I regret to say (well, sort of) that I will be out of the country until June 15. Hence, FAN will probably not be posted unless I have both the time and internet access. We’ll see. (No detrimental reliance here, of course.) Meanwhile, check out the postings at First Amendment Watch, The Volokh Conspiracy, Constitutional Law Prof Blog, and the First Amendment Encylopedia. — RKLC
At stake in this fight is nothing less than the integrity of the First Amendment — and, by extension, the right of all Americans to engage in robust political debate without being dragged into court by the frivolous and the hypersensitive to be bled dry of their time, effort, and money.
— Editorial, National Review (May 23, 2019)
It’s been almost 15 years since the Court heard its last defamation case — Tory v. Cochran (2005). Even then the Court did not get to the merits of the case, which means that the last such case was actually Masson v. New Yorker Magazine, Inc. (1991) — that places the mark at 28 years. In the interim, Justice Antonin Scalia cast doubt on the soundness of New York Times Co. v. Sullivan (1964). More recently, Justice Clarence Thomas took a conceptual swipe at the landmark defamation case. That said, Justice Brett Kavanaugh seems comfortable with the opinion — some say he has “heartily embraced” its rule and rational.
Against that backdrop comes a new cert. petition in the case of National Review, Inc. v. Mann, filed by Michael A. Carvin, counsel of record and partner at Jones Day (with him on the brief are Yaakov M. Roth & Anthony J. Dick who, notably, is the chairman of FIRE’s Board of Directors):
Under Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986), and Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), a plaintiff seeking to impose defamation liability for a statement on a matter of public concern must prove that the statement is false, and thus cannot sue unless the statement contains a “provably false” factual connotation. The questions presented in this case are:
1. Is the question whether a statement contains a “provably false” factual connotation a question of law for the court (as most federal circuit courts hold), or is that a question of fact for the jury when the statement is ambiguous (as many state high courts hold)?
2. Does the First Amendment permit defamation liability for expressing a subjective opinion about a matter of scientific or political controversy, such as characterizing a statistical model about climate change as “deceptive” and calling its creation a form of “scientific misconduct”?
Facts in National Review Case
The facts as presented in the Petitioner’s brief are as follows:
[T]he D.C. Court of Appeals held that a jury could impose defamation liability on a conservative media outlet for opining that the risks of climate change were being overhyped by misleading statistical analyses. Petitioner National Review, Inc. published a blog post that criticized the so-called “hockey stick” graph created by Respondent Dr. Michael Mann, a scientist who is a leading voice in the climate-change debate. The validity of the graph has itself been the focus of intense argument, with its opponents objecting to its cherry-picking of data and apples-to-oranges comparisons. The blog post at issue decried the graph as “deceptive” and “fraudulent,” calling its creation “wrongdoing” and “misconduct.”
Remarkably, the Court of Appeals concluded that a jury could treat those statements as “provably false” representations of fact and impose liability, without offending the First Amendment. In that court’s view, a reasonable jury “could” construe the statements as conveying not only a subjective and non-falsifiable value judgment about the graph’s legitimacy, but also some (never-specified) objective, verifiable fact about Mann’s conduct or his “integrity.” In view of that supposed possible construction, the court remanded the defamation case for discovery and trial.
- Competitive Enterprise Institute v. Mann (Andrew Grossman, counsel of record)
- Complaint here
- Defendants’ motion to dismiss pursuant to D.C. Anti-SLAPP Act here
- Michael E. Mann, The Hockey Stick and the Climate Wars: Dispatches from the Front Lines (Columbia University Press, 2012)
Petitioner’s Arguments for Granting Cert.
I. Courts Must Determine, as a Matter of Law, Whether a Statement Contains any “Provably False” Facts
A. Courts Are Divided Over Whether the “Provably False” Standard Presents a Question of Law or Fact
B. Allowing a Jury To Impose Liability for Ambiguous Statements Offends the First Amendment and This Court’s Decisions.
II. Defamation Liability May Not Be Imposed for Subjective, Value-Laden Criticism on Matters of Public Concern
A. The D.C. Court Created a Conflict By Imputing Verifiable Factual Claims to Expressions of Opinions on Hot-Button Matters of Public Concern
B. The Opinion Below Invites Defamation Suits by Both Sides of Every Major Public-Policy Debate
Counsel for Plaintiff-Appellee Michael Mann
John B. Williams:
John has represented both plaintiffs and defendants in libel and slander cases. He represented G. Gordon Liddy in his 10-year lawsuit against John W. Dean and Ida Maxie Wells arising from Liddy’s endorsement of a revisionist theory of Watergate. During this litigation, John conducted the deposition of virtually every living Watergate figure, including John Ehrlichman, Charles Colson, Howard Hunt, Jeb Stuart Magruder, and John Dean. The case was successfully tried to a defense verdict in 2002. On the plaintiffs’ side, Mr. Williams represented Dr. Steven Levin in the “Dirty Doctor” case, in which Levin was unjustly accused by WJLA of sexually abusing his patients. The jury returned the largest defamation verdict ever affirmed on appeal in the Commonwealth of Virginia. In other First Amendment litigation, John represented Lt. Colonel Martha McSally in her successful challenge of the Department of Defense regulation that required American servicewomen stationed in Saudi Arabia to wear the Islamic abaya.
Amici in Lower Court in Support of Appellants TNR & CEI
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 ofAlternative 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.
- Editorial, The Supreme Court Should Take Up NR v. Mann, and Vindicate Free Speech, National Review (May 23, 2019)
- Ilya Shapiro & Trevor Burrus, Mann v. National Review and the Competitive Enterprise Institute, Cato Institute (Jan. 3, 2019) (amicus brief in District of Columbia Court of Appeals)
- Michael Carvin & Anthony Dick, A Libel Suit Threatens Catastrophe for the Climate of Public Debate, Wall Street Journal (Feb. 5, 2017)
- Rich Lowry, Are Fierce Polemics Free Speech?, Los Angeles Times (Jan. 13, 2017) (Mr. Lowry is the editor of TNR)
- Real Time with Bill Maher, “Dr. Michael Mann on Climate Change,” HBO (August 7, 2015)
- Michael E. Mann & Lee Kump, Dire Predictions: The Visual Guide to the Findings of the IPCC (2015)
- Amicus Brief submitted to the District of Columbia Court of Appeals by Reporters Committee for Freedom of the Press & 28 Other Media Organizations (2014)
- The Setup, “Interview with Michael Mann” (March 29, 2012)
- Michael Mann, Ted Talk, “A Look Into Our Climate: Past To Present To Future” (Dec. 5, 2011)
SCOTUS Rules on First Amendment Retaliatory Arrest Claim
Yesterday, the Court handed down its ruling in Nieves v. Bartlett. As Howard Wasserman pointed out in SCOTUSblog, the issue was “whether a plaintiff pursuing a First Amendment claim arising from an allegedly retaliatory arrest must show that the officer lacked probable cause to arrest the plaintiff on any charge. The Supreme Court had an opportunity to address that issue last term in Lozman v. City of Riviera Beach, but the arrest there was alleged to have resulted from a municipal policy of retaliation, rather than the on-the-spot discretionary decision of an individual officer. The question the Supreme Court avoided in Lozman is squarely presented in Nieves.”
By a 6-3 margin, with Chief Justice Roberts writing for the majority, the Court held that because police officers had probable cause to arrest Russell Bartlett, his First Amendment retaliatory arrest claim fails as a matter of law.
- Justice Thomas joined the majority opinion except as to Part II–D and filed an opinion concurring in part and concurring in the judgment.
- Justice Gorsuch filed an opinion concurring in part and dissenting in part.
- Justice Ginsburg filed an opinion concurring in the judgment in part and dissenting in part.
- Justice Sotomayor filed a dissenting opinion.
Roberts: “The presence of probable cause should generally defeat a First Amendment retaliatory arrest claim.” Given the facts as presented, Roberts held that “[b]ecause there was probable cause to arrest Bartlett, his retaliatory arrest claim fails as a matter of law.”
Thomas took exception to the notion that “a narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.”
Gorsuch argued that the majority opinion had “no legitimate basis for engrafting a no-probable-cause requirement onto a First Amendment retaliatory arrest claim.” He objected to the notion that probable-cause was an absolute bar rather than a factor to be considered. “I would reserve decision on those questions,” he stressed, “until they are properly presented to this Court and we can address them with the benefit of full adversarial testing.”
Ginsburg: “Arrest authority, as several decisions indicate, can be abused to disrupt the exercise of First Amendment speech and press rights. . . . Given the array of laws proscribing, e.g., breach of the peace, disorderly conduct, obstructing public ways, failure to comply with a peace officer’s instruction, and loitering, police may justify an arrest as based on probable cause when the arrest was in fact prompted by a retaliatory motive. If failure to show lack of probable cause defeats an action under 42 U. S. C. §1983, only entirely baseless arrests will be checked. . . . In this case, I would reverse the Ninth Circuit’s judgment as to Trooper Weight. As the Court points out, the record is bereft of evidence of retaliation on Weight’s part. . . . In any event, I would not use this thin case to state a rule that will leave press members and others exercising First Amendment rights with little protection against police suppression of their speech.”
Sotomayor: “The majority instead announces a different rule: that a showing of probable cause will defeat a §1983 First Amendment retaliatory arrest claim unless the person arrested happens to be able to show that ‘otherwise similarly situated individuals’ whose speech differed were not arrested. . . . Because the correct approach would be simply to apply the well established, carefully calibrated standards that govern First Amendment retaliation claims in other contexts, I respectfully dissent.”
SCOTUS Continues to Delay Action on Wedding Cake Free Speech & Exercise Clause Case
The Court’s orders yesterday contained no action on Klein v. Oregon Bureau of Labor and Industries, the wedding cake case that raised the following issues:
- Whether Oregon violated the Free Speech and Free Exercise Clauses of the First Amendment by compelling the Kleins to design and create a custom wedding cake to celebrate a same-sex wedding ritual, in violation of their sincerely held religious beliefs.
- Whether the Supreme Court should overrule Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).
- Whether the Court should reaffirm Smith’s hybrid rights doctrine, applying strict scrutiny to free exercise claims that implicate other fundamental rights, and resolving the circuit split over the doctrine’s precedential status.
Since mid-February, the case has distributed for conference ten times, the last being May 23rd.
NYT’s Editorial & Others on Julian Assange & the First Amendment
- Editorial, Julian Assange’s Indictment Aims at the Heart of the First Amendment, New York Times (May 23, 2019) Excerpt:
[T]he Justice Department charged Julian Assange, the founder of WikiLeaks, with multiple counts of violating the 1917 Espionage Act for his role in publishing tens of thousands of classified military and diplomatic documents in 2010. The indictment supersedes an indictment unsealed in April on narrow grounds of attempting to help an Army private surreptitiously break into a government computer to steal classified and sensitive documents.
The new indictment goes much further. It is a marked escalation in the effort to prosecute Mr. Assange, one that could have a chilling effect on American journalism as it has been practiced for generations. It is aimed straight at the heart of the First Amendment.
The new charges focus on receiving and publishing classified material from a government source. That is something journalists do all the time. They did it with the Pentagon Papers and in countless other cases where the public benefited from learning what was going on behind closed doors, even though the sources may have acted illegally. This is what the First Amendment is designed to protect: the ability of publishers to provide the public with the truth.
- Masha Gessen, Charging Julian Assange Under the Espionage Act is an Attack on the First Amendment, The New Yorker (May 24, 2019) Excerpt:
The use of the Espionage Act to prosecute Assange is an attack on the First Amendment. Carrie DeCell, an attorney with the Knight First Amendment Institute, summed up the threat in a Twitter thread on Thursday. “The government argues that Assange violated the Espionage Act by soliciting, obtaining, and then publishing classified,” she wrote. “That’s exactly what good national security and investigative journalists do every day.”
- Deanna Paul, How the Indictment of Julian Assange Could Criminalize Investigative Journalism, The Washington Post (May 27, 2019) Excerpt:
Assange’s refusal to engage in the rudimentary protections the press typically establishes makes him “the most outrageous violator of journalistic norms,” said First Amendment attorney Floyd Abrams, who represented the New York Times in the landmark Pentagon Papers case New York Times Co. v. United States.
But even though Assange presents a particularly painful example of journalistic misconduct, his ethics have no bearing on whether the Espionage Act is or is not invoked against him, Abrams said.
A slippery slope, press advocates argue, is greased by charging reporters under the most basic premise of the Espionage Act. The statute very simply focuses on the nature of the published information — is it a government secret? — and whether the individual disclosed, possessed or received it. Responsibility or intent is not relevant.
- Ruthann Robson, Does the Superseding Assange Indictment Implicate the First Amendment?, Constitutional Law Prof (May 23, 2019) Excerpt:
The charges of unauthorized obtaining and receiving of “National Defense Information” (counts 1-8) and unauthorized disclosure of that same national defense information (counts 9-17) raise First Amendment issues.
The argument is — quite simply — that Assange has done nothing different than other journalists who have published government information and should be covered by the same constitutional protections afforded the New York Times in The New York Times v. United States (1971), “The Pentagon Papers” Case.
In Assange’s situation, the issue is not prior restraint but criminal liability, but certainly the same principles apply as we previously discussed. (Also consider the documentary on Daniel Ellsburg).
This issue has been brewing for a while. A good primer on the intersection between the Espionage Act and First Amendment protections of a free press, is Stephen Vladeck‘s 2007 article, Inchoate Liability and the Espionage Act: The Statutory Framework and the Freedom of the Press, 1 Harvard Law & Policy Review 219, available here.
First Amendment Watch Hosts Dialogue on Hate Speech & Civil Discussion
First Amendment Watch and ConSource, a leading site that encourages discussion of the U.S. Constitution, hosted a panel entitled, “Hate Speech on Social Media: Is There a Way to a More Civil Discussion?”
The panel featured Nadine Strossen, a professor of law at New York Law School, and the first woman and youngest person ever to serve as the president of the American Civil Liberties Union; Jacob Mchangama, the director and founder of Justitia, a think tank based in Copenhagen that’s focused on human rights; and Irina Manta, a professor of law at Hofstra Law School, and an expert on the Internet and privacy rights.
First Amendment Watch founder and Marjorie Deane Professor of Journalism at New York University Professor Stephen Solomon moderated the talk. The panelists discussed such issues as how governments in the U.S. and abroad address issues related to hate speech; what, if anything, social media platforms should do to police hate speech; and how, despite its dark side, social media has facilitated greater freedom of expression and a marketplace of ideas.
FIRE’s 20th Anniversary Celebration
This from the folks at FIRE:
Folks, the time has come to come together in New York City to celebrate a big milestone: FIRE’s 20th birthday.
Twenty years ago, Harvey Silverglate and Alan Charles Kors opened up the doors to a small nonprofit in Philadelphia to answer calls for help from students and professors facing violations of their individual rights. Now, 20 years later, FIRE is the leading authority on campus civil liberties, having helped millions of students defend and enjoy their rights. With each day, FIRE’s voice grows and its reputation becomes stronger. This is a testament to all the people who have supported our work throughout the years. And it is those people who we want to celebrate with us in October.
Please join us on October 24, 2019 for a fun, thought-provoking, and celebratory evening with your favorite free speech friends. Don’t forget, this is not an annual event, so don’t miss out! Formal invitations and registration to come soon.
When: Thursday, October 24, 2019 at 6:30 pm ET
Where: Mandarin Oriental, Columbus Circle, New York City
Dress: Black Tie Optional
Registration will open soon.
From the Volokh Conspiracy
- Eugene Volokh, Court Orders Mother Not to Tell Daughter That Father Had Expressed Sexual Interest in Stepdaughter, The Volokh Conspiracy (May 28, 2019)
- Eugene Volokh, N.Y. Court Rejects Defendant’s Desire “to Conceal His Identity at Trial”, The Volokh Conspiracy (May 27, 2019)
- Eugene Volokh, First Amendment Protections for Anonymous Speakers Apply to Foreign Speakers, The Volokh Conspiracy (May 26, 2019)
FIRE Faculty Conference at Boston U. this Fall (Attendee Applications Still Open)
This from Peter Bonilla over at FIRE:
- Now accepting attendee applications
- Travel vouchers for eligible applicants
- Proposal deadline extended to June 10 for presenters
We have several updates regarding our 2019 Faculty Conference at Boston University this fall. We’ll start with the biggest: FIRE is very excited to announce world-renowned Harvard University professor, author, and intellectual Steven Pinker will deliver our conference keynote address!
Pinker, a member of FIRE’s Advisory Council, is currently Harvard’s Johnstone Family Professor of Psychology. He is the author of 10 books including, most recently, the New York Times-bestselling “Enlightenment Now: The Case for Reason, Science, Humanism, and Progress.” (You can hear him discuss the book, among other topics, on our So To Speak podcast.) As one of America’s leading thinkers and a longtime advocate for liberal values in higher education, we’re delighted to have him join us this fall.
Second, we are now accepting general applications for all collegiate faculty and advanced graduate students interested in attending our conference. As in previous years, 2019 conference attendees will be eligible to receive a travel voucher of up to $750 to assist with the costs of travel and lodging. There is no deadline for applying, but space is limited; our previous conferences hosted roughly 60-70 faculty members, and we expect a similar turnout this year. Interested participants are strongly encouraged to apply early.
Finally, to ensure faculty are able to submit proposals for consideration, we are extending the deadline to submit proposals from Friday, May 31, to Monday, June 10. We will still notify authors of their acceptance by the end of June. Accepted authors will receive an honorarium of $3,000 for their presentation. (Co-authorship and presentation of papers at the conference is welcome, with the understanding that the honorarium is split among co-authors.) If you plan to submit, or have already submitted a proposal but would also be interested in attending as a non-presenter, we have you covered! Anyone who submits a proposal will be considered as a general applicant, and there is no need to fill out both forms.
FIRE’s 2019 Faculty Conference will be held at Boston University from Oct. 31–Nov. 2.
It’s already shaping up to be a terrific weekend of discussion, and we hope you’ll want to take part. For more information and to apply for the conference, whether as a presenter or as a general applicant, please visit our conference page.
In the News
- David Hudson, Missouri Town Law Limiting Signs in Yard Overturned on Free-Speech Grounds, First Amendment Encyclopedia (May 24, 2019)
2018–2019 Term: Free Expression & Related Cases
Rulings & Opinions
Pending: Cert. Petitions
- Klein v. Oregon Bureau of Labor and Industries
- Evergreen Freedom Foundation v. Washington
- In-and-Out Burger v. NLRB
- The Colorado Independent v. District Court
- Dahne v. Riche
- 1A Auto, Inc. v. Sullivan
- Uradnik v. Inter Faculty Organization
- Missouri Ethics Commission, et al. v. Free and Fair Election Fund
- Knox v. Pennsylvania
- Tate v. United States
- Abbott, et al. v. Pastides (reply brief here)
- Utah Republican Party v. Cox
- McKee v. Cosby, Jr. (Thomas, J., concurring in denial of cert. with opinion)
- Kennedy v. Bremerton School District
- Lair v. Motil
- Lair v. Mangan
- Berninger v. FCC (net neutrality)
- Montanans for Community Development v. Mangan
- Zimmerman v. Austin
- Township of Millburn v. Palardy
FOIA: Review Granted
Free Expression Related Cases: Review Granted
- Nieves v. Bartlett (probable cause, First Amendment, and retaliation)
Review Granted: Free Expression Related Cases
- Manhattan Community Access Corp. v. Halleck (transcript of oral arguments)
- Rucho v. Common Cause (standing and gerrymandering) (transcript of oral arguments)
Pending Free Expression Related Cases
- Woodhull Freedom Foundation v. United States (Art. III, standing)
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