SLAPPed Down

The voluntary dismissal of a defamation suit two days after a motions hearing does not create a bar to an award of attorneys fees under an anti-SLAPP provision, according to a decision of the District of Columbia Court of Appeals.

At the hearing, the trial judge expressed serious skepticism about Jacobson’s chances of success on the merits. In questioning Jacobson’s counsel, she said that “criticizing ideas is not defamation” and “[w]hether it offends you is not the standard.” The judge distinguished between assertions of inaccuracies and assertions of misconduct—the former being fodder for scientific disagreement and the latter potentially actionable as defamation. She noted that Clack’s article never claimed that Jacobson “falsified data, [] engaged in misconduct, [or] deliberately misled the public.” The judge seemed to agree with NAS and Clack that this was a paradigmatic scientific disagreement—not one to be hashed out and resolved in court. She suggested at one point that, if anything, it was Jacobson’s characterizations of Clack’s article, rather than vice versa, that might “be capable of defamatory interpretation.” She told the parties that she would issue a written decision “promptly” and adjourned.

Parties

Mark Jacobson is a professor at Stanford University. In 2015, he was the lead author on a paper published in The Proceedings of the National Academy of Sciences (“PNAS”), which concluded that the U.S. power grid could inexpensively move to “100% wind, water, and solar” energy sources by 2050 without the need for “natural gas, biofuels, nuclear power, or stationary batteries.” PNAS gave Jacobson and his research team one of its annual awards for making an “outstanding contribution” to the field of applied environmental sciences.

Christopher Clack co-authored an article in 2017, also published in PNAS, that was very critical of Jacobson’s methodologies and conclusions. Clack’s paper posited that Jacobson’s study “used invalid modeling tools, contained modeling errors, and made implausible and inadequately supported assumptions.” Clack and his co-authors provided detailed calculations and reasons for questioning Jacobson’s conclusions, which they said “are not supported by adequate and realistic analysis and do not provide a reliable guide to whether and at what cost such a transition might be achieved.” The article continued: “[T]he weight of the evidence suggests that a broad portfolio of energy options will help facilitate an affordable transition to a near-zero emission energy system.”

The court reviewed the history and language of the provision

The purposes of the Anti-SLAPP Act also counsel against Jacobson’s rigid reading of the fee-shifting provision. If Jacobson were correct that a voluntary dismissal nullifies any right to attorneys’ fees, then plaintiffs could inflict the harm the Anti-SLAPP Act was meant to combat—siphoning defendants’ money, time, and resources—without recompense. Before Jacobson voluntarily dismissed his suit, Clack and NAS’s defense teams had already expended significant resources in responding to Jacobson’s complaint, briefing their motions to dismiss, opposing Jacobson’s discovery requests, and attending hearings. Lawyers for Clack and NAS spent roughly one thousand hours working on the case. The trial court calculated their combined reasonable attorneys’ fees at around half-a-million dollars. A defendant on course to prevail on their special motion to dismiss should not be at the mercy of a plaintiff who might strategically voluntarily dismiss their suit to avoid paying an imminent fee award.

The nature of the controversy

What animates Jacobson’s $10 million defamation suit is nothing more than his indignation at an article critical of his work. Such criticism comes with the territory of academic debate. Jacobson is not without recourse, but his recourse lies not in this nation’s courts, but in the marketplace of ideas where NAS itself has afforded him the opportunity to combat Clack’s critiques, and Jacobson wisely availed himself of that opportunity. For all we know Jacobson has the better of the scientific debate, but that is not for us to say, nor would it be a happy development if this nation’s courts held themselves out as the final arbiters of such academic disputes via defamation suits. Thankfully the First Amendment precludes us from taking on that role.

Associate Judge Deahl authored the opinion. (Mike Frisch)