Inst v. Mann

Citation150 A.3d 1213
Decision Date22 December 2016
Docket Number NO. 14–CV–126,No. 14–CV–101,14–CV–101
Parties COMPETITIVE ENTERPRISE INSTITUTE and Rand Simberg, Appellants, v. Michael E. MANN, Appellee, National Review, Inc., Appellant, v. Michael E. Mann, Appellee.
CourtCourt of Appeals of Columbia District

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.

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 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 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 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 colleagues4 co-authored two scientific 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 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 CO2in 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.

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 McKitrick7 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 Wegman8 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.

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....

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