properly instructed on the applicable constitutional

standards to reasonably find in the plaintiff’s favor. Having conducted an

independent review of the evidence to ensure that it surmounts the constitutionally

required threshold, we conclude that Dr. Mann has presented evidence sufficient to

defeat the special motions to dismiss as to some of his claims. 2 Accordingly, we

affirm in part, reverse in part, and remand the case to the trial court for further

proceedings.

I. Statement of the Case

A. Factual Background

The facts presented in the complaint and subsequent pleadings filed with the

court are as follows. Dr. Mann is a graduate of the University of California at

2 Because we hold that the showing required to defeat an Anti-SLAPP special motion to dismiss is more demanding than is required to overcome a Rule 12 (b)(6) motion to dismiss, Dr. Mann’s successful response to appellants’ Anti- SLAPP special motions to dismiss necessarily also defeats appellants’ Rule 12 (b)(6) motions to dismiss. 6

Berkeley (B.S. Physics and Applied Math) and Yale University (M.S. Physics;

Ph.D. Geology and Geophysics), and has held faculty positions at the University of

Massachusetts’s Department of Geosciences and the University of Virginia’s

Department of Environmental Sciences. He is a Distinguished Professor of

Meteorology and the Director of the Earth System Science Center at Pennsylvania

State University (Penn State). 3 Dr. Mann is considered an authority on climate

change science, and has been recognized with honors and awards for his work

identifying global warming and its cause.

In 1998 and 1999, Dr. Mann and two colleagues 4 co-authored two scientific

3 According to the CV currently on Penn State’s website, Dr. Mann’s title is Distinguished Professor of Atmospheric Science. Michael E. Mann, Curriculum Vitae at 2, PENNSYLVANIA STATE UNIVERSITY DEPARTMENT OF METEOROLOGY, http://www.meteo.psu.edu/holocene/public_html/Mann/about/cv.php (last visited Aug. 31, 2016).

4 The co-authors were Raymond S. Bradley and Malcolm K. Hughes. Dr. Raymond S. Bradley is the Principal Investigator, Distinguished Professor of Geosciences, and Director of Climate Systems Research Center at the Northeast Climate Science Center at the University of Massachusetts. He received a B.S. degree from the University of Southampton, United Kingdom, and M.S. and Ph.D. degrees from the University of Colorado at Boulder. Raymond Bradley, NE. CLIMATE SCI. CTR., https://necsc.umass.edu/people/raymond-bradley (last visited Aug. 31, 2016). Dr. Malcolm Hughes is Regents’ Professor of Dendrochronology with the Laboratory of Tree-Ring Research at the University of Arizona. He received B.S. and Ph.D. degrees from Durham University, United Kingdom. Malcolm Hughes, UNIV. OF ARIZ. SCI. LAB. OF TREE-RING RESEARCH, http://ltrr.arizona.edu/people/hughes (last visited Aug. 31, 2016). 7

papers, the first of which was published in the international scientific journal

Nature and the second of which was published in Geophysical Research Letters,

that reported the results from a statistical study of the Earth’s temperatures over

several centuries. Their 1998 study used a technique to reconstruct temperatures

from time periods before the widespread use of thermometers in the 1960s by

using “proxy indicators” (described by Dr. Mann as “growth rings of ancient trees

and corals, sediment cores from ocean and lake bottoms, ice cores from glaciers,

and cave sediment cores”). The data showed that global mean annual temperatures

have been rising since the early twentieth century, with a marked increase in the

last fifty years. The papers concluded that this rise in temperature was “likely

unprecedented in at least the past millennium” and correlated with higher

concentrations of carbon dioxide in the atmosphere emitted by the combustion of

fossil fuels.

The 1999 paper included a graph depicting global temperatures in the

Northern Hemisphere for a millennium, from approximately 1050 through 2000.

The graphical pattern is roughly horizontal for 90% of the temperature axis —

reflecting a slight, long-term cooling period between 1050 and 1900 — followed

by a sharp increase in temperature in the twentieth century. Because of its shape

resembling the long shaft and shorter diagonal blade of a hockey stick, this graph 8

became known as the “hockey stick.” 5 The hockey stick graph became the

foundation for the conclusion that the sharp increase in temperature starting in the

twentieth century was anthropogenic, or caused by concentrations of CO 2 in the

atmosphere generated by human activity initiated by the industrial age. The

hockey stick graph also became a rallying point, and a target, in the subsequent

debate over the existence and cause of global warming and what, if anything,

should be done about it.

5 The hockey stick graph appears as follows:

Intergovernmental Panel on Climate Change, Climate Change 2001—IPCC Third Assessment Report (2001), http://www.ipcc.ch/ipccreports/tar/slides/05.16.htm. 9

In 2001, the Intergovernmental Panel on Climate Change (IPCC), 6 in its

Third Assessment Report, summarized the study and data that led to the hockey

stick graph and featured several of the studies that replicated its data. In 2003 and

2005, mining consultant Stephen McIntyre and Professor Ross McKitrick 7

published articles claiming to demonstrate that the hockey stick graph was the

result of bad data and flawed statistical analysis. That same year, in a study

commissioned by two U.S. Congressmen, Professor Edward Wegman 8 concluded

that Dr. Mann’s statistical methodology was flawed. That same year, the National

Research Council of the National Academies of Science, in a study commissioned

by the U.S. House of Representatives, raised questions about the reliability of

temperature reconstructions prior to 1600, but agreed substantively with the

conclusions represented by the hockey stick graph. Follow-up, peer-reviewed

studies published in the literature have independently validated conclusions

illustrated by the hockey stick graph.

6 The IPCC is an international scientific body created under the auspices of the United Nations Environment Program and the World Meteorological Organization. IPCC Factsheet: What is the IPCC? 1 (2013), http://www.ipcc.ch/news_and_events/docs/factsheets/FS_what_ipcc.pdf (last visited Aug. 3, 2016). The IPCC was awarded the 2007 Nobel Peace Prize for its work on climate change, jointly with Al Gore. Dr. Mann was a lead author of the IPCC’s 2001 Third Assessment Report. 7 Professor of Economics, University of Guelph, Ontario. 8 Professor of Statistics, George Mason University, Virginia. 10

In November 2009, thousands of emails from the Climate Research Unit

(CRU) of the University of East Anglia in the United Kingdom — some between

Dr. Mann and CRU climate scientists — were somehow obtained and

anonymously published on the Internet, shortly before the U.N. Global Climate

Change Conference was to begin in Copenhagen in December 2009. In a

controversy dubbed “Climategate,” some of these emails were cited as proof that

climate scientists, including Dr. Mann, falsified or manipulated their data, in

collusion with government officials, to produce the hockey stick result. The emails

led to public questioning of the validity of the research leading to the hockey stick

graph and to calls for evaluation of the soundness of its statistical analysis and the

conduct of the scientists involved in the research, including, specifically, Dr.

Mann.

Following disclosure of the emails and the questions raised, Penn State, the

University of East Anglia, and five governmental agencies — the U.K. House of

Commons Science and Technology Committee, the U.K. Secretary of State for

Energy and Climate Change, the Inspector General of the U.S. Department of

Commerce, the U.S. Environmental Protection Agency, and the U.S. National

Science Foundation — issued reports after conducting inquiries into the validity of

the methodology and research underlying the hockey stick graph and investigating 11

the allegations impugning the integrity of Dr. Mann’s and other climate scientists’

conduct. The inquiries that considered the science largely validated the

methodology underlying the hockey stick graph. None of the investigations found

any evidence of fraud, falsification, manipulation, or misconduct on the part of Dr.

Mann. 9 These reports were published in 2010 and 2011.

On July 13, 2012, Mr. Simberg authored an article entitled “The Other

Scandal in Unhappy Valley,” which was published on OpenMarket.org, an online

blog of CEI. Comparing “Climategate” with the then-front-page news of the Penn

State sexual abuse scandal involving Jerry Sandusky that had been revealed in the

9 The investigations considered the Climategate emails. For example, one of the most cited emails, from the director of the CRU to Dr. Mann and two other climate scientists, stated, “I’ve just completed [Dr. Mann’s] Nature trick of adding in the real temps to each series for the last 20 years (i.e., from 1981 onwards) and from 1961 for Keith’s to hide the decline.” The University of East Anglia investigation concluded that the reference to the “trick” used in Dr. Mann’s paper for the science journal Nature was a colloquialism used by the scientists to describe a specific and legitimate statistical technique used to interpret the data and to exclude certain non-relevant data. Philip Jones, the head of the UEA Climate Research Unit and author of the email, explained that “trick” did not refer to a deception, but rather to “the ‘best way of doing or dealing with something,’” namely, the exclusion of proxy temperature data for a period in which thermometer readings were available (i.e., “the decline”). The UEA investigation concluded that the emails used “slang, jargon, and acronyms,” and were “extreme modes of expression” but “no[t] indicative of actual behavior that is extreme, exceptional or unprofessional.” 12

Freeh Report, 10 Mr. Simberg wrote:

So it turns out that Penn State has covered up wrongdoing by one of its employees to avoid bad publicity.

But I’m not talking about the appalling behavior uncovered this week by the Freeh report. No, I’m referring to another cover up and whitewash that occurred there two years ago, before we learned how rotten and corrupt the culture at the university was. But now that we know how bad it was, perhaps it’s time that we revisit the Michael Mann affair, particularly given how much we’ve also learned about his and others’ hockey-stick deceptions since. Mann could be said to be the Jerry Sandusky of climate science, except for instead of molesting children, he has molested and tortured data in service of politicized science that could have dire consequences for the nation and planet. . . .[11]

[M]any . . . luminaries of the “climate science” community were shown to have been behaving in a most unscientific manner. Among them were Michael Mann, Professor of Meteorology at Penn State, whom the emails revealed had been engaging in data manipulation to keep the blade on his famous hockey-stick graph, which had become an icon for those determined to reduce human carbon emissions by any means necessary. . . .

10 Former FBI Director Louis Freeh conducted a review which severely criticized Penn State’s investigation of sexual abuse complaints made against Penn State football coach Jerry Sandusky. 11 CEI subsequently deleted from its website the comment comparing Dr. Mann to Jerry Sandusky, characterizing it as “inappropriate.” Rand Simberg, The Other Scandal in Unhappy Valley, COMPETITIVE ENTER. INST. (July 13, 2012), https://cei.org/blog/other-scandal-unhappy-valley. 13

Mann has become the posterboy of the corrupt and disgraced climate science echo chamber. No university whitewash investigation will change that simple reality. . . .

Michael Mann, like Joe Paterno, was a rock star in the context of Penn State University, bringing in millions in research funding. The same university president who resigned in the wake of the Sandusky scandal was also the president when Mann was being whitewashed investigated. We saw what the university administration was willing to do to cover up heinous crimes, and even let them continue, rather than expose them. Should we suppose, in light of what we now know, they would do any less to hide academic and scientific misconduct, with so much at stake?

It’s time for a fresh, truly independent investigation.

(strike-through in original).

On July 15, 2012, Mr. Steyn authored an article titled “Football and

Hockey,” which appeared on National Review’s online blog “The Corner.” In his

article, Mr. Steyn quoted from Mr. Simberg’s July 13 article:

I’m referring to another cover up and whitewash that occurred [at Penn State] two years ago, before we learned how rotten and corrupt the culture at the university was. But now that we know how bad it was, perhaps it’s time that we revisit the Michael Mann affair, particularly given how much we’ve also learned about his and others’ hockey-stick deceptions since. Mann could be said to be 14

the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in service of politicized science that could have dire consequences for the nation and planet.

Mr. Steyn then added:

Not sure I’d have extended that metaphor all the way into the locker-room showers with quite the zeal Mr. Simberg does, but he has a point. Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph, the very ringmaster of the tree-ring circus. And, when the East Anglia emails came out, Penn State felt obliged to “investigate” Professor Mann. Graham Spanier, the Penn State president forced to resign over Sandusky, was the same [one] who investigated Mann. And, as with Sandusky and Paterno, the college declined to find one of its star names guilty of any wrongdoing.

If an institution is prepared to cover up systematic statutory rape of minors, what won’t it cover up? Whether or not he’s “the Jerry Sandusky of climate change”, [sic] he remains the Michael Mann of climate change, in part because his “investigation” by a deeply corrupt administration was a joke.

Dr. Mann’s counsel wrote to appellants requesting an apology and retraction

of the statements, and threatening litigation if the articles were not removed from

their respective websites. The letter stated that the allegations of data manipulation

and misconduct were false, and pointed to the investigations that had concluded

Dr. Mann had not engaged in wrongdoing or manipulated data in a deceptive 15

manner. No apology was forthcoming, nor were the posted statements withdrawn.

Instead, on August 22, 2012, Mr. Lowry wrote an editorial on National Review’s

website titled “Get Lost” that referred to “Michael Mann of Climategate infamy,”

characterized his threatened litigation as “a nuisance lawsuit,” and included a link

to National Review’s lawyer’s response rejecting Dr. Mann’s counsel’s request for

a retraction. Mr. Lowry explained that “[i]n common polemical usage,

‘fraudulent’ doesn’t mean honest-to-goodness criminal fraud. It means

intellectually bogus and wrong.” The editorial concluded: “[Dr. Mann is] going to

go to great trouble and expense to embark on a losing cause that will expose more

of his methods and maneuverings to the world. In short, he risks making an ass of

himself. But that hasn’t stopped him before.” The underlying lawsuit followed.

B. Trial Court Proceedings

Dr. Mann filed his initial complaint on October 22, 2012, alleging libel and

intentional infliction of emotional distress based on appellants’ statements accusing

him of improperly manipulating data to reach a preordained conclusion, deception,

fraud, and misconduct. Appellants filed special motions to dismiss the complaint

pursuant to the D.C. Anti-SLAPP Act and motions to dismiss for failure to state a

claim under Superior Court Rule 12 (b)(6). Dr. Mann opposed the motions. On 16

July 19, 2013, Judge Natalia Combs Greene denied the motions. She determined

that the subject of appellants’ challenged statements brought them within the ambit

of the Anti-SLAPP Act, but that Dr. Mann had made the required showing under

the Act to defeat the special motions to dismiss. First, the trial court interpreted the

“likely to succeed” standard in the Act as substantively similar to the standard for

prevailing on a motion for summary judgment or motion for judgment as a matter

of law. Second, the trial court concluded that Dr. Mann met this burden by making

a prima facie showing that appellants’ statements were defamatory and not

sheltered by the fair comment privilege, and by providing sufficient evidence for

the court to find that “discovery may uncover” that appellants acted with actual

malice. Third, the trial court determined that Dr. Mann also made the requisite

showing of malicious and outrageous conduct to support his claim of intentional

infliction of emotional distress. Finally, the trial court determined that the

complaint stated a claim, and thus survived a Rule 12 (b) (6) evaluation.

Appellants asked the trial court to vacate the denials of their motions to

dismiss and, after the trial court denied this request, appellants moved for

certification of the trial court’s orders for interlocutory appeal. The trial court

denied the motions for certification. Appellants then appealed to this court, which

issued an order to show cause as to why the appeals should not be dismissed for 17

lack of jurisdiction as having been taken from non-appealable orders. On

December 19, 2013, these appeals were dismissed as moot because Dr. Mann filed

an amended complaint on June 28, 2013.

The amended complaint is substantially the same as the original complaint,

with the addition of one count of libel based on the comment comparing Dr. Mann

to Jerry Sandusky, which, in the original complaint, supported only the intentional

infliction of emotional distress claim. Appellants renewed their motions to

dismiss, and Dr. Mann opposed them. On January 22, 2014, Judge Frederick

Weisberg denied the motions, reasoning that Judge Combs Greene’s order denying

the original motions to dismiss was the law of the case, and adding an analysis of

the new defamation count. Appellants again filed motions seeking vacatur of the

denial of their motions to dismiss and certification for interlocutory appeal, which

were, again, denied by the trial court.

Appellants filed notices of appeal to this court, and Dr. Mann moved to

dismiss the appeals on the ground that they seek review of non-final orders that are

not immediately appealable, or, in the alternative, to expedite the appeal. The

court ordered appellants to show cause as to why the court has jurisdiction to hear

these interlocutory appeals. Appellants filed a response, as did Dr. Mann. The 18

court ultimately reserved the jurisdiction question, expedited the appeal, and

ordered the parties to file briefs addressing the court’s jurisdiction as well as the

merits. The District of Columbia and non-appealing defendant Mr. Steyn filed a

brief as amicus curiae in favor of the court’s jurisdiction to hear the interlocutory

order on appeal. 12 Several organizations filed briefs as amici curiae in support of

appellants. We now address all issues.

II. SLAPP Actions and the D.C. Anti-SLAPP Act

A “SLAPP” (strategic lawsuit against public participation) is an action “filed

by one side of a political or public policy debate aimed to punish or prevent the

expression of opposing points of view.” Council of the District of Columbia,

Report of Committee on Public Safety and the Judiciary on Bill 18-893, at 1 (Nov.

18, 2010) (hereinafter Report on Bill 18-893). Thus, the goal of a SLAPP “is not

to win the lawsuit but to punish the opponent and intimidate them into silence.” Id.

at 4 (citing George W. Pring, SLAPPs: Strategic Lawsuits Against Public

Participation, 7 PACE ENVTL. L. REV. 3, 3, 9-11 (1989)). Enacted in 2012, the

D.C. Anti-SLAPP Act was designed to protect targets of such meritless lawsuits by

12 Mr. Steyn also urged the court to act expeditiously as Dr. Mann’s claims against Mr. Steyn, and Mr. Steyn’s counterclaim, have been put on hold in the trial court pending resolution of this appeal. 19

creating “substantive rights with regard to a defendant’s ability to fend off” a

SLAPP. Report on Bill 18-893, at 1. The rights created by the Act comprise a

special motion to dismiss a complaint, D.C. Code § 16-5502, and a special motion

to quash discovery orders, requests for information, or subpoenas for personal

identifying information in suspected SLAPPs, D.C. Code § 16-5503. This court

has interpreted and applied the Anti-SLAPP Act with respect to the provisions

concerning the special motion to quash a subpoena, see Doe v. Burke (Burke I), 91

A.3d 1031 (D.C. 2014), and the award of attorney’s fees in connection with such a

motion, see Doe v. Burke (Burke II), 133 A.3d 569 (D.C. 2016). This is the first

case presented on appeal that raises the proper interpretation and application of the

Act’s special motion to dismiss.

Under the District’s Anti-SLAPP Act, the party filing a special motion to

dismiss must first show entitlement to the protections of the Act by “mak[ing] 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.” D.C. Code § 16-5502 (b). Once

that prima facie showing is made, the burden shifts to the nonmoving party, usually

the plaintiff,13 who must “demonstrate[] that the claim is likely to succeed on the

13 The nonmoving party could also be the defendant in the original action, who has filed a counterclaim, and is responding to a special motion to dismiss filed (footnote continued . . . ) 20

merits.” Id. If the plaintiff cannot meet that burden, the motion to dismiss must be

granted, and the litigation is brought to a speedy end. Id. In this case, the parties

agree that appellants made the requisite prima facie showing that the Act applies

because the lawsuit is based on articles that appeared on CEI’s and National

Review’s websites that concern the debate over the existence and causes of global

warming. See D.C. Code § 16-5501 (1) (defining “[a]ct in furtherance of the right

of advocacy on issues of public interest” to include “[a]ny written or oral statement

made . . . [i]n a place open to the public or a public forum in connection with an

issue of public interest . . . .”); D.C. Code § 16-5501 (3) (“‘Issue of public interest’

means an issue related to health or safety; environmental, economic, or community

well-being; the District government; a public figure; or a good, product, or service

in the market place.”). What is contested in this appeal is whether Dr. Mann met

his burden of demonstrating that he is “likely to succeed on the merits” of his

claims for defamation and intentional infliction of emotional distress. If he has,

appellants’ special motions to dismiss were properly denied, and the litigation

continues. If he has not, the motions should have been granted, and the litigation

would be terminated. But we must decide first whether this court has jurisdiction

to decide that question at this stage of the litigation.

(. . . footnote continued) by the counterclaim defendant. For the sake of clarity, we refer to the nonmoving party and plaintiff interchangeably. 21

III. Jurisdiction

Denial of a special motion to dismiss filed under the Anti-SLAPP Act does

not end the litigation and is not a final order. To the contrary, it signals that the

litigation will continue. 14 Nor is it one of the types of interlocutory orders

specified by statute over which this court has jurisdiction. See D.C. Code § 11-721

(a)(2)-(3) (2012 Repl.). The denial of a motion to dismiss filed under Rule 12

(b)(6) is not usually immediately appealable. See McNair Builders, Inc. v. Taylor,

3 A.3d 1132, 1135 (D.C. 2010). Thus, we must decide, in the first instance,

whether the denial of a special motion to dismiss filed pursuant to D.C. Code § 16-

5502 belongs to that “small class” of non-final orders that may be appealed under

the collateral order doctrine established by the Supreme Court in Cohen v.

Beneficial Industrial Loan Corp., because it is “too important to be denied review

and too independent of the cause itself to require that appellate consideration be

deferred until the whole case is adjudicated.” 337 U.S. 541, 546 (1949).

The test for application of the collateral order doctrine is “stringent.”

McNair Builders, 3 A.3d at 1136 (quoting Will v. Hallock, 546 U.S. 345, 349-50

14 The grant of a special motion to dismiss, on the other hand, is appealable as a final order. See D.C. Code § 11-721 (a)(1). 22

(2006)). For an order to qualify for interlocutory review under the doctrine, “(1) it

must conclusively determine a disputed question of law, (2) it must resolve an

important issue that is separate from the merits of the case, and (3) it must be

effectively unreviewable on appeal from a final judgment.” Id. at 1135-36

(quoting, and overruling on other grounds, Finkelstein, Thompson & Loughran v.

Hemispherx Biopharma, Inc., 774 A.2d 332, 339-40 (D.C. 2001)). “Effective”

unreviewability encompasses the notion that the matter at stake concerns an issue

of “substantial public interest.” Id. at 1137. We conclude that these criteria are

met where a special motion to dismiss filed under the Anti-SLAPP Act is denied as

they are in the case of denial of a special motion to quash filed under the Act. See

Burke I, 91 A.3d at 1038 (“[The] determination that an order is appealable under

[these criteria] is ‘not directed at the individual case, but to the entire category to

which a claim belongs.’”) (quoting McNair Builders, 3 A.3d at 1140 n.9)).15

15 Burke I held that denial of a special motion to quash a subpoena to discover the identity of unidentified defendant(s) filed under the Anti-SLAPP Act is appealable on an interlocutory basis, 91 A.3d at 1036-40; it reserved the “related but separate question” of the appealability of an order denying a special motion to dismiss filed under the Act. Id. at 1036 n.6. 23

A. Conclusivity

First, a trial court’s order denying a special motion to dismiss under the

Anti-SLAPP Act “conclusively determine[s] a disputed question of law,” McNair

Builders, 3 A.3d at 1135: whether the movant is entitled to dismissal under the

Act. In analyzing whether the denial of a special motion to quash under the Act is

immediately appealable, the Burke I court concluded that the “conclusivity

element” of the collateral order doctrine is “satisfied when a trial court has

determined the movant is ineligible for protection under the [Anti-SLAPP]

statute.” 91 A.3d at 1038 (quoting Godin v. Schencks, 629 F.3d 79, 84 (1st Cir.

2010)).16 Here, appellants have received some measure of protection under the Act

by having their motions to dismiss evaluated under the special provisions of the

Act created to deter SLAPPs. The application of the Act does not mean, however,

that there is no “disputed question of law” for purposes of the collateral order

doctrine. There remains the specific disputed legal question of whether the movant

is entitled to the Act’s ultimate protection: mandatory dismissal of the lawsuit at

an early point in the litigation. That is an issue a trial court conclusively

16 In Burke I, the special motion to quash was denied after the trial court determined that the movant failed to make a prima facie case that the lawsuit arose out of protected acts and that the plaintiff was likely to succeed on the merits. 91 A.3d at 1035. This court reversed on both counts. Id. at 1045. 24

determines when it rules on a special motion to dismiss. Therefore, denial of a

special motion to dismiss satisfies the “conclusivity element” of the collateral order

doctrine.

B. Separability

Second, a trial court’s order denying a special motion to dismiss “resolve[s]

an important issue that is separate from the merits of the case.” McNair Builders,

3 A.3d at 1135. The issue in the case of a special motion to dismiss, once the

threshold prima facie case has been met by the movant, is whether the movant has

a statutory right to be free of the burdens of defending the litigation. Resolution of

both issues — whether the claim arises from acts protected by the Act and whether

the movant is entitled to dismissal — will involve some of the same facts relevant

to the merits of the claim. That commonality, however, does not necessarily

preclude interlocutory review of the denial of an Anti-SLAPP special motion to

dismiss.

An analogy to qualified immunity is apt. “[I]t follows from the recognition

that qualified immunity is in part an entitlement not to be forced to litigate the

consequences of official conduct that a claim of immunity is conceptually distinct

from the merits of the plaintiff’s claim that his rights have been violated.” Mitchell 25

v. Forsyth, 472 U.S. 511, 527-28 (1985). The special motion to dismiss created by

the Anti-SLAPP Act “explicitly protects the right not to stand trial” in a SLAPP,

which is intended as a “weapon to chill or silence speech.” Burke I, 91 A.3d at

1033, 1039; see Report on Bill 18-893, at 4 (referring to “other jurisdictions, which

have similarly extended absolute or qualified immunity for individuals engaging in

protected actions”). This statutory right is analogous to qualified immunity for

official conduct in that its application depends on the court’s resolution of whether

the acts complained of entitle the defendant not to stand trial “under certain

circumstances.” Mitchell, 472 U.S. at 525. In this case we interpret the statutory

standard (“likely to succeed on the merits”) for determining special motions under

the Act and, as discussed infra, conclude that the court must decide, as a matter of

law, whether the plaintiff has produced (usually without the benefit of discovery)

sufficient evidence to prevail on the claim. In other words, the circumstance under

which the Anti-SLAPP Act creates immunity from trial is a meritless SLAPP. As

we stated in Burke I, this “resolves a question separate from the merits in that it

merely finds that such merits may exist, without evaluating whether the plaintiff’s

claim will succeed.” 91 A.3d at 1039 (quoting Batzel v. Smith, 333 F.3d 1018,

1025 (9th Cir. 2003)). 17

17 Burke I also explained that denial of a special motion to quash on the ground that the defendant was not entitled to protection under the Act is separable (footnote continued . . . ) 26

We readily acknowledge that this inquiry is not completely separable from

the merits, but it need not be where it serves a different purpose. See Henry v.

Lake Charles Am. Press, 566 F.3d 164, 175 (5th Cir. 2009) (noting that purpose of

Anti-SLAPP special motions is “distinct from [the purpose] of the underlying

suit”). As the Supreme Court has recognized, “although sometimes practically

intertwined with the merits, a claim of immunity nonetheless raises a question that

is significantly different from the questions underlying plaintiff’s claim on the

merits (i.e., in the absence of qualified immunity).” Johnson v. United States, 515

U.S. 304, 314 (1995). As is the case with qualified immunity, the issue that the

court must resolve in deciding a special motion to dismiss under the Anti-SLAPP

Act is whether the defendant is entitled to immunity from trial, a question of law

that involves the evaluation of the complained-of conduct against established legal

standards. Cf. Behrens v. Pelletier, 516 U.S. 299, 313 (1996) (holding that court’s

denial of qualified immunity separate and immediately appealable because it

“necessarily determined that certain conduct attributed to [defendant] (which was

(. . . footnote continued) because whether “speech qualifies for protection under the statute is a separate question from whether [appellants] may be held liable for defamation.” Burke I, 91 A.3d at 1038. As discussed supra, appellants’ speech in this case was deemed to be covered by the Act. 27

controverted) constituted a violation of clearly established law”). 18 Consequently,

even though a court’s determination involves consideration of evidence produced

in support of the merits, in view of the purpose of the D.C. Anti-SLAPP Act to

provide immunity from suit, a court’s denial of a special motion to dismiss

resolves an issue of law at the threshold of litigation — whether the defendant is

entitled to immunity from trial — that is sufficiently separate from the ultimate

question on the merits of the case decided at trial — whether the defendant is

liable. See Henry, 566 F.3d at 175 (noting that Anti-SLAPP motion is “separate[]

from the merits of the claim itself” because its purpose is to determine ‘“whether

the defendant is being forced to defend a meritless claim,’ not to determine

whether the defendant actually committed the relevant tort” (quoting Batzel, 333

F.3d at 1025)). 19

18 See id. (contrasting Johnson, where what was “at issue in the sufficiency determination was nothing more than whether the evidence could support a finding that certain conduct occurred”). 19 But see Ernst v. Carrigan, 814 F.3d 116, 119-22 (2d Cir. 2016) (holding that even if Vermont Anti-SLAPP statute provides immunity from trial, consideration of special motion to dismiss takes into account fact-based determinations and is thus not “completely separate from the merits”). 28

C. Unreviewability

Third, a trial court’s denial of a special motion to dismiss is “effectively

unreviewable on appeal from a final judgment.” McNair Builders, 3 A.3d at 1135

(quoting Finkelstein, Thompson & Loughram, 774 A.2d at 339-40). Denial of

immunity from trial is the quintessential unreviewable order because the core of

immunity from suit “is its possessor’s entitlement not to have to answer for his

conduct in a civil damages action.” Id. at 1137 (quoting Mitchell, 472 U.S. at 525).

The D.C. Anti-SLAPP Act provides not only immunity from having to stand trial

but also protection from “expensive and time consuming discovery that is often

used in a SLAPP as a means to prevent or punish” by “toll[ing] discovery while the

special motion to dismiss is pending.” Report on Bill 18-893, at 4. Consequently,

the denial of a special motion to dismiss filed under the Act — a denial of the

immunity from suit and pretrial burdens afforded by the statute — is the type of

unreviewable order that falls squarely within the collateral order doctrine. Accord

Henry, 566 F.3d at 178 (holding that denial of Anti-SLAPP motion to dismiss

satisfies the third requirement of the collateral order doctrine because its purpose is

to “provide[] a right not to stand trial”); see also Behrens, 516 U.S. at 308 (noting

that the scope of protection afforded by qualified immunity, which includes the

right to not stand trial and to avoid the burdens of pretrial matters, such as 29

discovery, made denial of immunity claim immediately appealable).

D. Substantial Public Interest

Finally, and of particular importance in conducting a Cohen analysis, we

conclude that because the denial of a special motion to dismiss implicates a

“substantial public interest,” it would be effectively unreviewable on appeal from a

final judgment. McNair Builders, 3 A.3d at 1136. The purpose of the special

motion to dismiss is to protect a “particular value of a high order” — the right to

free speech guaranteed by the First Amendment — by shielding defendants from

meritless litigation that might chill advocacy on issues of public interest. Will, 546

U.S. at 352 (citing cases involving separation of powers, states’ dignitary interests

under the Eleventh Amendment, and double jeopardy bar of the Fifth

Amendment); cf. McNair Builders, 3 A.3d at 1141 (holding that contractor’s

asserted immunity under judicial proceedings privilege did not implicate a

substantial public interest warranting interlocutory review). The legislative history

of the Anti-SLAPP Act confirms that the legislature thought the denial of the Act’s

protection merited immediate appellate review. The original Anti-SLAPP bill

presented to the Council of the District of Columbia included a provision for the

interlocutory appeal of the denial of a special motion to dismiss or quash. This 30

provision was excluded from the final version of the bill following this court’s

decision in Stuart v. Walker, 6 A.3d 1215 (D.C. 2010), vacated, 30 A.3d 783 (D.C.

2011) (Mem.)., which held that a similar provision affecting the jurisdiction of the

court is beyond the scope of the Council’s authority. Report on Bill 18-893, at 7.

The Council’s evident intent and preference to include an interlocutory review

provision — regardless of whether it had the authority to do so — is a significant

indicator of its belief that “some particular value of a high order,” Will, 546 U.S. at

352, is at issue that should be addressed by the court on appeal without waiting for

completion of the litigation. See Henry, 566 F.3d at 181 (concluding that where

statute “embodies a legislative determination that parties should be immune from

certain abusive tort claims that have the purpose or effect of imperiling First

Amendment rights, ‘there is little room for the judiciary to gainsay its

“importance”’” (quoting Digital Equip. v. Desktop Direct, 511 U.S. 863, 879

(1994))); cf. Englert v. MacDonnell, 551 F.3d 1099, 1105-06 (9th Cir. 2009)

(holding that denial of special motion to strike under Oregon’s anti-SLAPP statute

was not immediately appealable where Oregon statute did not provide for

immediate appellate review of such order).

We conclude that denial of Anti-SLAPP special motions to dismiss meet the

requirements of conclusivity, separability, and effective unreviewability 31

established in Cohen, as further refined in Will, and is immediately appealable to

this court. We come to this conclusion in light of the District of Columbia Anti-

SLAPP Act’s purpose to create a substantive right not to stand trial and to avoid

the burdens and costs of pre-trial procedures, a right that would be lost if a special

motion to dismiss is denied and the case proceeds to discovery and trial; our

interpretation of the Act as requiring a judicial determination applying established

principles of law in deciding a special motion to dismiss; and, most especially, the

public interest in safeguarding important First Amendment rights in an expeditious

manner as shown by the Council’s evident desire to make denials of such motions,

which must be filed and decided in the early stage of litigation, immediately

appealable. See Henry, 566 F.3d at 176-78 (noting that a ruling on a special

motion to dismiss under the Louisiana Anti-SLAPP statute meets every prong of

the collateral order doctrine because the statute provides a right not to stand trial

and bear the costs of defending a meritless defamation claim that can chill

important First Amendment rights by gauging plaintiff’s probability of success);

Batzel, 333 F.3d at 1025-26 (holding that denial of special motion to dismiss under

California Anti-SLAPP Act met Cohen standards because it created a substantive

immunity from suit and provided for immediate right of appeal).

As we have determined that we have jurisdiction, we have two further 32

questions to address: (1) what is meant by the Act’s language requiring the

plaintiff to “demonstrate[] that the claim is likely to succeed on the merits,” and (2)

whether Dr. Mann has met this standard in the present case.

IV. The Anti-SLAPP Act’s “Likely to

Succeed on the Merits” Standard for Special Motions to Dismiss

The Anti-SLAPP Act’s special motion to dismiss creates a burden-shifting

procedure that is triggered by the party seeking to invoke the special protections

afforded by the Act. See D.C. Code § 16-5502. 20 The moving party (usually the

20 D.C. Code § 16-5502 provides in its entirety:

(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, (footnote continued . . . ) 33

defendant)21 files a special motion to dismiss within forty-five days after service of

the complaint. Id. § 16-5502 (a). Filing of the motion stays discovery, unless the

court grants a limited exception for discovery targeted to defeating the motion. Id.

§ 16-5502 (c). If the moving party makes a “prima facie showing” that the claim

“arises from an act in furtherance of the right of advocacy on issues of public

interest,” the burden shifts to the party opposing the motion to “demonstrate[] that

the claim is likely to succeed on the merits.” Id. § 16-5502 (b) & (d). The court is

required to hold an “expedited hearing” on the motion and to issue a ruling “as

soon as practicable after the hearing.” Id. § 16-5502 (d). If the plaintiff’s

opposition fails to meet the statutory standard, the Act requires the trial court to

(. . . footnote continued) 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.

21 See supra note 13. 34

dismiss the complaint, with prejudice. Id. § 16-5502 (b) & (d). If the opposition is

successful, the motion to dismiss is denied, id., and the litigation proceeds in the

normal course.

For the reasons that follow, we conclude that in considering a special motion

to dismiss, the court evaluates the likely success of the claim by asking whether a

jury properly instructed on the applicable legal and constitutional standards could

reasonably find that the claim is supported in light of the evidence that has been

produced or proffered in connection with the motion. This standard achieves the

Anti-SLAPP Act’s goal of weeding out meritless litigation by ensuring early

judicial review of the legal sufficiency of the evidence, consistent with First

Amendment principles, while preserving the claimant’s constitutional right to a

jury trial.

We review questions of statutory interpretation de novo. Burke I, 91 A.3d at

1040. 22 Our analysis begins with the language of the statute, see District of

Columbia v. Place, 892 A.2d 1108, 1111 (D.C. 2006), which requires that to

22 Burke I held that the special motion to dismiss filed in that case should have been granted because the plaintiff’s claim was unlikely to succeed. The court did not need to dwell on the precise interpretation of the “likely to succeed” standard in light of its conclusion that the record contained no evidence that the defendant acted with the requisite malice. 91 A.3d at 1045. 35

prevail in opposing a special motion to dismiss, the opponent must “demonstrate[]

that the claim is likely to succeed on the merits.” D.C. Code § 16-5502 (b). As

neither the phrase nor any of its components is defined in the statute, we look to

“the language of the statute by itself to see if the language is plain and admits of no

more than one meaning.” Rodriguez v. District of Columbia, 124 A.3d 134, 146

(D.C. 2015) (quoting Dobyns v. United States, 30 A.3d 155, 159 (D.C. 2011)).

Although we can be confident that “on the merits” refers to success on the

substance of the claim, 23 the meaning of the requirement that the opponent

“demonstrate[] that the claim is likely to succeed” is more elusive. Use of the

word “demonstrate”24 indicates that once the burden has shifted to the claimant, the

statute requires more than mere reliance on allegations in the complaint, and

mandates the production or proffer of evidence that supports the claim. This

interpretation is supported by another provision in the Act, § 16-5502 (c), that stays

discovery upon the filing of a special motion to dismiss “until the motion has been

disposed of,” unless it “appears likely that targeted discovery will enable the

23 “Merits” is defined as “[t]he elements or grounds of a claim or defense; the substantive considerations to be taken into account in deciding a case, as opposed to extraneous or technical points, esp. of procedure.” BLACK’S LAW DICTIONARY (10th ed. 2014). 24 The relevant dictionary definitions of “demonstrate” are: “to show clearly and deliberately; manifest,” and “to show to be true by reasoning or adducing evidence.” THE AMERICAN HERITAGE DICTIONARY (5th ed. 2015). 36

plaintiff to defeat the motion and that the discovery will not be unduly

burdensome.” If evidence were not required to successfully oppose a special

motion to dismiss under § 16-5502 (b), there would be no need for a provision

allowing targeted discovery for that purpose. 25 Moreover, unless something more

than argument based on the allegations in the complaint is required, the special

motion to dismiss created by the Act would be redundant in light of the general

availability, in all civil proceedings regardless of the nature of the claim, of

motions to dismiss under Rule 12 (b)(6).

But what does it mean that the evidence must demonstrate that the claim is

“likely to succeed”? In common parlance, the term “likely” connotes a predictive

quality, and its dictionary definition is “probable.”26 The phrase conveys an

assessment of the claimant’s chance of success, but does not inherently provide the

25 See Tippett v. Daly, 10 A.3d 1123, 1127 (D.C. 2010) (en banc) (referring to interpretation of statutory language as a “holistic endeavor” (quoting Wash. Gas Light Co. v. Pub. Serv. Comm’n, 982 A.2d 691, 716 (D.C. 2009))). 26 “Likely” is defined as “[a]pparently true or real; probable. . . . Showing a strong tendency; reasonably expected (likely to snow).” BLACK’S LAW DICTIONARY, supra note 23. Rather unhelpfully, “probable,” in turn, is defined in Black’s as “[l]ikely to exist, be true, happen.” Id. See THE AMERICAN HERITAGE DICTIONARY, supra note 24 (defining “likely” as “1. Possessing or displaying the qualities or characteristics that make something probable . . . 2. Within the realm of credibility; plausible . . . 3. Apparently appropriate or suitable . . . 4. Apt to achieve success or yield a desired outcome”). 37

exact measure by which such an assessment is to be made. It could be argued that

“likely to succeed” is different from and a lesser standard than “more likely than

not to succeed,” the phrase routinely used to mean a preponderance of the

evidence, and that if the legislature had in mind a preponderance of the evidence

standard, it would have used that well-known term of art. See Haley v. United

States, 799 A.2d 1201, 1209 n.6 (D.C. 2002) (“The preponderance of the evidence

standard requires proof that something more likely than not exists or occurred.”).

On the other hand, it seems counterintuitive to say that a claim is “likely to

succeed” if it has a less than 50% chance of prevailing. In short, the statutory

language’s dictionary meaning, even if good enough for common parlance, leaves

us in doubt as to its proper interpretation in the Anti-SLAPP Act.

Appellants argue that we should look to a similar phrase, “a likelihood of

success on the merits,” that is used to evaluate requests for temporary stays and

preliminary injunctions. In that context, “a likelihood of success” has been defined

to mean a “substantial likelihood” though not a “mathematical probability,”

Ortberg v. Goldman Sachs Grp., 64 A.3d 158, 162 (D.C. 2013) (quoting In re

Estate of Reilly, 933 A.3d 830, 837 (D.C. 2007)), and does not express a fixed 38

measurement,27 as it is part of a multi-factor test where a stronger showing on

some factors can compensate for a weaker showing on others. 28 The phrase “a

likelihood of success” is similar (though not identical) on its face to the phrase

“likely to succeed,” and in both the preliminary injunction context and under the

Anti-SLAPP Act, the judicial role involves prediction of ultimate success on the

merits. The two terms should not automatically be equated, however, because of

the different purpose and impact of the court’s ruling in the two contexts. In

granting a request for preliminary injunction, the court grants temporary relief to a

movant who makes some showing of likelihood of success that is weighed, along

with other factors such as irreparable harm, to preserve the status quo pending the

final outcome of litigation. See Nken, 556 U.S. at 434 (noting that preliminary

injunctions and stays similarly concern whether court order “may allow or disallow

27 It has been suggested that, in the federal courts, “a likelihood of success” in the preliminary injunction context is to be contrasted with a chance of success that is only a “mere possibility” or “better than negligible,” but without requiring a showing of success “more likely than not.” Citigroup Glob. Mkts. v. VCG Special Opportunities Master Fund, 598 F.3d 30, 37 & n.7 (2d Cir. 2010) (quoting Nken v. Holder, 556 U.S. 418, 434 (2009))). 28 See Dist. 50, United Mine Workers of Am. v. Int’l Union, United Mine Workers of Am., 412 F.2d 165, 168 (D.C. Cir. 1969) (“The likelihood of success on the merits that a movant for injunctive relief must demonstrate varies with the quality and quantum of harm that it will suffer from the denial of an injunction. ‘Where it appears that a lack of a showing of irreparable [harm] exists . . . the party seeking a preliminary injunction has a burden of convincing with a reasonable certainty that it must succeed . . . .’” (quoting Dino de Laurentiis Cinematografica v. D-150, Inc., 366 F.2d 373, 375 (2d Cir. 1966))). 39

anticipated action before the legality of that action has been conclusively

determined”). Under the Anti-SLAPP Act, on the other hand, the result of the

court’s ruling in favor of the moving party means complete and final victory for

that party by bringing the litigation to an end, avoiding a resolution by trial.

Because it is a variable standard that is used for a different purpose, “a likelihood

of success,” the term used in deciding requests for preliminary injunctions and

stays, does not determine the proper interpretation of the “likely to succeed”

standard for deciding special motions to dismiss under the Anti-SLAPP Act.

Lacking a statutory definition, clear dictionary definition, or application as a

term of art that reasonably can be borrowed from another legal context, the Anti-

SLAPP Act’s “likely to succeed on the merits” leaves us with “textual

uncertainty.” Cass v. District of Columbia, 829 A.2d 480, 486 (D.C. 2003). Our

task, therefore, is to interpret the ambiguous term in a manner “that makes sense of

the statute as a whole” by reference to legislative history and other aids to

construction, such as applicable canons of statutory interpretation. District of

Columbia v. Reid, 104 A.3d 859, 868 (D.C. 2014) (quoting Cass, 829 A.2d at 482).

We begin with what the legislature said it was trying to accomplish: to deter

SLAPPs by “extend[ing] substantive rights to defendants in a SLAPP, providing 40

them with the ability to file a special motion to dismiss that must be heard

expeditiously by the court.” Report on Bill 18-893, at 4. The special motion to

dismiss is a mechanism by which a SLAPP defendant can “expeditiously and

economically dispense of litigation” to alleviate the burdens and cost of defending

against a suit that is filed, not to succeed, but to “prevent or punish” the

defendant’s speech or advocacy. Id. To this end, a special motion to dismiss must

be filed and decided in the early stage of litigation. D.C. Code § 16-5502 (a). If

the trial court determines that the plaintiff has not met the statutory burden, the

special motion to dismiss must be granted “with prejudice.” Id. § 16-5502 (b) &

(d). In short, the special motion to dismiss provision authorizes final disposition of

a claim in a truncated proceeding, usually without the benefit of discovery, id.

§ 16-5502 (c), to avoid the toll that meritless litigation imposes on a defendant who

has made a prima facie showing that the claim arises from advocacy on issues of

public interest.

The dispositive nature of a court’s grant of a special motion to dismiss after

the claimant has been required to proffer evidence, but without a full opportunity

to engage in discovery and before trial, is critical to our interpretation of the “likely

to succeed” standard. An interpretation that puts the court in the position of

making credibility determinations and weighing the evidence to determine whether 41

a case should proceed to trial raises serious constitutional concerns because it

encroaches on the role of the jury. 29 In view of this concern, we apply the canon of

constitutional avoidance, “an interpretive tool, counseling that ambiguous statutory

language be construed to avoid serious constitutional doubts.” FCC v. Fox

Television Stations, Inc., 556 U.S. 502, 516 (2009). This canon leads us to

interpret the phrase “likely to succeed on the merits,” undefined in the D.C. Anti-

SLAPP statute, in a manner that does not supplant the role of the fact-finder, lest

the statute be rendered unconstitutional. 30 We, therefore, conclude that to remove

29 See Davis v. Cox, 351 P.3d 862, 873-74 (Wash. 2015) (en banc) (declaring that Washington state’s Anti-SLAPP special motion to dismiss, WASH. REV. CODE § 4.24.525 (2010), violates the state’s constitutional guarantee to a jury trial because it required trial court to weigh the evidence and make factual determination whether there was “clear and convincing evidence [of] a probability of prevailing on the claim”); Opinion of the Justices (SLAPP Suit Procedure), 641 A.2d 1012, 1015 (N.H. 1994) (declaring that proposed Anti-SLAPP legislation would violate right to trial by jury guaranteed by state constitution because it would require court to “weigh the pleadings and affidavits on both sides and adjudicate a factual dispute” in determining whether claimant has shown “a probability of prevailing on the merits”); Unity Health Care, Inc. v. Cty. of Hennepin, 308 F.R.D. 537, 549 (D. Minn. 2015) (concluding that Minnesota Anti- SLAPP provision requiring that party opposing dismissal must persuade judge by clear and convincing evidence that defendant is not immune from liability violates Seventh Amendment right to jury trial because it requires judge to weigh evidence and make credibility determination), interlocutory appeal docketed, No. 15-2489 (8th Cir. July 10, 2015). 30 See Lafayette Morehouse, Inc. v. Chronicle Publ’g Co., 44 Cal. Rptr. 2d 46, 53 (1995) (interpreting standard for judging California’s Anti-SLAPP motion to dismiss to avoid violating the state constitutional right to jury trial); cf. Leiendecker v. Asian Women United of Minn., 848 N.W.2d 224, 232-33 (Minn. (footnote continued . . . ) 42

doubt that the Anti-SLAPP statute respects the right to a jury trial, the standard to

be employed by the court in evaluating whether a claim is likely to succeed may

result in dismissal only if the court can conclude that the claimant could not prevail

as a matter of law, that is, after allowing for the weighing of evidence and

permissible inferences by the jury. Cf. Mixon v. Wash. Metro. Area Transit Auth.,

959 A.2d 55, 58 (D.C. 2008) (explaining that summary judgment does not violate

right to jury trial because it results in dismissal only if no reasonable jury could

find for the claimant based on the undisputed facts).

The standards against which the court must assess the legal sufficiency of

the evidence are the substantive evidentiary standards that apply to the underlying

claim and related defenses and privileges. As we discuss in the next section, in

addition to the elements required to make out a claim for defamation under the law

of the District of Columbia, there is a well-developed body of case law, originating

with the Supreme Court, that establishes different levels of fault and proof that are

designed to protect First Amendment rights. One example is the requirement to

(. . . footnote continued) 2014) (concluding that it was not possible to use constitutional avoidance canon to interpret statute to avoid constitutional defect where statutory language “unambiguously require[s] the responding party to produce evidence and the district court to make a finding on whether ‘the responding party has produced clear and convincing evidence that the acts of the moving party are not immunized from liability’” (quoting Minn. Stat. § 554.02 (2014)). 43

prove actual malice by clear and convincing evidence when the claimant is a public

official or, as in this case, a limited public figure with respect to the issue that is the

subject of speech claimed to be defamatory. Cf. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 254-55 (1986) (holding that in evaluating motion for summary

judgment under Rule 56, as in evaluating motion for directed verdict under Rule 50

(a), in a case requiring proof of actual malice by clear and convincing evidence,

“the judge must view the evidence presented through the prism of the substantive

evidentiary burden”). The precise question the court must ask, therefore, is

whether a jury properly instructed on the law, including any applicable heightened

fault and proof requirements, could reasonably find for the claimant on the

evidence presented.31

31 Colorado, which was specifically cited in the Committee Report, applies a similar standard. See Report on Bill 18-893 at 2 n.4. In Protect Our Mountain Env’t, Inc. v. Dist. Court, 677 P.2d 1361 (Colo. 1984), the Colorado Supreme Court crafted a means to protect the First Amendment right to petition of a defendant sued for abuse of process, while also protecting “those truly aggrieved by abuse of these processes to vindicate their own legal rights.” Id. at 1369. The court permits the parties to present “all material pertinent to the motion” and then considers a motion to dismiss “as one for summary judgment.” Id. In resolving the motion, the court applies a “heightened standard” intended to protect petitioning activity by requiring a showing that

(1) the . . . claims were devoid of reasonable factual support, or, if so supportable, lacked any cognizable basis in law for their assertion; and (2) the primary purpose of the defendant’s petitioning activity was to harass the plaintiff or to effectuate some other improper objective; (footnote continued . . . ) 44

We acknowledge that our functional interpretation of the statutory language

is not evident from the face of the statute alone. As we have explained, the

interpretation we adopt is made possible by the ambiguity of the statutory language

and rendered necessary to avoid doubt about the constitutionality of § 16-5502 (b).

This interpretation comports with the legislative aim of building special protections

for a defendant who makes a prima facie case that the claim arises from advocacy

on issues of public interest. A comparison of the procedures usually available in

(. . . footnote continued) and (3) the defendant’s petitioning activity had the capacity to adversely affect a legal interest of the plaintiff. Id.

Other states have adopted similar approaches. California’s Anti-SLAPP statute, which requires a showing “that there is a probability that the plaintiff will prevail on the claim,” CAL. CIV. PROC. CODE § 425.16 (b)(1) (West 2015), has been interpreted as requiring the plaintiff to “state and substantiate a legally sufficient claim,” by “demonstrat[ing]” that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” Rusheen v. Cohen, 128 P.3d 713, 718 (Cal. 2006) (alterations in original omitted) (quoting Wilson v. Parker, Covert & Chidester, 50 P.3d 733, 739 (Cal. 2002)). See also Yount v. Handshoe, 171 So.3d 381, 387 n.4 (La. Ct. App. 2015) (commenting that Louisiana and California’s Anti-SLAPP statutes match “word for word”); John v. Douglas Cty. Sch. Dist., 219 P.3d 1276, 1281 (Nev. 2009)) (stating that under Nevada’s statute requiring “clear and convincing evidence [of] a probability of prevailing on the claim,” plaintiff must show genuine issue of material fact); OR. REV. STAT. § 31.150 (2010) (providing that if defendant makes prima facie showing speech is protected by statute, “the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case”). 45

civil litigation makes clear that the complement of provisions of the Anti-SLAPP

Act impose requirements and burdens on the claimant that significantly advantage

the defendant. As we have noted, the filing of a special motion to dismiss stays the

claimant’s right to seek discovery “until the motion has been disposed of,” with a

limited exception that favors the defendant. D.C. Code § 16-5502 (c). The Act

also places the initial burden on the claimant to present legally sufficient evidence

substantiating the merits without placing a corresponding evidentiary demand on

the defendant who invokes the Act’s protection. Id. § 16-5502 (b). This is a

reversal of the allocation of burdens for dismissal of a complaint under Superior

Court Rule of Civil Procedure 12 (b)(6), which requires the moving party to show

that the complaint’s allegations, even if proven, would not state a claim as a matter

of law; and for summary judgment under Superior Court Rule of Civil Procedure

56, which requires the moving party to wait until discovery has been completed

and then shoulder the initial burden of showing that there are no material facts

genuinely in dispute and that the movant is entitled to judgment as a matter of law

on the undisputed facts.

In addition to these substantive burdens, there are financial levies to deter a

SLAPP plaintiff. The Act authorizes the trial court to award costs and fees —

including attorney’s fees — to a moving party who prevails “in whole or in part” 46

on a special motion to dismiss. D.C. Code § 16-5504 (a). We have held that under

the parallel provision for special motions to quash under D.C. Code § 16-5503, the

successful movant is presumptively entitled to an award of fees unless special

circumstances make a fee award unjust. See Burke II, 133 A.3d at 571. The Act is

much less generous to a plaintiff who successfully defends against a special motion

to dismiss, allowing the award of costs and fees “only if the court finds that [the]

motion . . . is frivolous or is solely intended to cause unnecessary delay.” D.C.

Code § 16-5504 (b). In sum, the special motion to dismiss not only provides

substantial advantages to the defendant over and above those usually available in

civil litigation, but also imposes procedural and financial burdens on the plaintiff.

Our interpretation of the requirements and standard applicable to special

motions to dismiss ensures that the Anti-SLAPP Act provision is not redundant

relative to the rules of civil procedure. A defendant may still file a motion to

dismiss a complaint at the onset of litigation under Rule 12, based solely on

deficiencies in the pleadings. See Super. Ct. Civ. R. 12 (a) (requiring that motion

for failure to state a claim must be filed within 20 days of service of complaint).

The Anti-SLAPP Act gives the defendant the option to up the ante early in the

litigation, by filing a special motion to dismiss that will require the plaintiff to put

his evidentiary cards on the table and makes the plaintiff liable for the defendant’s 47

costs and fees if the motion succeeds. D.C. Code § 16-5502 (a) (requiring that

special motion to dismiss be filed within forty-five days of service of the

complaint); id. § 16-5504 (a) (providing for costs and fees). Even if the Anti-

SLAPP special motion to dismiss is unsuccessful, the defendant preserves the

ability to move for summary judgment under Rule 56 later in the litigation, after

discovery has been completed, or for a directed verdict under Rule 50 after the

presentation of evidence at trial. 32

32 The D.C. Circuit has described the Anti-SLAPP Act’s “likely to succeed” standard as “an additional hurdle a plaintiff must jump over to get to trial,” and opined (without elaboration) that the standard “is different from and more difficult” than for summary judgment under Federal Rule 56. Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333-34 (D.C. Cir. 2015). For the reasons we note in the text, we agree with Abbas that the special motion to dismiss is different from summary judgment in that it imposes the burden on plaintiffs and requires the court to consider the legal sufficiency of the evidence presented before discovery is completed. As concerns the standard to be employed by the court in deciding whether to grant the motion, however, the question is substantively the same: whether the evidence suffices to permit a jury to find for the plaintiff.

Abbas also stated that the special motion to dismiss created by D.C. Code § 16-5502 does not apply in federal court because it answers the same question as the Federal Rules of Civil Procedure — when a court must dismiss a case before trial — in a different way. Id. at 1336. Implicit in Abbas is that the special motion to dismiss is only procedural in nature rendering it inapplicable in federal court sitting in diversity. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78-79 (1938); Burke v. Air Serv Int’l, Inc., 685 F.3d 1102, 1104 (D.C. Cir. 2012) (applying Erie doctrine to District of Columbia). Other federal appellate courts have come to a different conclusion and applied similar state Anti-SLAPP procedures. See, e.g., Liberty Synergistics, Inc. v. Microflo Ltd., 718 F.3d 138, 143-44 (2d Cir. 2013) (applying California Anti-SLAPP statute’s “probability” standard); Price v. Stossel, 620 F.3d 992, 1000 (9th Cir. 2010) (same); Godin, 629 F.3d at 89 (footnote continued . . . ) 48

Finally, our interpretation of the standard applicable to special motions to

dismiss as providing an early judicial evaluation of the legal sufficiency of the

plaintiff’s evidence strikes the right balance between the interests of the parties.

Consistent with the Anti-SLAPP Act’s purpose to deter meritless claims filed to

harass the defendant for exercising First Amendment rights, true SLAPPs can be

screened out quickly by requiring the plaintiff to present her evidence for judicial

evaluation of its legal sufficiency early in the litigation. But by deferring to the

jury’s reasonable decision-making, the constitutional right of a plaintiff who has

presented evidence that could persuade a jury to find in her favor is respected. It

(. . . footnote continued) (applying Maine Anti-SLAPP statute’s special motion to dismiss because it is “so intertwined with a state right or remedy that it functions to define the scope of the state-created right”) (quoting Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., 559 U.S. 393, 423 (2010) (Stevens, J., concurring)); Henry, 566 F.3d at 168- 69 (applying Louisiana Anti-SLAPP statute’s “nominally-procedural” special motion to dismiss “probability” standard). But cf. Royalty Network, Inc. v. Harris, 756 F.3d 1351, 1361-62 (11th Cir. 2014) (declining to apply Georgia Anti-SLAPP statute’s verification requirement because it was procedural and conflicted with Federal Rules of Civil Procedure, which do not require verification).

The applicability of the Anti-SLAPP statute in federal court is not for this court to determine. Abbas recognized that at the time, this court “has never interpreted the D.C. Anti-SLAPP Act’s likelihood of success standard to simply mirror the standards imposed by” Federal Rule 56. 783 F.3d at 1135. We do so now. This court’s interpretation of the standard applicable to the special motion to dismiss under District of Columbia law will no doubt factor into future analysis of the dicta in Abbas concerning the applicability of the Anti-SLAPP Act in litigation brought in federal courts. See Abbas, 783 F.3d at 1339-1341 (dismissing complaint with prejudice under Rule 12 (b)(6) for failure to state a claim). 49

bears remembering that the fact that a defendant can make a threshold showing that

the claim arises from activities “in furtherance of the right of advocacy on issues of

public interest,” D.C. Code § 16-5502 (a), does not mean that the defendant is

immunized from liability for common law claims. See Duracraft Corp. v. Holmes

Prods. Corp., 691 N.E.2d 935, 943 & n.19 (Mass. 1998) (construing Anti-SLAPP

statute to avoid unconstitutionality and noting that “[b]y protecting one party’s

exercise of its right of petition, unless it can be shown to be sham petitioning, the

statute impinges on the adverse party’s exercise of its right to petition, even when

it is not engaged in sham petitioning”). Rather, heightened legal and proof

requirements apply when First Amendment rights of the defendant are implicated,

but it is possible to meet these requirements by strong evidence in support of the

claim. The immunity created by the Anti-SLAPP Act shields only those

defendants who face unsupported claims that do not meet established legal

standards. Thus, the special motion to dismiss in the Anti-SLAPP Act must be

interpreted as a tool calibrated to take due account of the constitutional interests of

the defendant who can make a prima facie claim to First Amendment protection

and of the constitutional interests of the plaintiff who proffers sufficient evidence

that the First Amendment protections can be satisfied at trial; it is not a

sledgehammer meant to get rid of any claim against a defendant able to make a

prima facie case that the claim arises from activity covered by the Act. See, e.g., 50

Sandholm v. Kuecker, 962 N.E.2d 418, 429-30 (Ill. 2012) (noting that Illinois

statute is aimed solely at “meritless, retaliatory SLAPPs” and “was not intended to

protect those who commit tortious acts and then seek refuge in the immunity

conferred by the statute”).

To sum up, it is not the court’s role, at the preliminary stage of ruling on a

special motion to dismiss, to decide the merits of the case but to test the legal

sufficiency of the evidence to support the claims. We now turn to a discussion of

the operative constitutional and legal substantive and proof requirements that apply

to the underlying claims and to an analysis of the legal sufficiency of Dr. Mann’s

proffered evidence applying those requirements.

V. Judicial Review for Legal Sufficiency

A court’s review for legal sufficiency is a particularly weighty endeavor

when First Amendment rights are implicated. The court must “examine for [itself]

the statements in issue and the circumstances under which they were made to

see . . . whether they are of a character which the principles of the First

Amendment . . . protect.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 285 (1964)

(quoting Pennekamp v. Fla., 328 U.S. 331, 335 (1946)). The court must consider 51

whether a properly instructed jury could find for the plaintiff “both to be sure that

the speech in question actually falls within the unprotected category and to confine

the perimeters of any unprotected category within acceptably narrow limits in an

effort to ensure that protected expression will not be inhibited.” Bose Corp. v.

Consumers Union of U.S., Inc., 466 U.S. 485, 505 (1984). This is a question of

law, measured against constitutional standards, that does not involve the court in

making credibility determinations or weighing the evidence. See Harte-Hanks

Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 685, 690 (1989) (considering

findings of fact made by jury along with undisputed evidence in concluding

evidence was legally sufficient to prove actual malice); see id. at 697-700 (Scalia,

J., concurring) (referring to appellate court’s “independent assessment of whether

malice was clearly and convincingly proved on the assumption that the jury made

all the supportive findings it reasonably could have made”). With these principles

in mind, we turn to a de novo review of the record to determine whether the

evidence produced by Dr. Mann could support, with the clarity required by First

Amendment principles, a jury verdict in his favor.

A. Defamation 52

To succeed on a claim for defamation, a plaintiff must prove: “(1) that the

defendant made a false and defamatory statement concerning the plaintiff; (2) that

the defendant published the statement without privilege to a third party; (3) that the

defendant’s fault in publishing the statement [met the requisite standard];[33] and

(4) either that the statement was actionable as a matter of law irrespective of

special harm or that its publication caused the plaintiff special harm.” Oparaugo v.

Watts, 884 A.2d 63, 76 (D.C. 2005) (quoting Crowley v. N. Am. Telecomms. Ass’n,

691 A.2d 1169, 1173 n.2 (D.C. 1997)). Appellants contend that the trial court

erred in denying their special motions to dismiss because Dr. Mann did not

sufficiently substantiate his defamation claim on the first three elements. As to

Mr. Lowry’s editorial, we agree; but as to some of the other statements on which

Dr. Mann bases his complaint, we disagree. We conclude that Dr. Mann hurdled

the Anti-SLAPP statute’s threshold showing of likelihood of success on the merits

because the evidence he has presented is legally sufficient to support findings by

the fact-finder that statements in Mr. Simberg’s and Mr. Steyn’s articles were

defamatory, were published by appellants to a third party without privilege, and

were made with actual malice.

33 As discussed infra, the level of fault — from negligence to actual malice — depends on whether the plaintiff is a public official or, if a private individual, is deemed a public figure with respect to the subject matter of the statement alleged to be defamatory. 53

1. False and Defamatory Statements

A statement is defamatory “if it tends to injure [the] plaintiff in his trade,

profession or community standing, or lower him in the estimation of the

community.” Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d 580, 594 (D.C.

2000) (alteration in original) (quoting Howard Univ. v. Best, 484 A.2d 958, 989

(D.C. 1984)). The statement “must be more than unpleasant or offensive; the

language must make the plaintiff appear ‘odious, infamous, or ridiculous.’” Rosen

v. Am. Isr. Pub. Affairs Comm., Inc., 41 A.3d 1250, 1256 (D.C. 2012) (quoting

Howard Univ., 484 A.2d at 989).

The important societal interest in vigorous debate over matters of public

concern protected by the First Amendment has led to the development of

constitutional standards for evaluating statements before liability may be imposed

under state defamation laws. Because the First Amendment protects speech as an

expression of the fundamental right to freedom of thought, constitutionally

speaking, “there is no such thing as a false idea.” Milkovich v. Lorain Journal Co.,

497 U.S. 1, 18 (1990) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 339

(1974)). Expressions of pure opinion, as embodiments of ideas, are generally

entitled to constitutional protection. See id. (noting that “opinion” and “ideas” are 54

equated). “However pernicious an opinion may seem, we depend for its correction

not on the conscience of judges and juries but on the competition of other ideas.”

Gertz, 418 U.S. at 339-40. Therefore, under the First Amendment a statement is

not actionable “if it is plain that a speaker is expressing a subjective view, an

interpretation, a theory, conjecture, or surmise, rather than claiming to be in

possession of objectively verifiable facts.” Guilford Transp. Indus., 760 A.2d at

597 (quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993)).

Although ideas and opinions are constitutionally protected, the First

Amendment does not, however, “create a wholesale defamation exemption for

anything that might be labeled ‘opinion.’” Milkovich, 497 U.S. at 18.

“[S]tatements of opinion can be actionable if they imply a provably false fact, or

rely upon stated facts that are provably false.” Guilford Transp. Indus., 760 A.2d

at 597. Whether a defamatory statement of opinion is actionable often depends on

the context of the statement in question. See id. “If, for example, an average

reader would likely understand that particular words, in the context of an entire

article, were not meant to imply factual data but, rather, were intended merely to

disagree strongly with the views of the [plaintiff], those words would be protected

despite their factual content.” Sigal Const. Corp. v. Stanbury, 586 A.2d 1204,

1211 (D.C. 1991). Thus, statements that constitute “imaginative expression” and 55

“rhetorical hyperbole” are not actionable because they “cannot reasonably be

interpreted as stating actual facts about an individual.” Guilford Transp. Indus.,

706 A.2d at 596-97 (quoting Milkovich, 497 U.S. at 20). Such statements are

“used not to implicate underlying acts but ‘merely in a “loose, figurative sense”’ to

demonstrate strong disagreement” with another’s ideas. Sigal, 586 A.2d at 1210

(quoting Rinaldi v. Holt, Rinehart & Winston, Inc., 366 N.E.2d 1299, 1307 (N.Y.

1977)). On the other hand, a statement is actionable if viewed in context it “was

capable of bearing a defamatory meaning and . . . contained or implied provably

false statements of fact.” Guilford Transp. Indus., 760 A.2d at 597.

Appellants contend that all the statements on which Dr. Mann bases his

defamation claims are protected under the First Amendment because they

expressed appellant’s opinions about climate change, a matter of widespread public

concern that “must be resolved through the process of free and open debate, not

through costly litigation.” There is no dispute that the statements that Dr. Mann

claims defamed him were made in the context of a broad disagreement between the

parties about the existence and cause of global warming, a disagreement that

reached a high level of intensity and rhetoric. Public discussion about whether

there is a warming climate and, if so, its cause, involves scientific questions and

policy prescriptions of general public interest. The First Amendment protects 56

those engaged in a debate of such public concern in the expression of their ideas on

the subject, even with pointed language, free of the chilling effect of potential civil

liability. As a matter of constitutional principle, when the issue is whether liability

may be imposed for speech expressing scientific or policy views, the question is

not who is right; the First Amendment protects the expression of all ideas, good

and bad.

But not all the statements cited in the complaint are necessarily cloaked by

the First Amendment simply because the articles in which they appeared related to

a matter of public concern. As we have discussed, the law distinguishes between

statements expressing ideas and false statements of fact. To the extent statements

in appellants’ articles take issue with the soundness of Dr. Mann’s methodology

and conclusions — i.e., with ideas in a scientific or political debate — they are

protected by the First Amendment. But defamatory statements that are personal

attacks on an individual’s honesty and integrity and assert or imply as fact that Dr.

Mann engaged in professional misconduct and deceit to manufacture the results he

desired, if false, do not enjoy constitutional protection and may be actionable. The

Second Circuit’s observation in Buckley v. Littell with respect to defamatory

statements about a journalist made in the course of political debate is equally apt to 57

defamatory statements about a scientist made in the course of scientific and policy

debate:

In short, whatever might be said of a person’s political views, any journalist, commentator or analyst is entitled not to be lightly characterized as inaccurate and dishonest or libelous. . . . [I]t is “crucial” to such a person’s career that he or she not be so treated. To call a journalist a libeler and to say that he is so in reference to a number of people is defamatory in the constitutional sense, even if said in the overall context of an attack otherwise directed at his political views. 539 F.2d 882, 896-97 (2d Cir. 1976).

Tarnishing the personal integrity and reputation of a scientist important to

one side may be a tactic to gain advantage in a no-holds-barred debate over global

warming. That the challenged statements were made as part of such debate

provides important context and requires careful parsing in light of constitutional

standards. But if the statements assert or imply false facts that defame the

individual, they do not find shelter under the First Amendment simply because

they are embedded in a larger policy debate.

We apply these principles to the statements in the articles cited in the

complaint, in the order in which they appeared. The articles, as they appeared on

CEI and National Review’s websites, are appended to this opinion. 58

Mr. Simberg’s July 13, 2012 article on CEI’s OpenMarket.org. 34

Mr. Simberg’s article does not specifically criticize Dr. Mann’s statistical

techniques, except by calling him the “poster boy of the corrupt and disgraced

climate science echo chamber.” 35 The article’s focus is on Dr. Mann personally,

alleging that he has engaged in “wrongdoing,” “deceptions,” “data manipulation,”

and “academic and scientific misconduct.” The article calls Dr. Mann “the Jerry

Sandusky of climate science,” comparing Dr. Mann’s “molest[ing] and tortur[ing]

data in the service of politicized science” to Sandusky’s “molesting children.” The

article also describes Dr. Mann as being, “like Joe Paterno,” a “rock star” at Penn

34 Rand Simberg, The Other Scandal in Unhappy Valley, COMPETITIVE ENTER. INST. (July 13, 2012), https://cei.org/blog/other-scandal-unhappy-valley. 35 Mr. Simberg’s article quotes from a linked article written by Steven McIntyre, which in turn quotes the CRU email that referred to “Mike’s Nature trick” and reviews data charts that, according to McIntyre, reveal the “trick.” Other links in Mr. Simberg’s article are to Mr. Simberg’s earlier posts: “The Death of the Hockey Stick?” published online on May 17, 2012, in which Mr. Simberg criticized the methodology and statistical analysis that led to the hockey stick graph by citing the work of other researchers, but without accusing Dr. Mann of personal wrongdoing; and “Climategate: When Scientists Become Politicians,” dated November 23, 2009, in which Mr. Simberg commented that climate scientists had subverted proper scientific process by molding data to fit their preconceived ideas about a warming global climate, but without accusing Dr. Mann, personally, of misconduct. 59

State, who attracted millions of dollars to the University, and, like Bernie Madoff

“at the height of his financial career,” “a sacred funding cash cow.”

A jury could find that the article accuses Dr. Mann of engaging in specific

acts of academic and scientific misconduct in the manipulation of data, and thus

conveys a defamatory meaning, because “to constitute a libel it is enough that the

defamatory utterance imputes any misconduct whatever in the conduct of

[plaintiff’s] calling.” Guilford Transp. Indus., 760 A.2d at 600 (alteration in

original) (quoting RESTATEMENT (SECOND) OF TORTS § 569, cmt. (e)); see

Tavoulareas v. Piro, 817 F.2d 762, 780 (D.C. Cir. 1987) (en banc) (holding that

statement that “a father set up his son in business” accuses father of nepotism and

is defamatory because it, “might ‘tend[] to injure [him] in his trade, profession or

community standing, or lower him in the estimation of the community’” (quoting

Afro-Am. Publ’g Co. v. Jaffe, 366 F.2d 649, 654 (D.C. Cir. 1966))). Moreover, a

jury could find that by calling Dr. Mann “the [Jerry] Sandusky of climate science,”

the article implied that Dr. Mann’s manipulation of data was seriously deviant for a

scientist. These noxious comparisons,36 a jury could find, would demean Dr.

36 These were well-known figures in the public eye. Jerry Sandusky is a notorious convicted child sexual abuser and former assistant football coach at Penn State who was making front-page news at the time. Joe Paterno was the once- revered long-term head football coach at Penn State during the time of Sandusky’s (footnote continued . . . ) 60

Mann’s scientific reputation and lower his standing in the community by making

him appear similarly “odious, infamous, or ridiculous.” Rosen, 41 A.3d at 1256;

see also Jankovic v. Int’l Crisis Grp., 494 F.3d 1080, 1091 (D.C. Cir. 2007)

(Jankovic I) (holding that statement was capable of defamatory meaning because it

suggested Serbian businessman was an ally of the Milosevic regime for which, as

in the case of the apartheid regime in South Africa, Americans have an “intense

antipathy” (quoting South. Air Transp., Inc., v. ABC, Inc., 877 F.2d 1010, 1015

(D.C. Cir. 1989))).

Appellants contend that Mr. Simberg’s article is more reasonably understood

as a criticism of the hockey stick graph and the research that underlies it. This

seems to be a forced interpretation — and one that a jury could easily reject —

because the article does not comment on the specifics of Dr. Mann’s methodology

at all. Nor does the article purport to reveal previously unknown facts about Dr.

Mann’s methodology, which was apparent from his published work and numerous

articles commenting on the hockey stick graph and its findings. In a different

context, the article’s use of the phrase “corrupt and disgraced climate science,”

could, as appellants argue, be interpreted as criticism of flawed scientific

(. . . footnote continued) depredations. Bernie Madoff is a convicted criminal who swindled billions of dollars from thousands of investors and charities through a massive Ponzi scheme. 61

methodology. But when the phrase is used in conjunction with assertions that Dr.

Mann engaged in “deception[],” “misconduct,” and “data manipulation,” and the

article concludes that he should be further investigated, the cumulative import is

that there are sinister, hidden misdeeds he has committed. These are pointed

accusations of personal wrongdoing by Dr. Mann, not simply critiques of

methodology of his well-known published scientific research. Cf. Milkovich, 497

U.S. at 21 (“This is not the sort of loose, figurative or hyperbolic language which

would negate the impression that the writer was seriously maintaining that the

petitioner committed the crime of perjury.”). We conclude that Mr. Simberg’s

article is capable of conveying a defamatory meaning.

Appellants do not argue that Mr. Simberg’s article, if capable of conveying a

defamatory meaning, is not actionable because the statements that Dr. Mann

engaged in deception and misconduct are true. Their argument is that the

statements are not verifiably false because they are simply Mr. Simberg’s opinion.

See Oparaugo, 884 A.2d at 76 (noting that defamation requires that statement be

both defamatory and false). To be clear, the Supreme Court has rejected “an

additional separate constitutional protection for ‘opinion’” as such, deeming that

the dual constitutional requirements of falsity and fault, as well as a searching

appellate judicial review, suffice “to ensure the freedom of expression guaranteed 62

by the First Amendment.” Milkovich, 497 U.S. at 20-21. The reason a pure

statement of opinion is not actionable is that, not being factual, it cannot be proved

to be false. See id. at 20. It is also clear, however, that “the First Amendment

gives no protection to an assertion ‘sufficiently factual to be susceptible of being

proved true or false’ even if the assertion is expressed by implication in ‘a

statement of opinion.’” Jankovic v. Int’l Crisis Grp. (Jankovic II), 593 F.3d 22, 27

(D.C. Cir. 2010) (quoting Milkovich, 497 U.S. at 20, 21). We, therefore, turn to a

close reading of Mr. Simberg’s article to determine whether it asserts or implies a

defamatory provable fact. See Moldea v. N.Y. Times Co., 15 F.3d 1137, 1144

(D.C. Cir. 1994) (Moldea I) (noting this is “a question of law for the court to

determine as a threshold matter”).

Mr. Simberg’s article contains two principal defamatory assertions about Dr.

Mann. The first is that Dr. Mann has been “shown” to have behaved in a

“deceptive” and “most unscientific manner” because he “molested and tortured

data in the service of politicized science” as was “revealed” in the leaked CRU

emails. This is followed by a related defamatory assertion, that Dr. Mann engaged

in “academic and scientific misconduct” that Penn State’s investigation 63

exonerating Dr. Mann of these charges failed to uncover because Penn State was

biased and its investigation was a “whitewash.” 37

We note that in the article Mr. Simberg does not employ language normally

used to convey an opinion, such as “in my view,” or “in my opinion,” or “I

think.”38 The article’s assertions about Dr. Mann’s deception and misconduct are

stated objectively, as having been “shown” and “revealed” by the CRU emails.

Thus, Mr. Simberg’s article can fairly be read as making defamatory factual

assertions outright. Mr. Simberg would not have concluded the article with the

37 The full concluding paragraphs in Mr. Simberg’s article state:

Michael Mann, like Joe Paterno, was a rock star in the context of Penn State University, bringing millions in research funding. The same university president who resigned in the wake of the Sandusky scandal was also the president when Mann was being whitewashed investigated. We saw what the university administration was willing to do to cover up heinous crimes, and even let them continue, rather than expose them. Should we suppose, in light of what we now know, they would do any less to hide academic and scientific misconduct, with so much at stake?

It’s time for a fresh, truly independent investigation. 38 This is not to suggest that use of such words would automatically insulate the ensuing statements from liability. “In my opinion, Jones is a liar” is actionable if the statement is false and the speaker acted with the requisite degree of fault. See Milkovich, 497 U.S. at 18-19, 20. But the absence of such language is one indication of how the article would come across to the reader. 64

prescription that a “fresh, truly independent investigation” is necessary, unless he

supposed that “ordinary, reasonable readers could read the [article] as implying,”

Jankovic II, 593 F.3d at 25, that Dr. Mann was guilty of misconduct that had to be

ferreted out. An opinion may be subject to further discussion or debate, but a

“truly independent investigation” is necessary to uncover facts that, impliedly, are

there to be found. Moreover, Mr. Simberg cites the CRU emails as proof of Dr.

Mann’s deception and academic and scientific misconduct. The assertion that the

CRU emails showed or revealed that Dr. Mann engaged in deception and academic

and scientific misconduct is not simply a matter of opinion: not only is it capable

of being proved true or false, but the evidence of record is that it actually has been

proved to be false by four separate investigations.

Appellants attempt to find shelter in post-Milkovich appellate decisions

recognizing that “a statement of opinion that is based upon true facts that are

revealed to readers . . . [is] generally . . . not actionable so long as the opinion does

not otherwise imply unstated defamatory facts.” Moldea I, 15 F.3d at 1144. The

theory is that when a writer discloses the facts upon which a statement is based, the

reader will understand that the statement reflects the writer’s view, based on an

interpretation of the facts disclosed, such that the reader remains “free to draw his

or her own conclusion based upon those facts.” Id. at 1145. This argument is 65

unavailing here. First, as we have discussed, a jury could reasonably interpret

Mr. Simberg’s article as asserting as fact that the CRU emails “show[]” that Dr.

Mann engaged in deceptive data manipulation and academic and scientific

misconduct. In this regard, this case is markedly different from Rosen, where we

noted that because no specific misconduct was mentioned in the allegedly

defamatory statement, “no one hearing the general characterizations . . . could have

discerned particular behaviors that were concrete enough to reveal ‘objectively

verifiable’ falsehoods,” and that the statements “exuded merely subjective

evaluation — essentially a ‘statement of opinion’ without an ‘explicit or implicit

factual foundation.’” 41 A.3d at 1259 (footnote omitted).39

Second, to claim this form of protection from liability, the facts on which the

purported opinion is based must be accurate and complete. See Milkovich, 497

U.S. at 18-19 (“[E]ven if the speaker states the facts upon which he bases his

opinion, if those facts are either incorrect, or incomplete, or if his assessment of

39 See also Armstrong v. Thompson, 80 A.3d 177, 188 (D.C. 2013) (holding that statements that an employee was investigated for “serious misconduct,” “gross misconduct and integrity violations,” and “ethical violations” — which were unspecified — “reflected one person’s subjective view of the underlying conduct and were not verifiable as true or false”). In this case the statements accusing Dr. Mann of “fraud,” “deception,” and “academic” and “scientific” misconduct specifically referred to the CRU emails and were therefore verifiable. 66

them is erroneous, the statement may still imply a false assertion of fact.”).40

Mr. Simberg’s article does not assemble facts that prove Dr. Mann’s alleged

deception and misconduct, but primarily criticizes two entities, Penn State and the

National Science Foundation, that investigated those charges and concluded they

are unfounded. The target of the article is Dr. Mann; the criticism of these two

investigations is a means to that end. Mr. Simberg’s attack on the investigations

begins with a mocking reference to Dr. Mann’s “exoneration” by Penn State. It

points to the University’s vested financial interest in Dr. Mann and what

Mr. Simberg characterizes as the University’s resulting “whitewash” in its

investigation of the accusations leveled against Dr. Mann, comparing it to Penn

State’s previous investigation in the Sandusky case. 41 The article also refers to the

40 In Jankovic II the court summarily dismissed the publisher’s argument that the defamatory statement was protected as opinion because it was offered as the writer’s interpretation of a fact that was disclosed in the report, noting that this protection applies only where opinion is “based on true facts, accurately disclosed.” 593 F.3d at 28. Because an inaccurate fact (that one of the plaintiff’s companies was on a frozen assets list because it provided support to the Milosevic regime) was cited as the basis of the report’s purported opinion that the plaintiff supported the regime in exchange for favorable treatment of his businesses, the defamatory statement was not protected as opinion. Id. 41 The Penn State report on the investigation of Dr. Mann is embedded as a link in Mr. Simberg’s article, as is the Freeh Report, which criticized inadequacies in Penn State’s investigation of Sandusky (not Dr. Mann). 67

report of the National Science Foundation,42 and acknowledges that the NSF

investigation confirmed Penn State’s conclusion that Dr. Mann had not engaged in

misconduct. Mr. Simberg questions the independent corroboration of the NSF

report, however, because, as he emphasizes, “more importantly,” the NSF “relied

on the integrity of [Penn State] to provide them with all relevant material.” In

other words, the NSF investigation and report should not be trusted because they

were tainted by reliance on Penn State’s biased and inadequate work.

In this, Mr. Simberg’s article was inaccurate. As the NSF Report clearly

lays out, in addition to “fully review[ing] all the reports and documentation the

University provided,” NSF reviewed “a substantial amount of publicly available

documentation concerning both [Dr. Mann’s] research and parallel research

conducted by his collaborators and other scientists in that particular field of

research.” The NSF also independently interviewed Dr. Mann, his “critics, and

42 The article does not include a link to the NSF Report itself but to a secondary source that describes its substantive observations and conclusions. Mr. Simberg’s article inaccurately refers to the report as having been produced by “NAS” instead of “NSF.” The National Academy of Sciences, a private nonprofit organization, is a different entity than the National Science Foundation, an independent government funding agency. See National Academy of Sciences, http://www.nasonline.org/ (last visited Oct. 5, 2016); National Science Foundation, https://www.nsf.gov/ (last visited Oct. 5, 2016). 68

disciplinary experts.”43 Moreover, the article was incomplete because it failed to

mention two other parallel investigations of the CRU emails, conducted in the

United Kingdom, that came to the same conclusion as Penn State and NSF. In

short, Mr. Simberg’s assertions that the CRU emails revealed deception and

academic and scientific misconduct on the part of Dr. Mann that Penn State

covered up and NSF failed to uncover, are not protected as opinion based on

accurate, complete facts, because the article gave a skewed and incomplete picture

of the facts a reader would need to come to his or her own conclusions on the

matter. See Moldea I, 15 F.3d at 1144.

Even allowing for the use of hyperbole in the public discussion about global

warming, we conclude that the statements in Mr. Simberg’s article that Dr. Mann

acted dishonestly, engaged in misconduct, and compared him to notorious persons,

are capable of conveying a defamatory meaning with the requisite constitutional

certainty and included statements of fact that can be proven to be true or false.

43 Appellants CEI and Mr. Simberg impliedly concede that the description of the NSF investigation in the article is inaccurate, acknowledging in their reply brief that the NSF interviewed Dr. Mann’s critics. But, as noted in the text and in the NSF report itself, that is not all that NSF did in conducting its own separate investigation, after reviewing the Penn State report. 69

Mr. Steyn’s July 15, 2012 article on National Review’s “The Corner”44

National Review argues that Mr. Steyn’s statement that “Michael Mann was

the man behind the fraudulent climate-change ‘hockey stick’ graph” could be, and

therefore should be, interpreted as expressing vigorous disagreement with the idea

represented by the hockey stick graph and as criticism of the methodology that Dr.

Mann used in gathering the data that led to the graph. As such, National Review

contends that the statement is not actionable because it does not possess the clarity

of defamatory meaning required by the Constitution. See Greenbelt Coop. Publ’g

Ass’n v. Bressler, 398 U.S. 6, 13-14 (1970) (noting that the word “blackmail,”

when used to describe a real estate developer’s negotiating position, was not

defamatory as “even the most careless reader must have perceived that the word

was no more than rhetorical hyperbole” to express that the developer was being

unreasonable where the description of the negotiations was “accurate and full”).

At oral argument, counsel for National Review explained that “fraudulent” was

intended to mean (or could reasonably be interpreted as meaning) that Dr. Mann’s

research is not reliable because he “cherry-picked” the data on which he relied and

compared “apples to oranges” in producing the hockey stick graph, by first relying

44 Mark Steyn, Football and Hockey, NATIONAL REVIEW (July 15, 2012), http://www.nationalreview.com/corner/309442/football-and-hockey-mark-steyn. 70

on temperature data derived from proxy sources (such as tree rings) and, after a

certain date, using actual measured temperatures. We agree that if the use of

“fraudulent” in this one sentence were the only arguably defamatory statement in

Mr. Steyn’s article, we would have to conclude that it is insufficient as a matter of

law, as such an ambiguous statement may not be presumed to necessarily convey a

defamatory meaning. In such a case, the First Amendment tips the judicial balance

in favor of speech. See Bose, 466 U.S. at 505.

Statements are not to be viewed in isolation but in context, however. See

Guilford Transp. Indus., 760 A.2d at 597. Mr. Steyn’s article continued the theme

of personal attack and innuendo against Dr. Mann commenced in Mr. Simberg’s

article. It begins by quoting three sentences from Mr. Simberg’s article that refer

to “hockey-stick deceptions” by “molest[ing] and tortur[ing] data,” and the

comparison of Dr. Mann to Sandusky. Mr. Steyn first appears to retreat from the

comparison to Sandusky, saying that he is “[n]ot sure” that he would have

extended the metaphor “all the way into the locker-room showers,” but then adds

that Mr. Simberg “has a point.” See Olinger v. Am. Savs. & Loan Ass’n, 409 F.2d

142, 144 (D.C. Cir. 1969) (“The law affords no protection to those who couch their

libel in the form of . . . repetition . . . repetition of a defamatory statement is a

publication in itself.”) (citation omitted). Referring to the investigation of Dr. 71

Mann by a “deeply corrupt [Penn State University] administration,” Mr. Steyn

elaborates that “as with Sandusky and Paterno” Penn State University “declined to

find one of its star names guilty of any wrongdoing.” The clincher in Mr. Steyn’s

article: “If an institution is prepared to cover up systemic statutory rape of minors,

what won’t it cover up?” The implication that serious misconduct has been

covered up is inescapable.

Appellants would have us conclude that the comparisons of Dr. Mann to

notorious individuals are merely exaggerated — if crass — depictions of a policy

opponent. There is an important distinction, however, between generic labels with

derogatory connotations and comparisons to specific individuals from which

defamatory factual allegations can be inferred. Thus, in Buckley, the Second

Circuit dismissed defamation claims that were based on statements in a book that

described William F. Buckley, Jr., 45 as “fascist,” “fellow traveler,” and “radical

right,” because even if the labels were insulting and derogatory, they could not be

proven to be false statements of fact due to “the tremendous imprecision of the

meaning and usage of these terms in the realm of political debate.” 539 F.2d at

893. The same book also described Buckley as having lied about and libeled

45 Mr. Buckley was a well-known and influential conservative author and commentator, and the founder of National Review. Buckley, 539 F.2d at 885-86. 72

several people who could take him to court “if they wanted to and could afford it,”

and compared Buckley to another journalist, identified by name, “who lied day

after day in his column.” Id. at 895. These statements, the court held, were

actionable because they “make a factual assertion relating to Buckley’s journalistic

integrity.” Id. at 895-96. The comparison to a known liar, the court noted, “as it

appears on its face states that Buckley was engaging in libelous journalism” and, as

it was proven to be false, was “constitutionally as well as tortiously defamatory.”

Id. at 896.

The statements in Mr. Steyn’s article are similarly factual and specific in

their attack on Dr. Mann’s scientific integrity. As with Mr. Simberg’s article,

Mr. Steyn’s is not about the merits of the science of global warming, but about Dr.

Mann’s “deceptions” and “wrongdoing.” Like Mr. Simberg, Mr. Steyn compares

Dr. Mann’s alleged wrongdoing — “molesting” and “torturing” data to achieve a

deceptive but desired result that will court funding for Penn State — to that of

Sandusky, which suggests that their characters are similarly base. (“Whether or

not he’s ‘the Jerry Sandusky of climate change,’ he remains the Michael Mann of

climate change.”) The accusation is bolstered by referring to the University’s

investigation as a “cover-up” of Dr. Mann’s “wrongdoing” in order to protect

someone who was a “star name” at Penn State like Sandusky and Paterno. 73

Because the allegations impugned Dr. Mann’s scientific integrity and likened him

to notorious individuals connected to Penn State in whom the University had

(according to Mr. Steyn) a similar financial interest to protect, the statements are

not merely fanciful or extreme, purely for rhetorical effect. As in Buckley, they

deliver an indictment of reprehensible conduct against Dr. Mann that a reader

could take to be an assertion of a true fact. 46 These injurious allegations about Dr.

46 We reject appellants’ argument that “the correct measure of the challenged statements’ verifiability as a matter of law is whether no reasonable person could find that the review’s characterizations were supportable interpretations” of the work being criticized. Moldea v. N.Y. Times Co., 22 F.3d 310, 317 (D.C. Cir. 1994) (Moldea II) (modifying Moldea I). As Moldea II explained, the standard depends on the genre of the work, and the stricter standard applied there “takes into account the fact that the challenged statements appeared in the context of a book review, and were solely evaluations of a literary work.” Id. In the case of an “ordinary libel,” the standard is “whether a reasonable jury could find that the challenged statements were false.” Id. The issue comes down to the “verifiability” of the defamatory statements. Id.

In Guilford we applied the stricter standard, concluding that an op-ed column in a trade newspaper commenting on a labor management dispute is “indistinguishable in principle” from the review of an artistic work at issue in Moldea II, after noting it is a genre “in which readers expect to find spirited critiques of [works] that they understand to be the reviewer’s description and assessment of texts that are capable of a number of possible rational interpretations.” 760 A.2d at 603 (quoting Moldea II, 22 F.3d at 311). The statements in this case were “garden-variety” libels because they were levelled against the professional character of a person — not simply critiques of a work — and made factual assertions, based on the CRU emails, that Dr. Mann had engaged in “data manipulation” that was fraudulent and constituted scientific and academic misconduct. See Moldea II, 22 F.3d at 315 (referring to Milkovich, which involved a newspaper article accusing a coach of perjuring himself at a hearing, as a case of ordinary libel, 497 U.S. at 21); cf. Guilford, 760 A.2d at 599-600 (holding (footnote continued . . . ) 74

Mann’s character and his conduct as a scientist are capable of being verified or

discredited. If they are proven to be false, the statements breach the zone of

protected speech. See Buckley, 539 F.2d at 895-96.

Mr. Lowry’s August 22, 2012 editorial for National Review 47

We come to a different conclusion with respect to the third in the series of

articles that Dr. Mann claims defamed him, Mr. Lowry’s editorial for National

Review. In the editorial, Mr. Lowry is responding to Dr. Mann’s threatened

lawsuit after National Review rejected the request for an apology and retraction.

The editorial refers and links to Mr. Steyn’s article, characterizing it as “mild” and

“f[a]ll[ing] considerably short of” Mr. Simberg’s article; Mr. Lowry does not

repeat Mr. Steyn’s statements except to say that Mr. Steyn referred to the hockey

stick graph as “fraudulent.” The editorial does not disavow Mr. Steyn’s use of the

word “fraudulent” but puts a gloss on it, explaining that “[i]n common polemical

usage, ‘fraudulent’ doesn’t mean honest-to-goodness criminal fraud. It means

(. . . footnote continued) statements not actionable where op-ed article implied that plaintiffs were “hostile” and “antagonistic” to labor, which were not “susceptible of objective proof,” and made no express allegation of “unlawful conduct”). 47 Rich Lowry, Get Lost, NATIONAL REVIEW (August 22, 2012), http://www.national review.com/blogs/314680. 75

intellectually bogus and wrong.” In sum, Mr. Lowry’s editorial does not repeat or

endorse the factual assertions that Dr. Mann engaged in deception and misconduct

that we have found to be actionable in Mr. Simberg’s and Mr. Steyn’s articles.

Mr. Lowry’s editorial ridicules Dr. Mann, repeatedly calling him “poor

Michael,” describing his letter as “laughably threatening” and “pathetically lame

chest-thumping,” and saying that if he proceeds with a lawsuit Dr. Mann “risks

making an ass of himself.” The editorial mocks the threatened lawsuit and even

welcomes it, as a way of “teach[ing] [Dr. Mann] a thing or two about how the law

and how free debate works in a free country.” These statements, however

belittling of Dr. Mann, are not statements of fact, but of Mr. Lowry’s opinion of

Dr. Mann and his threatened lawsuit. Even though the ultimate success or failure

of Dr. Mann’s lawsuit will eventually be a provable fact, it was not so at the time

the editorial was written — it still is not so — and Mr. Lowry’s opinions on the

matter are protected speech. Mr. Lowry’s editorial is clearly an attempt to distance

Mr. Steyn’s article that appeared on National Review’s website from

Mr. Simberg’s that appeared on CEI’s, and to express to National Review’s readers

that it is confident of the success of the vigorous defense that it intended to mount

in response to Dr. Mann’s threatened lawsuit. Because Mr. Lowry’s editorial for

National Review does not repeat or endorse the actionable defamatory statements 76

in Mr. Simberg’s and Mr. Steyn’s articles or contain defamatory assertions of fact

that were provably false at the time they were made, the editorial is an expression

of opinion protected by the First Amendment.48

We emphasize that in conducting a review of the legal sufficiency of the

evidence “it is the role of the court to determine whether the challenged

statement[s] [are] ‘capable of bearing a particular meaning’ and whether ‘that

meaning is defamatory.’” Tavoulareas, 817 F.2d at 779 (quoting RESTATEMENT

(SECOND) OF TORTS § 614 (1)). “The jury’s proper function, in turn, is to

determine whether a statement, held by the court to be capable of a defamatory

meaning, was in fact attributed such a meaning by its readers.” Id. at 780. As we

conclude that Dr. Mann has demonstrated that Mr. Simberg’s and Mr. Steyn’s

articles are capable of conveying a defamatory meaning and contain statements of

48 As the allegedly defamatory statements were included in the complaint and Mr. Lowry’s editorial was appended to the complaint, the claims based on these statements could have been dismissed, for failure to state a claim, under Superior Court Civil Rule 12 (b)(6). Clawson v. St. Louis Post-Dispatch, LLC, 906 A.2d 308, 312-13 (D.C. 2006) (noting that newspaper article appended to complaint could be considered in ruling on Rule 12 (b)(6) motion, which presented issue of law whether use of word “informer’ was capable of conveying defamatory meaning). The additional evidence presented by Dr. Mann in opposition to the special motion to dismiss was unnecessary to test the legal sufficiency of the statements; its relevance went primarily to the issue of actual malice, discussed infra. 77

fact that can be proven to be true or false, we continue to evaluate the legal

sufficiency of the evidence with respect to the other elements of defamation.

2. Publication

“[A] cause of action for defamation requires proof of publication of the

defamatory statement to a third party.” Oparaugo, 884 A.2d at 73. Dr. Mann

presented documentation showing that Mr. Simberg’s article appeared on the

website of CEI and Mr. Steyn’s on the website of National Review. Notably, CEI

and Mr. Simberg do not dispute that Mr. Simberg’s blog post on CEI’s website

constituted publication. 49

National Review takes a different position. It argues that it cannot be held

liable for any of the statements made by Mr. Simberg or Mr. Steyn that appeared

on its website. According to National Review, it is shielded from liability by the

Communications Decency Act of 1996 (“CDA”), because its website is a

49 As we have concluded that the defamation claims based on Mr. Lowry’s editorial are not actionable, we do not address CEI’s argument (presented for the first time on appeal) that hyperlinking Mr. Lowry’s editorial on the CEI website does not suffice to satisfy the element of publication. 78

“provider . . . of an interactive computer service”50 that may not be “treated as the

publisher or speaker of any information provided by another information content

provider.”51 47 U.S.C. § 230 (c)(1). Under the CDA “[n]o cause of action may be

brought and no liability may be imposed under any State or local law that is

inconsistent with” § 230 (c)(1). 47 U.S.C. § 230 (e)(3). This argument was not

raised in the trial court and is not properly before us. See Akassy v. William Penn

Apartments Ltd. P’ship, 891 A.2d 291, 304 n.11 (D.C. 2006) (“Generally, issues

not raised in the trial court will not be considered on appeal.”). Moreover, it is not

a pure question of law that we may decide on appeal without an adequate trial

court record. As National Review notes in its brief, the availability of § 230

immunity under the CDA involves a three-part test that inquires into the nature of

the website and the involvement of the website provider with the content of the

statement, including the relationship with its author. See Klayman v. Zuckerberg,

753 F.3d 1354, 1357 (D.C. Cir. 2014) (stating that § 230 mandates dismissal of

50 The CDA defines an “interactive computer service” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” 47 U.S.C. § 230 (f)(2). 51 The CDA defines an “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” 47 U.S.C. § 230 (f)(3). 79

action if defendant is a “provider or user of an interactive computer service,”

statement on which liability is based is “provided by another content provider,”

and liability is based on publishing or speaking the statement); Fair Hous. Council

of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162-63 (9th Cir.

2008) (noting that “[a] website operator can be both a service provider and a

content provider” under the CDA: immune as a “service provider” if it “passively

displays content that is created entirely by third parties,” but a “content provider”

and thus not immune if it displays content that “it creates itself, or is ‘responsible,

in whole or in part for’ creating”). These are questions that have not been

developed or considered in the trial court, and that Dr. Mann has not had an

opportunity to address.

On the record before us, Dr. Mann met his burden of demonstrating that a

jury could find that Mr. Simberg’s and Mr. Steyn’s articles were published to a

third party.

3. Actual Malice

An essential safeguard of First Amendment rights is the “breathing space”

for uninhibited expression, NAACP v. Button, 371 U.S. 415, 433 (1963), afforded

by the heightened showing of fault — actual malice — that must be proved in 80

defamation cases that rely on statements made about public figures concerning

matters of public concern, 52 see N.Y. Times Co., 376 U.S. at 279-80 (imposing

heightened standard to defamation action brought by a state official); Curtis Publ’g

Co. v. Butts, 388 U.S. 130 (1967) (plurality opinion), 164 (Warren, C.J.,

concurring), 170 (Black, J., concurring in part and dissenting in part), 172-73

(Brennan, J., concurring in part and dissenting in part) (extending the actual malice

standard to public figures). Moreover, to prevail, the plaintiff in such a lawsuit

bears a higher burden of proof than the preponderance of the evidence standard

usually applicable in civil cases; the plaintiff must persuade the fact-finder that the

defendant acted with actual malice in publishing the defamatory statements by

clear and convincing evidence. See N.Y. Times Co., 376 U.S. at 285-86 (referring

to the “convincing clarity which the constitutional standard demands”).

A plaintiff may prove actual malice by showing that the defendant either (1)

had “subjective knowledge of the statement’s falsity,” or (2) acted with “reckless

disregard for whether or not the statement was false.” Burke I, 91 A.3d at 1044.

The “subjective” measure of the actual malice test requires the plaintiff to prove

52 The parties agree, as do we, that Dr. Mann is a limited public figure with respect to statements about global warming because he has assumed a role in “the forefront of particular public controversies in order to influence the resolution of the issues involved.” Gertz, 418 U.S. at 345. 81

that the defendant actually knew that the statement was false. See N.Y. Times Co.,

376 U.S. at 280. The “reckless disregard” measure requires a showing higher than

mere negligence; the plaintiff must prove that “the defendant in fact entertained

serious doubts as to the truth of [the] publication.” St. Amant v. Thompson, 390

U.S. 727, 731 (1968) (“[R]eckless conduct is not measured by whether a

reasonably prudent man would have published, or would have investigated before

publishing.”). The plaintiff may show that the defendant had such serious doubts

about the truth of the statement inferentially, by proof that the defendant had a

“high degree of awareness of [the statement’s] probable falsity.” Harte-Hanks

Commc’ns, Inc., 491 U.S. at 688 (quoting Garrison v. Louisiana, 379 U.S. 64, 74

(1964)). A showing of reckless disregard is not automatically defeated by the

defendant’s testimony that he believed the statements were true when published;

the fact-finder must consider assertions of good faith in view of all the

circumstances. St. Amant, 390 U.S. at 732 (“[R]ecklessness may be found where

there are obvious reasons to doubt the veracity of the informant or the accuracy of

his reports.”). Thus, in considering the evidentiary sufficiency of the plaintiff’s

response to a special motion to dismiss filed under D.C. Code § 16-5502 (b), the

question for the court is whether the evidence suffices to permit a reasonable jury

to find actual malice with convincing clarity. 53

53 In this case, the trial court characterized the evidence of actual malice as (footnote continued . . . ) 82

There is a hefty volume of evidence in the record. Appellants’ special

motions to dismiss were accompanied by various investigatory reports cited in Dr.

Mann’s complaint and several articles by third parties that criticize the

investigations underlying the reports. In his response, Dr. Mann also submitted

extensive documentation from eight separate inquiries that either found no

evidence supporting allegations that he engaged in fraud or misconduct or

concluded that the methodology used to generate the data that resulted in the

hockey stick graph is valid and that the data were not fabricated or wrongly

manipulated.

(. . . footnote continued) “slight” and as not amounting to a showing by clear and convincing evidence, but stated that it was “sufficient to find that further discovery may uncover evidence of ‘actual malice.’” We are not constrained by the trial court’s conclusion in this regard, as the sufficiency of the evidence to support a finding of actual malice is a question of law that we review de novo. See Harte-Hanks Commc’ns, Inc., 491 U.S. at 685. We note, however, that if the trial court considers that the evidence presented in opposition to a special motion to dismiss is not sufficient to go to a jury, the court must grant the motion to dismiss as the opponent has the burden to demonstrate a sufficient evidentiary basis for his claim. See D.C. Code § 16-5502 (b). The court is not at liberty to dispense with this statutory burden. The Anti- SLAPP Act authorizes the court to permit targeted discovery for the purpose of responding to a special motion to dismiss. Granting a request for such discovery was the proper way to proceed, if it “appear[ed] likely that targeted discovery [would] enable the plaintiff” to shoulder his evidentiary burden to overcome the special motion to dismiss and would not be “unduly burdensome” to the defendants. Id. § 16-5502 (c)(2). 83

Not all the evidence before the court was relevant to the question of whether

appellants acted with the requisite malice in accusing Dr. Mann of engaging in

deceptive behavior and misconduct. We set aside the reports and articles that deal

with the validity of the hockey stick graph representation of global warming and its

underlying scientific methodology. The University of East Anglia, the U.S.

Environmental Protection Agency, and the U.S. Department of Commerce issued

reports that concluded that the CRU emails did not compromise the validity of the

science underlying the hockey stick graph. As we have explained, the expression

of scientific and policy opinions in the debate over global warming that the hockey

stick illustrates is speech protected by the First Amendment. Much as Dr. Mann’s

pride in his work may be wounded by criticisms of the hockey stick graph,

appellants are entitled to their opinions on the subject and to express them without

risk of incurring liability for defamation. The proper place for the discussion is the

scientific community and the public sphere of policy prescriptions.

The reports that are relevant to the defamation claims are those that concern

appellants’ statements that Dr. Mann engaged in “dishonesty,” “fraud,” and

“misconduct.” The University of East Anglia Independent Climate Change E-

mails Review, Penn State University, the United Kingdom House of Commons,

and the Office of the Inspector General of the U.S. National Science Foundation, 84

all conducted investigations and issued reports that concluded that the scientists’

correspondence in the 1,075 CRU emails that were reviewed did not reveal

research or scientific misconduct. Appellants do not counter any of these reports

with other investigations into the CRU emails that reach a contrary conclusion

about Dr. Mann’s integrity.

The issue for the court at this juncture is to determine whether the

conclusions reached by these various investigations, when considered in view of

all the evidence before the court, permit a jury to find, by clear and convincing

evidence, that appellants either knew their accusations of misconduct were false or

made those accusations with reckless disregard for their truth.

We begin our examination by noting that the results of the investigations

that Dr. Mann says exonerate him of wrongdoing were made public; appellants do

not claim they were unaware of them when they made the challenged statements.

In assessing whether these reports provided appellants with “obvious reasons to

doubt the veracity,” St. Amant, 390 U.S at 732, of their subsequent statements that

Dr. Mann engaged in misconduct, we consider (as would a jury) the source of the

reports, the thoroughness of the investigations, and the conclusions reached. As

the reports are extensive, we summarize the relevant portions in this opinion. 85

We are struck by the number, extent, and specificity of the investigations,

and by the composition of the investigatory bodies. We believe that a jury would

conclude that they may not be dismissed out of hand. Although we do not

comment on the weight to be given to the various investigations and reports, which

is a question for the jury, what is evident from our review is that they were

conducted by credentialed academics and professionals. 54 The investigations

54 The first Penn State investigation, into allegations of research misconduct, was directed Henry C. Foley, Ph.D, Vice President for Research and Dean of the Graduate School; Alan W. Scaroni, Ph.D., Associate Dean for Graduate Education and Research, College of Earth and Mineral Sciences; and Ms. Candice A. Yekel, M.S., CIM, Director of the Office for Research Protections and Research Integrity Officer. A second Penn State investigation, into compliance with accepted academic practices, was conducted by Sarah M. Assmann, Waller Professor, Department of Biology; Welford Castleman, Evan Pugh Professor and Eberly Distinguished Chair in Science, Department of Chemistry and Department of Physics; Mary Jane Irwin, Evan Pugh Professor, Department of Computer Science and Electrical Engineering; Nina G. Jablonski, Department Head and Professor, Department of Anthropology; Fred W. Vondracek, Professor, Department of Human Development and Family Studies; with Candice Yekel, Director of the Office for Research Protections. The National Science Foundation’s investigation was conducted by its Office of Inspector General. The University of East Anglia’s Independent Climate Change E-mails Review was led by Sir Muir Russell, a former professor and Vice Chancellor for the University of Glasgow, and current chair of the Judicial Appointments Board for Scotland. He was assisted by Professor Geoffrey Boulton, Regius Professor Emeritus of Geology and former Vice Principal of the University of Edinburgh; Professor Peter Clarke, Professor of Physics at the University of Edinburgh; Mr. David Eyton, Head of Research & Technology at British Petroleum; and Professor James Norton, an independent policy advisor from the U.K. Parliament’s Office of Science & Technology. The United Kingdom’s investigation was conducted by the House of Commons’ Science and Technology Committee, comprised of (footnote continued . . . ) 86

considered, and expressly rejected, the claim that the CRU emails substantiated

charges of misconduct, fraud, and deception. The investigations posed their

questions in slightly different ways and conducted their analyses in accordance

with their own procedures and standards, a mark of the cumulative strength of the

conclusion each reached unanimously and without equivocation: that the CRU

emails did not support the conclusion that the scientists engaged in fabricating or

deceptively manipulating data, or in scientific misconduct, fraud or dishonesty in

their reporting and presentation of research results.

The Penn State investigation report looked into “research misconduct” such

as “manipulating data, destroying records and colluding to hamper the progress of

scientific discourse”55 the National Science Foundation considered “allegations of

research misconduct” the University of East Anglia investigated “whether data had

been manipulated or suppressed” the U.K. House of Commons considered whether

(. . . footnote continued) fourteen members of the House of Commons from the Labour Party, the Conservative Party, the Liberal Democrats Party, and an independent. 55 Penn State conducted two separate investigations by two different investigatory bodies. The first was into research misconduct; after the first investigation found no research misconduct, the second took a broader view and considered whether Dr. Mann had “engaged in, or participated in, directly or indirectly, any actions that seriously deviated from accepted practices within the academic community for proposing, conducting, or reporting research or other scholarly activities.” 87

the scientists had “deliberately misrepresented the data.” These reports expressly

disclaimed that their purpose or conclusions were concerned with the validity of

the underlying statistical methodology, or its representation in the hockey stick

graph.56

56 For example, the report commissioned by the University of East Anglia states: “The Review examines the honesty, rigour and openness with which the CRU scientists have acted. It is important to note that we offer no opinion on the validity of their scientific work. Such an outcome could only come through the normal processes of scientific debate and not from the examination of e-mails or from a series of interviews about conduct.”

From the Penn State report: “[R]esearch misconduct does not include disputes regarding honest error or honest differences in interpretations or judgments of data, and is not intended to resolve bona fide scientific disagreement or debate.” “We are aware that some may seek to use the debate over Dr. Mann’s research conduct and that of his colleagues as a proxy for the larger and more substantive debate over the science of anthropogenic global warming and its societal (political and economic) ramifications. We have kept the two debates separate by only considering Dr. Mann’s conduct.”

From the report of the U.K. House of Commons, Science and Technology Committee: “The complaints and accusations made against CRU in relation to the scientific process come under two broad headings. The first is transparency . . . . The second is honesty: that CRU has deliberately misrepresented the data, in order to produce results that fit its preconceived views about the anthropogenic warming of the climate.” “If there had been more time available before the end of this Parliament we would have preferred to carry out a wider inquiry into the science of global warming itself.”

From the report of the National Science Foundation, Office of Inspector General: “Although [Dr. Mann’s] data is still available and still the focus of significant critical examination, no direct evidence has been presented that indicates the Subject fabricated the raw data he used for his research or falsified his (footnote continued . . . ) 88

Appellants offer several reasons why the reports do not supply sufficient

evidence for the jury to find that they acted with actual malice.

1. Appellants’ Honest Belief

Appellants contend that because the challenged statements reflect their

subjective and honest belief in the truth of their statements, actual malice cannot be

proven. This argument, however, presupposes what the jury will find on the facts

of this case. The issue for the court is whether, taking into account the substantive

conclusions of investigatory bodies constituted to look into the very evidence —

the CRU emails — that appellants’ statements claimed as factual proof of Dr.

Mann’s deception and misconduct, a jury could find, by clear and convincing

evidence, that appellants acted with “actual malice.” This is a determination the

jury could reach by finding either that appellants knew their defamatory statements

were false, or that appellants acted with reckless disregard for the truth of their

statements. It is for the jury to determine the credibility of appellants’

protestations of honest belief in the truth of their statements, and to decide whether

(. . . footnote continued) results. . . . Such scientific debate is ongoing but does not, in itself, constitute evidence of research misconduct.” 89

such a belief, assuming it was held, was maintained in reckless disregard of its

probable falsity. 57

2. Unreliability of Reports

As Mr. Simberg and Mr. Steyn make clear in their articles, they dismiss the

Penn State investigation as biased, conducted by insiders with a vested interest in

upholding Dr. Mann’s reputation as a leading climate scientist. The articles

describe the Penn State investigation as a “cover-up” and a “whitewash,” and argue

they have a good basis for believing so in light of Penn State’s shoddy

investigation of Jerry Sandusky, in which he was cleared in the face of multiple

allegations of sexually abusing children for which he was subsequently charged

and convicted. Even if appellants’ skepticism of the Penn State report were to be

credited by a jury as a valid reason for not taking its conclusions seriously, that

57 Appellants have made representations in their briefs about their subjective belief, but there is no evidence in the record (beyond the articles that are the subject of the defamation action) in the form of affidavits or depositions attesting to the personal beliefs of Mr. Simberg, Mr. Steyn, or the responsible personnel at CEI and National Review, and how they came to have such beliefs in light of the reports that had been issued before the statements were made. 90

leaves three other reports, from separate investigatory bodies in academia and

government, on both sides of the Atlantic, that also found no wrongdoing.58

Appellants argue that the investigatory reports could not be relied upon by a

jury because the investigations Dr. Mann claims exonerate him of misconduct

“take no ultimate position,” but only indicate that there was “no evidence” of

fraud. This is a quibble about wording that does not call into question the import

of the investigations’ conclusions. An investigatory body can report only on what

58 Of particular relevance to appellants’ criticism of the Penn State investigation is the report of the National Science Foundation, an independent federal agency that funded Dr. Mann’s scientific research, and therefore had a responsibility to monitor and ensure compliance with required standards. As the NSF report states, it examined “de novo” each of three allegations of misconduct leveled against Dr. Mann that were dismissed by the Penn State report. As part of that review, NSF “reviewed the emails and concluded that nothing contained in them evidenced research misconduct.” The NSF found that Penn State had adequately addressed those three allegations. However, the NSF found the Penn State investigation deficient concerning the allegation concerning data fabrication or falsification because the University had not interviewed experts critical of Dr. Mann’s research. The NSF Office of Inspector General then undertook its own independent investigation of this allegation, broadened it beyond data falsification, and interviewed Dr. Mann, his critics, and disciplinary experts. After concluding its independent investigation, the NSF found “no evidence” that data had been fabricated or falsified or that Dr. Mann had engaged in any other types of research misconduct. The NSF closed its investigation “with no further action.” Thus, even if appellants initially had reason to be skeptical of Penn State’s motivations and thoroughness, a jury could find that the independent, de novo investigation by the NSF corroborated the Penn State findings, as did the investigations conducted by the University of East Anglia and the U.K. House of Commons. 91

it has found; a determination that there is “no evidence” of fraud is an ultimate

conclusion that investigation has not turned up any evidence of misconduct.

Appellants also contend that the investigatory reports cannot be relied upon

to find that they purposely avoided the truth because the investigations do not, in

fact, “exonerate” Dr. Mann. They point to the report of the University of East

Anglia, which states that the hockey stick graph that was submitted for inclusion in

the 1999 WMO Report and IPCC Third Assessment Report was “misleading.”

The UEA report does use the word “misleading.” As that report makes clear,

however, what it meant is not that the statistical procedures used to generate the

hockey stick graph — which involved reconstructions of temperature through the

use of proxies (such as tree rings) or splicing data from different sources — are

themselves misleading, but that an explanation of those procedures should have

been included in the graph itself or in immediately accompanying text. It is not an

indictment of the deceptive use of data, but a comment on how the graph could and

should have been presented to be more transparent to the readers of the WMO and

IPCC Reports. With respect to the allegations of misconduct it investigated, the

report of the University of East Anglia is unequivocal in its conclusion:

Climate science is a matter of such global importance, that the highest standards of honesty, rigour 92

and openness are needed in its conduct. On the specific allegations made against the behaviour of CRU scientists, we find that their rigour and honesty as scientists are not in doubt.[59]

Appellants argue that the investigations of the University of East Anglia and

the U.K. House of Commons also cannot be said to have exonerated Dr. Mann

because they were primarily focused on the conduct of the scientists in the U.K., at

the University of East Anglia’s Climate Research Unit. The CRU emails at the

core of those investigations, however, contained exchanges between these

scientists, specifically, the CRU’s head, Philip Jones, and Dr. Mann or referred to

Dr. Mann. See supra note 9. The National Science Foundation Report was

specifically focused on Dr. Mann and similarly concluded that there was “no

specific evidence that [Dr. Mann] falsified or fabricated any data and no evidence

that his actions amounted to research misconduct.” The Penn State investigations

also were specifically directed at Dr. Mann’s conduct.

3. Subjectivity of Reports

Appellants contend that the investigations’ conclusions need not have alerted

59 The report did criticize the CRU scientists for their “unhelpfulness” in responding to FOIA requests and for deleting emails that may be requested. 93

them to the probable falsity of their beliefs because the reports reflected no

more than subjective and standardless opinions on the manner in which Dr. Mann

and the other scientists conducted their work. A jury could well think otherwise.

Each of the reports cites to specific standards for assessing the allegations of

misconduct. The Penn State investigation refers to the University’s Research

Administration Policy No. 10; the National Science Foundation Office of Inspector

General conducted a de novo review of the CRU emails and relevant documents

against NSF Research Misconduct Regulation, 45 C.F.R. § 689.1 (plagiarism,

fabrication, falsification), and other requirements applicable to federal awardees

under federal statutes, such as the False Claims Act, 18 U.S.C. § 287, and False

Statements Act, 18 U.S.C. § 1001; and the U.K. House of Commons investigation

specifically inquired into charges of “dishonesty” and falsification of data for the

purpose of exaggerating global warming arising out of the scientists’ use of the

phrases “trick” and “hide the decline” in the most-quoted CRU email referring to

Dr. Mann’s statistical technique; the University of East Anglia’s investigation set

out its analytic parameters for assessing the “honesty, rigour and openness” of the

CRU scientists’ handling of data as follows:

In making its analysis and conclusions, the Team [of investigators] will test the relevant work against pertinent standards at the time it was done, recognizing that such standards will have changed. It will also test them against current best practice, particularly 94

statements of the ethics and norms such as those produced by the UK Government Office for Science and by the US National Academy of Sciences. These identify principles relating to rigour, respect and responsibility in scientific ethics and to integrity, accessibility and stewardship in relation to research data.

The fact that the standards applied to charges of scientific and research

misconduct are primarily professional or ethical, not criminal, and that their

application requires the exercise of judgment does not mean that they lack

substantive content, real-life consequences, or make them incapable of

verification.60 These standards do not suffer from the defect we identified in

Rosen, that “no threshold showing of falsity is possible” where there were no

standards of “a particular kind identifiable in writing,” and thus the challenged

statement was “too subjective, too amorphous, [and] too susceptible of multiple

interpretations.” 44 A.3d at 1255, 1260 (noting statement’s reference to

unspecified “standards [the employer] expected of its employees”).

60 See Jankovic II, 593 F.3d at 28 (noting that a proposition is “verifiable in the practical sense that our legal system is ready to make decisions on the basis of how such issues are resolved — decisions profoundly affecting people’s lives”). As an example, the conduct of lawyers is evaluated against professional and ethical standards, and civil liability and disciplinary sanctions can be imposed based on findings that those standards have been violated. 95

As the preceding discussion demonstrates, appellants’ objections to the

reports can fairly be characterized as arguments that could be made to a jury as to

why the reports’ conclusions should not be credited or given much weight. We do

not judge whether appellants’ arguments will persuade a jury. Our task now is not

to anticipate whether the jury will decide in favor of appellants or Dr. Mann, but to

assess whether, on the evidence of record in connection with the special motion to

dismiss, a jury could find for Dr. Mann.

We reviewed a comparable constellation of facts in Nader v. de Toledano,

the first case considered by this court following the Supreme Court’s adoption of

the actual malice standard for defamation actions by public figures. 408 A.2d 31

(D.C. 1979). The case involved Ralph Nader, the well-known consumer advocate,

who sued a journalist who wrote a newspaper column criticizing Nader, saying that

it had been “demonstrate[d] conclusively that Nader falsified and distorted

evidence” during hearings before a Senate subcommittee. Id. at 37-38. In support

of this assertion, the column referred to a Senate Report, issued after an extensive

investigation, that rejected the thrust of Nader’s testimony as unsubstantiated. Id.

at 37. The Report also stated, however, that the testimony had been presented “in

good faith based on the information available” to Nader at the time. Id. On appeal

of the trial court’s grant of summary judgment to the journalist, the court reversed 96

and remanded the case for trial. The court dismissed the argument that a finding of

malice would be impermissible because the journalist asserted that he “honestly

believed in the truth of his statement when he published it,” concluding that the

Report’s “explicit, unambiguous finding” that Nader had acted in good faith

afforded “a sufficient evidentiary basis from which a reasonable inference” could

be drawn that the statement that Nader “falsified and distorted evidence” had been

made with actual malice. Id. at 53.

We come to the same conclusion as in Nader. In the case before us now, not

one but four separate investigations were undertaken by different bodies following

accusations, based on the CRU emails, that Dr. Mann had engaged in deceptive

practices and scientific and academic misconduct. Each investigation unanimously

concluded that there was no misconduct. Reports of those investigations were

published and were known to appellants prior to Mr. Simberg’s and Mr. Steyn’s

articles continuing to accuse Dr. Mann of misconduct based on the emails that

were the subject of the investigations. Applying the reasoning in Nader to the

evidence now of record in this case, we conclude that a jury could find that

appellants’ defamatory statements were made with actual malice. 61

61 Our legal conclusion is based on the evidence that has been presented at this juncture, in connection with the special motion to dismiss. Once discovery is (footnote continued . . . ) 97

There is, in this case, another factor that a jury could take into account in

evaluating appellants’ state of mind in publishing the statements accusing Dr.

Mann of misconduct and deception. As the articles that form the basis of Dr.

Mann’s complaint make clear, appellants and Mr. Steyn are deeply invested in one

side of the global warming debate that is opposed to the view supported by Dr.

Mann’s research. Although animus against Dr. Mann and his research is by itself

insufficient to support a finding of actual malice where First Amendment rights are

implicated, bias providing a motive to defame by making a false statement may be

a relevant consideration in evaluating other evidence to determine whether a

statement was made with reckless disregard for its truth. See Harte-Hanks

Commc’ns, Inc., 491 U.S. at 664-65, 667-68, 689 n.36 (stating that “it cannot be

said that evidence concerning motive or care never bears any relation to the actual

malice inquiry,” and noting that jury could have found actual malice on the basis,

inter alia, that publisher was biased against plaintiff and in a “bitter rivalry” with

another newspaper that would be impugned by discrediting the plaintiff); see also

Payne v. Clark, 25 A.3d 918, 925 (D.C. 2011) (distinguishing between common

law malice, for which “ill will” or bad faith is sufficient, and “actual malice”

required by the First Amendment). In evaluating the evidence in this case, for

(. . . footnote continued) completed, the legal conclusion that the evidence is sufficient to go to trial could change. 98

example, the jury could consider that appellants’ zeal in advancing their cause

against the hockey stick graph’s depiction of a warming global climate led them to

accuse Dr. Mann, one of its most prominent proponents, of deception and

misconduct in producing the graph with reckless disregard of their knowledge that

several investigations had discredited those accusations. See Tavoulareas, 817

F.2d at 796 (noting that evidence of ill will or bad motive, if probative of a

“willingness to publish unsupported allegations,” may be suggestive of actual

malice).

Just as this court’s decision in Nader provides a useful comparison with the

facts of this case, the D.C. Circuit’s recent opinion in Jankovic v. Int’l Crisis Grp.

(Jankovic III), 822 F.3d 576 (D.C. Cir. 2016), provides a useful contrast. After

deciding in two previous appeals, during the twelve-year course of litigation, that a

report stating that a Serbian businessman had supported the Milosevic regime in

exchange for favorable treatment for his businesses was capable of conveying a

defamatory meaning, see supra at 60, and that the statement was actionable

because it was not purely an opinion but asserted a false fact as justification, see

supra note 39, the court addressed the element of actual malice. The court

evaluated the evidence to determine whether it would allow a jury to find, by clear

and convincing evidence, that the International Crisis Group’s (ICG) publication of 99

the statement was made with actual malice. Concluding that the evidence was

insufficient as a matter of law, the court noted the following facts: ICG considered

that the writer of the report was an able analyst and expert on the Balkans; the

writer had conducted research of published reports and Serbian press accounts, and

had interviewed a number of confidential sources in government, business, and

NATO embassies, before writing the report; and the report was reviewed and

edited by the writer’s supervisor, the head of research, and ultimately approved by

ICG’s president. Id. at 591-92.

The court stressed that because the plaintiff had not produced evidence that

the writer had reason to doubt his research and sources, his failure to investigate

further or question his sources did not show actual malice or a reckless disregard

for the truth. “[I]t is only when a plaintiff offers evidence that ‘a defendant has

reason to doubt the veracity of its source’ does its ‘utter failure to examine

evidence within easy reach or to make obvious contacts in an effort to confirm a

story’ demonstrate reckless disregard.” Id. at 590 (quoting McFarlane v. Sheridan

Square Press, Inc., 91 F.3d 1501, 1510 (D.C. Cir. 1996)). “Absent such

evidence . . . [the writer’s] extensive background research and reporting on the

Balkans, his understanding of the Serbian press, and his good faith belief that the

frozen assets list implied more than it actually did, belies actual malice.” Id. at 100

597. In sum, the court concluded, what was missing was evidence that the

publisher had “serious doubt” or had “a high degree of awareness” of the

statement’s probable falsity, and thereby “acted with reckless disregard” for the

truth of the defamatory statement. Id.

What was present in Jankovic III that lent support to the claim of good faith

belief is missing here. Unlike in Jankovic III, where the court noted that ICG had

relied on an able analyst who had researched, reviewed and edited the report prior

to publication, in this case there is, at this point, no similar evidence that

Mr. Simberg, Mr. Steyn, CEI, or National Review conducted research or

investigation that provided support for their defamatory statements that Dr. Mann

engaged in deception and misconduct. The only support cited in the articles are the

CRU emails, with primary reliance on the language in one email that referred to

“Mike’s Nature trick.” But what the court noted was missing in Jankovic III to

support a finding of actual malice is present here: evidence that there was reason

to doubt the emails as a reliable source for the belief that Dr. Mann had engaged in

misconduct. That evidence has been presented in the form of reports from four

separate investigations that debunked the notion that the emails and, specifically

the reference to Dr. Mann’s “trick,” revealed deception in the presentation of data

and scientific misconduct. 101

On the current record, where the notion that the emails support that Dr.

Mann has engaged in misconduct has been so definitively discredited, a reasonable

jury could, if it so chooses, doubt the veracity of appellants’ claimed honest belief

in that very notion. A jury could find, by clear and convincing evidence, that

appellants “in fact entertained serious doubts” or had a “high degree of awareness”

that the accusations that Dr. Mann engaged in scientific misconduct, fraud, and

deception, were false, and, as a result, acted “with reckless disregard” for the

statements’ truth when they were published. Nader, 408 A.2d at 41, 50-53.

B. Intentional Infliction of Emotional Distress

The complaint’s claim for intentional infliction of emotional distress was

based on the statement that compared Dr. Mann to Jerry Sandusky. 62 To establish

a prima facie case of intentional infliction of emotional distress, a plaintiff must

show “(1) extreme and outrageous conduct on the part of the defendants, which (2)

intentionally or recklessly (3) causes the plaintiff severe emotional distress.”

Williams v. District of Columbia, 9 A.3d 484, 493-94 (D.C. 2010) (quoting Futrell

62 “Dr. Mann could be said to be the Jerry Sandusky of climate science, except for instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire consequences for the nation and planet.” 102

v. Dep’t of Labor Fed. Credit Union, 816 A.2d 793, 808 (D.C. 2003)). The

conduct must be “so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.” Id. at 494 (quoting Bernstein v. Fernandez,

649 A.2d 1064, 1075 (D.C. 1991)). As a constitutional matter, a public figure

“may not recover for the tort of intentional infliction of emotional distress by

reason of publication[] . . . without showing in addition that the publication

contains a false statement of fact which was made with ‘actual malice.’” Hustler

Magazine, Inc., 485 U.S. at 56.

Our conclusion that the evidence presented suffices to permit a jury to find

the constitutional requirement of actual malice also satisfies the mens rea element

of the tort of intentional infliction of emotional distress. Arguably, appellants’

statement comparing Dr. Mann to a convicted child sexual abuser could be

considered to be not simply a serious departure from journalistic standards, but

also “outrageous” and “extreme in degree,” particularly where there was no

legitimate need or urgency that might excuse it. Cf. Minch v. District of Columbia,

952 A.2d 929, 941 (D.C. 2008) (noting the pressure on police officers who

publicly and prematurely identified a student as suspect in one murder as they

confronted murder of a second student at undergraduate campus). We need not 103

decide whether the statement permits a finding that appellants’ conduct was

“extreme and outrageous,” because we conclude that Dr. Mann has not

demonstrated that he is likely to succeed in proving that he suffered the severe

emotional distress required to prevail on a claim for intentional infliction of

emotional distress.

The complaint alleges that as a result of the defamatory statements

“besmirching Dr. Mann’s reputation and comparing him to a convicted child

molester,” Dr. Mann has suffered “extreme emotional distress,” “mental anguish,”

and “personal humiliation.” From the statement itself, a jury could infer that the

comparison to Sandusky was particularly hurtful. Dr. Mann’s requests for an

apology and retraction, and his undertaking this litigation, would allow a jury to

infer that he was so deeply aggrieved that he deemed it necessary to restore his

public reputation. Dr. Mann has presented no evidence, however, that his

understandable consternation met the high bar of “severe emotional distress,”

which requires a showing beyond mere “mental anguish and stress” and must be

“of so acute a nature that harmful physical consequences are likely to result.”

Armstrong v. Thompson, 80 A.3d 177, 189-90 (D.C. 2013) (quoting Futrell, 816

A.2d at 808); see also Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 81 (D.C.

2011) (en banc) (noting that claim of negligent infliction of emotional distress 104

requires showing of emotional distress that is “acute, enduring or life-altering”).

We, therefore, conclude that, on the record before us, the evidence is insufficient to

support a finding that Dr. Mann suffered “severe” emotional distress. See id. at

182, 189 (noting that plaintiff’s “strong distress” resulting from false statements to

prospective employer that plaintiff was under investigation “for suspected

violations of both a criminal and administrative nature” that led to rescission of

employment offer was insufficient to show “severe emotional distress”). As Dr.

Mann has not produced or proffered evidence that he is likely to succeed in

proving that he suffered severe emotional distress, appellants’ special motions to

dismiss the claim of intentional infliction of emotional distress should have been

granted.

***

Concluding that we have jurisdiction pursuant to the collateral order doctrine

to hear appellants’ interlocutory appeal of the trial court’s denial of their special

motions to dismiss under the District’s Anti-SLAPP Act, we hold that the Act’s

“likely to succeed on the merits” standard for overcoming a special motion to

dismiss filed under D.C. Code § 16-5502 (b) requires that the plaintiff present an

evidentiary basis that would permit a reasonable, properly instructed jury to find in

the plaintiff’s favor. Dr. Mann has supplied sufficient evidence for a reasonable

jury to find, by a preponderance of the evidence, that statements in the articles 105

written by Mr. Simberg and Mr. Steyn were false, defamatory, and published by

appellants to third parties, and, by clear and convincing evidence, that appellants

did so with actual malice. We, therefore, affirm the trial court’s denial of the

special motions to dismiss the defamation claims based on those articles and

remand the case for additional proceedings in the trial court with respect to these

claims. Id. We reverse the trial court’s denial of the special motions to dismiss

with respect to Dr. Mann’s defamation claims based on Mr. Lowry’s editorial and

the claim for intentional infliction of emotional distress. On remand, the court

shall dismiss these claims with prejudice. Id. § 16-5502 (d).

So ordered. 106

APPENDIX

The Other Scandal In Unhappy Valley 63 by Rand Simberg on July 13, 2012

in Global Warming, Transparency

So it turns out that Penn State has covered up wrongdoing by one of its employees to avoid bad publicity.

But I’m not talking about the appalling behavior uncovered this week by the Freeh report. No, I’m referring to another cover up and whitewash that occurred there two years ago, before we learned how rotten and corrupt the culture at the university was. But now that we know how bad it was, perhaps it’s time that we revisit the Michael Mann affair, particularly given how much we’ve also learned about his and others’ hockey-stick deceptions since. Mann could be said to be the Jerry Sandusky of climate science, except for instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.

To review, when the emails and computer models were leaked from the Climate Research Unit at the University of East Anglia two and a half years ago, many of the luminaries of the “climate science” community were shown to have been behaving in a most unscientific manner. Among them were Michael Mann, Professor of Meteorology at Penn State, whom the emails revealed had been engaging in data manipulation to keep the blade on his famous hockey-stick graph, which had become an icon for those determined to reduce human carbon emissions by any means necessary.

As a result, in November of 2009, the university issued a press release that it was going to undertake its own investigation, independently of one that had been

63 The underlining in the articles in the Appendix indicate a hyperlink. 107

launched by the National Academy of Sciences (NAS) in response to a demand from Congressman Sherwood Boehlert (R- N.Y.). In July of the next year, the panel set up to investigate declared him innocent of any wrongdoing: Penn State Professor Michael Mann has been cleared of any wrongdoing, according to a report of the investigation that was released today (July 1). Mann was under investigation for allegations of research impropriety that surfaced last year after thousands of stolen e-mails were published online. The e-mails were obtained from computer servers at the Climatic Research Unit of the University of East Anglia in England, one of the main repositories of information about climate change.

The panel of leading scholars from various research fields, all tenured professors at Penn State, began its work on March 4 to look at whether Mann had “engaged in, directly or indirectly, any actions that seriously deviated from accepted practices within the academic community for proposing, conducting or reporting research or other scholarly activities.”

My emphasis.

Despite the fact that it was completely internal to Penn State, and they didn’t bother to interview anyone except Mann himself, and seemingly ignored the contents of the emails, the warm mongers declared him exonerated (and the biggest victim in the history of the world). But many in the skeptic community called it a whitewash:

This is not surprising that Mann’s own university circled the wagons and narrowed the focus of its own investigation to declare him ethical.

The fact that the investigation cited Mann’s ‘level of success in proposing research and obtaining funding’ as some sort of proof that he was meeting the ‘highest standards’, tells you that Mann is considered a sacred funding cash cow. At the height of his financial career, similar sentiments could have been said about Bernie Madoff.

Mann has become the posterboy of the corrupt and disgraced climate science echo chamber. No university whitewash investigation will change that simple reality.

Richard Lindzen of MIT weighed in as well: 108

“Penn State has clearly demonstrated that it is incapable of monitoring violations of scientific standards of behavior internally,” Lindzen said in an e-mail from France.

But their criticism was ignored, particularly after the release of the NAS report, which was also purported to exonerate him. But in rereading the NAS “exoneration,” some words stand out now. First, he was criticized for his statistical techniques (which was the basis of the criticism that resulted in his unscientific behavior). But more importantly:

The OIG also independently reviewed Mann’s emails and PSU’s inquiry into whether or not Mann deleted emails as requested by Phil Jones in the “Climategate” emails (aka Allegation 2). The OIG concluded after reviewing the published CRU emails and the additional information provided by PSU that “nothing in [the emails] evidenced research misconduct within the definition of the NSF Research Misconduct Regulation.” Furthermore, the OIG accepted the conclusions of the PSU inquiry regarding whether Mann deleted emails and agreed with PSU’s conclusion that Mann had not.

Again, my emphasis. In other words, the NAS investigation relied on the integrity of the university to provide them with all relevant material, and was thus not truly independent. We now know in hindsight that it could not do so. Beyond that, there are still relevant emails that we haven’t seen, two years later, because the University of Virginia continues to stonewall on a FOIA request, and it’s heading to the Supreme Court of the Commonwealth of Virginia.

Michael Mann, like Joe Paterno, was a rock star in the context of Penn State University, bringing in millions in research funding. The same university president who resigned in the wake of the Sandusky scandal was also the president when Mann was being whitewashed investigated. We saw what the university administration was willing to do to cover up heinous crimes, and even let them continue, rather than expose them. Should we suppose, in light of what we now know, they would do any less to hide academic and scientific misconduct, with so much at stake?

It’s time for a fresh, truly independent investigation. 109

NATIONAL REVIEW

Football and Hockey

By Mark Steyn — July 15, 2012

In the wake of Louis Freeh’s report on Penn State’s complicity in serial rape, Rand Simberg writes of Unhappy Valley’s other scandal:

I’m referring to another cover up and whitewash that occurred there two years ago, before we learned how rotten and corrupt the culture at the university was. But now that we know how bad it was, perhaps it’s time that we revisit the Michael Mann affair, particularly given how much we’ve also learned about his and others’ hockey-stick deceptions since. Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.

Not sure I’d have extended that metaphor all the way into the locker-room showers with quite the zeal Mr Simberg does, but he has a point. Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph, the very ringmaster of the tree-ring circus. And, when the East Anglia emails came out, Penn State felt obliged to “investigate” Professor Mann. Graham Spanier, the Penn State president forced to resign over Sandusky, was the same cove who investigated Mann. And, as with Sandusky and Paterno, the college declined to find one of its star names guilty of any wrongdoing.

If an institution is prepared to cover up systemic statutory rape of minors, what won’t it cover up? Whether or not he’s “the Jerry Sandusky of climate change”, he remains the Michael Mann of climate change, in part because his “investigation” by a deeply corrupt administration was a joke. 110

Get Lost

My response to Michael Mann.

By Rich Lowry — August 22, 2012

So, as you might have heard, Michael Mann of Climategate infamy is threatening to sue us.

Mann is upset — very, very upset — with this Mark Steyn Corner post, which had the temerity to call Mann’s hockey stick “fraudulent.” The Steyn post was mild compared with other things that have been said about the notorious hockey stick, and, in fact, it fell considerably short of an item about Mann published elsewhere that Steyn quoted in his post.

So why threaten to sue us? I rather suspect it is because the Steyn post was savagely witty and stung poor Michael.

Possessing not an ounce of Steyn’s wit or eloquence, poor Michael didn’t try to engage him in a debate. He sent a laughably threatening letter and proceeded to write pathetically lame chest-thumping posts on his Facebook page. (Is it too much to ask that world-renowned climate scientists spend less time on Facebook?)

All of this is transparent nonsense, as our letter of response outlines.

In common polemical usage, “fraudulent” doesn’t mean honest-to-goodness criminal fraud. It means intellectually bogus and wrong. I consider Mann’s prospective lawsuit fraudulent. Uh-oh. I guess he now has another reason to sue us.

Usually, you don’t welcome a nuisance lawsuit, because it’s a nuisance. It consumes time. It costs money. But this is a different matter in light of one word: discovery.

If Mann sues us, the materials we will need to mount a full defense will be extremely wide-ranging. So if he files a complaint, we will be doing more than fighting a nuisance lawsuit; we will be embarking on a journalistic project of great interest to us and our readers. 111

And this is where you come in. If Mann goes through with it, we’re probably going to call on you to help fund our legal fight and our investigation of Mann through discovery. If it gets that far, we may eventually even want to hire a dedicated reporter to comb through the materials and regularly post stories on Mann.

My advice to poor Michael is to go away and bother someone else. If he doesn’t have the good sense to do that, we look forward to teaching him a thing or two about the law and about how free debate works in a free country.

He’s going to go to great trouble and expense to embark on a losing cause that will expose more of his methods and maneuverings to the world. In short, he risks making an ass of himself. But that hasn’t stopped him before.

— Rich Lowry is the editor of NATIONAL REVIEW.