National Review, Inc. v. Michael E. Mann, No. 18-1451 and Competitive Enterprise Institute v. Michael E. Mann, No. 18-1477.  Petitions for Certiorari denied November 25, 2019.

To encourage the free flow of ideas and debate on matters of public concern, the First Amendment insulates statements of opinion from liability in defamation unless those opinions can be shown to be premised on demonstrably false assertions. 

If Jones says, “Smith could not defend my dog,” Jones cannot be sued if Jones has simply offered a sardonic appraisal of Smith’s advocacy.  If, however, Jones makes this statement when Smith has in fact won Fido’s acquittal, Jones may be liable in defamation, for his opinion is grounded in a falsehood. 

Unsurprisingly, yet apparently quite unpleasantly, the eruption of a firestorm of controversy about the soundness of the scientific evidence concerning climate change, accompanied by no small number of challenges to the character of its proponents and opponents, prompted scientist Mann to sue two conservative opponents of his research in defamation.   

No trial has been held as yet:  Defendants the National Review and the Competitive Enterprise Institute asked that the Supreme Court consider who — judge or jury — should decide the contours of defamation claims, and how that should be accomplished.

The petitions for certiorari were denied on November 25, 2019.

Determinations about what is opinion and what is demonstrably true or false may be conclusive of liability in defamation cases, at least insofar as opinion is not actionable.  Special statutes reflect the goal of promptly resolving, through motions practice, claims concerning comment on matters of public interest. 

The capacity of the statutory framework to suit constitutional ends may become more intensive complex where the integrity of matters of scientific inquiry are concerned, as testing the truth of asserted facts and hypotheses is the very purpose of scientific inquiry.  Few would suggest that pretermitting discussion would serve any good end.

Just how much foundation in fact and how much hyperbole may be tolerated before speech loses First Amendment protection and becomes actionable in defamation generates no end of controversy, not the least component of which is who may decide such questions:  judge or jury. If these are questions of law, a judge may decide. If these are questions of fact, a jury may decide, and a judge ought not invade a jury’s fact-finding province.

The time and toil involved in preparing for trial is substantial, making the decision about deciders of great significance.  Yet notwithstanding advocates’ proffered arguments that there is a need for Supreme Court review of these questions, the Court has declined, to the disappointment of Justice Alito, who wrote separately in dissent from denial of the petitions of certiorari.  Justice Alito noted the critical nature of addressing these questions in order to ensure the preservation of First Amendment freedoms, which serve to guarantee that all may “speak freely and without fear” on matters of public concern.

 Confidence in constitutional guarantees is not well served by the uncertainty that is sustained by failure to resolve these questions, Justice Alito has offered.  This is especially so, he has noted, where the Court in recent years has not shied away from addressing First Amendment concerns in regulatory matters.  

While it is true that no rights have been conclusively forfeited in these cases because of the interlocutory nature of the appeal and the availability of trial, Justice Alito perceives the burdens of litigation and trial in themselves as potential impediments to participation in commentary on matters of public concern.  Justice Alito would have the Court step in to resolve such issues sooner rather than later or not at all.  

The Alito commentary:

18-1451_2019 11 25 Alito Dissent from Denial of Certiorari

The Opinion of the District of Columbia Court of Appeals that prompted petitions for certiorari:

Inst v. Mann, 150 A.3d 1213 (D.C., 2016)