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Competitive Enterprise Institute v. Mann

Court of Appeals of Columbia District

December 22, 2016

Competitive Enterprise Institute and Rand Simberg, Appellants,
v.
Michael E. Mann, Appellee, National Review, Inc., Appellant,
v.
Michael E. Mann, Appellee.

          Argued November 25, 2014

         Appeals from the Superior Court of the District of Columbia (CAB-8263-12) (Hon. Natalia M. Combs Greene, Trial Judge) (Hon. Frederick H. Weisberg, Trial Judge)

          Andrew M. Grossman, with whom David B. Rivkin, Jr., and Mark I. Bailen were on the brief, for appellants Competitive Enterprise Institute and Rand Simberg.

          Michael A. Carvin, with whom David M. Morrell and Anthony J. Dick were on the brief, for appellant National Review, Inc.

          John B. Williams, with whom Peter J. Fontaine and Catherine Rosato Reilly were on the brief, for appellee Michael E. Mann.

          Ariel B. Levinson-Waldman, Senior Counsel to the Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia at the time the brief was filed, and Todd S. Kim, Solicitor General, were on the brief, for amicus curiae the District of Columbia, in support of the court's appellate jurisdiction to review interlocutory order.

          Michael J. Songer and Daniel J. Kornstein were on the brief for amicus curiae Mark Steyn, in support of the court's appellate jurisdiction to review interlocutory order.

          Ilya Shapiro, Nicholas C. Dranias, Bradley A. Benbrook, and Stephen M. Duvernay were on the briefs, in support of appellants, for amici curiae The Cato Institute, Reason Foundation, Individual Rights Foundation, and Goldwater Institute.

          Gregg P. Leslie, Cynthia A. Gierhart, Seth D. Berlin, Shaina Jones Ward, and Mara J. Gassmann were on the brief, in support of appellants, for amici curiae The Reporters Committee for Freedom of the Press; The American Civil Liberties Union of the Nation's Capital; American Society of News Editors; Association of Alternative Newsmedia; The Association of American Publishers, Inc.; Bloomberg L.P.; The Center for Investigative Reporting; First Amendment Coalition; First Look Media, Inc.; Fox News Network, LLC; Gannett Co., Inc.; The Investigative Reporting Workshop; The National Press Club; National Press Photographers Association; NBCUniversal Media, LLC; Newspaper Association of America; North Jersey Media Group, Inc.; Online News Association; Radio Television Digital News Association; The Seattle Times Company; Society of Professional Journalists; Stephens Media LLC; Time Inc.; Tribune Publishing; The Tully Center for Free Speech; D.C. Communications, Inc., d/b/a Washington City Paper; and WP Company LLC d/b/a The Washington Post.

          David A. Cortman, Kevin H. Theriot, Christopher Byrnes, and Kurt Van Sciver were on the brief, in support of appellants, for amicus curiae Alliance Defending Freedom.

          Phillip C. Chang, Jonathan E. Buchan, E. Duncan Getchell, and Amy Miller were on the brief, in support of appellants, for amici curiae Newsmax Media, Inc.; Free Beacon, LLC; The Foundation for Cultural Review; The Daily Caller, LLC; PJ Media, LLC; and The Electronic Frontier Foundation.

          Before Beckwith and Easterly, Associate Judges, and Ruiz, Senior Judge.

         JUDGMENT

         This case came to be heard on the transcript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the trial court's denial of the special motions to dismiss the defamation claims is affirmed, and the matter is remanded for additional proceedings in the trial court with respect to these claims. The trial court's denial of the special motions to dismiss with respect to Appellee's claims for defamation and intentional infliction of emotional distress are reversed; on remand, the court shall dismiss these claims with prejudice.

          Ruiz, Senior Judge

         These appeals present us with legal issues of first impression concerning the special motion to dismiss created by the District of Columbia's Anti-Strategic Lawsuits Against Public Participation (Anti-SLAPP) Act, D.C. Code §§ 16-5501 to -5505 (2012 Repl.): whether denial of a special motion to dismiss is immediately appealable and the standard applicable in considering the merits of an Anti-SLAPP special motion to dismiss.

         Appellee Michael E. Mann is a well-known climate scientist whose research in studying the "paleoclimate, " or ancient climate, has featured prominently in the politically charged debate about climate change. Dr. Mann filed an action for defamation and intentional infliction of emotional distress against Competitive Enterprise Institute (CEI), Rand Simberg, National Review, Inc. (National Review), and Mark Steyn based on articles written by Mr. Simberg, Mr. Steyn, and National Review's editor Rich Lowry that appeared on the websites of CEI and National Review. Dr. Mann's complaint claimed that the articles which criticized Dr. Mann's conclusions about global warming and accused him of deception and academic and scientific misconduct contained false statements that injured his reputation and standing in the scientific and academic communities of which he is a part.

         Defendants argued that Dr. Mann's lawsuit infringes on their First Amendment right of free speech and moved for dismissal under the Anti-SLAPP Act and, alternatively, under Superior Court Rule 12 (b)(6). The trial court ruled that Dr. Mann's claims were "likely to succeed on the merits" - the standard established in the Anti-SLAPP Act to defeat a motion to dismiss - and denied appellants' motions to dismiss and their subsequent motions to reconsider. Appellants - CEI, National Review and Mr. Simberg - sought interlocutory review in this court of the trial court's denial of their motions to dismiss.[1]

         As a preliminary matter, we hold that we have jurisdiction under the collateral order doctrine to hear appellants' interlocutory appeals of the trial court's denial of their special motions to dismiss filed under the Anti-SLAPP Act. We further hold that the Anti-SLAPP Act's "likely to succeed" standard for overcoming a properly filed special motion to dismiss requires that the plaintiff present evidence - not simply allegations - and that the evidence must be legally sufficient to permit a jury properly instructed on the applicable constitutional standards to reasonably find in the plaintiff's favor. Having conducted an independent review of the evidence to ensure that it surmounts the constitutionally required threshold, we conclude that Dr. Mann has presented evidence sufficient to defeat the special motions to dismiss as to some of his claims.[2] Accordingly, we affirm in part, reverse in part, and remand the case to the trial court for further proceedings.

         I. Statement of the Case

         A. Factual Background

         The facts presented in the complaint and subsequent pleadings filed with the court are as follows. Dr. Mann is a graduate of the University of California at Berkeley (B.S. Physics and Applied Math) and Yale University (M.S. Physics; Ph.D. Geology and Geophysics), and has held faculty positions at the University of Massachusetts's Department of Geosciences and the University of Virginia's Department of Environmental Sciences. He is a Distinguished Professor of Meteorology and the Director of the Earth System Science Center at Pennsylvania State University (Penn State).[3] Dr. Mann is considered an authority on climate change science, and has been recognized with honors and awards for his work identifying global warming and its cause.

         In 1998 and 1999, Dr. Mann and two colleagues[4] co-authored two scientific papers, the first of which was published in the international scientific journal Nature and the second of which was published in Geophysical Research Letters, that reported the results from a statistical study of the Earth's temperatures over several centuries. Their 1998 study used a technique to reconstruct temperatures from time periods before the widespread use of thermometers in the 1960s by using "proxy indicators" (described by Dr. Mann as "growth rings of ancient trees and corals, sediment cores from ocean and lake bottoms, ice cores from glaciers, and cave sediment cores"). The data showed that global mean annual temperatures have been rising since the early twentieth century, with a marked increase in the last fifty years. The papers concluded that this rise in temperature was "likely unprecedented in at least the past millennium" and correlated with higher concentrations of carbon dioxide in the atmosphere emitted by the combustion of fossil fuels.

         The 1999 paper included a graph depicting global temperatures in the Northern Hemisphere for a millennium, from approximately 1050 through 2000. The graphical pattern is roughly horizontal for 90% of the temperature axis - reflecting a slight, long-term cooling period between 1050 and 1900 - followed by a sharp increase in temperature in the twentieth century. Because of its shape resembling the long shaft and shorter diagonal blade of a hockey stick, this graph became known as the "hockey stick."[5] The hockey stick graph became the foundation for the conclusion that the sharp increase in temperature starting in the twentieth century was anthropogenic, or caused by concentrations of CO2 in the atmosphere generated by human activity initiated by the industrial age. The hockey stick graph also became a rallying point, and a target, in the subsequent debate over the existence and cause of global warming and what, if anything, should be done about it.

         In 2001, the Intergovernmental Panel on Climate Change (IPCC), [6] in its Third Assessment Report, summarized the study and data that led to the hockey stick graph and featured several of the studies that replicated its data. In 2003 and 2005, mining consultant Stephen McIntyre and Professor Ross McKitrick[7]published articles claiming to demonstrate that the hockey stick graph was the result of bad data and flawed statistical analysis. That same year, in a study commissioned by two U.S. Congressmen, Professor Edward Wegman[8] concluded that Dr. Mann's statistical methodology was flawed. That same year, the National Research Council of the National Academies of Science, in a study commissioned by the U.S. House of Representatives, raised questions about the reliability of temperature reconstructions prior to 1600, but agreed substantively with the conclusions represented by the hockey stick graph. Follow-up, peer-reviewed studies published in the literature have independently validated conclusions illustrated by the hockey stick graph.

         In November 2009, thousands of emails from the Climate Research Unit (CRU) of the University of East Anglia in the United Kingdom - some between Dr. Mann and CRU climate scientists - were somehow obtained and anonymously published on the Internet, shortly before the U.N. Global Climate Change Conference was to begin in Copenhagen in December 2009. In a controversy dubbed "Climategate, " some of these emails were cited as proof that climate scientists, including Dr. Mann, falsified or manipulated their data, in collusion with government officials, to produce the hockey stick result. The emails led to public questioning of the validity of the research leading to the hockey stick graph and to calls for evaluation of the soundness of its statistical analysis and the conduct of the scientists involved in the research, including, specifically, Dr. Mann.

         Following disclosure of the emails and the questions raised, Penn State, the University of East Anglia, and five governmental agencies - the U.K. House of Commons Science and Technology Committee, the U.K. Secretary of State for Energy and Climate Change, the Inspector General of the U.S. Department of Commerce, the U.S. Environmental Protection Agency, and the U.S. National Science Foundation - issued reports after conducting inquiries into the validity of the methodology and research underlying the hockey stick graph and investigating the allegations impugning the integrity of Dr. Mann's and other climate scientists' conduct. The inquiries that considered the science largely validated the methodology underlying the hockey stick graph. None of the investigations found any evidence of fraud, falsification, manipulation, or misconduct on the part of Dr. Mann.[9] These reports were published in 2010 and 2011.

         On July 13, 2012, Mr. Simberg authored an article entitled "The Other Scandal in Unhappy Valley, " which was published on OpenMarket.org, an online blog of CEI. Comparing "Climategate" with the then-front-page news of the Penn State sexual abuse scandal involving Jerry Sandusky that had been revealed in the Freeh Report, [10] Mr. Simberg wrote:

So it turns out that Penn State has covered up wrongdoing by one of its employees to avoid bad publicity.
But I'm not talking about the appalling behavior uncovered this week by the Freeh report. No, I'm referring to another cover up and whitewash that occurred there two years ago, before we learned how rotten and corrupt the culture at the university was. But now that we know how bad it was, perhaps it's time that we revisit the Michael Mann affair, particularly given how much we've also learned about his and others' hockey-stick deceptions since. Mann could be said to be the Jerry Sandusky of climate science, except for instead of molesting children, he has molested and tortured data in service of politicized science that could have dire consequences for the nation and planet. . . .[11]
[M]any . . . luminaries of the "climate science" community were shown to have been behaving in a most unscientific manner. Among them were Michael Mann, Professor of Meteorology at Penn State, whom the emails revealed had been engaging in data manipulation to keep the blade on his famous hockey-stick graph, which had become an icon for those determined to reduce human carbon emissions by any means necessary. . . .
Mann has become the posterboy of the corrupt and disgraced climate science echo chamber. No university whitewash investigation will change that simple reality. . . .
Michael Mann, like Joe Paterno, was a rock star in the context of Penn State University, bringing in millions in research funding. The same university president who resigned in the wake of the Sandusky scandal was also the president when Mann was being whitewashed investigated. We saw what the university administration was willing to do to cover up heinous crimes, and even let them continue, rather than expose them. Should we suppose, in light of what we now know, they would do any less to hide academic and scientific misconduct, with so much at stake?
It's time for a fresh, truly independent investigation.

(strike-through in original).

         On July 15, 2012, Mr. Steyn authored an article titled "Football and Hockey, " which appeared on National Review's online blog "The Corner." In his article, Mr. Steyn quoted from Mr. Simberg's July 13 article:

I'm referring to another cover up and whitewash that occurred [at Penn State] two years ago, before we learned how rotten and corrupt the culture at the university was. But now that we know how bad it was, perhaps it's time that we revisit the Michael Mann affair, particularly given how much we've also learned about his and others' hockey-stick deceptions since. Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in service of politicized science that could have dire consequences for the nation and planet.

         Mr. Steyn then added:

Not sure I'd have extended that metaphor all the way into the locker-room showers with quite the zeal Mr. Simberg does, but he has a point. Michael Mann was the man behind the fraudulent climate-change "hockey-stick" graph, the very ringmaster of the tree-ring circus. And, when the East Anglia emails came out, Penn State felt obliged to "investigate" Professor Mann. Graham Spanier, the Penn State president forced to resign over Sandusky, was the same [one] who investigated Mann. And, as with Sandusky and Paterno, the college declined to find one of its star names guilty of any wrongdoing.
If an institution is prepared to cover up systematic statutory rape of minors, what won't it cover up? Whether or not he's "the Jerry Sandusky of climate change", [sic] he remains the Michael Mann of climate change, in part because his "investigation" by a deeply corrupt administration was a joke.

         Dr. Mann's counsel wrote to appellants requesting an apology and retraction of the statements, and threatening litigation if the articles were not removed from their respective websites. The letter stated that the allegations of data manipulation and misconduct were false, and pointed to the investigations that had concluded Dr. Mann had not engaged in wrongdoing or manipulated data in a deceptive manner. No apology was forthcoming, nor were the posted statements withdrawn. Instead, on August 22, 2012, Mr. Lowry wrote an editorial on National Review's website titled "Get Lost" that referred to "Michael Mann of Climategate infamy, " characterized his threatened litigation as "a nuisance lawsuit, " and included a link to National Review's lawyer's response rejecting Dr. Mann's counsel's request for a retraction. Mr. Lowry explained that "[i]n common polemical usage, 'fraudulent' doesn't mean honest-to-goodness criminal fraud. It means intellectually bogus and wrong." The editorial concluded: "[Dr. Mann is] going to go to great trouble and expense to embark on a losing cause that will expose more of his methods and maneuverings to the world. In short, he risks making an ass of himself. But that hasn't stopped him before." The underlying lawsuit followed.

         B. Trial Court Proceedings

         Dr. Mann filed his initial complaint on October 22, 2012, alleging libel and intentional infliction of emotional distress based on appellants' statements accusing him of improperly manipulating data to reach a preordained conclusion, deception, fraud, and misconduct. Appellants filed special motions to dismiss the complaint pursuant to the D.C. Anti-SLAPP Act and motions to dismiss for failure to state a claim under Superior Court Rule 12 (b)(6). Dr. Mann opposed the motions. On

          July 19, 2013, Judge Natalia Combs Greene denied the motions. She determined that the subject of appellants' challenged statements brought them within the ambit of the Anti-SLAPP Act, but that Dr. Mann had made the required showing under the Act to defeat the special motions to dismiss. First, the trial court interpreted the "likely to succeed" standard in the Act as substantively similar to the standard for prevailing on a motion for summary judgment or motion for judgment as a matter of law. Second, the trial court concluded that Dr. Mann met this burden by making a prima facie showing that appellants' statements were defamatory and not sheltered by the fair comment privilege, and by providing sufficient evidence for the court to find that "discovery may uncover" that appellants acted with actual malice. Third, the trial court determined that Dr. Mann also made the requisite showing of malicious and outrageous conduct to support his claim of intentional infliction of emotional distress. Finally, the trial court determined that the complaint stated a claim, and thus survived a Rule 12 (b) (6) evaluation.

         Appellants asked the trial court to vacate the denials of their motions to dismiss and, after the trial court denied this request, appellants moved for certification of the trial court's orders for interlocutory appeal. The trial court denied the motions for certification. Appellants then appealed to this court, which issued an order to show cause as to why the appeals should not be dismissed for lack of jurisdiction as having been taken from non-appealable orders. On December 19, 2013, these appeals were dismissed as moot because Dr. Mann filed an amended complaint on June 28, 2013.

         The amended complaint is substantially the same as the original complaint, with the addition of one count of libel based on the comment comparing Dr. Mann to Jerry Sandusky, which, in the original complaint, supported only the intentional infliction of emotional distress claim. Appellants renewed their motions to dismiss, and Dr. Mann opposed them. On January 22, 2014, Judge Frederick Weisberg denied the motions, reasoning that Judge Combs Greene's order denying the original motions to dismiss was the law of the case, and adding an analysis of the new defamation count. Appellants again filed motions seeking vacatur of the denial of their motions to dismiss and certification for interlocutory appeal, which were, again, denied by the trial court.

         Appellants filed notices of appeal to this court, and Dr. Mann moved to dismiss the appeals on the ground that they seek review of non-final orders that are not immediately appealable, or, in the alternative, to expedite the appeal. The court ordered appellants to show cause as to why the court has jurisdiction to hear these interlocutory appeals. Appellants filed a response, as did Dr. Mann. The court ultimately reserved the jurisdiction question, expedited the appeal, and ordered the parties to file briefs addressing the court's jurisdiction as well as the merits. The District of Columbia and non-appealing defendant Mr. Steyn filed a brief as amicus curiae in favor of the court's jurisdiction to hear the interlocutory order on appeal.[12] Several organizations filed briefs as amici curiae in support of appellants. We now address all issues.

         II. SLAPP Actions and the D.C. Anti-SLAPP Act

         A "SLAPP" (strategic lawsuit against public participation) is an action "filed by one side of a political or public policy debate aimed to punish or prevent the expression of opposing points of view." Council of the District of Columbia, Report of Committee on Public Safety and the Judiciary on Bill 18-893, at 1 (Nov. 18, 2010) (hereinafter Report on Bill 18-893). Thus, the goal of a SLAPP "is not to win the lawsuit but to punish the opponent and intimidate them into silence." Id. at 4 (citing George W. Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L. Rev. 3, 3, 9-11 (1989)). Enacted in 2012, the D.C. Anti-SLAPP Act was designed to protect targets of such meritless lawsuits by creating "substantive rights with regard to a defendant's ability to fend off" a SLAPP. Report on Bill 18-893, at 1. The rights created by the Act comprise a special motion to dismiss a complaint, D.C. Code § 16-5502, and a special motion to quash discovery orders, requests for information, or subpoenas for personal identifying information in suspected SLAPPs, D.C. Code § 16-5503. This court has interpreted and applied the Anti-SLAPP Act with respect to the provisions concerning the special motion to quash a subpoena, see Doe v. Burke (Burke I), 91 A.3d 1031 (D.C. 2014), and the award of attorney's fees in connection with such a motion, see Doe v. Burke (Burke II), 133 A.3d 569 (D.C. 2016). This is the first case presented on appeal that raises the proper interpretation and application of the Act's special motion to dismiss.

         Under the District's Anti-SLAPP Act, the party filing a special motion to dismiss must first show entitlement to the protections of the Act by "mak[ing] a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest." D.C. Code § 16-5502 (b). Once that prima facie showing is made, the burden shifts to the nonmoving party, usually the plaintiff, [13] who must "demonstrate[] that the claim is likely to succeed on the merits." Id. If the plaintiff cannot meet that burden, the motion to dismiss must be granted, and the litigation is brought to a speedy end. Id. In this case, the parties agree that appellants made the requisite prima facie showing that the Act applies because the lawsuit is based on articles that appeared on CEI's and National Review's websites that concern the debate over the existence and causes of global warming. See D.C. Code § 16-5501 (1) (defining "[a]ct in furtherance of the right of advocacy on issues of public interest" to include "[a]ny written or oral statement made . . . [i]n a place open to the public or a public forum in connection with an issue of public interest . . . ."); D.C. Code § 16-5501 (3) ("'Issue of public interest' means an issue related to health or safety; environmental, economic, or community well-being; the District government; a public figure; or a good, product, or service in the market place."). What is contested in this appeal is whether Dr. Mann met his burden of demonstrating that he is "likely to succeed on the merits" of his claims for defamation and intentional infliction of emotional distress. If he has, appellants' special motions to dismiss were properly denied, and the litigation continues. If he has not, the motions should have been granted, and the litigation would be terminated. But we must decide first whether this court has jurisdiction to decide that question at this stage of the litigation.

          III. Jurisdiction

         Denial of a special motion to dismiss filed under the Anti-SLAPP Act does not end the litigation and is not a final order. To the contrary, it signals that the litigation will continue.[14] Nor is it one of the types of interlocutory orders specified by statute over which this court has jurisdiction. See D.C. Code § 11-721 (a)(2)-(3) (2012 Repl.). The denial of a motion to dismiss filed under Rule 12 (b)(6) is not usually immediately appealable. See McNair Builders, Inc. v. Taylor, 3 A.3d 1132, 1135 (D.C. 2010). Thus, we must decide, in the first instance, whether the denial of a special motion to dismiss filed pursuant to D.C. Code § 16-5502 belongs to that "small class" of non-final orders that may be appealed under the collateral order doctrine established by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., because it is "too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." 337 U.S. 541, 546 (1949).

         The test for application of the collateral order doctrine is "stringent." McNair Builders, 3 A.3d at 1136 (quoting Will v. Hallock, 546 U.S. 345, 349-50 (2006)). For an order to qualify for interlocutory review under the doctrine, "(1) it must conclusively determine a disputed question of law, (2) it must resolve an important issue that is separate from the merits of the case, and (3) it must be effectively unreviewable on appeal from a final judgment." Id. at 1135-36 (quoting, and overruling on other grounds, Finkelstein, Thompson & Loughran v. Hemispherx Biopharma, Inc., 774 A.2d 332, 339-40 (D.C. 2001)). "Effective" unreviewability encompasses the notion that the matter at stake concerns an issue of "substantial public interest." Id. at 1137. We conclude that these criteria are met where a special motion to dismiss filed under the Anti-SLAPP Act is denied as they are in the case of denial of a special motion to quash filed under the Act. See Burke I, 91 A.3d at 1038 ("[The] determination that an order is appealable under [these criteria] is 'not directed at the individual case, but to the entire category to which a claim belongs.'") (quoting McNair Builders, 3 A.3d at 1140 n.9)).[15]

         A. Conclusivity

         First, a trial court's order denying a special motion to dismiss under the Anti-SLAPP Act "conclusively determine[s] a disputed question of law, " McNair Builders, 3 A.3d at 1135: whether the movant is entitled to dismissal under the Act. In analyzing whether the denial of a special motion to quash under the Act is immediately appealable, the Burke I court concluded that the "conclusivity element" of the collateral order doctrine is "satisfied when a trial court has determined the movant is ineligible for protection under the [Anti-SLAPP] statute." 91 A.3d at 1038 (quoting Godin v. Schencks, 629 F.3d 79, 84 (1st Cir. 2010)).[16] Here, appellants have received some measure of protection under the Act by having their motions to dismiss evaluated under the special provisions of the Act created to deter SLAPPs. The application of the Act does not mean, however, that there is no "disputed question of law" for purposes of the collateral order doctrine. There remains the specific disputed legal question of whether the movant is entitled to the Act's ultimate protection: mandatory dismissal of the lawsuit at an early point in the litigation. That is an issue a trial court conclusively determines when it rules on a special motion to dismiss. Therefore, denial of a special motion to dismiss satisfies the "conclusivity element" of the collateral order doctrine.

         B. Separability

         Second, a trial court's order denying a special motion to dismiss "resolve[s] an important issue that is separate from the merits of the case." McNair Builders, 3 A.3d at 1135. The issue in the case of a special motion to dismiss, once the threshold prima facie case has been met by the movant, is whether the movant has a statutory right to be free of the burdens of defending the litigation. Resolution of both issues - whether the claim arises from acts protected by the Act and whether the movant is entitled to dismissal - will involve some of the same facts relevant to the merits of the claim. That commonality, however, does not necessarily preclude interlocutory review of the denial of an Anti-SLAPP special motion to dismiss.

         An analogy to qualified immunity is apt. "[I]t follows from the recognition that qualified immunity is in part an entitlement not to be forced to litigate the consequences of official conduct that a claim of immunity is conceptually distinct from the merits of the plaintiff's claim that his rights have been violated." Mitchell v. Forsyth, 472 U.S. 511, 527-28 (1985). The special motion to dismiss created by the Anti-SLAPP Act "explicitly protects the right not to stand trial" in a SLAPP, which is intended as a "weapon to chill or silence speech." Burke I, 91 A.3d at 1033, 1039; see Report on Bill 18-893, at 4 (referring to "other jurisdictions, which have similarly extended absolute or qualified immunity for individuals engaging in protected actions"). This statutory right is analogous to qualified immunity for official conduct in that its application depends on the court's resolution of whether the acts complained of entitle the defendant not to stand trial "under certain circumstances." Mitchell, 472 U.S. at 525. In this case we interpret the statutory standard ("likely to succeed on the merits") for determining special motions under the Act and, as discussed infra, conclude that the court must decide, as a matter of law, whether the plaintiff has produced (usually without the benefit of discovery) sufficient evidence to prevail on the claim. In other words, the circumstance under which the Anti-SLAPP Act creates immunity from trial is a meritless SLAPP. As we stated in Burke I, this "resolves a question separate from the merits in that it merely finds that such merits may exist, without evaluating whether the plaintiff's claim will succeed." 91 A.3d at 1039 (quoting Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir. 2003)).[17]

         We readily acknowledge that this inquiry is not completely separable from the merits, but it need not be where it serves a different purpose. See Henry v. Lake Charles Am. Press, 566 F.3d 164, 175 (5th Cir. 2009) (noting that purpose of Anti-SLAPP special motions is "distinct from [the purpose] of the underlying suit"). As the Supreme Court has recognized, "although sometimes practically intertwined with the merits, a claim of immunity nonetheless raises a question that is significantly different from the questions underlying plaintiff's claim on the merits (i.e., in the absence of qualified immunity)." Johnson v. United States, 515 U.S. 304, 314 (1995). As is the case with qualified immunity, the issue that the court must resolve in deciding a special motion to dismiss under the Anti-SLAPP Act is whether the defendant is entitled to immunity from trial, a question of law that involves the evaluation of the complained-of conduct against established legal standards. Cf. Behrens v. Pelletier, 516 U.S. 299, 313 (1996) (holding that court's denial of qualified immunity separate and immediately appealable because it "necessarily determined that certain conduct attributed to [defendant] (which was controverted) constituted a violation of clearly established law").[18] Consequently, even though a court's determination involves consideration of evidence produced in support of the merits, in view of the purpose of the D.C. Anti-SLAPP Act to provide immunity from suit, a court's denial of a special motion to dismiss resolves an issue of law at the threshold of litigation - whether the defendant is entitled to immunity from trial - that is sufficiently separate from the ultimate question on the merits of the case decided at trial - whether the defendant is liable. See Henry, 566 F.3d at 175 (noting that Anti-SLAPP motion is "separate[] from the merits of the claim itself" because its purpose is to determine '"whether the defendant is being forced to defend a meritless claim, ' not to determine whether the defendant actually committed the relevant tort" (quoting Batzel, 333 F.3d at 1025)).[19]

         C. Unreviewability

         Third, a trial court's denial of a special motion to dismiss is "effectively unreviewable on appeal from a final judgment." McNair Builders, 3 A.3d at 1135 (quoting Finkelstein, Thompson & Loughram, 774 A.2d at 339-40). Denial of immunity from trial is the quintessential unreviewable order because the core of immunity from suit "is its possessor's entitlement not to have to answer for his conduct in a civil damages action." Id. at 1137 (quoting Mitchell, 472 U.S. at 525). The D.C. Anti-SLAPP Act provides not only immunity from having to stand trial but also protection from "expensive and time consuming discovery that is often used in a SLAPP as a means to prevent or punish" by "toll[ing] discovery while the special motion to dismiss is pending." Report on Bill 18-893, at 4. Consequently, the denial of a special motion to dismiss filed under the Act - a denial of the immunity from suit and pretrial burdens afforded by the statute - is the type of unreviewable order that falls squarely within the collateral order doctrine. Accord Henry, 566 F.3d at 178 (holding that denial of Anti-SLAPP motion to dismiss satisfies the third requirement of the collateral order doctrine because its purpose is to "provide[] a right not to stand trial"); see also Behrens, 516 U.S. at 308 (noting that the scope of protection afforded by qualified immunity, which includes the right to not stand trial and to avoid the burdens of pretrial matters, such as discovery, made denial of immunity claim immediately appealable).

         D. Substantial Public Interest

         Finally, and of particular importance in conducting a Cohen analysis, we conclude that because the denial of a special motion to dismiss implicates a "substantial public interest, " it would be effectively unreviewable on appeal from a final judgment. McNair Builders, 3 A.3d at 1136. The purpose of the special motion to dismiss is to protect a "particular value of a high order" - the right to free speech guaranteed by the First Amendment - by shielding defendants from meritless litigation that might chill advocacy on issues of public interest. Will, 546 U.S. at 352 (citing cases involving separation of powers, states' dignitary interests under the Eleventh Amendment, and double jeopardy bar of the Fifth Amendment); cf. McNair Builders, 3 A.3d at 1141 (holding that contractor's asserted immunity under judicial proceedings privilege did not implicate a substantial public interest warranting interlocutory review). The legislative history of the Anti-SLAPP Act confirms that the legislature thought the denial of the Act's protection merited immediate appellate review. The original Anti-SLAPP bill presented to the Council of the District of Columbia included a provision for the interlocutory appeal of the denial of a special motion to dismiss or quash. This provision was excluded from the final version of the bill following this court's decision in Stuart v. Walker, 6 A.3d 1215 (D.C. 2010), vacated, 30 A.3d 783 (D.C. 2011) (Mem.)., which held that a similar provision affecting the jurisdiction of the court is beyond the scope of the Council's authority. Report on Bill 18-893, at 7. The Council's evident intent and preference to include an interlocutory review provision - regardless of whether it had the authority to do so - is a significant indicator of its belief that "some particular value of a high order, " Will, 546 U.S. at 352, is at issue that should be addressed by the court on appeal without waiting for completion of the litigation. See Henry, 566 F.3d at 181 (concluding that where statute "embodies a legislative determination that parties should be immune from certain abusive tort claims that have the purpose or effect of imperiling First Amendment rights, 'there is little room for the judiciary to gainsay its "importance"'" (quoting Digital Equip. v. Desktop Direct, 511 U.S. 863, 879 (1994))); cf. Englert v. MacDonnell, 551 F.3d 1099, 1105-06 (9th Cir. 2009) (holding that denial of special motion to strike under Oregon's anti-SLAPP statute was not immediately appealable where Oregon statute did not provide for immediate appellate review of such order).

         We conclude that denial of Anti-SLAPP special motions to dismiss meet the requirements of conclusivity, separability, and effective unreviewability established in Cohen, as further refined in Will, and is immediately appealable to this court. We come to this conclusion in light of the District of Columbia Anti-SLAPP Act's purpose to create a substantive right not to stand trial and to avoid the burdens and costs of pre-trial procedures, a right that would be lost if a special motion to dismiss is denied and the case proceeds to discovery and trial; our interpretation of the Act as requiring a judicial determination applying established principles of law in deciding a special motion to dismiss; and, most especially, the public interest in safeguarding important First Amendment rights in an expeditious manner as shown by the Council's evident desire to make denials of such motions, which must be filed and decided in the early stage of litigation, immediately appealable. See Henry, 566 F.3d at 176-78 (noting that a ruling on a special motion to dismiss under the Louisiana Anti-SLAPP statute meets every prong of the collateral order doctrine because the statute provides a right not to stand trial and bear the costs of defending a meritless defamation claim that can chill important First Amendment rights by gauging plaintiff's probability of success); Batzel, 333 F.3d at 1025-26 (holding that denial of special motion to dismiss under California Anti-SLAPP Act met Cohen standards because it created a substantive immunity from suit and provided for immediate right of appeal).

         As we have determined that we have jurisdiction, we have two further questions to address: (1) what is meant by the Act's language requiring the plaintiff to "demonstrate[] that the claim is likely to succeed on the merits, " and (2) whether Dr. Mann has met this standard in the present case.

         IV. The Anti-SLAPP Act's "Likely to Succeed on the Merits" Standard for Special Motions to Dismiss

         The Anti-SLAPP Act's special motion to dismiss creates a burden-shifting procedure that is triggered by the party seeking to invoke the special protections afforded by the Act. See D.C. Code § 16-5502.[20] The moving party (usually the defendant)[21] files a special motion to dismiss within forty-five days after service of the complaint. Id. § 16-5502 (a). Filing of the motion stays discovery, unless the court grants a limited exception for discovery targeted to defeating the motion. Id. § 16-5502 (c). If the moving party makes a "prima facie showing" that the claim "arises from an act in furtherance of the right of advocacy on issues of public interest, " the burden shifts to the party opposing the motion to "demonstrate[] that the claim is likely to succeed on the merits." Id. § 16-5502 (b) & (d). The court is required to hold an "expedited hearing" on the motion and to issue a ruling "as soon as practicable after the hearing." Id. § 16-5502 (d). If the plaintiff's opposition fails to meet the statutory standard, the Act requires the trial court to dismiss the complaint, with prejudice. Id. § 16-5502 (b) & (d). If the opposition is successful, the motion to dismiss is denied, id., and the litigation proceeds in the normal course.

         For the reasons that follow, we conclude that in considering a special motion to dismiss, the court evaluates the likely success of the claim by asking whether a jury properly instructed on the applicable legal and constitutional standards could reasonably find that the claim is supported in light of the evidence that has been produced or proffered in connection with the motion. This standard achieves the Anti-SLAPP Act's goal of weeding out meritless litigation by ensuring early judicial review of the legal sufficiency of the evidence, consistent with First Amendment principles, while preserving the claimant's constitutional right to a jury trial.

         We review questions of statutory interpretation de novo. Burke I, 91 A.3d at 1040.[22] Our analysis begins with the language of the statute, see District of Columbia v. Place, 892 A.2d 1108, 1111 (D.C. 2006), which requires that to prevail in opposing a special motion to dismiss, the opponent must "demonstrate[] that the claim is likely to succeed on the merits." D.C. Code § 16-5502 (b). As neither the phrase nor any of its components is defined in the statute, we look to "the language of the statute by itself to see if the language is plain and admits of no more than one meaning." Rodriguez v. District of Columbia, 124 A.3d 134, 146 (D.C. 2015) (quoting Dobyns v. United States, 30 A.3d 155, 159 (D.C. 2011)). Although we can be confident that "on the merits" refers to success on the substance of the claim, [23] the meaning of the requirement that the opponent "demonstrate[] that the claim is likely to succeed" is more elusive. Use of the word "demonstrate"[24] indicates that once the burden has shifted to the claimant, the statute requires more than mere reliance on allegations in the complaint, and mandates the production or proffer of evidence that supports the claim. This interpretation is supported by another provision in the Act, § 16-5502 (c), that stays discovery upon the filing of a special motion to dismiss "until the motion has been disposed of, " unless it "appears likely that targeted discovery will enable the plaintiff to defeat the motion and that the discovery will not be unduly burdensome." If evidence were not required to successfully oppose a special motion to dismiss under § 16-5502 (b), there would be no need for a provision allowing targeted discovery for that purpose.[25] Moreover, unless something more than argument based on the allegations in the complaint is required, the special motion to dismiss created by the Act would be redundant in light of the general availability, in all civil proceedings regardless of the nature of the claim, of motions to dismiss under Rule 12 (b)(6).

         But what does it mean that the evidence must demonstrate that the claim is "likely to succeed"? In common parlance, the term "likely" connotes a predictive quality, and its dictionary definition is "probable."[26] The phrase conveys an assessment of the claimant's chance of success, but does not inherently provide the exact measure by which such an assessment is to be made. It could be argued that "likely to succeed" is different from and a lesser standard than "more likely than not to succeed, " the phrase routinely used to mean a preponderance of the evidence, and that if the legislature had in mind a preponderance of the evidence standard, it would have used that well-known term of art. See Haley v. United States, 799 A.2d 1201, 1209 n.6 (D.C. 2002) ("The preponderance of the evidence standard requires proof that something more likely than not exists or occurred."). On the other hand, it seems counterintuitive to say that a claim is "likely to succeed" if it has a less than 50% chance of prevailing. In short, the statutory language's dictionary meaning, even if good enough for common parlance, leaves us in doubt as to its proper interpretation in the Anti-SLAPP Act.

         Appellants argue that we should look to a similar phrase, "a likelihood of success on the merits, " that is used to evaluate requests for temporary stays and preliminary injunctions. In that context, "a likelihood of success" has been defined to mean a "substantial likelihood" though not a "mathematical probability, " Ortberg v. Goldman Sachs Grp., 64 A.3d 158, 162 (D.C. 2013) (quoting In re Estate of Reilly, 933 A.3d 830, 837 (D.C. 2007)), and does not express a fixed measurement, [27] as it is part of a multi-factor test where a stronger showing on some factors can compensate for a weaker showing on others.[28] The phrase "a likelihood of success" is similar (though not identical) on its face to the phrase "likely to succeed, " and in both the preliminary injunction context and under the Anti-SLAPP Act, the judicial role involves prediction of ultimate success on the merits. The two terms should not automatically be equated, however, because of the different purpose and impact of the court's ruling in the two contexts. In granting a request for preliminary injunction, the court grants temporary relief to a movant who makes some showing of likelihood of success that is weighed, along with other factors such as irreparable harm, to preserve the status quo pending the final outcome of litigation. See Nken, 556 U.S. at 434 (noting that preliminary injunctions and stays similarly concern whether court order "may allow or disallow anticipated action before the legality of that action has been conclusively determined"). Under the Anti-SLAPP Act, on the other hand, the result of the court's ruling in favor of the moving party means complete and final victory for that party by bringing the litigation to an end, avoiding a resolution by trial. Because it is a variable standard that is used for a different purpose, "a likelihood of success, " the term used in deciding requests for preliminary injunctions and stays, does not determine the proper interpretation of the "likely to succeed" standard for deciding special motions to dismiss under the Anti-SLAPP Act.

         Lacking a statutory definition, clear dictionary definition, or application as a term of art that reasonably can be borrowed from another legal context, the Anti-SLAPP Act's "likely to succeed on the merits" leaves us with "textual uncertainty." Cass v. District of Columbia, 829 A.2d 480, 486 (D.C. 2003). Our task, therefore, is to interpret the ambiguous term in a manner "that makes sense of the statute as a whole" by reference to legislative history and other aids to construction, such as applicable canons of statutory interpretation. District of Columbia v. Reid, 104 A.3d 859, 868 (D.C. 2014) (quoting Cass, 829 A.2d at 482).

         We begin with what the legislature said it was trying to accomplish: to deter SLAPPs by "extend[ing] substantive rights to defendants in a SLAPP, providing them with the ability to file a special motion to dismiss that must be heard expeditiously by the court." Report on Bill 18-893, at 4. The special motion to dismiss is a mechanism by which a SLAPP defendant can "expeditiously and economically dispense of litigation" to alleviate the burdens and cost of defending against a suit that is filed, not to succeed, but to "prevent or punish" the defendant's speech or advocacy. Id. To this end, a special motion to dismiss must be filed and decided in the early stage of litigation. D.C. Code § 16-5502 (a). If the trial court determines that the plaintiff has not met the statutory burden, the special motion to dismiss must be granted "with prejudice." Id. § 16-5502 (b) & (d). In short, the special motion to dismiss provision authorizes final disposition of a claim in a truncated proceeding, usually without the benefit of discovery, id. § 16-5502 (c), to avoid the toll that meritless litigation imposes on a defendant who has made a prima facie showing that the claim arises from advocacy on issues of public interest.

         The dispositive nature of a court's grant of a special motion to dismiss after the claimant has been required to proffer evidence, but without a full opportunity to engage in discovery and before trial, is critical to our interpretation of the "likely to succeed" standard. An interpretation that puts the court in the position of making credibility determinations and weighing the evidence to determine whether a case should proceed to trial raises serious constitutional concerns because it encroaches on the role of the jury.[29] In view of this concern, we apply the canon of constitutional avoidance, "an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts." FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009). This canon leads us to interpret the phrase "likely to succeed on the merits, " undefined in the D.C. Anti-SLAPP statute, in a manner that does not supplant the role of the fact-finder, lest the statute be rendered unconstitutional.[30] We, therefore, conclude that to remove doubt that the Anti-SLAPP statute respects the right to a jury trial, the standard to be employed by the court in evaluating whether a claim is likely to succeed may result in dismissal only if the court can conclude that the claimant could not prevail as a matter of law, that is, after allowing for the weighing of evidence and permissible inferences by the jury. Cf. Mixon v. Wash. Metro. Area Transit Auth., 959 A.2d 55, 58 (D.C. 2008) (explaining that summary judgment does not violate right to jury trial because it results in dismissal only if no reasonable jury could find for the claimant based on the undisputed facts).

         The standards against which the court must assess the legal sufficiency of the evidence are the substantive evidentiary standards that apply to the underlying claim and related defenses and privileges. As we discuss in the next section, in addition to the elements required to make out a claim for defamation under the law of the District of Columbia, there is a well-developed body of case law, originating with the Supreme Court, that establishes different levels of fault and proof that are designed to protect First Amendment rights. One example is the requirement to prove actual malice by clear and convincing evidence when the claimant is a public official or, as in this case, a limited public figure with respect to the issue that is the subject of speech claimed to be defamatory. Cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55 (1986) (holding that in evaluating motion for summary judgment under Rule 56, as in evaluating motion for directed verdict under Rule 50 (a), in a case requiring proof of actual malice by clear and convincing evidence, "the judge must view the evidence presented through the prism of the substantive evidentiary burden"). The precise question the court must ask, therefore, is whether a jury properly instructed on the law, including any applicable heightened fault and proof requirements, could reasonably find for the claimant on the evidence presented.[31]

         We acknowledge that our functional interpretation of the statutory language is not evident from the face of the statute alone. As we have explained, the interpretation we adopt is made possible by the ambiguity of the statutory language and rendered necessary to avoid doubt about the constitutionality of § 16-5502 (b). This interpretation comports with the legislative aim of building special protections for a defendant who makes a prima facie case that the claim arises from advocacy on issues of public interest. A comparison of the procedures usually available in civil litigation makes clear that the complement of provisions of the Anti-SLAPP Act impose requirements and burdens on the claimant that significantly advantage the defendant. As we have noted, the filing of a special motion to dismiss stays the claimant's right to seek discovery "until the motion has been disposed of, " with a limited exception that favors the defendant. D.C. Code § 16-5502 (c). The Act also places the initial burden on the claimant to present legally sufficient evidence substantiating the merits without placing a corresponding evidentiary demand on the defendant who invokes the Act's protection. Id. § 16-5502 (b). This is a reversal of the allocation of burdens for dismissal of a complaint under Superior Court Rule of Civil Procedure 12 (b)(6), which requires the moving party to show that the complaint's allegations, even if proven, would not state a claim as a matter of law; and for summary judgment under Superior Court Rule of Civil Procedure 56, which requires the moving party to wait until discovery has been completed and then shoulder the initial burden of showing that there are no material facts genuinely in dispute and that the movant is entitled to judgment as a matter of law on the undisputed facts.

         In addition to these substantive burdens, there are financial levies to deter a SLAPP plaintiff. The Act authorizes the trial court to award costs and fees - including attorney's fees - to a moving party who prevails "in whole or in part" on a special motion to dismiss. D.C. Code § 16-5504 (a). We have held that under the parallel provision for special motions to quash under D.C. Code § 16-5503, the successful movant is presumptively entitled to an award of fees unless special circumstances make a fee award unjust. See Burke II, 133 A.3d at 571. The Act is much less generous to a plaintiff who successfully defends against a special motion to dismiss, allowing the award of costs and fees "only if the court finds that [the] motion . . . is frivolous or is solely intended to cause unnecessary delay." D.C. Code § 16-5504 (b). In sum, the special motion to dismiss not only provides substantial advantages to the defendant over and above those usually available in civil litigation, but also imposes procedural and financial burdens on the plaintiff.

         Our interpretation of the requirements and standard applicable to special motions to dismiss ensures that the Anti-SLAPP Act provision is not redundant relative to the rules of civil procedure. A defendant may still file a motion to dismiss a complaint at the onset of litigation under Rule 12, based solely on deficiencies in the pleadings. See Super. Ct. Civ. R. 12 (a) (requiring that motion for failure to state a claim must be filed within 20 days of service of complaint). The Anti-SLAPP Act gives the defendant the option to up the ante early in the litigation, by filing a special motion to dismiss that will require the plaintiff to put his evidentiary cards on the table and makes the plaintiff liable for the defendant's costs and fees if the motion succeeds. D.C. Code § 16-5502 (a) (requiring that special motion to dismiss be filed within forty-five days of service of the complaint); id. § 16-5504 (a) (providing for costs and fees). Even if the Anti-SLAPP special motion to dismiss is unsuccessful, the defendant preserves the ability to move for summary judgment under Rule 56 later in the litigation, after discovery has been completed, or for a directed verdict under Rule 50 after the presentation of evidence at trial.[32]

         Finally, our interpretation of the standard applicable to special motions to dismiss as providing an early judicial evaluation of the legal sufficiency of the plaintiff's evidence strikes the right balance between the interests of the parties. Consistent with the Anti-SLAPP Act's purpose to deter meritless claims filed to harass the defendant for exercising First Amendment rights, true SLAPPs can be screened out quickly by requiring the plaintiff to present her evidence for judicial evaluation of its legal sufficiency early in the litigation. But by deferring to the jury's reasonable decision-making, the constitutional right of a plaintiff who has presented evidence that could persuade a jury to find in her favor is respected. It bears remembering that the fact that a defendant can make a threshold showing that the claim arises from activities "in furtherance of the right of advocacy on issues of public interest, " D.C. Code § 16-5502 (a), does not mean that the defendant is immunized from liability for common law claims. See Duracraft Corp. v. Holmes Prods. Corp., 691 N.E.2d 935, 943 & n.19 (Mass. 1998) (construing Anti-SLAPP statute to avoid unconstitutionality and noting that "[b]y protecting one party's exercise of its right of petition, unless it can be shown to be sham petitioning, the statute impinges on the adverse party's exercise of its right to petition, even when it is not engaged in sham petitioning"). Rather, heightened legal and proof requirements apply when First Amendment rights of the defendant are implicated, but it is possible to meet these requirements by strong evidence in support of the claim. The immunity created by the Anti-SLAPP Act shields only those defendants who face unsupported claims that do not meet established legal standards. Thus, the special motion to dismiss in the Anti-SLAPP Act must be interpreted as a tool calibrated to take due account of the constitutional interests of the defendant who can make a prima facie claim to First Amendment protection and of the constitutional interests of the plaintiff who proffers sufficient evidence that the First Amendment protections can be satisfied at trial; it is not a sledgehammer meant to get rid of any claim against a defendant able to make a prima facie case that the claim arises from activity covered by the Act. See, e.g., Sandholm v. Kuecker, 962 N.E.2d 418, 429-30 (Ill. 2012) (noting that Illinois statute is aimed solely at "meritless, retaliatory SLAPPs" and "was not intended to protect those who commit tortious acts and then seek refuge in the immunity conferred by the statute").

         To sum up, it is not the court's role, at the preliminary stage of ruling on a special motion to dismiss, to decide the merits of the case but to test the legal sufficiency of the evidence to support the claims. We now turn to a discussion of the operative constitutional and legal substantive and proof requirements that apply to the underlying claims and to an analysis of the legal sufficiency of Dr. Mann's proffered evidence applying those requirements.

         V. Judicial Review for Legal Sufficiency

         A court's review for legal sufficiency is a particularly weighty endeavor when First Amendment rights are implicated. The court must "examine for [itself] the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment . . . protect." N.Y. Times Co. v. Sullivan, 376 U.S. 254, 285 (1964) (quoting Pennekamp v. Fla., 328 U.S. 331, 335 (1946)). The court must consider whether a properly instructed jury could find for the plaintiff "both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited." Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 505 (1984). This is a question of law, measured against constitutional standards, that does not involve the court in making credibility determinations or weighing the evidence. See Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 685, 690 (1989) (considering findings of fact made by jury along with undisputed evidence in concluding evidence was legally sufficient to prove actual malice); see id. at 697-700 (Scalia, J., concurring) (referring to appellate court's "independent assessment of whether malice was clearly and ...


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