There have been several notable developments in the scientist v. scientist case since our last post.

In January, Mark Jacobson responded to the anti-SLAPP motions filed by the National Academy of Sciences and Christopher Clack. He first argued that his suit was not a SLAPP because, he claimed, he did not file the suit to silence the NAS or Clack. As such, Jacobson argued that the defendants could not “demonstrate” that his purpose in filing the suit was consistent with the purpose of the DC anti-SLAPP statute.

I would have thought that this argument was dead by now. In the first few years after the DC anti-SLAPP statute became effective, parties often argued that the statute somehow did not apply to their suit, because they had not brought the suit to silence speech. The DC Court of Appeals, I thought, rejected this argument in its Burke II decision.

Jacobson made no other effort to argue that the statute did not apply to his suit. Instead, he argued that he was likely to succeed on the merits because the article contained at least three false statements:

[T]he Clack Article falsely states that the values in Table 1 of the Jacobson Article were maximum values when Dr. Clack had full knowledge and evidence that they were average values, and that the Jacobson Article annual hydropower output was higher than historical averages when the figure compares U.S. data with Jacobson Article plus imported Canadian output. In the third principal misrepresentation about which Dr. Jacobson complains, the Clack Article falsely states that the difference between the peak and average hydropower discharge rate in some figures is a “modeling error.”

Jacobson argued that these statements were not opinions and that they impugned his reputation, citing other articles that reported on the kerfuffle. Finally, he claimed that, because he brought the alleged errors to the attention of the defendants before publication, and they nevertheless published the articles without correcting the alleged errors, this was sufficient evidence of malice.

With respect to Clack, Jacobson made an additional argument: because Clack is a resident of Colorado, Jacobson argued that Clack’s invocation of the DC anti-SLAPP statute was improper. I thought this was an interesting argument.

In one of the cases cited by Jacobson, Underground Solutions, Inc. v. Palermo, a company incorporated in Delaware and based in California sued a defendant who resided in Tennessee. The suit was filed in Illinois federal court (because Palermo allegedly contacted two UGSI customers in Illinois). Palermo moved to dismiss the suit under the California anti-SLAPP statute. In response, UGSI argued that, because Palermo was a resident of Tennessee, and the allegedly defamatory speech occurred there, Palermo was limited to utilizing Tennessee’s (much narrower) anti-SLAPP statute.

The court held that the place where the allegedly tortious speech took place and the domicile of the speaker were central to the choice-of-law analysis. As a result, it held that “Tennessee has the clearest interest in applying its anti-SLAPP law vis-à-vis one of its own citizens.” Because the Tennessee anti-SLAPP statute was limited to statements to a government agency, and Palermo had not shown that his speech was made to a government agency, the court denied his anti-SLAPP motion to dismiss.

Here, Jacobson argued that, because Clack was a resident of Colorado, Colorado had the greatest interest in protecting the speech of its own citizens. Because Colorado has no anti-SLAPP statute, Jacobson argued that Clack could not invoke the DC anti-SLAPP statute.

The Clack reply brief gave short shrift to Jacobson’s conflict-of-laws argument, arguing that: (1) nothing in the text of the DC anti-SLAPP statute limited it only to District residents; (2) neither the Superior Court nor the federal court had required a “showing of ‘residency,’” (3) the statute was a “procedural mechanism” that is available to any defendant in the District of Columbia; and (4) it was incongruous for Jacobson to argue that Colorado has a stronger interest in protecting the free speech rights of its own citizens, and then argue that Colorado affords Clack less protection.

The remainder of Clack’s reply brief argued that he was not required to establish Jacobson’s “motive in filing the lawsuit,” and that Jacobson had not shown that he was likely to prevail at trial. The NAS’ reply brief echoed many of these same arguments.

On February 20, 2018, the parties appeared for a multi-hour hearing. At the conclusion of the hearing, Judge Wingo took the matter under advisement, saying that she was going to issue a written opinion.

Unfortunately for us, it appears that we’re not going to get a decision in this case. Two days after the hearing, Jacobson voluntarily dismissed the suit. Now the question is whether the defendants will move to recover their fees. As always, stay tuned.