While public policy lawyers looked at the Supreme Court of the United States’ per curiam decision today in Thompson v. Hebdon, No. 19-122. 589 U.S. ___ , Nov. 25. 2019, (Grant, Vacate and Remand Ninth Circuit decision upholding Alaska’s low campaign contribution limits), another Free Speech case slipped by almost unnoticed. National Review, et al. v. Mann, No. 18-1451 & 18-1477, asked the Court to grant review of whether journalists and advocacy organizations can use “harsh language” to criticize those advocating differing opinions without being sued for defamation. The Court denied certiorari, but Justice Samuel Alito wrote a dissent from the denial explaining his view of the importance of the question for free speech.
Michael Mann is a scientist and professor at Penn State University who produced the “hockey stick” graph of global temperatures from the year 1050 until modern times, showing what was claimed to be a sharp rise in global temperatures over the last century. Blogs from National Review magazine and the Competitive Enterprise Institute criticized Mann, the hockey stick graph and a Penn State investigation into Mann’s research. Mann sued for defamation, and the defendants moved to dismiss the lawsuit under a District of Columbia “anti-SLAPP” statute, which requires dismissal of a defamation claim if it is based on “an act in furtherance of the right of advocacy on issues of public interest.” Both the D.C. Superior Court and Court of Appeals refused to dismiss the claim, so the defendants asked the U.S. Supreme Court for review. On Nov. 25, 2019, the Supreme Court denied certiorari.
Justice Alito wrote a dissent to the denial of review (scroll to the end of the Order List), including both the defamation issue itself, and the need for the Court to be vigilant in protecting speech. On the question of whether juries should be allowed to decide whether highly-technical and controversial questions are factually false, Alito noted that, particularly on “a political or social issue that arouses intense feelings, selecting an impartial jury presents special difficulties.” In addition, if the alleged defamation is nationally distributed, the plaintiffs can pick a forum where the jury pool is likely to be sympathetic.
But Alito also addressed the “even more important” question of “protection of robust and uninhibited debate on important political and social issues.”
To ensure that our democracy is preserved and is permitted to flourish, this Court must closely scrutinize any restrictions on the statements that can be made on
important public policy issues. Otherwise, such restrictions can easily be used to silence the expression of unpopular views. …
In recent years, the Court has made a point of vigilantly enforcing the Free Speech Clause even when the speech at issue made no great contribution to public debate. For example, last Term, in Iancu v. Brunetti, 588 U. S. ___ (2019), we upheld the right of a manufacturer of jeans to register the trademark “F-U-C-T.” Two years before, in Matal v. Tam, 582 U. S. ___ (2017), we held that a rock group called “The Slants” had the right to register its name.
In earlier cases, the Court went even further. In United States v. Alvarez, 567 U. S. 709 (2012), the Court held that the First Amendment protected a man’s false claim that he had won the Congressional Medal of Honor. In Snyder, the successful party had viciously denigrated a deceased soldier outside a church during his funeral. 562 U. S., at 448–449. In United States v. Stevens, 559 U. S. 460, 466 (2010), the First Amendment claimant had sold videos of dog fights.
If the speech in all these cases had been held to be unprotected, our Nation’s system of self-government would not have been seriously threatened. But as I noted in Brunetti, 588 U. S., at ___ (slip op., at 1) (concurring opinion), the protection of even speech as trivial as a naughty trademark for jeans can serve an important purpose: It can demonstrate that this Court is deadly serious about protecting freedom of speech. Our decisions protecting the speech at issue in that case and the others just noted can serve as a promise that we will be vigilant when the freedom of speech and the press are most seriously implicated, that is, in cases involving disfavored speech on important political or social issues.
This is just such a case. Climate change has staked a place at the very center of this Nation’s public discourse. Politicians, journalists, academics, and ordinary Americans discuss and debate various aspects of climate change daily—its causes, extent, urgency, consequences, and the appropriate policies for addressing it. The core purpose of the constitutional protection of freedom of expression is to ensure that all opinions on such issues have a chance to be heard and considered.
Justice Alito has spoken before on the importance of free speech. Last June, he wrote the decision in Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018), striking down mandatory union dues because they affect members’ speech rights, which had been fore-shadowed by his 2014 opinion for the Court in Harris v. Quinn: “Compelled funding of the speech of other private speakers or groups presents the same dangers as compelled speech.” Harris v. Quinn, 134 S.Ct. 2618, 2639 (2014).