COMPETITIVE ENTERPRISE INSTITUTE AND RAND SIMBERG v. MICHAEL E. MANN, NATIONAL REVIEW, INC. v. MICHAEL E. MANN, 150 A.3d 1213

Background

Michael E. Mann, a prominent climate scientist and limited public figure on global warming, sued CEI, Rand Simberg, National Review, Rich Lowry, and Mark Steyn for defamation and intentional infliction of emotional distress based on online articles/posts accusing him of data manipulation and misconduct (including a Sandusky comparison).
Defendants filed special motions to dismiss under D.C.’s Anti-SLAPP Act, arguing their statements were protected advocacy on matters of public interest; the motions stay discovery and shift the burden to the plaintiff to show the claim is "likely to succeed on the merits."
The trial court denied the Anti-SLAPP motions, concluding Mann made a prima facie showing and that discovery might disclose actual malice; defendants sought interlocutory appeals.
The D.C. Court of Appeals held it had jurisdiction under the collateral order doctrine to hear interlocutory appeals of denials of Anti-SLAPP special motions to dismiss.
On the merits the court held that the Anti-SLAPP "likely to succeed" standard requires the plaintiff to present evidence (not mere allegations) sufficient that a properly instructed jury could reasonably find for the plaintiff (respecting any heightened First Amendment standards such as actual malice by clear and convincing evidence).
Applying that legal-sufficiency standard, the court affirmed denial of dismissal for defamation claims based on Simberg’s and Steyn’s articles (evidence could support falsity, publication, and actual malice) but reversed dismissal denial as to Lowry’s editorial and reversed as to the intentional infliction of emotional distress claim (insufficient evidence of severe emotional distress).

Issues

Issue	Plaintiff's Argument (Mann)	Defendant's Argument (Appellants)	Held
1) Is denial of an Anti-SLAPP special motion to dismiss immediately appealable?	Denial implicates important First Amendment protections and should be reviewable now.	Denial is interlocutory and not final; appeals should await final judgment.	Denial is immediately appealable under the collateral-order doctrine (conclusivity, separability, effective unreviewability, substantial public interest).
2) What does "likely to succeed on the merits" mean under D.C. Anti-SLAPP Act §16-5502(b)?	It requires the plaintiff to produce evidence showing a reasonable chance of success; must allow jury role.	Defendants urged various lower/alternative standards (e.g., similar to preliminary injunction "likelihood" or only complaint-level sufficiency).	Plaintiff must proffer evidence (not just allegations) that would permit a properly instructed jury to reasonably find for plaintiff given applicable substantive and constitutional standards.
3) Were Simberg’s and Steyn’s statements actionable (false, defamatory, published, and made with requisite fault)?	Mann: statements implied provably false facts (data manipulation, misconduct), published, and defendants acted with actual malice — investigations refuting misconduct show defendants had reason to doubt truth.	Defendants: statements are opinion/rhetorical hyperbole about methodology and public debate; no actual malice; some argued immunity defenses (e.g., CDA) not preserved below.	Court: Simberg and Steyn pieces were capable of defamatory meaning and a jury could find falsity, publication, and actual malice (clear and convincing evidence) based on published investigatory reports and context; denial of Anti-SLAPP motions as to those articles affirmed.
4) Was Lowry’s editorial and the IIED claim legally sufficient?	Mann: Lowry’s piece endorsed and amplified the defamatory themes; the Sandusky comparison supports IIED.	Defendants: Lowry’s editorial is opinion/rhetorical hyperbole and CDA/other defenses; IIED requires extreme conduct and severe distress which Mann did not prove.	Court: Lowry’s editorial constituted protected opinion and was not actionable; Mann also failed to show the severe emotional distress needed for IIED — those claims must be dismissed with prejudice.

Key Cases Cited

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (recognizing the collateral-order doctrine for immediate appeals)
Mitchell v. Forsyth, 472 U.S. 511 (immunity doctrines can confer entitlement not to stand trial; analogy to Anti-SLAPP)
New York Times Co. v. Sullivan, 376 U.S. 254 (actual malice standard for defamation involving public officials/figures)
Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (judicial review to ensure First Amendment protections; narrow limits on unprotected categories)
Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657 (reckless disregard and proof of actual malice)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (standard for assessing evidence in motions — view evidence in light of substantive burden)
Behrens v. Pelletier, 516 U.S. 299 (denial of immunity claims may be immediately appealable)
McNair Builders, Inc. v. Taylor, 3 A.3d 1132 (D.C. analysis of collateral-order criteria)
Burke v. Doe (Burke I), 91 A.3d 1031 (D.C. Ct. App. — Anti‑SLAPP motion to quash appealability and statutory interpretation)
Burke v. Doe (Burke II), 133 A.3d 569 (D.C. Ct. App. — attorney’s fees under Anti‑SLAPP)
Nader v. de Toledano, 408 A.2d 31 (D.C. 1979) (jury could infer actual malice where official investigations undermined publisher’s asserted basis for defamatory charge)
Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328 (D.C. Cir. discussion of D.C. Anti‑SLAPP standard and differences from Rule 56)