SCOTUS seeking Guidance from Jurors

There comes a time when even the Supreme Court of the United States (SCOTUS) sees the need to admit that it cannot operate solely in the abstract world of printed material written centuries ago, known as the Constitution, but that it needs the guidance of a contemporary jury to orient it as to the proper direction it must take, going forward, on hotly contested contemporary issues.

One such case has been percolating through the courts for half a decade already, and instead of pronouncing itself on the matter, thus put a closure to it here and now, SCOTUS punted, in the words of Rich Lowry, who is spokesman for National Review, the defendant in this case. You can see a summary of what the case is about in some detail, when you go over the article that came under the title: “Supreme Court proves hostile climate for free speech case,” written by Quin Hillyer, and published on November 25, 2019 in The Washington Examiner.

Put simply, this is a case in which Mark Steyn, a contributor to National Review, has maligned Michael Mann, calling him “the man behind the fraudulent climate-change 'hockey-stick' graph.” The dispute centers on the word “fraudulent” as used in this context. Well, to commit a fraud is a crime that even a journalist cannot attribute to someone without having the evidence that can stand in a court of law.

However, to characterize someone's act as being an intellectual fraud, is to express an opinion that a journalist can make without breaking the law. Well, Michael Mann says he was accused of a crime he did not commit therefore Steyn and National Review damaged his reputation, and they owe him restitution. On the other hand, Rich Lowry says that despite the way in which Mark Steyn expressed himself, his intent was not to accuse Michael Mann of committing a fraud, but that his work amounted to an intellectual fraud.

And so, National Review wanted the Supreme Court to rule in favor of unrestricted free speech, thus end the matter here and now. Michael Mann, on the other hand, wants the case to go to a jury where the chances are good that he'll win big, given that we live in an era where climate change is on everyone's mind, including the jurors who will be selected to make a decision on the verdict.

Given that National Review vowed to fight to the end, we can see how the case will unfold going forward. It will most likely go back for trial in a court of first instance, and Michael Mann will most likely win. National Review will appeal, and no matter who wins in this Court, the loser will appeal to the Supreme Court. That's when the justices of the High Court will have the opinion of a jury and the decisions of the Appeal Court's judges to guide them on the best way to rule.

One of the Justices, Samuel Alito, is the only one that dissented from the current SCOTUS decision, which means that he has his mind already made up, and he is unlikely to change. He is obviously squarely in favor of free speech, no matter what is said or what the intent may be. And in his dissent, Justice Alito made two important points: One is that the defendant will needlessly incur enormous expenses going through the full judicial process. Two, this will have a chill effect on those who may have important things to say, but will be inhibited, fearing that they might be sued and dragged through the courts, an exercise that will cost them time and money they may not have.

Two important questions come to mind: How valid is the Samuel Alito argument? Is there a better way for journalists to do their work?

With regard to the high cost of going through the full judicial process, this is a very real problem for most individuals and small companies. But in this case, National Review has been around for a long time, and a big part of its finances is made of donations. In fact, its publishers started a drive to collect donations to fight the case in court, and they seem to be getting good responses. They'll still be around at the end of the process. As to the chill effect this will have on the people who might have something to say but will be afraid to say it, I have advice to give that worked for me so far.

There is no need to pick on someone by name and accuse them of a crime you cannot prove. If you feel that someone deserves to be called the worst of names, train yourself to say what you want without having to mention the person's name directly. If the person is a scoundrel of the kind that habitually slanders other people because they cannot or will not defend themselves, get in there, defend these people yourself, and then unload on the scoundrel and make him drink a good dose from the cup of his own evil. The audience will forgive you for being brutal with this kind of characters, and so will the jury if the scoundrels ever dream of taking you to court.