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03/1/2019

D.C. Court of Appeals Puts Free Speech, Media at Risk

Court refuses to rehear anti-SLAPP decision, exposing media outlets and nonprofits to defamation lawsuits

After a lengthy two-year delay, today the D.C. Court of Appeals denied the Competitive Enterprise Institute’s (“CEI”) motion for rehearing en banc asking the full court to review a decision that will expose media and nonprofit organizations throughout D.C. to lawsuits claiming their stories and commentary are defamatory.

The original decision arose from a lawsuit filed by Michael Mann, a climate scientist embroiled in the scandal to “hide the decline” in the Earth’s temperature record, against CEI and others who criticized his work.  CEI moved to dismiss the case under D.C.’s Anti-SLAPP statute, a law designed to prevent frivolous lawsuits that are used to harass people exercising their free-speech rights; in this case, their First Amendment right to debate important issues of public policy.  The D.C. trial court refused to dismiss the lawsuit, and CEI appealed.  The appellate court upheld the initial ruling and refused to dismiss the case.

CEI then moved for rehearing en banc and dozens of amici from across the ideological spectrum urged the D.C. Court of Appeals to rehear the case because of the significant impact on First Amendment rights and the huge amount of public policy debate that occurs in the District.  Cause of Action Institute filed one of those amicus briefs on behalf of Dr. Judith Curry, a climate scientist who Michael Mann has consistently harassed using methods similar to those he complains CEI used against him.  Today, the court refused to rehear the case, without a single judge asking for rehearing.  The court’s decision in effect declares open season on media and nonprofit organizations located in the District of Columbia.

It would appear the two options available to CEI now are either to ask the U.S. Supreme Court to hear the case or to go back to the trial court and fight the case on the merits.

James Valvo is counsel and senior policy advisor at Cause of Action Institute.

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09/28/2016

Court Rightly Denies Rep. Van Hollen Request to Rehear Free Speech Case

Supporters of free speech and the First Amendment won a significant victory this week when a federal court denied a last ditch effort by Congressmen (and Senatorial candidate) Chris Van Hollen (D-Md.) to salvage his campaign finance case.

On January 21, 2016, a DC Circuit panel reversed the District Court for the District of Columbia and upheld a Federal Election Commission (“FEC”) regulation requiring unions and corporations (including nonprofit organizations) to disclose only those contributors who donate for the purpose of funding an election campaign.

Van Hollen had sued the FEC, arguing that such organizations should be required to reveal all donors, not just those that donate for an election. On appeal to the DC Circuit, CoA Institute filed an amicus brief in support of free speech principles. The DC Circuit agreed with the CoA Institute position that the FEC had struck an acceptable balance between disclosure requirements and First Amendment protections.  In so doing, the Court emphasized a number of points made in the CoA Institute brief, particularly the importance of protecting the constitutional rights of contributors to privacy and anonymous speech.

Following the DC Circuit decision, Van Hollen moved the entire DC Circuit to rehear the case (a rehearing en banc).  On September 27, 2016, the full court denied the petition.  Pending a Supreme Court appeal, the DC Circuit decision is now final.

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