District of Columbia
Court of Appeals
COMPETITIVE ENTERPRISE INSTITUTE AND RAND SIMBERG, Appellants,
MICHAEL E. MANN, Appellee.
NATIONAL REVIEW, INC., Appellant,
MICHAEL E. MANN, Appellee.
On Appeal from the Superior Court of the District of Columbia
BEFORE: BECKWITH and EASTERLY, Associate Judges; and RUIZ, Senior Judge.
J U D G M E N T
This case came to be heard on the transcript of record and the briefs filed, and
was argued by counsel. On consideration whereof, and as set forth in the opinion filed this
date, it is now hereby
ORDERED and ADJUDGED that the trial court’s denial of the special
motions to dismiss the defamation claims is affirmed, and the matter is remanded for
additional proceedings in the trial court with respect to these claims. The trial court’s denial
of the special motions to dismiss with respect to Appellee’s claims for defamation and
intentional infliction of emotional distress are reversed; on remand, the court shall dismiss
these claims with prejudice.
For the Court:
JULIO A. CASTILLO
Clerk of the Court
Dated: December 22, 2016.
Opinion by Senior Judge Vanessa Ruiz.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
COMPETITIVE ENTERPRISE INSTITUTE AND RAND SIMBERG, APPELLANTS,
MICHAEL E. MANN, APPELLEE,
NATIONAL REVIEW, INC., APPELLANT,
MICHAEL E. MANN, APPELLEE.
Appeals from the Superior Court
of the District of Columbia
(Hon. Natalia M. Combs Greene, Trial Judge)
(Hon. Frederick H. Weisberg, Trial Judge)
(Argued November 25, 2014
Decided December 22, 2016)
Andrew M. Grossman, with whom David B. Rivkin, Jr., and Mark I. Bailen
were on the brief, for appellants Competitive Enterprise Institute and Rand
Michael A. Carvin, with whom David M. Morrell and Anthony J. Dick were
on the brief, for appellant National Review, Inc.
John B. Williams, with whom Peter J. Fontaine and Catherine Rosato Reilly were on the brief, for appellee Michael E. Mann.
Ariel B. Levinson-Waldman, Senior Counsel to the Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia at the time the brief was filed, and Todd S. Kim, Solicitor General, were on the brief, for amicus curiae the District of Columbia, in support of the court’s appellate jurisdiction to review interlocutory order.
Michael J. Songer and Daniel J. Kornstein were on the brief for amicus curiae Mark Steyn, in support of the court’s appellate jurisdiction to review interlocutory order.
Ilya Shapiro, Nicholas C. Dranias, Bradley A. Benbrook, and Stephen M. Duvernay were on the briefs, in support of appellants, for amici curiae The Cato Institute, Reason Foundation, Individual Rights Foundation, and Goldwater Institute.
Gregg P. Leslie, Cynthia A. Gierhart, Seth D. Berlin, Shaina Jones Ward, and Mara J. Gassmann were on the brief, in support of appellants, for amici curiae The Reporters Committee for Freedom of the Press; The American Civil Liberties Union of the Nation’s Capital; American Society of News Editors; Association of Alternative Newsmedia; The Association of American Publishers, Inc.; Bloomberg L.P.; The Center for Investigative Reporting; First Amendment Coalition; First Look Media, Inc.; Fox News Network, LLC; Gannett Co., Inc.; The Investigative Reporting Workshop; The National Press Club; National Press Photographers Association; NBCUniversal Media, LLC; Newspaper Association of America; North Jersey Media Group, Inc.; Online News Association; Radio Television Digital News Association; The Seattle Times Company; Society of Professional Journalists; Stephens Media LLC; Time Inc.; Tribune Publishing; The Tully Center for Free Speech; D.C. Communications, Inc., d/b/a Washington City Paper; and WP Company LLC d/b/a The Washington Post.
David A. Cortman, Kevin H. Theriot, Christopher Byrnes, and Kurt Van Sciver were on the brief, in support of appellants, for amicus curiae Alliance Defending Freedom.
Phillip C. Chang, Jonathan E. Buchan, E. Duncan Getchell, and Amy Miller were on the brief, in support of appellants, for amici curiae Newsmax Media, Inc.; Free Beacon, LLC; The Foundation for Cultural Review; The Daily Caller, LLC;
PJ Media, LLC; and The Electronic Frontier Foundation.
Before BECKWITH and EASTERLY, Associate Judges, and RUIZ, Senior Judge.
RUIZ, Senior Judge: These appeals present us with legal issues of first impression concerning the special motion to dismiss created by the District of Columbia’s Anti-Strategic Lawsuits Against Public Participation (Anti-SLAPP) Act, D.C. Code §§ 16-5501 to -5505 (2012 Repl.): whether denial of a special motion to dismiss is immediately appealable and the standard applicable in considering the merits of an Anti-SLAPP special motion to dismiss.
Appellee Michael E. Mann is a well-known climate scientist whose research in studying the “paleoclimate,” or ancient climate, has featured prominently in the politically charged debate about climate change. Dr. Mann filed an action for defamation and intentional infliction of emotional distress against Competitive Enterprise Institute (CEI), Rand Simberg, National Review, Inc. (National Review), and Mark Steyn based on articles written by Mr. Simberg, Mr. Steyn, and National Review’s editor Rich Lowry that appeared on the websites of CEI and National Review. Dr. Mann’s complaint claimed that the articles which criticized Dr. Mann’s conclusions about global warming and accused him of deception and academic and scientific misconduct contained false statements that injured his reputation and standing in the scientific and academic communities of which he is a part.
Defendants argued that Dr. Mann’s lawsuit infringes on their First Amendment right of free speech and moved for dismissal under the Anti-SLAPP Act and, alternatively, under Superior Court Rule 12 (b)(6). The trial court ruled that Dr. Mann’s claims were “likely to succeed on the merits” — the standard established in the Anti-SLAPP Act to defeat a motion to dismiss — and denied appellants’ motions to dismiss and their subsequent motions to reconsider. Appellants — CEI, National Review and Mr. Simberg — sought interlocutory review in this court of the trial court’s denial of their motions to dismiss.1
As a preliminary matter, we hold that we have jurisdiction under the collateral order doctrine to hear appellants’ interlocutory appeals of the trial court’s denial of their special motions to dismiss filed under the Anti-SLAPP Act. We further hold that the Anti-SLAPP Act’s “likely to succeed” standard for overcoming a properly filed special motion to dismiss requires that the plaintiff present evidence — not simply allegations — and that the evidence must be legally sufficient to permit a jury properly instructed on the applicable constitutional standards to reasonably find in the plaintiff’s favor. Having conducted an independent review of the evidence to ensure that it surmounts the constitutionally required threshold, we conclude that Dr. Mann has presented evidence sufficient to defeat the special motions to dismiss as to some of his claims.2 Accordingly, we affirm in part, reverse in part, and remand the case to the trial court for further proceedings.
I. Statement of the Case
A. Factual Background
The facts presented in the complaint and subsequent pleadings filed with the court are as follows. Dr. Mann is a graduate of the University of California at Berkeley (B.S. Physics and Applied Math) and Yale University (M.S. Physics; Ph.D. Geology and Geophysics), and has held faculty positions at the University of Massachusetts’s Department of Geosciences and the University of Virginia’s Department of Environmental Sciences. He is a Distinguished Professor of Meteorology and the Director of the Earth System Science Center at Pennsylvania State University (Penn State).3 Dr. Mann is considered an authority on climate change science, and has been recognized with honors and awards for his work identifying global warming and its cause.
In 1998 and 1999, Dr. Mann and two colleagues4 co-authored two scientific papers, the first of which was published in the international scientific journal Nature and the second of which was published in Geophysical Research Letters, that reported the results from a statistical study of the Earth’s temperatures over several centuries. Their 1998 study used a technique to reconstruct temperatures from time periods before the widespread use of thermometers in the 1960s by using “proxy indicators” (described by Dr. Mann as “growth rings of ancient trees and corals, sediment cores from ocean and lake bottoms, ice cores from glaciers, and cave sediment cores”). The data showed that global mean annual temperatures have been rising since the early twentieth century, with a marked increase in the last fifty years. The papers concluded that this rise in temperature was “likely unprecedented in at least the past millennium” and correlated with higher concentrations of carbon dioxide in the atmosphere emitted by the combustion of fossil fuels.
The 1999 paper included a graph depicting global temperatures in the Northern Hemisphere for a millennium, from approximately 1050 through 2000. The graphical pattern is roughly horizontal for 90% of the temperature axis — reflecting a slight, long-term cooling period between 1050 and 1900 — followed by a sharp increase in temperature in the twentieth century. Because of its shape resembling the long shaft and shorter diagonal blade of a hockey stick, this graph became known as the “hockey stick.”5 The hockey stick graph became the foundation for the conclusion that the sharp increase in temperature starting in the twentieth century was anthropogenic, or caused by concentrations of CO2 in the atmosphere generated by human activity initiated by the industrial age. The hockey stick graph also became a rallying point, and a target, in the subsequent debate over the existence and cause of global warming and what, if anything, should be done about it.
In 2001, the Intergovernmental Panel on Climate Change (IPCC),6 in its Third Assessment Report, summarized the study and data that led to the hockey stick graph and featured several of the studies that replicated its data. In 2003 and 2005, mining consultant Stephen McIntyre and Professor Ross McKitrick7 published articles claiming to demonstrate that the hockey stick graph was the result of bad data and flawed statistical analysis. That same year, in a study commissioned by two U.S. Congressmen, Professor Edward Wegman8 concluded that Dr. Mann’s statistical methodology was flawed. That same year, the National Research Council of the National Academies of Science, in a study commissioned by the U.S. House of Representatives, raised questions about the reliability of temperature reconstructions prior to 1600, but agreed substantively with the conclusions represented by the hockey stick graph. Follow-up, peer-reviewed studies published in the literature have independently validated conclusions illustrated by the hockey stick graph.
In November 2009, thousands of emails from the Climate Research Unit (CRU) of the University of East Anglia in the United Kingdom — some between Dr. Mann and CRU climate scientists — were somehow obtained and anonymously published on the Internet, shortly before the U.N. Global Climate Change Conference was to begin in Copenhagen in December 2009. In a controversy dubbed “Climategate,” some of these emails were cited as proof that climate scientists, including Dr. Mann, falsified or manipulated their data, in collusion with government officials, to produce the hockey stick result. The emails led to public questioning of the validity of the research leading to the hockey stick graph and to calls for evaluation of the soundness of its statistical analysis and the conduct of the scientists involved in the research, including, specifically, Dr. Mann.
Following disclosure of the emails and the questions raised, Penn State, the University of East Anglia, and five governmental agencies — the U.K. House of Commons Science and Technology Committee, the U.K. Secretary of State for Energy and Climate Change, the Inspector General of the U.S. Department of Commerce, the U.S. Environmental Protection Agency, and the U.S. National Science Foundation — issued reports after conducting inquiries into the validity of the methodology and research underlying the hockey stick graph and investigating the allegations impugning the integrity of Dr. Mann’s and other climate scientists’ conduct. The inquiries that considered the science largely validated the methodology underlying the hockey stick graph. None of the investigations found any evidence of fraud, falsification, manipulation, or misconduct on the part of Dr. Mann.9 These reports were published in 2010 and 2011.
On July 13, 2012, Mr. Simberg authored an article entitled “The Other Scandal in Unhappy Valley,” which was published on OpenMarket.org, an online blog of CEI. Comparing “Climategate” with the then-front-page news of the Penn State sexual abuse scandal involving Jerry Sandusky that had been revealed in the Freeh Report,10 Mr. Simberg wrote:
So it turns out that Penn State has covered up wrongdoing by one of its employees to avoid bad publicity.
But I’m not talking about the appalling behavior uncovered this week by the Freeh report. No, I’m referring to another cover up and whitewash that occurred there two years ago, before we learned how rotten and corrupt the culture at the university was. But now that we know how bad it was, perhaps it’s time that we revisit the Michael Mann affair, particularly given how much we’ve also learned about his and others’ hockey-stick deceptions since. Mann could be said to be the Jerry Sandusky of climate science, except for instead of molesting children, he has molested and tortured data in service of politicized science that could have dire consequences for the nation and planet. . . .
[M]any . . . luminaries of the “climate science” community were shown to have been behaving in a most unscientific manner. Among them were Michael Mann, Professor of Meteorology at Penn State, whom the emails revealed had been engaging in data manipulation to keep the blade on his famous hockey-stick graph, which had become an icon for those determined to reduce human carbon emissions by any means necessary. . . .
Mann has become the posterboy of the corrupt and disgraced climate science echo chamber. No university whitewash investigation will change that simple reality. . . .
Michael Mann, like Joe Paterno, was a rock star in the context of Penn State University, bringing in millions in research funding. The same university president who resigned in the wake of the Sandusky scandal was also the president when Mann was being [strikethrough] whitewashed [strikethrough end] investigated. We saw what the university administration was willing to do to cover up heinous crimes, and even let them continue, rather than expose them. Should we suppose, in light of what we now know, they would do any less to hide academic and scientific misconduct, with so much at stake?
It’s time for a fresh, truly independent investigation.
(strike-through in original).
On July 15, 2012, Mr. Steyn authored an article titled “Football and Hockey,” which appeared on National Review’s online blog “The Corner.” In his article, Mr. Steyn quoted from Mr. Simberg’s July 13 article:
I’m referring to another cover up and whitewash that occurred [at Penn State] two years ago, before we learned how rotten and corrupt the culture at the university was. But now that we know how bad it was, perhaps it’s time that we revisit the Michael Mann affair, particularly given how much we’ve also learned about his and others’ hockey-stick deceptions since. Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in service of politicized science that could have dire consequences for the nation and planet.
Mr. Steyn then added:
Not sure I’d have extended that metaphor all the way into the locker-room showers with quite the zeal Mr. Simberg does, but he has a point. Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph, the very ringmaster of the tree-ring circus. And, when the East Anglia emails came out, Penn State felt obliged to “investigate” Professor Mann. Graham Spanier, the Penn State president forced to resign over Sandusky, was the same [one] who investigated Mann. And, as with Sandusky and Paterno, the college declined to find one of its star names guilty of any wrongdoing.
If an institution is prepared to cover up systematic statutory rape of minors, what won’t it cover up? Whether or not he’s “the Jerry Sandusky of climate change”, [sic] he remains the Michael Mann of climate change, in part because his “investigation” by a deeply corrupt administration was a joke.
Dr. Mann’s counsel wrote to appellants requesting an apology and retraction of the statements, and threatening litigation if the articles were not removed from their respective websites. The letter stated that the allegations of data manipulation and misconduct were false, and pointed to the investigations that had concluded Dr. Mann had not engaged in wrongdoing or manipulated data in a deceptive manner. No apology was forthcoming, nor were the posted statements withdrawn. Instead, on August 22, 2012, Mr. Lowry wrote an editorial on National Review’s website titled “Get Lost” that referred to “Michael Mann of Climategate infamy,” characterized his threatened litigation as “a nuisance lawsuit,” and included a link to National Review’s lawyer’s response rejecting Dr. Mann’s counsel’s request for a retraction. Mr. Lowry explained that “[i]n common polemical usage, ‘fraudulent’ doesn’t mean honest-to-goodness criminal fraud. It means intellectually bogus and wrong.” The editorial concluded: “[Dr. Mann is] going to go to great trouble and expense to embark on a losing cause that will expose more of his methods and maneuverings to the world. In short, he risks making an ass of himself. But that hasn’t stopped him before.” The underlying lawsuit followed.
B. Trial Court Proceedings
Dr. Mann filed his initial complaint on October 22, 2012, alleging libel and intentional infliction of emotional distress based on appellants’ statements accusing him of improperly manipulating data to reach a preordained conclusion, deception, fraud, and misconduct. Appellants filed special motions to dismiss the complaint pursuant to the D.C. Anti-SLAPP Act and motions to dismiss for failure to state a claim under Superior Court Rule 12 (b)(6). Dr. Mann opposed the motions. On July 19, 2013, Judge Natalia Combs Greene denied the motions. She determined that the subject of appellants’ challenged statements brought them within the ambit of the Anti-SLAPP Act, but that Dr. Mann had made the required showing under the Act to defeat the special motions to dismiss. First, the trial court interpreted the “likely to succeed” standard in the Act as substantively similar to the standard for prevailing on a motion for summary judgment or motion for judgment as a matter of law. Second, the trial court concluded that Dr. Mann met this burden by making a prima facie showing that appellants’ statements were defamatory and not sheltered by the fair comment privilege, and by providing sufficient evidence for the court to find that “discovery may uncover” that appellants acted with actual malice. Third, the trial court determined that Dr. Mann also made the requisite showing of malicious and outrageous conduct to support his claim of intentional infliction of emotional distress. Finally, the trial court determined that the complaint stated a claim, and thus survived a Rule 12 (b) (6) evaluation.
Appellants asked the trial court to vacate the denials of their motions to dismiss and, after the trial court denied this request, appellants moved for certification of the trial court’s orders for interlocutory appeal. The trial court denied the motions for certification. Appellants then appealed to this court, which issued an order to show cause as to why the appeals should not be dismissed for lack of jurisdiction as having been taken from non-appealable orders. On December 19, 2013, these appeals were dismissed as moot because Dr. Mann filed an amended complaint on June 28, 2013.
The amended complaint is substantially the same as the original complaint, with the addition of one count of libel based on the comment comparing Dr. Mann to Jerry Sandusky, which, in the original complaint, supported only the intentional infliction of emotional distress claim. Appellants renewed their motions to dismiss, and Dr. Mann opposed them. On January 22, 2014, Judge Frederick Weisberg denied the motions, reasoning that Judge Combs Greene’s order denying the original motions to dismiss was the law of the case, and adding an analysis of the new defamation count. Appellants again filed motions seeking vacatur of the denial of their motions to dismiss and certification for interlocutory appeal, which were, again, denied by the trial court.
Appellants filed notices of appeal to this court, and Dr. Mann moved to dismiss the appeals on the ground that they seek review of non-final orders that are not immediately appealable, or, in the alternative, to expedite the appeal. The court ordered appellants to show cause as to why the court has jurisdiction to hear these interlocutory appeals. Appellants filed a response, as did Dr. Mann. The court ultimately reserved the jurisdiction question, expedited the appeal, and ordered the parties to file briefs addressing the court’s jurisdiction as well as the merits. The District of Columbia and non-appealing defendant Mr. Steyn filed a brief as amicus curiae in favor of the court’s jurisdiction to hear the interlocutory order on appeal.12 Several organizations filed briefs as amici curiae in support of appellants. We now address all issues.
II. SLAPP Actions and the D.C. Anti-SLAPP Act
A “SLAPP” (strategic lawsuit against public participation) is an action “filed by one side of a political or public policy debate aimed to punish or prevent the expression of opposing points of view.” Council of the District of Columbia, Report of Committee on Public Safety and the Judiciary on Bill 18-893, at 1 (Nov. 18, 2010) (hereinafter Report on Bill 18-893). Thus, the goal of a SLAPP “is not to win the lawsuit but to punish the opponent and intimidate them into silence.” Id. at 4 (citing George W. Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 PACE ENVTL. L. REV. 3, 3, 9-11 (1989)). Enacted in 2012, the D.C. Anti-SLAPP Act was designed to protect targets of such meritless lawsuits by creating “substantive rights with regard to a defendant’s ability to fend off” a SLAPP. Report on Bill 18-893, at 1. The rights created by the Act comprise a special motion to dismiss a complaint, D.C. Code § 16-5502, and a special motion to quash discovery orders, requests for information, or subpoenas for personal identifying information in suspected SLAPPs, D.C. Code § 16-5503. This court has interpreted and applied the Anti-SLAPP Act with respect to the provisions concerning the special motion to quash a subpoena, see Doe v. Burke (Burke I), 91 A.3d 1031 (D.C. 2014), and the award of attorney’s fees in connection with such a motion, see Doe v. Burke (Burke II), 133 A.3d 569 (D.C. 2016). This is the first case presented on appeal that raises the proper interpretation and application of the Act’s special motion to dismiss.
Under the District’s Anti-SLAPP Act, the party filing a special motion to dismiss must first show entitlement to the protections of the Act by “mak[ing] a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest.” D.C. Code § 16-5502 (b). Once that prima facie showing is made, the burden shifts to the nonmoving party, usually the plaintiff,13 who must “demonstrate that the claim is likely to succeed on the merits.” Id. If the plaintiff cannot meet that burden, the motion to dismiss must be granted, and the litigation is brought to a speedy end. Id. In this case, the parties agree that appellants made the requisite prima facie showing that the Act applies because the lawsuit is based on articles that appeared on CEI’s and National Review’s websites that concern the debate over the existence and causes of global warming. See D.C. Code § 16-5501 (1) (defining “[a]ct in furtherance of the right of advocacy on issues of public interest” to include “[a]ny written or oral statement made . . . [i]n a place open to the public or a public forum in connection with an issue of public interest . . . .”); D.C. Code § 16-5501 (3) (“‘Issue of public interest’ means an issue related to health or safety; environmental, economic, or community well-being; the District government; a public figure; or a good, product, or service in the market place.”). What is contested in this appeal is whether Dr. Mann met his burden of demonstrating that he is “likely to succeed on the merits” of his claims for defamation and intentional infliction of emotional distress. If he has, appellants’ special motions to dismiss were properly denied, and the litigation continues. If he has not, the motions should have been granted, and the litigation would be terminated. But we must decide first whether this court has jurisdiction to decide that question at this stage of the litigation.
Denial of a special motion to dismiss filed under the Anti-SLAPP Act does not end the litigation and is not a final order. To the contrary, it signals that the litigation will continue.14 Nor is it one of the types of interlocutory orders specified by statute over which this court has jurisdiction. See D.C. Code § 11-721 (a)(2)-(3) (2012 Repl.). The denial of a motion to dismiss filed under Rule 12 (b)(6) is not usually immediately appealable. See McNair Builders, Inc. v. Taylor, 3 A.3d 1132, 1135 (D.C. 2010). Thus, we must decide, in the first instance, whether the denial of a special motion to dismiss filed pursuant to D.C. Code § 16-5502 belongs to that “small class” of non-final orders that may be appealed under the collateral order doctrine established by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., because it is “too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” 337 U.S. 541, 546 (1949).
The test for application of the collateral order doctrine is “stringent.” McNair Builders, 3 A.3d at 1136 (quoting Will v. Hallock, 546 U.S. 345, 349-50 (2006)). For an order to qualify for interlocutory review under the doctrine, “(1) it must conclusively determine a disputed question of law, (2) it must resolve an important issue that is separate from the merits of the case, and (3) it must be effectively unreviewable on appeal from a final judgment.” Id. at 1135-36 (quoting, and overruling on other grounds, Finkelstein, Thompson & Loughran v. Hemispherx Biopharma, Inc., 774 A.2d 332, 339-40 (D.C. 2001)). “Effective” unreviewability encompasses the notion that the matter at stake concerns an issue of “substantial public interest.” Id. at 1137. We conclude that these criteria are met where a special motion to dismiss filed under the Anti-SLAPP Act is denied as they are in the case of denial of a special motion to quash filed under the Act. See Burke I, 91 A.3d at 1038 (“[The] determination that an order is appealable under [these criteria] is ‘not directed at the individual case, but to the entire category to which a claim belongs.’”) (quoting McNair Builders, 3 A.3d at 1140 n.9)).15
First, a trial court’s order denying a special motion to dismiss under the Anti-SLAPP Act “conclusively determine[s] a disputed question of law,” McNair Builders, 3 A.3d at 1135: whether the movant is entitled to dismissal under the Act. In analyzing whether the denial of a special motion to quash under the Act is immediately appealable, the Burke I court concluded that the “conclusivity element” of the collateral order doctrine is “satisfied when a trial court has determined the movant is ineligible for protection under the [Anti-SLAPP] statute.” 91 A.3d at 1038 (quoting Godin v. Schencks, 629 F.3d 79, 84 (1st Cir. 2010)).16 Here, appellants have received some measure of protection under the Act by having their motions to dismiss evaluated under the special provisions of the Act created to deter SLAPPs. The application of the Act does not mean, however, that there is no “disputed question of law” for purposes of the collateral order doctrine. There remains the specific disputed legal question of whether the movant is entitled to the Act’s ultimate protection: mandatory dismissal of the lawsuit at an early point in the litigation. That is an issue a trial court conclusively determines when it rules on a special motion to dismiss. Therefore, denial of a special motion to dismiss satisfies the “conclusivity element” of the collateral order doctrine.
Second, a trial court’s order denying a special motion to dismiss “resolve[s] an important issue that is separate from the merits of the case.” McNair Builders, 3 A.3d at 1135. The issue in the case of a special motion to dismiss, once the threshold prima facie case has been met by the movant, is whether the movant has a statutory right to be free of the burdens of defending the litigation. Resolution of both issues — whether the claim arises from acts protected by the Act and whether the movant is entitled to dismissal — will involve some of the same facts relevant to the merits of the claim. That commonality, however, does not necessarily preclude interlocutory review of the denial of an Anti-SLAPP special motion to dismiss.
An analogy to qualified immunity is apt. “[I]t follows from the recognition that qualified immunity is in part an entitlement not to be forced to litigate the consequences of official conduct that a claim of immunity is conceptually distinct from the merits of the plaintiff’s claim that his rights have been violated.” Mitchell v. Forsyth, 472 U.S. 511, 527-28 (1985). The special motion to dismiss created by the Anti-SLAPP Act “explicitly protects the right not to stand trial” in a SLAPP, which is intended as a “weapon to chill or silence speech.” Burke I, 91 A.3d at 1033, 1039; see Report on Bill 18-893, at 4 (referring to “other jurisdictions, which have similarly extended absolute or qualified immunity for individuals engaging in protected actions”). This statutory right is analogous to qualified immunity for official conduct in that its application depends on the court’s resolution of whether the acts complained of entitle the defendant not to stand trial “under certain circumstances.” Mitchell, 472 U.S. at 525. In this case we interpret the statutory standard (“likely to succeed on the merits”) for determining special motions under the Act and, as discussed infra, conclude that the court must decide, as a matter of law, whether the plaintiff has produced (usually without the benefit of discovery) sufficient evidence to prevail on the claim. In other words, the circumstance under which the Anti-SLAPP Act creates immunity from trial is a meritless SLAPP. As we stated in Burke I, this “resolves a question separate from the merits in that it merely finds that such merits may exist, without evaluating whether the plaintiff’s claim will succeed.” 91 A.3d at 1039 (quoting Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir. 2003)).17
We readily acknowledge that this inquiry is not completely separable from the merits, but it need not be where it serves a different purpose. See Henry v. Lake Charles Am. Press, 566 F.3d 164, 175 (5th Cir. 2009) (noting that purpose of Anti-SLAPP special motions is “distinct from [the purpose] of the underlying suit”). As the Supreme Court has recognized, “although sometimes practically intertwined with the merits, a claim of immunity nonetheless raises a question that is significantly different from the questions underlying plaintiff’s claim on the merits (i.e., in the absence of qualified immunity).” Johnson v. United States, 515 U.S. 304, 314 (1995). As is the case with qualified immunity, the issue that the court must resolve in deciding a special motion to dismiss under the Anti-SLAPP Act is whether the defendant is entitled to immunity from trial, a question of law that involves the evaluation of the complained-of conduct against established legal standards. Cf. Behrens v. Pelletier, 516 U.S. 299, 313 (1996) (holding that court’s denial of qualified immunity separate and immediately appealable because it “necessarily determined that certain conduct attributed to [defendant] (which was controverted) constituted a violation of clearly established law”).18 Consequently, even though a court’s determination involves consideration of evidence produced in support of the merits, in view of the purpose of the D.C. Anti-SLAPP Act to provide immunity from suit, a court’s denial of a special motion to dismiss resolves an issue of law at the threshold of litigation — whether the defendant is entitled to immunity from trial — that is sufficiently separate from the ultimate question on the merits of the case decided at trial — whether the defendant is liable. See Henry, 566 F.3d at 175 (noting that Anti-SLAPP motion is “separate from the merits of the claim itself” because its purpose is to determine ‘“whether the defendant is being forced to defend a meritless claim,’ not to determine whether the defendant actually committed the relevant tort” (quoting Batzel, 333 F.3d at 1025)).19
1 Defendant Steyn did not appeal the trial court’s denial of his motions to dismiss the complaint.
2 Because we hold that the showing required to defeat an Anti-SLAPP special motion to dismiss is more demanding than is required to overcome a Rule 12 (b)(6) motion to dismiss, Dr. Mann’s successful response to appellants’ Anti-SLAPP special motions to dismiss necessarily also defeats appellants’ Rule 12 (b)(6) motions to dismiss.
3 According to the CV currently on Penn State’s website, Dr. Mann’s title is Distinguished Professor of Atmospheric Science. Michael E. Mann, Curriculum Vitae at 2, PENNSYLVANIA STATE UNIVERSITY DEPARTMENT OF METEOROLOGY, http://www.meteo.psu.edu/holocene/publi ... out/cv.php (last visited Aug. 31, 2016).
4 The co-authors were Raymond S. Bradley and Malcolm K. Hughes. Dr. Raymond S. Bradley is the Principal Investigator, Distinguished Professor of Geosciences, and Director of Climate Systems Research Center at the Northeast Climate Science Center at the University of Massachusetts. He received a B.S. degree from the University of Southampton, United Kingdom, and M.S. and Ph.D. degrees from the University of Colorado at Boulder. Raymond Bradley, NE. CLIMATE SCI. CTR., https://necsc.umass.edu/people/raymond-bradley (last visited Aug. 31, 2016). Dr. Malcolm Hughes is Regents’ Professor of Dendrochronology with the Laboratory of Tree-Ring Research at the University of Arizona. He received B.S. and Ph.D. degrees from Durham University, United Kingdom. Malcolm Hughes, UNIV. OF ARIZ. SCI. LAB. OF TREE-RING RESEARCH, http://ltrr.arizona.edu/people/hughes (last visited Aug. 31, 2016).
5 The hockey stick graph appears as follows:
Intergovernmental Panel on Climate Change, Climate Change 2001—IPCC Third Assessment Report (2001), http://www.ipcc.ch/ipccreports/tar/slides/05.16.htm.
6 The IPCC is an international scientific body created under the auspices of the United Nations Environment Program and the World Meteorological Organization. IPCC Factsheet: What is the IPCC? 1 (2013), http://www.ipcc.ch/news_and_events/docs ... t_ipcc.pdf (last visited Aug. 3, 2016). The IPCC was awarded the 2007 Nobel Peace Prize for its work on climate change, jointly with Al Gore. Dr. Mann was a lead author of the IPCC’s 2001 Third Assessment Report.
7 Professor of Economics, University of Guelph, Ontario.
8 Professor of Statistics, George Mason University, Virginia.
9 The investigations considered the Climategate emails. For example, one of the most cited emails, from the director of the CRU to Dr. Mann and two other climate scientists, stated, “I’ve just completed [Dr. Mann’s] Nature trick of adding in the real temps to each series for the last 20 years (i.e., from 1981 onwards) and from 1961 for Keith’s to hide the decline.” The University of East Anglia investigation concluded that the reference to the “trick” used in Dr. Mann’s paper for the science journal Nature was a colloquialism used by the scientists to describe a specific and legitimate statistical technique used to interpret the data and to exclude certain non-relevant data. Philip Jones, the head of the UEA Climate Research Unit and author of the email, explained that “trick” did not refer to a deception, but rather to “the ‘best way of doing or dealing with something,’” namely, the exclusion of proxy temperature data for a period in which thermometer readings were available (i.e., “the decline”). The UEA investigation concluded that the emails used “slang, jargon, and acronyms,” and were “extreme modes of expression” but “no[t] indicative of actual behavior that is extreme, exceptional or unprofessional.”
10 Former FBI Director Louis Freeh conducted a review which severely criticized Penn State’s investigation of sexual abuse complaints made against Penn State football coach Jerry Sandusky.
11 CEI subsequently deleted from its website the comment comparing Dr. Mann to Jerry Sandusky, characterizing it as “inappropriate.” Rand Simberg, The Other Scandal in Unhappy Valley, COMPETITIVE ENTER. INST. (July 13, 2012), https://cei.org/blog/other-scandal-unhappy-valley.
12 Mr. Steyn also urged the court to act expeditiously as Dr. Mann’s claims against Mr. Steyn, and Mr. Steyn’s counterclaim, have been put on hold in the trial court pending resolution of this appeal.
13 The nonmoving party could also be the defendant in the original action, who has filed a counterclaim, and is responding to a special motion to dismiss filed by the counterclaim defendant. For the sake of clarity, we refer to the nonmoving party and plaintiff interchangeably.
14 The grant of a special motion to dismiss, on the other hand, is appealable as a final order. See D.C. Code § 11-721 (a)(1).
15 Burke I held that denial of a special motion to quash a subpoena to discover the identity of unidentified defendant(s) filed under the Anti-SLAPP Act is appealable on an interlocutory basis, 91 A.3d at 1036-40; it reserved the “related but separate question” of the appealability of an order denying a special motion to dismiss filed under the Act. Id. at 1036 n.6.
16 In Burke I, the special motion to quash was denied after the trial court determined that the movant failed to make a prima facie case that the lawsuit arose out of protected acts and that the plaintiff was likely to succeed on the merits. 91 A.3d at 1035. This court reversed on both counts. Id. at 1045.
17 Burke I also explained that denial of a special motion to quash on the ground that the defendant was not entitled to protection under the Act is separable because whether “speech qualifies for protection under the statute is a separate question from whether [appellants] may be held liable for defamation.” Burke I, 91 A.3d at 1038. As discussed supra, appellants’ speech in this case was deemed to be covered by the Act.
18 See id. (contrasting Johnson, where what was “at issue in the sufficiency determination was nothing more than whether the evidence could support a finding that certain conduct occurred”).
19 But see Ernst v. Carrigan, 814 F.3d 116, 119-22 (2d Cir. 2016) (holding that even if Vermont Anti-SLAPP statute provides immunity from trial, consideration of special motion to dismiss takes into account fact-based determinations and is thus not “completely separate from the merits”).