__ U.S. __, 18-1451, National Review, Inc. v. Mann

Docket Nº:18-1451, 18-1477
Citation:__ U.S. __, 140 S.Ct. 344
Party Name:NATIONAL REVIEW, INC. v. Michael E. MANN Competitive Enterprise Institute, et al. v. Michael E. Mann
Judge Panel:Justice ALITO, dissenting from the denial of certiorari.
Case Date:November 25, 2019
Court:United States Supreme Court

Page __

__ U.S. __

140 S.Ct. 344



Michael E. MANN Competitive Enterprise Institute, et al.


Michael E. Mann

Nos. 18-1451, 18-1477

United States Supreme Court

November 25, 2019

The motions of Southeastern Legal Foundation for leave to file briefs as amicus curiae are granted. The petitions for writs of certiorari are denied.

Justice ALITO, dissenting from the denial of certiorari.

The petition in this case presents questions that go to the very heart of the constitutional guarantee of freedom of speech and freedom of the press: 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. If the Court is serious about protecting freedom of expression, we should grant review.


Penn State professor Michael Mann is internationally known for his academic work and advocacy on the contentious subject of climate change. As part of this [140 S.Ct. 345] work, Mann and two colleagues produced what has been dubbed the "hockey stick" graph, which depicts a slight dip in temperatures between the years 1050 and 1900, followed by a sharp rise in temperature over the last century. Because thermometer readings for most of this period are not available, Mann attempted to ascertain temperatures for the earlier years based on other data such as growth rings of ancient trees and corals, ice cores from glaciers, and cave sediment cores. The hockey stick graph has been prominently cited as proof that human activity has led to global warming. Particularly after e-mails from the University of East Anglia’s Climate Research Unit were made public, the quality of Mann’s work was called into question in some quarters.

Columnists Rand Simberg and Mark Steyn criticized Mann, the hockey stick graph, and an investigation conducted by Penn State into allegations of wrongdoing by Mann. Simberg’s and Steyn’s comments, which appeared in blogs hosted by the Competitive Enterprise Institute and National Review Online, employed pungent language, accusing Mann of, among other things, "misconduct," "wrongdoing," and the "manipulation" and "tortur[e]" of data. App. to Pet. for Cert. in No. 18-1451, pp. 94a, 98a (App.).

Mann responded by filing a defamation suit in the District of Columbia’s Superior Court. Petitioners moved for dismissal, relying in part on the District’s anti-SLAPP statute, D. C. Code § 16-5502(b) (2012), which requires dismissal of a defamation claim if it is based on speech made "in furtherance of the right of advocacy on issues of public interest" and the plaintiff cannot show that the claim is likely to succeed on the merits. The Superior Court denied the motion, and the D. C. Court of Appeals affirmed. 150 A.3d 1213, 1247, 1249 (2016). The petition now before us presents two questions: (1) whether a court or jury must determine if a factual connotation is "provably false" and (2) whether the First Amendment permits defamation liability for expressing a subjective opinion about a matter of scientific or political controversy. Both questions merit our review.


The first question is important and has divided the lower courts. See 1 R. Smolla, Law of Defamation § § 6.61, 6.62, 6.63 (2d ed. 2019); 1 R. Sack, Defamation § 4:3.7 (5th ed. 2019). Federal courts have held that "[w]hether a communication is actionable because it contained a provably false statement of fact is a question of law." Chambers v. Travelers Cos., 668 F.3d 559, 564 (C.A.8 2012); see also, e.g., Madison v. Frazier, 539 F.3d 646, 654 (C.A.7 2008); Gray v...

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