Climate scientist Michael Mann's libel suit against National Review has survived an effort to dismiss the case brought under the District of Columbia law barring strategic lawsuits against public participations, or SLAPPs.
Mann, director of the Earth System Science Center at Pennsylvania State University, accused the conservative publication of defaming him by running an article last summer that accused him of fraud in his research. The piece drew comparisons between a Penn State investigation into his research and the school's investigation of former assistant football coach Jerry Sandusky, who was convicted of child molestation.
On July 19, District of Columbia Superior Court Judge Natalia Combs Greene denied motions to dismiss brought under the anti-SLAPP law by National Review and the Competitive Enterprise Institute, a think tank Mann sued over a related article published on the organization's staff blog, OpenMarket.org. Combs Greene found the statements at issue had crossed the line from protected opinion to factual assertions that Mann could attempt to prove false at a later stage of the case.
"Criticism of the Plaintiff's work may be fair and he and his work may be put to the test," the judge wrote in her orders denying the motions. "Where, however the NR Defendants consistently claim that Plaintiff's work is inaccurate (despite being proven as accurate) then there is a strong probability that the NR Defendants disregarded the falsity of their statements and did so with reckless disregard."
Mann's attorney, John Williams of Cozen O'Connor, said he thought the judge's "view of the case tracked her questions at the oral argument" on June 19. "We're pleased and gratified by the decision and look forward to the next stage of the case, which will be discovery," he said.
The defendants filed separate, although similar, motions to dismiss. Lead counsel for National Review, Steptoe & Johnson partner Shannen Coffin, said they were "considering our options." Sam Kazman, general counsel for the Competitive Enterprise Institute, said an appeal was a "strong possibility." The organization is being represented by Baker & Hostetler; litigation partner David Rivkin Jr., declined to comment.
In an unrelated case, the District of Columbia Court of Appeals issued an order in December finding that the anti-SLAPP statute didn't provide for interlocutory review, meaning a party couldn't appeal the denial of a motion to dismiss under the law.
Mann was part of research group that developed the climate change model known as the "hockey stick graph," which showed a dramatic rise in global temperature at the end of the last millennium. His work came under fire from climate change deniers and skeptics of his research methods. Several investigations over the years cleared Mann of allegations of wrongdoing.
The National Review article at issue, entitled "Football and Hockey," called Mann "the man behind the fraudulent climate-change 'hockey-stick' graph." After emails surfaced that raised concerns about data manipulation by climate change scientists, including Mann, the author questioned the reliability of a Penn State investigation that cleared Mann of wrongdoing, noting that a university investigation of Sandusky's conduct also took place under former Penn State President Graham Spanier.
The article referenced a July 13 article on the Competitive Enterprise Institute's blog that speculated that 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." A current version of the article no longer includes the line as quoted.
The defendants argued the statements were opinion and rhetorical hyperbole. Combs Greene disagreed, finding that given the defendants' previous accusations of fraud against Mann, the "content and context of the statements is not indicative of play and 'imaginative expression' but rather aspersions of verifiable facts that Plaintiff is a fraud."
The next status hearing in the case is scheduled for September 27.