(Nov. 25)
The Supreme Court severely undermined free speech on Monday. It erred by refusing to hear an appeal of a defamation suit filed by a controversial climate scientist against the conservative publication National Review.
At issue was whether courts should allow the suit to reach a jury or whether instead, the magazine should enjoy what Justice Samuel Alito called “the protection afforded to journalists and others who use harsh language in criticizing opposing advocacy on one of the most important public issues of the day.” Alito dissented eloquently from the court’s refusal to review the case. Alito was absolutely right.
In 2012, National Review published a short, caustic blog post by Canadian writer Mark Steyn that semi-favorably cited an even more caustic third-party blog post criticizing Michael Mann, a professor of meteorology at Pennsylvania State University. The other blogger, Rand Simberg, used hyperbole and wordplay to compare a disputed climate-change graph published by Mann to the child sex-abuse scandal, also at Penn State, involving football coach Jerry Sandusky.
“Mann could be said to be the Jerry Sandusky of climate science,” wrote Simberg, “except that instead of molesting children, he has molested and tortured data in the service of politicized science.”
Notably, Steyn rejected the analogy — but not Simberg’s underlying point: “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.”…
[Later in the column]…
For publishing a blog post opining that his climate-change graph was “fraudulent” while quoting the distasteful “molestation” analogy, Mann sued National Review. (He also sued the Competitive Enterprise Institute, which published Simberg’s original blog post.)
Liberal lower-court judges ruled that Mann’s suit should be allowed to go forward. National Review appealed. It cited copious precedent that the First Amendment protects vigorous debate and hyperbolic language in opinion journalism. As editor Rich Lowry rightly noted, “in common polemical usage, ‘fraudulent’ doesn’t mean honest-to-goodness criminal fraud. It means intellectually bogus and wrong.” As such, it should not be subject to jury review for possible defamation, because it is not a verifiable or falsifiable assertion of fact….
[The full column is at this link.]
