A Purposeful Avoidance of the Truth Is Sufficient to Establish Actual Malice
So Eli hied hisself down the DC Court of Appeals and picked up a copy of the oral argument in CEI and National Review vs. Michael Mann. Having a new toy, the Bunny is now pleased to present a piece from Michael Mann's attorney, John Williams, somewhat in response to what was written at National Review on line by Charles Cooke
Judge Easterly, meanwhile, wanted to know how the plaintiffs could demonstrate “actual malice” if the defendants “genuinely” believe that “[man-made] climate change is a hoax.” “We don’t have to get to the question of whether climate change is real to look at the accusations,” Williams shot back. This did not seem to convince. “You need clear and convincing evidence for malice,” Easterly said. Simply stating that your critics disagree with you is insufficient. This description has caused great rejoicing amongst the Steyn Simberg crowd, but maybe no
As to what Eli thinks is going to happen, well, as National Law Journal points out, the court has to figure out if they are going to allow immediate appeals of SLAPP suit rulings,
In May, the D.C. Court of Appeals ruled that an anonymous Wikipedia editor could appeal a judge's order denying a special motion to quash a subpoena for his identity. In that case, local attorney Susan Burke sued the editor over information posted on her Wikipedia page that she argued was defamatory. Judge Catharine Easterly (at left), one of the judges hearing Mann's case, wrote the opinion.
Lawyers for the defendants sued by Mann pointed to Burke's case in arguing that the court should allow immediate appeals for denials of special motions to dismiss. The D.C. government has supported that interpretation of the law.
As the federal and local courts sort out the practical realities of the anti-SLAPP statute, cases testing the law continue to trickle up. On the heels of the Mann case in the D.C. Court of Appeals is a defamation lawsuit filed by a local doctor against a former patient who wrote a negative review on Yelp. A judge partially granted a motion to dismiss under the anti-SLAPP law. The case is being briefed.
So probably yes, immediate appeals will be allowed, but to avoid being snowed under, they are going to have to define the grounds for dismissing under the SLAPP law in detail. Given that, the court will, IEHO and EINAL, either affirm the ruling of the court below, or set out clear rules and toss it back.
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