No. 18-____ IN THE Supreme Court of the United States NATIONAL REVIEW, INC., Petitioner, v. MICHAEL E. MANN, Respondent, On Petition for a Writ of Certiorari to the District of Columbia Court of Appeals PETITION FOR WRIT OF CERTIORARI MICHAEL A. CARVIN Counsel of Record YAAKOV M. ROTH ANTHONY J. DICK JONES DAY 51 Louisiana Ave., NW Washington, D.C. 20001-2113 (202) 879-3939
[email protected] Counsel for Petitioner QUESTIONS PRESENTED Under Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986), and Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), a plaintiff seeking to impose defamation liability for a statement on a matter of public concern must prove that the statement is false, and thus cannot sue unless the statement contains a “provably false” factual connotation. The questions presented in this case are: 1. Is the question whether a statement contains a “provably false” factual connotation a question of law for the court (as most federal circuit courts hold), or is that a question of fact for the jury when the statement is ambiguous (as many state high courts hold)? 2. Does the First Amendment permit defamation liability for expressing a subjective opinion about a matter of scientific or political controversy, such as characterizing a statistical model about climate change as “deceptive” and calling its creation a form of “scientific misconduct”? ii PARTIES TO THE PROCEEDING AND RULE 29.6 DISCLOSURE STATEMENT Appellants in the D.C. Court of Appeals proceeding below were National Review, Inc., Competitive Enterprise Institute, and Rand Simberg. Appellee in the proceeding below was Michael Mann.