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Competitive Enterprise Institute, et al. v. Michael E. Mann

Paid petition · District of Columbia Court of Appeals, No. 14-CV-101, 14-CV-126 · judgment December 13, 2018

Certiorari denied · November 25, 2019
Pre-decision estimate: 1% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Questions presented

Under the First Amendment, “a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990). Applying that principle, practically every lower court to consider the issue has recognized that the First Amendment shields from defamation liability subjective commentary on the facts of a matter of public concern. The D.C. Court of Appeals split from that consensus to hold that that rule is limited to things like book reviews and does not protect speech opining on public controversies like the debate over climate science. Such commentary, it held, may be subject to defamation liability whenever a jury could conceivably find it to be false, even when the underlying facts are undisputedly true. Accordingly, the questions presented are:

  1. Whether the First Amendment permits defamation liability for subjective commentary on true facts concerning a matter of public concern.

  2. Whether the determination of whether a challenged statement contains a provably false factual connotation is a question of law for the court or a question of fact for the jury. 

Counsel of record

For petitioner
Andrew Michael Grossman
Baker & Hostetler LLP

For respondent
John B. Williams
Williams Lopatto PLLC

Case

Conference history
Distributed for 8 conferences

Amicus briefs
6 cert-stage

Related
Vide, 18-1451

Proceedings

  1. Nov 25 2019
    Motion for leave to file amicus brief filed by Southeastern Legal Foundation GRANTED.
  2. Nov 25 2019
    Petition DENIED. Justice Alito, dissenting from the denial of certiorari. (Detached Opinion)
  3. Nov 18 2019
    DISTRIBUTED for Conference of 11/22/2019.
  4. Nov 12 2019
    DISTRIBUTED for Conference of 11/15/2019.
  5. Nov 04 2019
    DISTRIBUTED for Conference of 11/8/2019.
  6. Oct 28 2019
    DISTRIBUTED for Conference of 11/1/2019.
  7. Oct 28 2019
    Rescheduled.
  8. Oct 17 2019
    Rescheduled.
  9. Oct 15 2019
    DISTRIBUTED for Conference of 10/18/2019.
  10. Oct 08 2019
    Rescheduled.
  11. Oct 07 2019
    DISTRIBUTED for Conference of 10/11/2019.
  12. Sep 26 2019
    Rescheduled.
  13. Jul 17 2019
    DISTRIBUTED for Conference of 10/1/2019.
  14. Jul 17 2019
    Reply of petitioners Competitive Enterprise Institute, et al. filed. (Distributed)
  15. Jul 05 2019
    Brief amici curiae of Former United States Attorneys General filed. VIDED.
  16. Jul 05 2019
    Brief amicus curiae of Stephen McIntyre filed. VIDED.
  17. Jul 05 2019
    Brief amici curiae of Cato Institute, et al. filed. VIDED.
  18. Jul 03 2019
    Brief amicus curiae of American Center for Law & Justice filed. VIDED.
  19. Jul 02 2019
    Brief amicus curiae of Dr. Judith A. Curry filed. VIDED.
  20. Jun 28 2019
    Brief of respondent Michael E. Mann in opposition filed. VIDED.
  21. Jun 20 2019
    Brief amicus curiae of Mark Steyn filed. VIDED.
  22. Jun 14 2019
    Response Requested. (Due July 15, 2019)
  23. Jun 12 2019
    Motion for leave to file amicus brief filed by Southeastern Legal Foundation.
  24. Jun 04 2019
    DISTRIBUTED for Conference of 6/20/2019.
  25. May 28 2019
    Waiver of right of respondent Michael E. Mann to respond filed.
  26. May 23 2019
    Petition for a writ of certiorari filed. (Response due June 27, 2019)