Amicus Curiae Brief — Competitive Enterprise Institute, et al., Petitioners v. Michael E. Mann

Nos. 18-1451 and 18-1477

In The

Supreme Court of the United States

NATIONAL REVIEW, INC., Petitioner,

v.

MICHAEL E. MANN, Respondent.

COMPETITIVE ENTERPRISE INSTITUTE AND

RAND SIMBERG, Petitioners,

v.

MICHAEL E. MANN, Respondent.

On Petitions For Writs Of Certiorari

To The District of Columbia Court of Appeals

BRIEF OF CATO INSTITUTE, REASON

FOUNDATION, AND THE INDIVIDUAL RIGHTS

FOUNDATION AS AMICI CURIAE IN SUPPORT

OF PETITIONERS

ILYA SHAPIRO

TREVOR BURRUS

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, D.C. 20001

(202) 842-0200

ishapiro@cato.org

BRADLEY A. BENBROOK

Counsel of Record

STEPHEN M. DUVERNAY

BENBROOK LAW GROUP, PC

400 Capitol Mall, Ste. 2530

Sacramento, CA 95814

(916) 447-4900

brad@benbrooklawgroup.com

July 5, 2019

Counsel for Amici Curiae

ADDITIONAL COUNSEL

MANUEL S. KLAUSNER

LAW OFFICES OF MANUEL S. KLAUSNER

One Bunker Hill Bldg.

601 West Fifth St.

Los Angeles, CA 90071

(213) 617-0414

mklausner@klausnerlaw.us

i

QUESTION PRESENTED

If an investigation has purportedly exonerated

a controversial figure, is there an actionable defamation claim against someone who continues to

criticize the controversial figure by questioning

the quality and motivations of the investigation?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................i

TABLE OF CONTENTS .......................................... ii

TABLE OF AUTHORITIES ................................... iii

INTEREST OF AMICI CURIAE .............................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ..................................................... 3

ARGUMENT ............................................................. 6

I.

DISAGREEMENT WITH OFFICIAL BODIES

IS NOT EVIDENCE OF BAD FAITH ...............6

A.

Disagreeing with an Investigation’s

Conclusions and Arguing that Someone Has

Not in Fact Been Exonerated by an Inquiry

Is Core—and Utterly Commonplace—

Political Speech ..........................................8

B.

Academic, Professional, and Government

Boards—No Matter How “Credentialed”

Their Members—Cannot Be Turned into

Truth Commissions ....................................13

C.

Déjà Vu: The Panel Decision Echoes the

Corrosive Stifling of Dissent in the

Dreyfus Affair.............................................17

II. COMMONPLACE PEJORATIVE TERMS AND

ANALOGIES TO “NOTORIOUS” PERSONS

CANNOT BE ACTIONABLE FOR

DEFAMATION ................................................ 19

CONCLUSION........................................................ 23

iii

TABLE OF AUTHORITIES

Cases

Bose Corp. v. Consumers Union,

466 U.S. 485 (1984) ................................................. 4

Brandenburg v. Ohio,

395 U.S. 444 (1969) ................................................. 4

Buck v. Bell,

274 U.S. 200 (1927) ............................................... 15

Chaplinsky v. New Hampshire,

315 U.S. 568 (1942) ................................................. 4

Competitive Enter. Inst. v. Mann,

150 A.3d 1213 (D.C. 2016) .............................passim

Dred Scott v. Sandford,

60 U.S. 393 (1857) ................................................ 15

Hustler Magazine, Inc. v. Falwell,

485 U.S. 46 (1988) ................................................. 20

Milkovich v. Lorain Journal Co.,

497 U.S. 1 (1990) ..................................................... 4

Muller v. Oregon,

208 U.S. 412 (1908) ............................................... 15

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ................................................. 4

People v. Hall,

4 Cal. 399 (Cal. 1854) ............................................ 15

Roth v. United States,

354 U.S. 476 (1957) ................................................. 4

Scott v. State,

39 Ga. 321 (Ga. 1869) ............................................ 15

iv

Texas v. Johnson,

491 U.S. 397 (1989) .............................................. 4-5

Time Inc. v. Hill,

385 U.S. 374 (1967) ............................................... 16

Other Authorities

Carla Marinucci, Brown: FBI Director Comey

Guilty of ‘Gross Violation of Professional

Responsibility’, Politico, Oct. 31, 2016.................. 19

Chris McGreal, Rick Perry Attacks Ben Bernanke’s

‘Treasonous’ Federal Reserve Strategy,

Guardian, Aug. 16, 2011 ....................................... 19

Daniel Okrent, The Guarded Gate: Bigotry,

Eugenics and the Law That Kept Two

Generations of Jews, Italians, and Other

European Immigrants Out of America (2019) ..... 15

Daniel Oliver, We Should Pin the Stalin Moustache

on Hillary, Not Trump, The Federalist,

July 14, 2016 ......................................................... 20

Daniel Payne, Sorry, Mark Cuban: Hillary Clinton is

Unquestionably Guilty,

The Federalist, Sept. 6, 2016 ................................ 12

David Egilman, Lerin Kol, et al., Manipulated Data

in Shell’s Benzene Historical Exposure Study,

Int’l J. of Occupational and Envtl. Health,

13:2 (2007) ............................................................ 6-7

E.J. Dionne, Mueller’s Report Is the Beginning,

Not the End, Wash. Post, Apr. 18, 2019 ............... 11

v

Etan Thomas, George Zimmerman Is Not a

Celebrity, He Is a Murderer, Huffington Post,

Jan. 31, 2014 ......................................................... 12

Fedja Buric, Trump’s Not Hitler, He’s Mussolini,

Salon, Mar. 11, 2016 ............................................. 21

George A. Mashour et al., Pyschosurgery: Past,

Present, and Future,

48 Brain Research Reviews 409 (2005) ................ 14

Hadas Gold, Donald Trump: We’re Going to ‘Open

Up’ Libel Laws, Politico, Feb. 26, 2016 ................ 21

Ilya Shapiro, Eric Holder’s Tenure, Townhall,

Sept. 28, 2014, http://bit.ly/2iQm6UJ ..................... 2

Jennifer Epstein, Palin Charges Critics with

‘Blood Libel’, Politico, Jan. 12, 2011 ................ 19-20

Jimmy Carter: I Don’t Pay Any Attention to Oliver

North; He Was a Criminal, CNN.com,

Mar. 28, 2014......................................................... 12

John Young, Trump Enlists the Trigger-Finger

Fringe, Austin American-Statesman,

Aug. 17, 2016 ......................................................... 20

Jonathan Chait, How Hitler’s Rise to Power

Explains Why Republicans Accept Donald

Trump, N.Y. Mag., July 7, 2016 ........................... 21

Jordan Fabian, Nader: Impeach Obama for ‘War

Crimes’, The Hill, March 20, 2011 ........................ 12

Karoun Demirjian, ‘Undoubtedly There Is

Collusion’: Trump Antagonist Adam Schiff

Doubles Down after Mueller Finds No

Conspiracy, Wash. Post, Mar. 26, 2019 ................ 11

vi

Keith Kloor, Robert F. Kennedy Jr. Takes His

Debunked Vaccine Concerns to Trump,

Newsweek, Jan. 11, 2017 ...................................... 14

Leonard Pitts, Jr., If It Talks Like a Hitler

and Walks Like a Hitler…,

Miami Herald, June 17, 2016 ............................... 21

M.D. Kittle, Ron Johnson: ‘Obamacare Is a

Massive Consumer Fraud’,

Wisconsin Watchdog, Sept. 16, 2016 .................... 19

Matt Wilstein, PBS’ Bill Moyers: GOP ‘Stalked’

Obamacare Like ‘Jack the Ripper’,

Mediaite, Nov. 2, 2013 .......................................... 20

Paul Campos, How James Clapper Will Get Away

with Perjury, Salon, June 12, 2013 ...................... 12

Peter Ross Range, The Theory of Political

Leadership that Donald Trump Shares with

Adolf Hitler, Wash. Post, July 25, 2016 ............... 21

Plaintiff’s Consolidated Memo. of Points and

Authorities in Opposition to Defendants

Competitive Enterprise Institute and Rand

Simberg’s Special Motion to Dismiss,

Mann v. Nat’l Review, Inc., D.C. Super. Ct.

Case No. 2012 CA 008263 B, (Jan. 18, 2013) ....... 13

Rebecca Gordon, They Should All be Tried:

George W. Bush, Dick Cheney, and America’s

Overlooked War Crimes, Salon, Apr. 30, 2016 ..... 12

Rick Mayes and Allan V. Horwitz, DSM-III and the

Revolution in the Classification of Mental Illness,

41 J. of Hist. of Behavioral Sciences 249 (2005) .. 14

Sarah Miller, The Borden Murders: Lizzie Borden

and the Trial of the Century (2016) ..................... 13

vii

Special Counsel Robert S. Mueller, III, Report on

the Investigation into Russian Interference in

the 2016 Presidential Election: Vol. I of II

U.S. Dep’t of Justice (Mar. 2019) .......................... 10

The Trial of Émile Zola (Benjamin R. Tucker,

ed., 1898) .......................................................... 17-18

Theodore Dalrymple, The Architect as Totalitarian,

City Journal, Autumn 2009 .................................. 21

Trevor Burrus, Hopefully Dr. Michael E. Mann

Doesn’t Sue Me for This Column,

Forbes, Aug. 14, 2014 .............................................. 2

William Safire, Safire’s Political Dictionary (2008) 17

Yannik Thiem, Fascism in America: Donald Trump,

America’s Hitler of the 21st Century?, APA Blog,

Oct. 20, 2016 .......................................................... 21

1

INTEREST OF AMICI CURIAE1

The Cato Institute was established in 1977 as a

nonpartisan public policy research foundation dedicated to advancing the principles of individual liberty, free markets, and limited government. Cato’s

Robert A. Levy Center for Constitutional Studies was

established in 1989 to promote the principles of limited constitutional government that are the foundation of liberty. Toward those ends, Cato publishes

books and studies, conducts conferences, produces

the annual Cato Supreme Court Review, and files

amicus briefs.

Reason Foundation is a national, nonpartisan,

and nonprofit public policy think tank, founded in

1978. Reason’s mission is to advance a free society by

applying and promoting libertarian principles and

policies—including free markets, individual liberty,

and the rule of law. Reason supports dynamic market-based public policies that allow and encourage

individuals and voluntary institutions to flourish.

Reason advances its mission by publishing Reason

magazine, as well as commentary on its websites,

and by issuing policy research reports. To further

Reason’s commitment to “Free Minds and Free Markets,” Reason selectively participates as amicus curiae in cases raising significant constitutional issues.

The Individual Rights Foundation (“IRF”) was

founded in 1993 and is the legal arm of the David

Horowitz Freedom Center, a nonprofit 501(c)(3) or-

1 Rule 37 statement: All parties were given timely notice and

have consented to the filing of this brief. No party’s counsel authored this brief in any part. No person other than amici made

a monetary contribution to its preparation or submission.

2

ganization. IRF opposes attempts from anywhere

along the political spectrum to undermine freedom of

speech and equality of rights, and participates as

amicus curiae in appellate cases to combat overreaching governmental activity that impairs individual rights.

This case concerns amici because it threatens to

chill speech at the First Amendment’s core. Amici’s

representatives—like many people who live and work

in the District of Columbia—have frequently voiced

their concerns and suspicions regarding public figures, including by rhetorical comparison to “notorious” persons.2 In fact, one has compared plaintiff Michael Mann himself to a “[playground] tattle-tale

who complains to the teacher that someone said

mean things about him.”3 The court of appeals decision would radically expand liability for commentators engaging in sharp criticism of government actors—to the necessary detriment of free and open debate.

2 See, e.g., Ilya Shapiro, Eric Holder’s Tenure, Townhall, Sept.

28, 2014, http://bit.ly/2iQm6UJ (“One thing that differentiates

Holder from other notorious attorneys general, like John Mitchell under Richard Nixon, is that Holder hasn’t gone to jail (yet;

the DOJ Inspector General better lock down computer systems

lest Holder’s electronic files ‘disappear’).”).

3 Trevor Burrus, Hopefully Dr. Michael E. Mann Doesn’t Sue Me

for This Column, Forbes, Aug. 14, 2014, http://bit.ly/2jfLUsu.

3

INTRODUCTION

AND SUMMARY OF ARGUMENT

Is it defamation to call O.J. Simpson a murderer?

Or, more specifically, is it defamation to call O.J.

Simpson a murderer because he was acquitted in a

court of law? If a blogger or commentator looked into

the facts of the case and decided that, in his opinion,

Simpson was in fact a murderer, how much weight

should Simpson’s acquittal be given in a defamation

suit—i.e. that the blogger’s opinion was a provably

false statement of fact, that the Simpson’s jury’s acquittal was sufficient evidence of that, and that a jury could thus conclude it was defamation?

This case is little different than that hypothetical.

A writer voiced his opinion on an embattled scientist’s work and included over a dozen hyperlinks

showing the evidence for his conclusions. But his

conclusions were at odds with “official” commissions,

and the court below gave those commissions undue

weight: “The assertion that the CRU emails showed

or revealed that Dr. Mann engaged in deception and

academic and scientific misconduct is not simply a

matter of opinion: not only is it capable of being

proved true or false, but the evidence of record is that

it actually has been proved to be false by four separate

investigations.” Competitive Enter. Inst. v. Mann, 150

A.3d 1213, 1245 (D.C. 2016) (emphasis added).

That is now the law in the District of Columbia,

the pulsing heart of our political discourse. Those

who arrive at conclusions contrary to official reports

or investigations are too easily subject to possible

defamation suits. Do you disagree with the recent

Mueller report and believe that someone in the recent election did in fact fraudulently collude with a

4

foreign government? Better lawyer up before you

write an article citing the evidence for your conclusion. Or maybe you believe that the Warren Commission’s investigation into the Kennedy assassination

improperly exonerated a suspect. Better lawyer up

before you publish anything.

This case sits in that oft-explored space between

protected and unprotected speech. It can be sometimes difficult to determine the precise line between

First Amendment-protected speech and fighting

words (Chaplinsky v. New Hampshire, 315 U.S. 568

(1942)), incitement (Brandenburg v. Ohio, 395 U.S.

444 (1969)), obscenity (Roth v. United States, 354

U.S. 476 (1957)), and defamation (Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)), but this Court

has “regularly conducted an independent review of

the record both to be sure that the speech in question

actually falls within the unprotected category and to

confine the perimeters of any unprotected category

within acceptably narrow limits in an effort to ensure

that protected expression will not be inhibited.” Bose

Corp. v. Consumers Union, 466 U.S. 485, 505 (1984).

Here, the lower court did not adequately confine defamation to “acceptably narrow limits” in a case concerning an ongoing debate over a contentious political and scientific question.

The First Amendment reflects “a profound national commitment to the principle that debate on

public issues should be uninhibited, robust, and

wide-open.” N.Y. Times Co. v. Sullivan, 376 U.S. 254,

270 (1964). “[A] principal ‘function of free speech under our system of government is to invite dispute. It

may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction

with conditions as they are, or even stirs people to

5

anger.’” Texas v. Johnson, 491 U.S. 397, 408–09

(1989) (quoting Terminiello v. Chicago, 337 U.S. 1, 4

(1949)).

The decision by the D.C. Court of Appeals threatens these principles. Defendant Rand Simberg engaged in a classic example of speech concerning public affairs: He criticized a high-profile academic (Dr.

Michael Mann) whose work has been subject to intense criticism for suspected dishonesty. He lambasted various “investigations” by public and private bodies into those charges of academic dishonesty as inadequate, and he called for more investigation.

The court of appeals gave substantial, almost dispositive weight to investigations that were performed

by “credentialed,” “professional” persons and academics that had seemingly exonerated Dr. Mann to

varying degrees. The court then concluded that calling for an “independent investigation” demonstrated

that there were facts to be found and that a jury

should, therefore, be tasked with wading through a

contentious public debate to assess who, in fact, was

correct. This holding gave insufficient concern for the

First Amendment’s protection of public debate and

gave disproportionate significance to a thoroughly

anodyne call for further investigation. Critiquing

government investigations as inadequate—and calling for “independent” investigation of people engaged

in high-stakes policy disputes—are ubiquitous in the

current marketplace of political speech.

For good measure, the court radically expanded

libel exposure by also concluding that defendants

could face liability for using common pejoratives such

as “deception” and “misconduct,” and for comparing

Dr. Mann to “notorious” figures. These rhetorical de-

6

vices are utterly commonplace and do not, in any

event, constitute false statements of objective facts.

If this were the law anywhere in the country, it

would represent a profound danger to free speech

and debate. That this is the law in the District of Columbia is even worse. If allowed to stand, the decision will drastically curtail the free flow of critical

speech from all directions.

ARGUMENT

I. DISAGREEMENT WITH OFFICIAL BODIES

IS NOT EVIDENCE OF BAD FAITH

In holding that Dr. Mann could proceed on his

defamation claims, the court below placed significant

weight on various “investigations” of Mann’s work in

the academic and scientific communities, determining that their conclusions were essentially the final

word. According to the panel, “Mr. Simberg would

not have concluded [his] article with the prescription

that a ‘fresh, truly independent investigation’ is necessary, unless he supposed that ‘ordinary, reasonable

readers could read the [article] as implying,’ that Dr.

Mann was guilty of misconduct that had to be ferreted out.” 150 A.3d at 1250 (citation omitted).

But Simberg didn’t just “imply” that Dr. Mann

was “guilty of misconduct” that needed to be “ferreted out.” He came right out and said it: he called Dr.

Mann the “Jerry Sandusky of climate science” and

accused Mann of having “molested and tortured data

in the service of politicized science that could have

dire economic consequences for the nation and the

planet.” Id. at 1262. Similar statements are common

in the marketplace of ideas. See, e.g., David Egilman,

Lerin Kol, et al., Manipulated Data in Shell’s Benzene Historical Exposure Study, Int’l J. of Occupa-

7

tional and Envtl. Health, 13:2, 222–32, 222 (2007)

(“A review of the raw data on which Shell and its

consultants relied reveals that Shell manipulated

and omitted data in order to reach conclusions that

exculpated it from liability and helped delay stricter

benzene regulation.”).

Moreover, he wrote that the investigations themselves were flawed. The Penn State case, in particular, was a “cover-up” and a “whitewash” by a “rotten

and corrupt” institution that was apparently willing

to “hide academic and scientific misconduct.” 150

A.3d at 1262–64. Simberg then criticized the National Science Foundation’s investigation because it relied in large part on information provided by the university, and thus was “not truly independent.” Id. at

1263. Accordingly, in Simberg’s view, it was “time for

a fresh, truly independent investigation.” Id. at 1264.

Few people who read Mr. Simberg’s article would

regard it as significantly different than our normal,

everyday political discourse. Yet in the appellate

court’s view, Simberg’s questioning of the investigations authorized a jury to essentially referee the dispute between Mann and Simberg. As the court said,

Simberg’s claim that “Dr. Mann engaged in deception

and academic and scientific misconduct . . . actually

has been proved to be false by four separate investigations.” Id. at 1245.

In reaching this conclusion, the court deferred to

the supposed eminence of the official bodies behind

the investigations, expressing bafflement as to “how

[the defendants] came to have such beliefs in light of

the reports that had been issued.” Id. at 1255 n.57.

“We are struck by the number, extent, and specificity

of the investigations, and by the composition of the

8

investigatory bodies. . . . Although we do not comment on the weight to be given to the various investigations and reports,4 . . . what is evident from our

review is that they were conducted by credentialed

academics and professionals.” Id. at 1253.

The court’s deference to the pronouncements of

these bodies defies foundational First Amendment

principles and encourages future courts to call on juries to referee public debates over important matters,

at least as long as some “credible” investigation is

invoked and questioned. That result will greatly chill

public discourse on important and contentious issues.

A. Disagreeing with an Investigation’s Conclusions and Arguing that Someone Has

Not in Fact Been Exonerated by an Inquiry Is Core—and Utterly Commonplace—Political Speech

In calling for a “fresh, truly independent investigation,” Simberg engaged in core political speech: He

criticized not only a public figure whose scientific

work had been held up as the basis for massive policy

changes, but also public institutions for conducting

inadequate investigations into serious charges of academic misconduct arising from the infamous “hide

the decline” and “trick” emails exposed in the “ClimateGate” scandal.5 The appellate court disagreed

4 An odd comment from a court that obviously gave great weight

to the various investigations and reports.

The court of appeals recounted that the investigations concluded that a reference to Dr. Mann’s “trick” in one of the most

publicized emails was merely a “colloquialism” and didn’t refer

to a “deception, but rather to the best way of doing or dealing

with something’ . . . .” 150 A.3d at 1223 n.9. This sort of investigative “exoneration” (by the University of East Anglia, where

5

9

with Mr. Simberg about the quality of the investigations. They were “struck by the number, extent, and

specificity of the investigations, and by the composition of the investigatory bodies.” 150 A.3d at 1253.

The court below was so impressed with the NSF

report that it outright characterized Mr. Simberg’s

article as “inaccurate.” Id. at 1246. Mr. Simberg

claimed that the NSF report couldn’t be trusted because it “relied on the integrity of [Penn State] to

provide them with all relevant material.” Id. But, the

court argued, the NSF not only “fully review[ed] all

the reports and documentation the University provided,” but also investigated other sources. Id. Yet

both of these statements can be true. The NSF could

have “review[ed] reports and documentation the

University provided,” and the university could have

failed to “provide them with all relevant material.”

Did the university provide the NSF with “reports and

documentation” that were colored by the university’s

self-interest, as Mr. Simberg argues? To many fairminded observers, the answer would be “perhaps.” To

the court of appeals, however, Mr. Simberg’s view

was simply “inaccurate.”

If the judges of the court of appeals and Mr. Simberg met in a bar, they could have a spirited debate

about the quality of the investigations. The judges

are certainly free to have their own opinions on the

matter. Yet, in a defamation suit concerning matters

of public debate, juries should not be asked to resolve

such questions because judges find certain investiga-

the Director of its Climate Research Unit sent the very email in

question) cries out for further examination.

10

tions convincing. If public debate is to be robust and

wide open, the First Amendment requires more.

Consider how the court’s decision here might apply to the reaction over the Mueller report regarding

the Special Counsel’s investigation into Russian interference in the 2016 presidential election. Robert

Mueller is a highly “credentialed” former Director of

the FBI who led a team of other “professionals” in

reviewing claims that the 2016 Trump campaign

“colluded” with the Russian government. After interviewing approximately 500 people and issuing more

than 2,800 subpoenas, the Special Counsel’s “investigation did not establish that members of the Trump

Campaign conspired or coordinated with the Russian

government in its election interference activities.”

Special Counsel Robert S. Mueller, III, Report on the

Investigation into Russian Interference in the 2016

Presidential Election: Vol. I of II 2, U.S. Dep’t of Justice (Mar. 2019).

Under the appellate court’s view of the world,

that pronouncement might be the end of the story

about whether there was “collusion” between the

Trump campaign and the Russians, and any other

view is “inaccurate.” Anyone who disagrees with the

conclusions could thus face a defamation claim if he

argues that someone mentioned in the report is not

in fact exonerated. Hopefully, the plaintiff bringing

the defamation suit finds a judge who is as impressed with the quality of the Mueller report as the

lower court judges were impressed with the investigations into Dr. Mann. Subjective commentary and

conjecture would then become potentially defamatory

and further commentary about the Mueller report

would be chilled.

11

Yes, a jury could conclude that the Mueller report

in fact exonerated our hypothetical plaintiff, but a

jury could conclude almost anything. Playing gatekeeper to the jury is a vital role for judges in defamation suits. Jury trials encourage settlements, and

when judges open the courthouse doors to defamation suits for subjective commentary and interpretation, speakers and writers will be chilled from disagreeing with official investigations and inquiries that

have purportedly exonerated embattled figures, especially in Washington.

And that happens all the time. One leading critic

of the president immediately rejected the conclusion

and called for more investigation:

“Undoubtedly there is collusion,” [Congressman Adam] Schiff said in an interview this week, after Attorney General

William P. Barr submitted a four-page

letter to Congress summarizing key aspects of Mueller’s report. “We will continue to investigate the counterintelligence issues. That is, is the president or

people around him compromised in any

way by a hostile foreign power?”6

The title of another article summarized exactly how

investigations (no matter how “credentialed” the investigators) are received in high-profile public policy

matters. E.J. Dionne, Mueller’s Report Is the Begin-

Karoun Demirjian, ‘Undoubtedly There Is collusion’: Trump

Antagonist Adam Schiff Doubles Down after Mueller Finds No

Conspiracy,

Wash.

Post,

Mar.

26,

2019,

https://wapo.st/2LAhwuk.

6

12

ning, Not the End, Wash. Post, Apr. 18, 2019,

https://wapo.st/2Di1GiX.

Indeed, aside from this bellwether example, how

much daily commentary and investigative journalism

produced in D.C. has been swept into the realm of

actionable libel by the appellate court’s approach?

Disagreeing with investigations and implying or saying that there has in fact been misconduct is now so

common that the court’s rule could sweep up a large

amount of important speech on public matters.

Simberg and Mark Steyn (the columnist at issue

in No. 18-1477) are hardly the first to voice disagreement with an official exoneration. Oliver North

was found not guilty by a court of law, but a former

president still calls him a “criminal.”7 George Zimmerman and O.J. Simpson were likewise acquitted,

but those who find fault with their trials still call

them murderers.8 Despite a lack of prosecution,

commentators have called for Presidents George W.

Bush and Barack Obama to be tried for “war

crimes,”9 and predicted that the Director of National

7 Jimmy Carter: I Don’t Pay Any Attention to Oliver North; He

Was

a

Criminal,

http://cnn.it/1i2va0N.

CNN.com,

March

28,

2014,

8 Etan Thomas, George Zimmerman Is Not a Celebrity, He Is a

Murderer,

Huffington

Post,

Jan.

31,

2014,

http://huff.to/2j30YdC; Vincent Bugliosi, Outrage: The Five

Reasons Why O.J. Simpson Got Away With Murder (1996).

9 Rebecca Gordon, They Should All be Tried: George W. Bush,

Dick Cheney, and America’s Overlooked War Crimes, Salon,

Apr. 30, 2016, http://bit.ly/2iQdZcV; Jordan Fabian, Nader: Impeach Obama for ‘War Crimes’, The Hill, March 20, 2011,

http://bit.ly/2iqkjo8.

13

Intelligence “will get away with perjury.”10 No charges were filed against a recent presidential candidate

after a lengthy investigation that reached the highest level of the FBI. Is it now per se bad faith to nonetheless assert that she is “unquestionably guilty”?11

And, finally, would the appellate court have found it

actionable libel to say “Lizzie Borden took an axe and

gave her mother forty whacks” given that Borden

was acquitted? Sarah Miller, The Borden Murders:

Lizzie Borden and the Trial of the Century (2016).

B. Academic, Professional, and Government

Boards—No Matter How “Credentialed”

Their Members—Cannot Be Turned into

Truth Commissions

The National Science Foundation, which authored

one of the reports at issue, is an eminent institution,

much like our justice system. In the proceedings below, Mann described it as “essentially the final arbiter of scientific research in the United States,”12 a

view the court appeared to accept wholesale. But it is

precisely because so many official bodies can lay

claim to being the “final arbiter” in their respective

spheres that the decision below is so dangerous.

Challenging the conclusions of an investigation could

10 Paul Campos, How James Clapper Will Get Away with Per-

jury, Salon, June 12, 2013, http://bit.ly/19QgJye.

11 Daniel Payne, Sorry, Mark Cuban: Hillary Clinton is Unques-

tionably

Guilty,

The

http://bit.ly/2iVDSZm.

Federalist,

Sept.

6,

2016,

Plaintiff’s Consolidated Memo. of Points and Authorities in

Opposition to Defendants Competitive Enterprise Institute and

Rand Simberg’s Special Motion to Dismiss at p. 27, Mann v.

Nat’l Review, Inc., D.C. Super. Ct. Case No. 2012 CA 008263 B,

(Jan. 18, 2013), online at https://bit.ly/2FQZrVb.

12

14

not only waive a speaker’s actual malice protection

but would effectively make each such body a de facto

truth commission, safe in the knowledge that disagreeing with its findings and questioning an exoneration is not something to be decided in the marketplace of ideas but rather by a jury.

That result should be feared by those on all sides

of the political spectrum since those bodies which

have the most official authority will often change

their views with the changing fortunes of our political parties. For example, President Trump once met

with vaccine skeptic Robert F. Kennedy, Jr. and has

said he would consider creating a commission to investigate vaccine safety.13 If such a commission were

formed, would its report be regarded as the “final arbiter” of the possible vaccine-autism connection, and

would accusing vaccine skeptics of “fraud” or “misconduct” then become actionable libel?

Everyday experience demonstrates the uncertainty and shifting nature of scientific conclusions—

where consensus at any point in time is invariably

backed by “credentialed academics and professionals.” For example, before the advent of antipsychotic

drugs, the lobotomy and other methods of invasive

psychosurgery were used to treat mental disorders in

the 1930s and ’40s, peaking with Egas Moniz’s receipt of the 1940 Nobel Prize in Medicine or Physiology—an eminent award given out by an eminent

body.14 The American Psychiatric Association—an

13 Keith Kloor, Robert F. Kennedy Jr. Takes His Debunked Vac-

cine Concerns to Trump,

http://bit.ly/2jfYiME.

Newsweek,

Jan.

11,

2017,

14 George A. Mashour et al., Pyschosurgery: Past, Present, and

Future, 48 Brain Research Reviews 409, 411-12 (2005).

15

organization full of credentialed academics and professionals—listed homosexuality as a mental disorder in its Diagnostic and Statistical Manual of Mental Disorders (DSM-II) until 1973.15

And we have seen the often-pernicious result of

courts imbuing prevailing socio-scientific views with

the force of law. In the most notorious instance of

scientific debate invading the courtroom, John

Thomas Scopes was convicted of teaching the theory

of evolution. Two years later, relying on the “science”

of eugenics, Justice Holmes told us that “[t]hree generations of imbeciles are enough.” Buck v. Bell, 274

U.S. 200, 207 (1927). And that’s not all. See, e.g.,

Muller v. Oregon, 208 U.S. 412, 421 (1908)

(“[H]istory discloses the fact that woman has always

been dependent upon man.”); People v. Hall, 4 Cal.

399, 404–05 (Cal. 1854) (upholding prohibition on

Chinese testifying against white people because the

Chinese were “a race of people whom nature has

marked as inferior” and who are “incapable of progress or intellectual development beyond a certain

point”); Scott v. State, 39 Ga. 321, 323 (Ga. 1869) (interracial marriage is “unnatural” and “always productive of deplorable results”; “the offspring of these

unnatural connections are generally sickly and effeminate”); see also Dred Scott v. Sandford, 60 U.S.

393, 407 (1857).

Eugenics and racially motivated “science” were

very much in vogue during the first few decades of

the twentieth century. See, generally, Daniel Okrent,

The Guarded Gate: Bigotry, Eugenics and the Law

15 Rick Mayes and Allan V. Horwitz, DSM-III and the Revolu-

tion in the Classification of Mental Illness, 41 J. of Hist. of Behavioral Sciences 249, 258-59 (2005).

16

That Kept Two Generations of Jews, Italians, and

Other European Immigrants Out of America (2019).

And, in 1907, there was an official commission, the

U.S. Congress Joint Immigration Commission

(known as the Dillingham Commission), that “employed a lengthy roster of recognized scientists and

other experts” to investigate the question of the effect

of immigration by “undesirables.” Id. at 152. One of

the commission’s exhibits was the Dictionary of Race

and Peoples, compiled by Daniel Folkmar. “Starting

from a premise that stressed the stability of racial

differences across the centuries, Folkmar somehow

identified six hundred distinct racial and ethnic

strains.” Id. at 153.

Imagine a contemporary writer looked into Folkmar’s research and claimed it was the product of

“scientific misconduct” or “data manipulation” or

even data “molestation” (as it was). In the resulting

defamation suit brought by Folkmar, the court, just

as the court did here here, cites the inclusion of

Folkmar’s book in the august Dillingham Commission’s report as a demonstration of the book’s scientific accuracy, and then characterizes the critic’s view

as “inaccurate.” The case goes to the jury, and criticism of eugenics is significantly chilled just in time

for Carrie Buck to go under the knife.

Courts should not meddle in such scientific debates. As the second Justice Harlan observed:

In many areas which are at the center

of public debate “truth” is not a readily

identifiable concept, and putting to the

pre-existing prejudices of a jury the determination of what is “true” may effectively institute a system of censorship.

17

Any nation which counts the Scopes trial as part of its heritage cannot so readily expose ideas to sanctions on a jury

finding of falsity. The marketplace of

ideas where it functions still remains

the best testing ground for truth.

Time Inc. v. Hill, 385 U.S. 374, 406 (1967) (Harlan,

J., concurring in part and dissenting in part).

Under the appellate court’s rule, those who agree

with “final arbiters” today may find themselves unable to criticize their conclusions in the future once

the new makeup of our national institutions has

made their views no longer “politically correct.”16

C. Déjà Vu: The Panel Decision Echoes the

Corrosive Stifling of Dissent in the Dreyfus Affair

The libel trial of Émile Zola was one of the low

points in the history of free speech. In his open letter

J’accuse…!, Zola had accused a French military tribunal of corruptly exonerating an army officer of

treason in order to cover up the wrongful conviction

of Alfred Dreyfus for the same crime. During his trial, Zola’s defense was repeatedly prevented from asserting any good-faith disagreement with Dreyfus’s

trial. Instead, they were forced to operate under the

legal fiction that no skepticism of a duly completed

judicial proceeding could even be entertained:

The term originated in reference to the beliefs endorsed at

any moment by the Soviet Communist Party, which were therefore, by definition, “correct” (until they weren’t). Politically Correct, in William Safire, Safire’s Political Dictionary (2008).

16

18

The Judge: I repeat that no question

will be put which would be a means of

arriving at the revision of a case sovereignly judged.

M. Clemenceau: Then the court will put

no question concerning good faith?

The Judge: Concerning anything that

relates to the Dreyfus case. No. Offer

your motions. I repeat that I will not

put the question.

M. Labori: Will you permit me, Monsieur le Président, in our common interest, to ask you, then, what practical

means you see by which we may ascertain the truth?

The Judge: That does not concern me.

The Trial of Émile Zola 35–36 (Benjamin R. Tucker,

ed., 1898).

The panel’s decision here would create a similar

legal regime in the United States. Rand Simberg and

Mark Steyn have asserted a good-faith disagreement

with the findings of several commissions, each assembled to investigate claims of misconduct against

Dr. Michael Mann. The clear implication of the appellate court’s decision, however, is that anyone in

their right mind should have been awed at the assortment of titles and degrees these commissions had

collected. Such obvious and unimpeachable authority, in the panel’s view, lends itself to a new res ipsa

loquitur proof of actual malice: some commissions are

so eminent, some institutions are so established, and

some personnel are so qualified, that the simple act

19

of voicing dissent with their views may itself be taken as sufficient evidence of bad faith.

The defendants have indeed refused to accept the

findings of these official reports. As Zola’s prosecutor

put it—anticipating the decision below by over 100

years—they have “done nothing here but open an

audacious discussion on the thing judged.” Trial of

Émile Zola, supra, at 254. But they could have been

forgiven for thinking their dissent was fully protected by the First Amendment’s actual malice standard.

II. COMMONPLACE

PEJORATIVE

TERMS

AND ANALOGIES TO “NOTORIOUS” PERSONS CANNOT BE ACTIONABLE FOR

DEFAMATION

The court of appeals also found that Simberg

faced potential liability from the use of words such as

“deception” and “misconduct,” in part because they

were not accompanied by “language normally used to

convey an opinion, such as ‘in my view’ or ‘in my

opinion,’ or ‘I think.’” 150 A.3d at 1245.

Setting aside that the First Amendment does not

require magic words to claim its protection for subjective commentary, the opinion is wholly out of

touch with the nature of modern commentary. Senators will now have to watch what they say in political

debates (away from the Senate floor)—describing the

policy of a political opponent as a “massive consumer

fraud” will likely be actionable.17 Likewise, the former governor of California might well be hauled into

court for accusing an FBI director of a “gross viola17 M.D. Kittle, Ron Johnson: ‘Obamacare Is a Massive Consum-

er Fraud’, Wisc. Watchdog, Sept. 16, 2016, http://bit.ly/2d4p7R9.

20

tion of professional responsibility.”18 But these are

just the tip of the iceberg: in recent years politicians

have referred to a public official’s policy decision as

“treasonous” and accused critics of “blood libel,” far

harsher terms than any used by Simberg and

Steyn.19

According to the appellate court, comparing Dr.

Mann to “notorious persons” is likewise enough to

make a statement actionable.20 150 A.3d at 1247.

How will this new rule change the terms of debate in

“this town”? For one thing, opponents of the gun lobby will have to take their passion down a notch because, in the words of one columnist, “the only difference between [NRA Executive Director Wayne]

LaPierre and, say, Timothy McVeigh, or Charles

18 Carla Marinucci, Brown: FBI Director Comey Guilty of ‘Gross

Violation of Professional Responsibility’, Politico, Oct. 31, 2016,

http://politi.co/2jfpabU.

19 Chris McGreal, Rick Perry Attacks Ben Bernanke’s ‘Treason-

ous’ Federal Reserve Strategy, Guardian, Aug. 16, 2011,

http://bit.ly/2iQb4AU; Jennifer Epstein, Palin Charges Critics

with

‘Blood

Libel’,

Politico,

Jan.

12,

2011,

http://politi.co/2iVo7RT.

This, of course, runs counter to foundational First Amendment principles. “The sort of robust political debate encouraged

by the First Amendment is bound to produce speech that is critical

of

. . . those public figures who are ‘intimately involved in the resolution of important public questions or, by reason of their fame,

shape events in areas of concern to society at large.’” Hustler

Mag., Inc. v. Falwell, 485 U.S. 46, 51 (1988). And this manner of

vitriolic comparison is precisely the type of “vehement, caustic,

and sometimes unpleasantly sharp attack[],” id. at 51, that this

Court has long recognized is part of the bargain in public debate.

20

21

Manson, for that matter, is a good tailor.”21 Debating

which presidential candidate to “pin the Stalin moustache” on could likewise be a costly choice for pundits,22 and Bill Moyers might have to compensate

Mitch McConnell for describing Republicans as

“stalking” Obamacare “like Jack the Ripper.”23 Even

art critics will have to change their style. After this

decision, who could have the confidence to start a

magazine article with a sentence like “Le Corbusier

was to architecture what Pol Pot was to social reform”?24

Political thinkers would certainly like to believe

that historical analogies are integral to expressing

their views on important political choices. A former

presidential candidate, now president, was consistently compared to Hitler,25 Hitler,26 Hitler,27 Hitler,28

21 John Young, Trump Enlists the Trigger-Finger Fringe, Austin

American-Statesman, Aug. 17, 2016, http://atxne.ws/2j4uvni.

22 Daniel Oliver, We Should Pin the Stalin Moustache on Hilla-

ry,

Not

Trump,

http://bit.ly/29EZ26k.

The

Federalist,

July

14,

2016,

23 Matt Wilstein, PBS’ Bill Moyers: GOP ‘Stalked’ Obamacare

Like ‘Jack the Ripper’,

http://bit.ly/2iq6juR.

Mediaite,

Nov.

2,

2013,

Theodore Dalrymple, The Architect as Totalitarian, City

Journal, Autumn 2009, http://bit.ly/2iQVCSV.

24

Peter Ross Range, The Theory of Political Leadership that

Donald Trump Shares with Adolf Hitler, Wash. Post, July 25,

2016, http://wapo.st/2i4jrYS.

25

Jonathan Chait, How Hitler’s Rise to Power Explains Why

Republicans Accept Donald Trump, N.Y. Mag., July 7, 2016,

http://nym.ag/29vwVaY.

26

27 Leonard Pitts, Jr., If It Talks Like a Hitler and Walks Like a

Hitler…, Miami Herald, June 17, 2016, http://hrld.us/2iTTYm8.

22

and Mussolini.29 Indeed, then-candidate Trump was

so annoyed by this criticism that he threatened to

“open up the libel laws” to prevent such speech in the

future.30 Luckily for him, the panel’s decision has

done this work for him.

28 Yannik Thiem, Fascism in America: Donald Trump, Ameri-

ca’s Hitler of the 21st Century?, APA Blog, Oct. 20, 2016,

http://bit.ly/2j3dWuT.

29 Fedja Buric, Trump’s Not Hitler, He’s Mussolini, Salon, Mar.

11, 2016, http://bit.ly/24VG177.

30 Hadas Gold, Donald Trump: We’re Going to ‘Open Up’ Libel

Laws, Politico, Feb. 26, 2016, http://politi.co/1QC9BDZ.

23

CONCLUSION

For these reasons, and those stated by the petitioners, the Court should grant the cert. petitions.

Respectfully submitted,

ILYA SHAPIRO

TREVOR BURRUS

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, D.C. 20001

(202) 842-0200

ishapiro@cato.org

BRADLEY A. BENBROOK

Counsel of Record

STEPHEN M. DUVERNAY

BENBROOK LAW GROUP, PC

400 Capitol Mall, Ste. 2530

Sacramento, CA 95814

(916) 447-4900

brad@benbrooklawgroup.com

MANUEL S. KLAUSNER

LAW OFFICES OF

MANUEL S. KLAUSNER

One Bunker Hill Bldg.

601 West Fifth St.

Los Angeles, CA 90071

(213) 617-0414

mklausner@klausnerlaw.us

Counsel for Amici Curiae

July 5, 2019