DC-Court v First Amendment

In a judgement that if it went for Mann would effectively repeal the anti-SLAPP law of Columbia, three women judges whose predecessors fought tooth and nail for the free speech to say they are equal to men are about to decide if there is a first amendment right to free speech in the District of Columbia. And sceptics are sceptical about whether we will win!
Free Republic sum it up well:

The judges were not that active in questioning Mann’s attorney, John B. Williams, but they made several very telling comments.  When Williams claimed that eight separate investigations had exonerated Mann, one judge asked, “What if CEI sincerely believes that those investigations are flawed?  They take them apart quite thoroughly in their reply brief.” 

Another question:  “If CEI strongly believes that its statements are true, then how can you ever show malice?”  When Williams cited one Supreme Court case as being directly on point, a judge asked, “how is that the right fit for this case?”  Another noted that, under Williams’ approach, the Anti-SLAPP law “wouldn’t be doing very much work.”  And when Williams claimed that preponderance of evidence should suffice, a judge asked, “but you need clear and convincing evidence for malice.”  And the judge noted that Williams failed to aske for the directed discovery that is expressly allowed under the Anti-SLAPP law.  Finally, when Williams argued that a jury could evaluate misleading effect, all three judges made some rolling-eye expressions

Carvin handled the rebuttal, and he made several very strong, and somewhat humorous, points:  CEI and NR were fully entitled to mistrust EPA (“they mistrust EPA on everything”); Mann never really disclosed his conjoining of data sets; failing to dismiss would open the courthouse doors to every Washington figure accused of misleading the public; and, “as CEI pointed out”, EPA itself had expressly approved the use of the term fraud in scientific disputes.

In short, while the panel did not give any indication of which way they leaned, we are cautiously optimistic of prevailing.

And having seen Steve McIntyre’s work debunking Mann’s claim to have been vindicated numerous times and then having had some loathsome commenter here trying to claim the same, this for me was the highlight of the day:

“What if CEI sincerely believes that those investigations are flawed?  They take them apart quite thoroughly in their reply brief.” 

It would be an understatement to say the judges “were not impressed” by Mann’s obvious lies about him being exonerated. Which in turn means, that they will not see Mann as a credible witness nor someone with a reputation for honesty that needed any special protection from free speech by Steyn.

The consensus view

Steve McIntyre has put the case for Mann’s “consensus” quite well:

Amici for Steyn, CEI, Simberg and NR include: American Civil Liberties Union, the Reporters Committee for Freedom of the Press, American Society of News Editors, the Association of Alternative Newsmedia, the Association of American Publishers, Inc., Bloomberg L.P., the Center for Investigative Reporting, the First Amendment Coalition, First Look Media Inc., Fox News Network, Gannett Co. Inc., the Investigative Reporting Workshop, the National Press Club, the National Press Photographers Association, Comcast Corporation, the Newspaper Association of America, the North Jersey Media Group Inc., the Online News Association, the Radio Television Digital News Association, the Seattle Times Company, the Society of Professional Journalists, Stephens Media LLC, Time Inc., Tribune Publishing, the Tully Center for Free Speech, D.C. Communications, Inc. and the Washington Post.

 Disappointingly, Scott Mandia and the costumed vigilantes of the Climate Response Team elected not to appear as Mann amici. (Nor anyone else.)

But Sceptics are being …. sceptical

True to form sceptics are ignoring this overwhelming consensus and instead being sceptical about the chances of this case being thrown out.

November 25, 2014 at 7:24 am

DC Circuit is in the Progressive’s back pocket….. The Dems loaded the DC Circuit when they resorted to the Nuclear Option for Judicial appointee’s!


Scottish Sceptic
November 25, 2014 at 10:15 am

But free speech is a progressive argument!

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