CATEGORY: PoliticsLawGovernment

DC Judge: Michael Mann’s defamation lawsuit against National Review, Competitive Enterprise Institute allowed to proceed

CATEGORY: PoliticsLawGovernmentOn October 22, 2012, climate scientist Michael Mann sued the National Review (NR), the Competitive Enterprise Institute (CEI), along with two writers, NR writer Mark Steyn and CEI writer Rand Simberg, for defamation. Mann’s lawsuit alleges that NR, CEI, Steyn, and Simberg’s (hereafter “the defendants”) allegations of scientific fraud and their comparisons of Mann to convicted Penn State child molester Jerry Sandusky were libelous. The defendants answered Mann’s lawsuit in court with motions to dismiss the lawsuit on the grounds that their claims of misconduct were protected opinion speech and not provably false, that Mann was a public figure, and that Mann’s lawsuit qualified as a SLAPP against their right to free speech. On July 19, 2013, DC Court Judge Natalia M. Combs Greene issued two orders that denied all the motions to dismiss the lawsuit and permitted Mann’s defamation lawsuit to proceed.

The first part of the motions to dismiss that Judge Combs Greene addressed was whether or not Mann would be able to reach the evidence standard required by the DC Anti-SLAPP Act. This law was created to protect defendants from what are known as SLAPP (Strategic Lawsuit Against Public Participation) lawsuits, and the DC law requires that the plaintiff (Mann in this case) be able to demonstrate a “likelihood” of winning before the lawsuit is allowed to proceed1. The defendants argued that the “likelihood” standard required a high probability or even 100% certainty of winning in order to not dismiss the lawsuit, but Judge Combs Greene rejected those arguments. Quoting precedent from California (upon which DC based its Anti-SLAPP Act), Judge Combs Greene found that Mann need only meet a “likelihood to succeed on the merits” by way of “proof by a preponderance [majority] of evidence.”

In order to determine whether or not Mann reached the “preponderance of evidence” threshold Judge Combs Greene first had to address the defendants’ claim that their various accusations of fraud and academic misconduct against Mann were merely “rhetorical hyperbole” and opinions. However, according to Supreme Court opinions referenced by Judge Combs Greene, this argument requires that the defendants’ accusations not be based on factual information that could be proved wrong using available facts. Judge Combs Greene ruled that claims like “hockey-stick deceptions,” “data manipulation,” and “intellectually bogus” work were, in reality, based on facts, and specifically “provably false” facts at that. Judge Combs Greene wrote that the “hockey stick deceptions” statement

goes beyond harsh debate or “rhetorical hyperbole.” Rather the statement questions facts – it does not simply invite readers to “ask questions.”

She also wrote that the “data manipulation” statement “relies on the interpretation of facts (the [CRU/Climategate] emails).”

Lest there be any question about Judge Combs Greene’s dim view of the defendants’ claims with respect to their accusations against Mann, she also wrote that

Given the dictionary definition as well as the common readers’ thought about the use of these words (fraud and fraudulent) the Court finds that these statement (sic) taken in context must be viewed as more than honest commentary-particularly when investigations have found otherwise. Considering the numerous articles that characterize [Mann’s] work as fraudulent, combined with the assertions of fraud and data manipulation, the [NR and CEI] Defendants have essentially made conclusions based on facts. Further, the assertions of fraud “rely upon facts that are provably false” particularly in light of the fact that [Mann] has been investigated by several bodies (including the EPA) and determined that [Mann’s] research and conclusions are sound and not based on misleading information….

The content and context of the statements is not indicative of play and “imaginative expression” but rather aspersions of verifiable facts that [Mann] is a fraud. At this stage, the Court must find that these statements were not simply rhetorical hyperbole. (emphasis added)

The defendants also claimed to be acting as journalists offering “fair comment” and “supportable interpretation,” both of which are protected speech under DC law. However, Judge Combs Greene found that these claims were untenable since DC law required that the defendants’ reporting be “fair and accurate” in order to qualify. Judge Combs Greene wrote that

Having been investigated by almost one dozen bodies due to accusations of fraud, and none of those investigations having found [Mann’s] work to be fraudulent, it must be concluded that the accusations are provably false. (emphasis added)

Claims that are provably false are, by definition, neither fair nor accurate.

Finally, the defendants asked Judge Combs Greene to dismiss Mann’s lawsuit because the First Amendment guaranteed them freedom of speech. However, as with all the rights defined in the Bill of Rights, freedom of speech is not without its limits even when dealing with a limited public figure like Mann2. Essentially, the Supreme Court has ruled that even public figures can sue for defamation when “actual malice” is involved. The examples of “actual malice” offered by Judge Combs Greene were making provably false accusations and making statements with reckless disregard for whether the statements are true or not.

Judge Combs Greene found that, while there was as yet sufficient evidence to demonstrate “actual malice,” there was a “strong probability” that the defendants “disregarded the falsity of their statements and did so with reckless disregard.” And so Judge Combs Greene found that there was sufficient evidence of “actual malice” to permit the lawsuit to proceed to the discovery process, where both Mann and the defendants must open up their emails and documents to the court and each other and where evidence of actual malice by the defendants might be uncovered.

After considering the arguments and reviewing the record, Judge Combs Greene denied the motions to dismiss Mann’s defamation lawsuit. She found that the CEI had lobbied for investigations into Mann’s scientific conduct yet continued to allege that his research was fraudulent even after a dozen independent investigations had cleared him of those allegations. She found that the NR had been aware of the results of the investigations and yet it too had continued to make provably false allegations. And while she didn’t find that the evidence presented had risen to the level of “actual malice,” she also said that it was entirely possible that the discovery process could turn up that evidence. By denying the motions to dismiss the lawsuit, Judge Combs Greene essentially said that Mann had presented a preponderance (majority) of evidence that he had been defamed by the defendants, and thus the lawsuit should proceed.

Mann’s lawsuit is proceeding. So long as there are no additional motions to dismiss3 or appeals of Judge Combs Greene’s orders, the next step is legal discovery. S&R will bring you updates in this case as they become available.

_____

1 SLAPPs have historically been a way to force public citizens and small organizations from criticizing large and powerful interests, but in this case the larger and more powerful organizations (NR and CEI) were claiming that the Act protected them from Mann’s claims of defamation.

2 Mann became a limited public figure as a result of political opposition to the conclusions of his original hockey-stick papers in 1998 and 1999 – that human activity had raised North American temperatures to the highest level in ~2000 years. Essentially, groups like the CEI and various Congressional Republicans didn’t like the fact that his scientific conclusions indicated that industrial climate disruption was unprecedented in the last several thousand years. The free speech argument put forth by CEI and NR was viable only because Mann had become a public figure due to the actions of CEI and their allies.

3 The National Review and Mark Steyn have filed another motion to dismiss based on what they allege are errors of fact made by Judge Combs Greene. S&R is in the process of reviewing the new motion and will be reporting on it soon.

31 comments on “DC Judge: Michael Mann’s defamation lawsuit against National Review, Competitive Enterprise Institute allowed to proceed

  1. You must be kidding! This judge is known to be one of the most political in DC. Mann supports a theory, not fact, that is based on “evidence” that he refuses to release the details behind, counter to accepted scientific method (peer review and reproducibility). The only fact here is that Mann has made a lot of money and notoriety based on his contrived “hockey stick”. This judgement is an abomination, but not unexpected in such a political atmosphere.

    • Mann’s original hockey sticks have been replicated (and improved upon) repeatedly and using multiple independent proxies, most recently by Marcott et al and the PAGES 2k Consortium. S&R has looked at where the money is in climate science and found that it’s not in academic science – Mann could have made a lot more money working for an oil or coal company than going into climate research. And Mann’s data has been publicly available for years, although perhaps you were unaware of that fact.

      The judge’s opinion is clear, concise, and appears to be both grounded in legal precedent and logic.

      And it’s not like this means Mann has won anything, after all. If you’re so sure that he’s corrupt, then you should be thrilled about the ruling – it means that the NRO and CEI get to use the legal discovery process and dive deep into Mann’s email, computers, and the like. Just as Mann gets to do the same to NR and CEI’s email, computers, and the like.

      • You should look a little more widely before you make such claims. Here is the detail on the refusal of Mann to provide detailed data, programs, algorithms and other key steps in his original hockey stick paper. As Steve McIntyre noted:

        “In the case of the Mann et al [1998,1999] study, used for the IPCC’s “hockey stick” graph, Mann was initially unable to remember where the data was located, then provided inaccurate data, then provided a new version of the data which was inconsistent with previously published material, etc.”

        http://climateaudit.org/2005/02/14/some-thoughts-on-disclosure-and-due-diligence-in-climate-science/

        http://climateaudit.org/2009/12/01/dirty-laundry/

        And as McIntyre and McKittrick showed in a peer reviewed paper, you could put random data into Mann’s calculations and get a hockey stick:

        http://climateaudit.org/2005/01/27/new-research-published-on-mbh98/

        • As Deep Climate found back in 2010, McIntyre and McKitrick’s code cherry-picked a tiny minority of simulation runs in order to get the result they published. Now, I don’t know if that was a mistake or on purpose, but either way it’s a major error and the paper should probably have been corrected or voluntarily retracted by the authors as a result.

          And given recent updates on Yamal (see this new paper from Briffa et al), there’s some serious questions about whether or not McIntyre has been barking up the wrong tree for years now.

          As I wrote above – “Mann’s original hockey sticks have been replicated (and improved upon) repeatedly and using multiple independent proxies, most recently by Marcott et al and the PAGES 2k Consortium.”

        • EdB, you display the same characteristic of intellectual dishonesty common to all deniers and so-called “skeptics”. You cite stuff from 2005 and 2009 that all knowledgeable people — that is, people who are not deniers who get their talking points from WUWT and other denier web sites — have long been aware of and are also aware of their refutation. Like all deniers, you are not an honest or real skeptic, as you have spent no time or effort in investigating these matters, or else you would know that this stuff has been refuted. We’ve all seen it over and over again, which makes you boring and useless.

      • On the contrary, Mann’s ‘Hocky Stick’ has been utterly shot down by Marcott et al. Even if they had supported him, it would be veryt weak support since 10% of Marcott’s proxies fail their own criteria for inclusion, and the ‘uptick’ depends on a singleton reading, but they show Mann wrong by among other things, reinstating the medieval warm period and little ice age, and not committing Mann’s egregious statistical errors. Even Marcott admits their 20th Century results are “not robust”, This is the evidence you claim vindicates Mann? Is it possible that, you and this judge have replaced your scientific concerns with your political ones? It certainly appears so..

  2. “Claims that are provably false are, by definition, neither fair nor accurate.”

    Wrong. In this context, “provably false” (or, more specific to the article) “not provably false” means: not subject to being proven factually false.

    For instance, a comment that an actress is “smokin’ hot” is not subject to being proven factually true or false, no matter how many of us may agree on its applicability. A comment that she is 5′-6″ tall IS provable.

    Continued on in that theme, if I say “Mark Steyn helps us understand the climate change scam”, or if I say “The real fraud here is Mark Steyn”, neither claim is, in the legal sense that has merit in a courtroom, provably true or provably false.

    • I’ll grant that, in exactly one case, a claim that is provably factually false could be fair – if the claimant is simply misinformed. After all, the Merriam-Webster dictionary online defines fair (the applicable definition is 6a) as “marked by impartiality and honesty : free from self-interest, prejudice, or favoritism.” This definition requires honesty, but not accuracy, so mistakes can be made fairly.

      That said, Judge Combs Greene found that it was not credible for any of the defendants to claim simple error (which, incidentally, none of them claimed) given that each defendant has been criticizing Mann for years even after a dozen independent investigations have all cleared Mann of scientific misconduct.

      However, anything that is provably factually false is absolutely against the definition of accurate: “1: free from error especially as the result of care; 2: conforming exactly to truth or to a standard : exact.” If the defendants are repeating factually false information, then they are making errors of fact and are not conforming exactly to truth. By definition.

      But I grant you that I overstated the point about “fair.”

      • You still misunderstand what “provably false” means. It is not a measure of the actual truth/falsity of a statement, but a judgment that the statement can be empirically falsified through testing or investigation. See the above comment about the actress.

        In this case, the judge is saying that the defendant’s statements CAN BE proven to be false, not that they actually are false. My personal inference is that she probably thinks they are likely to be found false. I’m not sure I agree with her reasoning completely (that’s why she’s the judge and I’m just some guy with a computer) but I think overall she is correct in letting the lawsuit proceed and sorting things out on the merits.

        • I see your point, Bill, but given the rest of the context of Judge Combs Greene’s ruling with respect to fair comment, I’m not sure that the distinction matters. She specifically says

          Having been investigated by almost one dozen bodies due to accusations of fraud, and none of those investigations having found [Mann’s] work to be fraudulent, it must be concluded that the accusations are provably false.

          I read that statement as Judge Combs Greene saying that it’s not credible that the accusations are true given the number of independent investigations that have looked specifically for evidence of fraud. Thus she’s saying not just charges of fraud are not merely capable of being proven wrong, but that they actually have been proven wrong, and repeatedly at that.

          Judge Combs Greene makes this point in several other places in her two orders as well. Now, I’m not a lawyer, so maybe she’s not making a judgement about the truth or falsity of the accusations, but that’s how I read it. Like you, however, I think that she was correct in permitting the lawsuit to proceed and be decided on the merits.

        • Bill, it is you who are wrong here, and blatantly so, having paid little or no attention to what the judge wrote. The judge most definitely and distinctly asserted that the defendants’ statements *were in fact* false: “Having been investigated by almost one dozen bodies due to accusations of fraud, and none of those investigations having found [Mann’s] work to be fraudulent, ***it must be concluded*** that the accusations are provably false.” and she said that there is a “strong probability” that the defendants “disregarded the falsity of their statements and did so with reckless disregard.” — that takes as a matter of fact that their statements were false.

          The only thing that the judge said has not already been proven false is whether the defendants had “actual malice”.

      • The judge did not find “that the CEI had lobbied for investigations into Mann’s scientific conduct yet continued to allege that his research was fraudulent even after a dozen independent investigations had cleared him of those allegations.” The relevant statement occurred in the context of a paragraph referring to the “defendants.” That is, she was asserting that Steyn had also lobbied for investigations into Mann’s scientific conduct. Which was an error of fact on her part, and not a trivial one either.

        • You are correct in that the NR and Steyn claim that they never called for investigations, and as I point out in Footnote #3, I’m reviewing the new motion to dismiss based upon that claim. I’m not convinced that the “error of fact” is anywhere near the level necessary for the judge to change her mind, given the public record and some of the seemingly twisted logic in one of the arguments, but again I’m not a lawyer so I could be wrong.

          We shall see soon enough, I suspect. Hopefully not before I have a chance to write my piece on that new motion to dismiss.

        • “Which was an error of fact on her part, and not a trivial one either.”

          There’s no error. CEI is a defendant and lobbied for such investigations, and all of the defendants were aware of those efforts and their results.

    • ““Claims that are provably false are, by definition, neither fair nor accurate.”

      Wrong. In this context, “provably false” (or, more specific to the article) “not provably false” means: not subject to being proven factually false.”

      You seem quite confused. The context specific to the article is the judge writing that the defendants’ claims *are* in fact provably false … which they are. Further, the context is the judge finding in law that the defendants’ statements are not “fair comment” or “supportable interpretation” because they are “provably false” and, therefore, not “fair and accurate” as the law requires.

      Whether claims that are provably false are “by definition” neither fair nor accurate is another matter.They aren’t accurate, by definition, but there’s no definition that makes provably false claims unfair, although there may be a reasonable moral judgment that they are unfair in cases — such as this one — where the proof is known to or readily available to the claimants.

      • You totally misunderstand the meaning of provably false. It means that a statement can be falsified, that it is testable. NOT that it is actually false. In this case, the judge finds that because other investigations of alleged fraud were able to reach a conclusion, so too can a conclusion be reached in this case and it is therefore able to proceed to trial at which actual truth/falsity will be determined.

        Upthread, you commented that:

        “There’s no error. CEI is a defendant and lobbied for such investigations, and all of the defendants were aware of those efforts and their results.”

        This is an example of an allegation that is not provably false. While you can potentially provide evidence that all defendants were aware of the efforts and results (emails etc), it is impossible for NRO/Steyn to prove that they were unaware. They can’t prove a negative and therefore cannot empirically disprove your claim. So they probably cant sue you for defamation.

        So Judge Green is simply saying that because other inquiries have looked into similar allegations and found evidence that supported a conclusion, she will advance this to trial. My take is that in the various other academic inquiries there were more specific allegations of academic fraud and the investigating bodies had specific examples to look at and specific codes of conduct to compare against. And I think that they all reached the correct conclusion that there was no fraud. It is not clear what standard Judge Green would apply in this case at trial (UVA, PSU, NSF, scientific journals etc etc) and that is one reason I disagreed with her conclusion that the allegations are provably false.

        • “You totally misunderstand the meaning of provably false. ”

          BWAHAHAH!

          “It means that a statement can be falsified, that it is testable. NOT that it is actually false.”

          I hope English isn’t your native language. Empirical claims are testable, falsifiable. Provably false statements those that not only are testable, but that have failed the test.

        • “You totally misunderstand the meaning of provably false. It means that a statement can be falsified, that it is testable. NOT that it is actually false.”

          Hmm … I thought I responded this before. But whatever … this is one of the most absurd, obviously … FALSE … statements I’ve ever seen.

  3. Speculation especially speculation of the future by definition is not provable as fact.
    However Mann’s hockeystick has been proven to be factually false as both conjecture and as fact. That’s why its use by even the greens has subsided….it’s too essy to poke holes it it ss many have done.

    • George, like all deniers you are grossly misinformed; not only has the hockey stick not been proven factually false, but it has repeatedly been scientifically confirmed.

  4. Brian

    Why do you debate these fools? They’re willfully ignorant. No amount of logic or facts is going to dissuade them.

    When they finally do admit it, as they will one day when Texas has 140 degree summers, they will never admit they were wrong in the first place.

    Excellent piece and good addition to the body of work.

    • Otherwise,

      Those of us who aren’t convinced about climate change may well be ignorant and uninformed, but the reason some debate some of us is because they respect us enough to want to cure us of our ignorance and lack of information. When you have decided that we are incorrigible and morally beyond the pale of reasoned discussion, you sufer just as much as we do. More importantly, so does the public that loses out on the discourse that could have occurred between mutually respectful “opponents.”

      It would seem to me that the rapidity with which both sides move to the moral attacks indicates that more is involved than merely getting this right.

      ajk

      • Well, anyone who isn’t convinced either doesn’t understand anything about science or mathematics or has been brainwashed by the denialist media. It’s a bit like the tobacco denialists who kept stubbornly arguing that it wasn’t PROVEN absolutely. It’s definitive that climate change is occuring and it’s highly unlikely that it is to some extent not man-made. It is valid, I think, to question whether it’s possible to do anything about it.

        I’d be more inclined to argue if just once, just once, those who aren’t convinced would make a cogent and intellectually valid counter-point. Instead, they attack scientists or simply make stuff up.

        Liberals confuse societal goals with economics, conservatives confuse politics with science. It doesn’t really matter if the party platform says evolution is real or climate change is real or trees are the source of pollution. It doesn’t make it so.

        • Otherwise,

          I would encourage you to distinguish the media driven discussions from private ones, even here. I agree that it appears that those who aren’t convinced argue insanely, while to others it appears that those who are convinced are puppets. But those are ad hominems.

          This is, in my opinion, a bigger issue than just science. Let us assume that man-made climate change is happening. That is about the past. The really brutally hard questions are what can be done about it.

          Personally, I don’t trust people in authority enough to believe that they can solve this problem without attracting perverse incentives into the application. Don’t misunderstand me; it’s not that I’m opposed to anybody in particular.

          I just know, from having been in positions of authority myself and working with others who have had authority, that it takes incredible wisdom and self-control not to use the position to your own advantage. So when some policy is developed to solve the problem, how are we going to keep “special interests” from corrupting the decision-making process and then the implementation process.

          We humans may have worked ourselves into a corner we aren’t smart or good enough to work ourselves out of.

          But I still don’t understand why you resorted to your opening sentence, telling me that either I don’t understand anything about science or mathematics (I don’t understand enough, that’s certain, but I have always loved science qua science and mathematics is stunningly beautiful to me, though I don’t have time to dance with numbers and shapes as much as I’d like), or I am brainwashed.

          Do you really believe those are the only possible options for me? What do you base that on?

  5. OK, let’s have a real discussion.

    Why do I believe the climate is changing?

    1. Because there is compelling data that says so. http://www.google.com/search?q=map+of+temperature+change+over+last+100+years&tbm=isch&tbo=u&source=univ&sa=X&ei=fDsZUoCGFYbj2wXj6oHAAg&ved=0CDUQsAQ&biw=1726&bih=937
    2. Because I am privy to confidential data that suggests that the severity of weather events is increasing.

    Why do I believe the change is man-made?

    1. Because the data seem to support it. http://edition.cnn.com/2013/08/20/world/un-climate. It’s easy to mock scientific groups as unrealistic and alarmist, but the track record of international study groups is actually pretty good. http://www.smithsonianmag.com/science-nature/Looking-Back-on-the-Limits-of-Growth.html
    2.Because as an engineer, it makes sense to me. As the population grows and heat trapped in fossil fuels is released, I find it hard to imagine how it cannot be warming.

    Could it not be man-made? Yes, but it’s not very likely.

    1. The UN commission cited above said the probability was 95%, so there’s at least some chance it’s not.
    2. Weather is cyclical, and there have been cold and warm periods in history. We have a relatively short record and much of the long term trends come from inferred data.

    Does the debate really matter? Probably not.

    1. I am not at all convinced this problem is solvable. It is a long term problem that requires international cooperation and curtailment of consumption that would be very unpopular, especially in the third world. History has shown that people will not accept limits on consumption, e.g., the increase in large cars following the energy crisis.
    2. I think for the most part, it’s a debate of intellectual aggression, like when my Christian friends challenge me to “prove God doesn’t exist.” What they really want is for me to admit I’m wrong and they’re right. I think much of the climate change is driven by logical, non-religious people insisting that science-rejectors to admit they’re wrong and that we’re right. It’s pretty much the modern equivalent of the evolution argument. It really doesn’t matter much if people believe it or not, but those of us with a science background want people to.

    • Thank you. This helps and gives me some items to look at. I don’t know how soon I can, and since your conclusion discourages one from thinking it matters anyway, but I do believe this issue is important. Thank you for making the discussion actionable for me.

      ajk

  6. Pingback: National Review’s new motion to dismiss Mann’s defamation lawsuit contains false claims | Scholars and Rogues

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