Programming note: Don't miss this weekend's special edition of The Mark Steyn Show in which Michele Bachmann talks to Mark about the US elections and much more.
~Following last month's verdict, Mann vs Simberg and Steyn moves on into its thirteenth year and the appellate phase ...oh, no, sorry, we've still got some post-verdict maneuvring to attend to. On Friday, my counsel filed three motions at the District of Columbia Superior Court. If, as with baseball cards, you're anxious to collect the set, they are:
a) a Motion to Stay Execution ...wait, wuh? Nobody said anything about execution. Relax, it's merely a Motion to Stay Execution of the Judgment;
b) a Motion for Judgment as a Matter of Law; and
c) a Motion for (gulp) a New Trial.
I need this like I need the proverbial hole in the head - which, to be honest, I'd prefer, were it not for the fact that, as one of the lawyers sneered to me last autumn, "this doesn't end with your death". So, in the interests of not saddling my heirs and relicts with Mann vs Estate of Steyn, I push on against the advice of my (non-American) doctors.
If you're wondering about the broader non-personal rationale for these motions, well, re the stay of execution (foot of page two):
The $1,000,000 punitive damage award is unlawful for multiple reasons.
Among other things, the verdict "violates both DC law and the First Amendment" (page three) and also "violates the Due Process Clause of the Fifth Amendment" (page seven). So yeah, I'm waving that Constitution, and we'll see where that gets me:
"Freedom of speech and the press are most seriously implicated ... in cases involving disfavored speech on important political or social issues." Mann, 140 S. Ct. at 347–48... The verdict in this case will have a horrible "chilling effect" on discussing controversial political issues like climate change. CEI, 150 A.3d at 1242... Our nation relies on "a profound national commitment to the principle 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 on government and public officials." N.Y. Times, 376 U.S. at 270. This verdict silences further debate... That result is repugnant to the First Amendment.
Even in the dank septic tank of American "justice", I am reasonably confident that I would win at the Supreme Court. However, I am less confident that I will live that long. So judgment as a matter of law - because the verdict is unlawful - would be appreciated.
Did you read what passes for the mainstream media's coverage of this case? Forbes magazine:
Mann said he hoped the verdict would send a message "that falsely attacking climate scientists is not protected speech."
Michael E Mann himself and his lawyer, writing in The New York Times:
We hope this sends a broader message that defamatory attacks on scientists go beyond the bounds of protected speech and have consequences.
Andrew Lewin, host of How to Protect the Ocean:
Defamation and Climate Science: Did the Lawsuit Send a Message?
There's just one problem with that (top of page five):
The Court of Appeals "has stated repeatedly that an attorney must not ask a jury to 'send a message' to anyone." Bowman v. United States, 652 A.2d 64, 71 (D.C. 1994). This is the law for good reason: "Juries are not in the message-sending business. Their sole duty is to return a verdict based on the facts before them." Id. See also Coreas v. United States, 565 A.2d 594, 604 (D.C. 1989) ("Argument which encourages the jury to 'send a message' has been found improper by this court."); Powell v. United States, 455 A.2d 405, 410 (D.C. 1982) ("The function of the jury is to determine the facts based on evidence presented. The jurors are not empaneled to send messages on behalf of their community.").
And the parties here agreed and represented to the Court that "Plaintiff will not present any argument or evidence related to any claim that the jury should 'send a message' through its verdict." Jt. Pretrial Statement at 8 (§ E-13).
Telling the jury "these attacks on climate scientists have to stop" was a forbidden send-a-message argument. See Scott, 928 A.2d at 685 n.7, 689... And Plaintiff's team dispelled any doubt that they had asked the jury to "send a message" about stopping attacks on climate scientists by issuing a press release after the verdict that quoted Mann as saying "I hope this verdict sends a message that falsely attacking climate scientists is not protected speech." Michael E. Mann (@MichaelEMann), Twitter (Feb. 8, 2024, 5:11 PM)
Inviting jurors to send that message, Mann's counsel drew a comparison between "climate deniers" (me, Simberg, Curry, McIntyre, McKitrick et al) and "election deniers" (Trump and the J6-ers). Footnote Five on page eight:
Counsel's comparison was especially egregious and prejudicial because the January 6 violence occurred in the District of Columbia and because, as counsel knew, one of the jurors, Juror 931, works for the U.S. Senate Sergeant-at-Arms to watch for security risks, "including demonstrations that are affecting my agency." Tr. 92 (1/17/24 AM). Juror 931's office was at the center of the January 6 riot. See Michael Balsamo & Sophia Tulp, US Senate sergeant-at-arms during Capitol riot dies at 71, Associated Press (June 28, 2022), https://tinyurl.com/4bu7kw7u.
Juror 931 served as the foreman of the jury.
This was the juror who had earlier sent a note to the Court:
It is well known for my family and friends that I am not a fan of fox news. I wanted to inform the judge [indecipherable] to the sensitivity of this case. I did not recognize the defendant [Steyn] as a fox news host until opening statements.
As to the one dollar in actual damages plus a million bucks in punitive damages (page four):
Plaintiff failed to present any non-speculative proof of damages; the jury awarded him $1 in nominal damages ...and under both the First Amendment and D.C. law that means Plaintiff may not collect punitive damages. The Supreme Court has explained that, because of the First Amendment, a "defamed party must establish that he has suffered some sort of compensable harm as a prerequisite to the recovery of additional punitive damages"...
"Under the law of the District of Columbia, one cannot receive punitive damages if only nominal damages are sought and awarded." Unidisco, Inc. v. Schattner, No. B-80-2617, 1986 WL 84363, at *13 (D. Md. Aug. 4, 1986)... In the District, "'a verdict assessing punitive damages can be returned only when there is also a verdict assessing compensatory or actual damages.'"
That would seem straightforward enough even for the District of Columbia. But it's American "justice", so the way to bet is that I'll have to spend another five million to prove that I don't have to pay the lousy one mil.
Which by the way Michael E Mann has already offered as a bribe to Clarence Thomas:
I'll add a million dollars to that. https://t.co/b2dcYR4oak
— Prof Michael E. Mann (@MichaelEMann) February 19, 2024
As for the other parties, Rand Simberg is also asking for judgment as a matter of law, and Michael Mann is appealing his own victory - in order to get the deeper-pocketed corporate defendants, National Review and the Competitive Enterprise Institute, back in the case. So another half-decade (at least) lies ahead.
Onward!
~Thank you for all your kind comments this last wretched month - and thank you especially to all those new members of The Mark Steyn Club, and those old members who've signed up a chum for a SteynOnline Gift Certificate or a Steyn Club Gift Membership. Steyn Clubbers span the globe, from London, Ontario to London, England to London, Kiribati. We hope to welcome many more new members in the years ahead.
