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.”