Reply Brief — National Review, Inc., Petitioner v. Michael E. Mann

Supreme Court briefJul 16, 2019

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No. 18-1451

IN THE

Supreme Court of the United States

NATIONAL REVIEW, INC.,

Petitioner,

MICHAEL E. MANN,

Respondent,

On Petition for a Writ of Certiorari

to the District of Columbia Court of Appeals

PETITIONER’S REPLY

IN SUPPORT OF CERTIORARI

MICHAEL A. CARVIN

Counsel of Record

YAAKOV M. ROTH

ANTHONY J. DICK

JONES DAY

51 Louisiana Ave., NW

Washington, D.C.

20001-2113

(202) 879-3939

macarvin@jonesday.com

Counsel for Petitioner

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTRODUCTION ....................................................... 1

ARGUMENT ............................................................... 2

THIS COURT’S JURISDICTION IS CLEAR ................ 2

II.

THE FIRST QUESTION WARRANTS

REVIEW ................................................................ 7

III. THE SECOND QUESTION WARRANTS

REVIEW ................................................................ 9

CONCLUSION ......................................................... 12

TABLE OF AUTHORITIES

Page(s)

CASES

Cox Broad. Corp. v. Cohn,

420 U.S. 469 (1975) .......................................passim

Fort Wayne Books, Inc. v. Indiana,

489 U.S. 46 (1989) .............................................. 4, 6

Meagher v. Minnesota Thresher

Manufacturing Co.,

145 U.S. 608 (1892) ................................................ 5

Miami Herald Pub’g Co. v. Tornillo,

418 U.S. 241 (1974) ................................................ 6

Milkovich v. Lorain Journal Co.,

497 U.S. 1 (1990) ................................................ 3, 9

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) .............................................. 11

STATUTES

28 U.S.C. § 1257 .......................................................... 2

OTHER AUTHORITIES

Stern & Gressman,

Supreme Court Practice (9th ed.)........................... 5

INTRODUCTION

Mann concedes the entrenched split between state

and federal courts on the first question presented:

whether categorizing speech on matters of public

concern as “provably false” presents a question of law

for a court or a question of fact for a jury. That is an

oft-recurring and undeniably important question, and

(contrary to Mann’s claims) it is one that the court

below had to—and did—resolve in determining that

Mann’s defamation claims could proceed. This Court

should grant review to resolve that conflict.

As to the second question presented, Mann admits

that courts have long refused to entertain defamation

claims for subjective critiques and value judgments,

particularly on matters of public concern. While he

attempts to distinguish the decision below, his efforts

fail: The court’s reasoning would reduce nearly every

public-policy debate to dueling libel lawsuits and jury

biases, warping free discourse in the nation’s capital.

That is why 21 sitting U.S. Senators and three

former U.S. Attorneys General, among others, have

filed amicus briefs urging review.

In response to all this, Mann seeks to evade review

by challenging this Court’s jurisdiction. But an

unbroken wall of precedent, stretching back nearly

half a century, leaves no doubt that the decision

below is “final” because it finally resolved “the federal

issue” of whether the statements are protected as a

matter of law under the First Amendment. See Cox

Broad. Corp. v. Cohn, 420 U.S. 469, 485-86 (1975).

And because the court below erred so egregiously on

that crucial federal question, this Court has not only

the power but the duty to step in.

ARGUMENT

THIS COURT’S JURISDICTION IS CLEAR.

Mann’s principal argument is that this Court lacks

jurisdiction due to lack of a “final” decision under 28

U.S.C. § 1257. BIO.26-27. That argument is refuted

by this Court’s longstanding precedent.

A. As the petition explained (at 4), this Court has

jurisdiction under Cox Broadcasting. Cox held that

this Court may review a state-court decision rejecting

a threshold First Amendment defense and allowing a

state-law civil suit to proceed based on potentially

protected speech. This case is precisely the same.

In Cox, the father of a rape victim sued a

broadcaster under state law for publishing the

victim’s name. 420 U.S. at 472-74. The Georgia

Supreme Court held that the First Amendment “did

not, as a matter of law, require judgment for” the

broadcaster, so it remanded for trial. Id. at 475. This

Court took jurisdiction under § 1257 because the

decision was “plainly final on the federal issue”—

whether “a civil action for publishing the name of a

rape victim disclosed in a public judicial proceeding

may go forward.” Id. at 485-86. This Court realized

that the broadcaster might “prevail at trial” on other

grounds, but the threshold First Amendment

question was whether “there should be [a] trial at

all.” Id. at 485. That issue had been finally decided,

and refusing immediate review would not only

subject potentially protected speech to burdensome

litigation, but would also “leave the press in Georgia

operating in the shadow of … a rule of law … the

constitutionality of which is in serious doubt.” Id. at

486.

Under the Cox rule, this Court has jurisdiction so

long as (1) “the federal issue has been finally

decided,” (2) “reversal of the state court on the federal

issue would be preclusive of any further litigation on

the relevant cause of action,” and (3) “refusal

immediately to review the state court decision might

seriously erode federal policy.” Id. at 482-83.

All three conditions are easily satisfied here, for

precisely the same reasons as in Cox. First, the D.C.

Court of Appeals “finally decided” the federal issue by

holding that Mann’s defamation claims “may go

forward,” rejecting the argument that the speech is

not actionable under the First Amendment. Id. at

475, 485. Second, reversing the decision below would

preclude “any further litigation on the relevant cause

of action,” i.e., Mann’s defamation claim against

National Review. Id. at 482-43. And, third, denying

immediate review “might seriously erode federal

policy,” both by forcing National Review to endure

costly litigation as the price of engaging in protected

speech, and by perpetuating a dubious “rule of law”

that would chill robust debate. Id. at 483, 486.

B. Mann’s contrary arguments are without merit.

First, he contends that the court below “did not

decide a federal issue” at all. BIO.27. But, under the

First Amendment, there are “constitutional limits” on

defamation liability; one limit is that the statement

forming the basis for the claim must be “objectively

verifiable.” Milkovich v. Lorain Journal Co., 497 U.S.

1, 16, 20, 22 (1990). That is a classic “federal” issue.

Although the issue arose in the procedural context of

a D.C. anti-SLAPP motion to dismiss, the substantive

issue is one of federal constitutional law.

Second, Mann argues that the D.C. Court of

Appeals did not “finally” resolve the federal issue

because it rejected the First Amendment argument

“at the motion to dismiss phase.” BIO.27. But the

precise federal question on the motion to dismiss is

whether the Constitution allows Mann’s defamation

claims to “go forward.” Cox, 420 U.S. at 485. If not,

then “there should be no trial at all.” Id. In other

words, the federal question is whether, accepting

Mann’s allegations as true, the First Amendment

allows for defamation liability. The Court of Appeals

finally resolved that federal question by allowing

Mann’s claims to proceed. Deferring this Court’s

review until after trial would defeat the entire point

of the Cox rule.

Third, Mann argues that reversal of the decision

below “would not be preclusive of further litigation.”

BIO.28-29 (quoting Cox, 420 U.S. at 482-83). But he

truncates the key portion of the sentence he quotes:

The question is whether reversal would preclude “any

further litigation on the relevant cause of action.”

Cox, 420 U.S. at 482-83 (emphasis added). Here, the

“relevant cause of action” is Mann’s defamation claim

against National Review. And reversing the decision

below would obviously preclude further litigation on

that cause of action. See also, e.g., Fort Wayne Books,

Inc. v. Indiana, 489 U.S. 46, 55 (1989) (finding

jurisdiction under Cox because “reversal … would bar

further prosecution on the RICO counts at issue here”

(emphasis added)).

Because Cox looks to the finality of the decision on

“the federal issue” and “the relevant cause of action,”

Cox, 420 U.S. at 483 (emphases added), it obviously

does not require that reversal would finally resolve

the case as to “all parties and issues.” BIO.29

(emphases added). Thus, it makes no difference that

the courts below may have to resolve collateral issues

of “attorneys’ fees” and Steyn’s “counterclaim”

against Mann. Id. Moreover, even if it mattered,

Mann is plainly wrong that his defamation claim

against Steyn could still proceed if he lost here: If

this Court holds that Mann cannot sue National

Review for publishing Steyn’s criticism, then Mann

obviously cannot sue Steyn for authoring it.1

Finally, Mann says that denying immediate review

would not “seriously erode federal policy” because the

decision below “did not depart in any way from

federal precedent.” BIO.30 (quoting Cox, 420 U.S. at

483). That confuses the merits with the importance

of the First Amendment issues at stake. Under Cox,

the question is whether denying immediate review

“might seriously erode federal policy” by subjecting

potentially protected speech to burdens of litigation

and preserving a precedent with chilling effects on

speech. 420 U.S. at 483 (emphasis added). That test

is self-evidently satisfied here.

1 The only case that Mann cites on this point, Meagher v.

Minnesota Thresher Manufacturing Co., 145 U.S. 608 (1892), is

wholly inapposite. Meagher was not a Cox case, but simply set

forth the general rule that a decision is not “final”—and hence

not reviewable—until it is final for all parties. But Cox

recognized an exception to that rule, which allows this Court to

grant review in certain circumstances when a federal issue has

been finally decided, even if other parties or issues remain. See

Stern & Gressman, Supreme Court Practice § 3.7 (9th ed.).

Most obviously, requiring a trial before granting

review would destroy the First Amendment right

that National Review seeks to vindicate. The issue is

whether National Review should be forced to stand

trial and be subject to damages for publishing

criticism on matters of public concern. If the First

Amendment protects such criticism, “there should be

no trial.” Cox, 420 U.S. at 485.

In addition, denying review now might deny it

forever. If the case goes to trial, National Review

“might prevail on the merits on nonfederal grounds,”

which would perpetuate the decision below as a

governing precedent. Id. at 482. That would “leave

the press in [D.C.] operating in the shadow of … a

rule of law … the constitutionality of which is in

serious doubt.” Id. at 486. And that, in turn, would

“harm the operation of a free press” in the nation’s

capital—an “intolerable” result. Id.

Accordingly, “[a]djudicating the proper scope of

First Amendment protections has often been

recognized by this Court as a ‘federal policy’” that

supports immediate review under Cox. Fort Wayne

Books, 489 U.S. at 55. Indeed, even “uncertainty”

about the “constitutional validity” of a decision below

is enough to support review. Miami Herald Pub’g Co.

v. Tornillo, 418 U.S. 241, 247 n.6 (1974). And here

there is more than “uncertainty.” The D.C. decision

is so egregiously wrong that 21 sitting U.S. Senators

and three former U.S. Attorneys General have filed

amicus briefs supporting review to repel the threat to

“deliberative democracy.” U.S. Sens. Am. Br. 7; U.S.

Atty. Gens. Am. Br. 2. Under these circumstances,

this Court’s jurisdiction is clear.

II. THE FIRST QUESTION WARRANTS REVIEW.

Mann admits that there is a well-established split

over whether a court or a jury must decide whether

an ambiguous statement is “provably false” and thus

susceptible to defamation liability. BIO.33. And he

does not dispute that this is an important, recurring

question that merits review. Instead, he claims that

this case does not present that question. Mann is

wrong. The Court of Appeals resolved this question

below, as it had to.

A. Mann says that the D.C. court did not defer

the issue of verifiability to a jury, but instead decided

“for itself” that the statements at issue are provably

false “as a matter of law.” BIO.31. That is not a

plausible reading of the decision. The court expressly

held, in addressing “verifiability,” that “the standard

is whether a reasonable jury could find that the

challenged statements were false.” Pet.App.65a n.46.

In the same footnote, the court rejected the argument

that it should treat the statements as provably false

only if they were not reasonably susceptible to a nonfactual construction. Id. In doing so, the court took a

clear side in the conflict of authority. See Pet.16-20.

Accordingly, the court held the statements actionable

because “a jury could reasonably interpret [them] as

asserting as fact that the CRU emails ‘show[]’ that

Dr. Mann engaged in deceptive data manipulation.”

Pet.App.57a (first emphasis added). And the court

repeated that the statements “deliver an indictment

of reprehensible conduct against Dr. Mann that a

reader could take to be an assertion of a true fact.”

Pet.App.64-65a (emphasis added).

To be sure, the court said in the next sentence that

“these injurious allegations … are capable of being

verified or discredited.” Pet.App.65a-66a. But that

was only after saying that “a reader could take” the

statements to have made those provably false factual

allegations. Id. That is, the court first held that a

jury could construe the statements in a certain way,

and then held that such a jury-imputed construction

would be provably false. That is the state-court rule

described in the petition, which ultimately leaves for

a jury to decide whether to impute to the speaker the

provably false reading of the ambiguous statement.

And it conflicts with the federal-court rule, under

which the court construes the statement to decide if it

conveys provably false facts, and allows the claim to

proceed only if the answer is unambiguously yes.

The same is true of the other snippets quoted by

Mann, where the court said the statements are “not

simply a matter of opinion” and are “capable of being

proved true or false.” BIO.31. Again, that was only

after finding that the statements “can fairly be read

as making defamatory factual assertions,” and that

“ordinary, reasonable readers could read the [article]

as implying ... that Dr. Mann was guilty of

misconduct.” Pet.App.56a (emphases added).

B. Mann also argues half-heartedly that punting

to a jury made no difference because the statements

at issue unambiguously related verifiable facts.

BIO.32. That is absurd. The statements are at a

minimum most naturally read as criticizing the

hockey-stick graph (and its creator) for portraying a

deceptive and misleading picture of global warming—

which is not a provably false factual claim. Certainly

the statements can be read this way. See Pet.20.

More importantly, even the court below did not say

otherwise. It did not remotely hold that the

statements at issue were unambiguous assertions of

verifiable fact, nor does Mann cite any instance of the

court suggesting as much. That is enough to present

the question of whether the court or the jury should

resolve the supposed ambiguity.

C. Mann devotes a single paragraph to defending

the decision below on the merits. He asserts that a

jury “is entitled to impose liability” for statements

that could be interpreted as protected criticism “on a

matter of public concern.” BIO.32-33. That simply

ignores all of the contrary arguments in the petition,

including that Milkovich in no way endorsed this

burden on protected speech. Pet.21-26. Regardless, a

defense on the merits is no basis to deny review of a

clean vehicle that presents a conceded split on an

important federal constitutional question.

III. THE SECOND QUESTION WARRANTS REVIEW.

Mann does not dispute the countless cases cited by

National Review showing that inherently subjective

critiques—“misleading,” “deceptive,” “misconduct,”

and comparisons to odious figures—are not capable of

being proved false, especially in the context of hotbutton political debates. Pet.27-30. Instead, Mann

tries to distinguish this case, claiming that the D.C.

court’s decision is not to the contrary. Again, Mann

is wrong. The decision below rendered subjective

pejorative characterizations actionable, and so it is

difficult to imagine a policy debate that would not

allow either side to seek defamation damages against

the other. That is why there is such a grave need for

review, as evidenced by the amicus briefs.

A. Mann argues that while “generic” accusations

of misconduct and deception cannot be proved false,

here the statements are provably false because they

made “reference to specific facts.” BIO.34-35. That

is, Simberg and Steyn explained to readers “why Dr.

Mann’s work was fraudulent and why he was guilty

of misconduct, specifically referring to a concrete fact:

the CRU emails.” BIO.34 (emphases added).

Although that rationale mimics the reasoning of

the Court of Appeals, it makes no sense. None of the

referenced underlying facts (such as what the emails

said, or which techniques Mann used to develop the

hockey stick) are now—or ever have been—disputed.

Nor is there any allegation that National Review

misstated any of those facts. That is why Mann does

not identify any specific “fact” that National Review

got wrong. Rather, the only dispute is whether those

undisputed facts support the characterization of the

hockey stick as “misconduct” or “deceptive.” That is a

subjective question of political and scientific opinion

that cannot be falsified. Mann asserts that his “trick”

to “hide the decline” is a valid “statistical method.”

BIO.10. Defendants think it is misleading. Pet.5-6.

The “truth” of these competing opinions must be

resolved through free debate, not legal sanctions.

If anything, that Steyn and Simberg cited the

(undisputed, not-alleged-to-be-false) factual basis for

their opinions makes Mann’s defamation claims even

weaker. As CEI has explained, when a pejorative

characterization is based on specific, disclosed facts,

the characterization cannot be read as a provably

false factual assertion. CEI.Pet.16-21. Providing the

reader with the factual background makes clear that

the critique is a subjective opinion based on the

disclosed facts. Indeed, here, the disclosed facts

showed that the pejorative characterizations were not

intended to imply a provably false fact—e.g., that

Mann changed a “3” to a “5” in the data—but were

criticizing Mann as deceptively presenting the data

as part of the ongoing hockey-stick controversy.

Consequently, there is no factual dispute for a jury to

resolve, only competing characterizations of the facts.

Contrary to Mann’s assertion, the fact that certain

academic experts or governmental agencies reached a

contrary conclusion on his misconduct does not “close

the book” on the public debate; nor were Defendants

required to share those conclusions. BIO.15, 38. The

National Science Foundation is not the Ministry of

Truth. “If there is any fixed star in our constitutional

constellation,” it is that no government agency or

academic body may “prescribe what shall be

orthodox” on the questions of whether Mann’s

(undisputed) conduct is ethical or improper,

transparent or misleading. W. Va. State Bd. of Educ.

v. Barnette, 319 U.S. 624, 642 (1943).

B. While Mann claims the decision below “poses

no threat to public advocacy, discussion, or debate”

(BIO.39), that is belied by the amicus briefs urging

review. Notably, 21 U.S. Senators worry that the

decision “will shut down crucial debates on matters of

public concern,” by “allow[ing] juries to punish

subjective statements of political or scientific opinion

as defamatory statements of fact.” U.S. Sens. Am.

Br. 2. And three former Attorneys General fear its

threat to the “rule of law,” given the risk that juries

will stray from “viewpoint neutrality” when asked to

adjudicate the “truth” of hotly contested political or

scientific opinions. U.S. Attys. Gen. Am. Br. 14.

Indeed, the decision below has already started to

encourage similar lawsuits seeking to quash scientific

debate. Curry Am. Br. 15-16. This Court should

intervene now to stop that trend from accelerating.

CONCLUSION

The petition should be granted.

JULY 2019