Enduring incivility for the sake of free speech

By David B. Rivkin Jr. and Andrew M. Grossman — Sunday, April 19, 2015

First Amendment lawyers always get asked the same question: Is he really allowed to say that?

The “he,” inevitably, is some television pundit, newspaper columnist or blogger. And the “that” is a stream of invective. A pointed example is economist Paul Krugman’s characterization of Rep. Paul Ryan’s 2012 budget proposal: “The most fraudulent budget in American history. And when I say fraudulent, I mean just that.”

So if he meant “just that,” the question goes, isn’t that libel, and why isn’t Mr. Ryan suing him for damages?

And from time to time, we’ve heard the same question raised about one of our own cases, climate scientist Michael Mann’s lawsuit against detractors who harshly criticized his “hockey stick” research. We represent two of the defendants, the Competitive Enterprise Institute and its adjunct fellow, Rand Simberg. They called Mr. Mann’s work “intellectually bogus” and biased “data manipulation” done “in the service of politicized science.”

So is it libel? Some may respond with a smirk that truth is an absolute defense, but the answer is actually more basic: There’s nothing to be proven true or false.

Libel law is subject to the First Amendment. Its guarantee of freedom of speech wouldn’t be worth much if the government could authorize private citizens to sue one another over their views. At a minimum, a challenged statement must contain (in the Supreme Court’s formulation) a “provably false factual connotation.”

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Is Obama trying to pack the DC appeals court?

By David B. Rivkin and Andrew M. Grossman
 

The D.C. Circuit is the nation’s top regulatory court, responsible for scrutinizing many of the federal government’s most expensive and far-reaching actions. No wonder, then, that President Barack Obama is now trying to push three new judges onto the court and tilt it decisively in his favor. A great deal is at stake here for the U.S. economy, and it is high time for the Senate to have its say.

For a president with an aggressive second-term regulatory agenda, the D.C. Circuit may be a greater impediment than the Supreme Court. By statute, the court hears all challenges to nationwide rules under the Clean Air Act, as well as many major challenges to regulations affecting water, labor relations, securities law, and other fields. It vets agencies’ compliance with constitutional requirements. More than a third of cases in the D.C. Circuit are administrative appeals, compared to 16 percent in other appeals courts. And because the Supreme Court takes so few cases each year, the D.C. Circuit’s word is typically the last when it comes to regulatory challenges.

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The rush to a bad gun-control law

By David B. Rivkin Jr. and Andrew M. Grossman

Those who support stricter gun control fear that the passage of time since the Dec. 14 shootings at Sandy Hook Elementary School will result in further watering-down of measures. They should not, however, discount the risk that attempts to shave a few weeks or months off the usual legislative process will result in bad laws, with unintended and lasting consequences.

While pro-gun forces may overstate the case against expanded background checks — they are not, for example, a prelude to disarming the citizenry — President Obama and his allies have understated the difficult legal questions posed by extending the background-check system to cover more sales and transfers.

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