Trial, and Error
January 22, 2014
On Tuesday morning, January 21st, I filed a motion with respect to Dr Michael Mann's defamation suit against me, National Review, Rand Simberg, and the Competitive Enterprise Institute. I did so because I felt the procedural fiasco the case has been reduced to since last July 10th thanks to the incompetence of the previous judge, Natalia Combs Greene, required what I called "an act of jurisprudential hygiene" from the new judge, Frederick Weisberg. Unfortunately, the DC Superior Court seems disinclined to clean up its act. I appreciate that, to those who followed the fun and frolics of my free speech battles in Canada five years ago, the tedious procedural codswallop of the Mann case has been eye-glazing and butt-numbing. But that's apparently how they do things in America. Still, at the risk of rendering even the loyalist reader comatose, let me prÃ©cis the most recent developments:
On December 19th, the Appeals Court ruled that appeals relating to Dr Mann's original complaint were moot. (Bear with me, it gets much more boring yet.) The implication of this was that we would be getting a fresh hearing on the amended complaint with what Judge Weisberg had promised on October 9th would be "a new set of eyes". Whatever the state of His Honor's eyeballs, I never got a look at them - because on Wednesday evening, January 22nd, he denied Defendants' Motion to Dismiss (along with my Motion to Vacate) without benefit of a hearing. So it looks like the Scopes Monkey Trial of the 21st century is on. Book your tickets now!
As I wrote in my motion:
That's putting it mildly. I'm not the first to discover too late that the American court system is no place for wee unsuspecting foreigners. Although I was the only one on the NR side who's actually won a free-speech battle (and so decisively that the law was eventually repealed), I was prevailed upon through the course of last year to leave it to the experts. The result is that we blew through half a million bucks, and have nothing to show for it - other than what even Judge Weisberg calls a "convoluted procedural history" that utterly buried the real issues at the heart of the case. As my motion put it:
Many "climate skeptics" wonder why the defendants would want to get the complaint dismissed rather than put Mann through a trial in which he would have to take the witness stand and discuss his work under oath. I can understand their enthusiasm for this but for me the priority has always been the broader cause of free speech:
The "chilling effect" is a bigger threat to civilized society than all Dr Mann's warming. But the judge chose instead to put us on the road to a full-scale trial. So be it.
As readers may have deduced from my absence at National Review Online and my termination of our joint representation, there have been a few differences between me and the rest of the team. The lesson of the last year is that you win a free-speech case not by adopting a don't-rock-the-boat, keep-mum, narrow procedural posture but by fighting it in the open, in the bracing air and cleansing sunlight of truth and justice.
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