Michael Mann Verdict Is an Assault on the First Amendment

Michael Mann testifies on Capitol Hill, March 29, 2017

In a recent editorial, we posed the two key questions that would be answered by the Washington, D.C., jury that had been given responsibility for resolving Michael Mann’s interminable crusade against American journalism. The first was whether Americans are “able to disagree about hotly contested political topics without being harassed, dragged into court on the most specious of pretexts, and subjected to ruinous legal fees.” The second was whether the protection of American law “attaches to those who ruffle feathers.” Yesterday, in the nation’s capital, a panel of jurors answered both of them with a resounding “No.” In addition to a nominal $1 compensatory award, the writer Mark Steyn was ordered to pay Mann $1 million in punitive damages for having “defamed” him in a critical blog post here at National Review. Mann’s other target, Rand Simberg, was ordered to pay $1,000 in punitive damages for a separate blog post published by the Competitive Enterprise Institute (CEI). A few blocks away, at the National Archives Museum, the First Amendment faded a little on its parchment.

From its inception, back in 2012, Mann’s relentless litigation has been marked out by an unlovely mixture of mendacity and egomania. Before he embarked on his crusade, Mann wrote to an acquaintance that he detected “a possibility that I can ruin National Review.” Evidently, he has not relinquished that ambition. In 2021, both National Review and CEI were removed from his suit on constitutional actual-malice grounds, but, having prevailed against his other targets, he now intends to bring us back into the fold. Asked yesterday about his plans for National Review and CEI, Mann’s lawyer, John Williams, said simply: “They’re next.”

And, at this rate, who isn’t? Why, over the years, have so many American news outlets filed amicus briefs on behalf of National Review and the other defendants in Mann’s suit? Because they understood all too well that, ultimately, this lawsuit is not about Mark Steyn or about conservative magazines or about climate change, but about the integrity of free speech in these United States. The Supreme Court has held in no uncertain terms that “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks.” To this, Michael Mann has said, “Pish!” It is true that Mann is acting in a particularly sulky, vindictive, and illiberal way. But, in a country of 330 million, there will be others who want to do the same. Yesterday, he showed those people the way.

That way has no place in a free country. In theory, what Mann has achieved should be impossible. Between the First Amendment, an array of anti-SLAPP statutes, and a defamation standard that demands proof of “actual malice,” the shields available for the defense of free expression are many. Alas, they can also prove paper-thin. The stated aim of American law in this area is to avoid “self-censorship.” But who would not self-censor if this is to be the result of speaking out? Even if Steyn and Simberg had won, the process would have represented punishment enough. This case has been running for twelve years. It has obliged its victims to shell out millions of dollars in legal fees and thousands of hours in attention. It has caused stress, uncertainty, and fear. These are not the preconditions of robust debate; they are the causes of journalistic anemia.

Mann’s case should not only have been rejected by the jury; it should never have gone to trial in the first instance. At a hundred different junctures, it ought to have been dismissed with prejudice — both legally and metaphorically — by judges who ought to have known better. Time and time again, the nation’s courts had a chance to stand up for robust debate, and time and time again they failed to take it. Their inadequacy will be felt for years to come.

More on National Review