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.

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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.

Climate scientist Michael Mann sues Competitive Enterprise Institute, National Review

Comparison of Mann’s original hockey stick to recent reconstructions confirming the basic accuracy of the original (AGU)

On October 22, climate scientist Michael Mann sued for defamation the Competitive Enterprise Institute (CEI), The National Review (TNR), and two writers associated with the two organizations. The lawsuit is regarding accusations made by Rand Simberg of the CEI and Mark Steyn of NRO that Mann had committed academic and scientific fraud and for comparing Mann to convicted child molester Jerry Sandusky. Mann announced the lawsuit on his Facebook page. Mann and his attorney, John B Williams of the law firm Cozen O’Connor, originally demanded that the CEI and TNR retract their original articles under threat of a lawsuit, but both organizations refused to do apologize for or retract the articles.

The first article, written by Rand Simberg of the CEI, originally claimed that

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 the service of politicized science that could have dire economic consequences for the nation and planet.

To the CEI’s credit, the editors removed this sentence and another they identified as “inappropriate” shortly after the article was published. But other of Simberg’s claims were identified by Mann’s attorney, John B Willams as defamatory, specifically claims that Mann engaged in “data manipulation” and “academic and scientific misconduct” that was supposedly exposed by the illegally published “Climategate” emails.

Simberg and the CEI refused to retract the article, writing in their response that they “reject the claim that [Mann's research] was closely examined, let alone exonerated, by any of the proceedings listed” in the retraction demand. Myron Ebell, in another part of the statement linked above, continued his criticism of the Penn State investigation even though the National Science Foundation (NSF) independently conducted a second investigation that interviewed Mann’s critics and yet reached the same conclusions as the Penn State investigation.

Simberg’s original article has more than just inappropriate comparisons and possibly defamatory rhetoric. It also has a number of errors in fact, including one regarding a quote taken from S&R’s own reporting. First, Simberg incorrectly claims that Penn State “didn’t bother to interview anyone except Mann himself.” The Penn State investigation was broken down into two phases, an inquiry and an investigation. It’s true that inquiry phase did not interview of Mann’s critics, but it did interview Gerald North, lead author of the 2006 National Research Council report that cleared Mann of any misconduct regarding his hockey stick papers, and Donald Kennedy, former editor of the journal Science. The investigation phase interviewed other subject matter experts but also included one of Mann’s critics, specifically Richard Lindzen of MIT – one of the people that Simberg himself contacted for comment on his article.

Second, Simberg quotes from an S&R report on the NSF investigation, NSF confirms results of Penn State investigation, exonerates Michael Mann of research misconduct. But Simberg mistakenly refers to the National Science Foundation Office of the Inspector General (OIG) as the National Academy of Science (NAS), a significant error. Furthermore, Simberg quote S&R’s report and neglects to mention that the very next paragraph contradicts his own point. Specifically, Simberg claims that “the NAS (sic) investigation relied on the integrity of the university to provide them with all relevant material, and was thus not truly independent (emphasis added).” The following section of the S&R report illustrates Simberg’s error – Simberg’s quote and emphasis is in italics/bold, the rest of the quote is original from the article linked above:

The OIG also independently reviewed Mann’s emails and PSU’s inquiry into whether or not Mann deleted emails as requested by Phil Jones in the “Climategate” emails (aka Allegation 2). The OIG concluded after reviewing the the published CRU emails and the additional information provided by PSU that “nothing in [the emails] evidenced research misconduct within the definition of the NSF Research Misconduct Regulation.” Furthermore, the OIG accepted the conclusions of the PSU inquiry regarding whether Mann deleted emails and agreed with PSU’s conclusion that Mann had not.

The OIG did conclude that PSU didn’t meet the NSF’s standard for investigating the charge of data falsification because PSU “didn’t interview any of the experts critical of [Mann's] research to determine if they had any information that might support the allegation.” As a result, the OIG conducted their own independent investigation, reviewing both PSU’s documentation, publicly available documents written about Mann and his co-researchers, and “interviewed the subject, critics, and disciplinary experts” in reaching their conclusions. (emphasis in second paragraph added)

Finally, Simberg implied that Penn State was more interested in the grant money that Mann had brought into the university than it was in investigating Mann, going so far as to claim that “Michael Mann, like Joe Paterno, was a rock star in the context of Penn State University.” S&R reviewed this allegation in detail in 2010, finding that Mann was responsible for only $4.2 million in grants between 2006 and 2009. Over the same period, Penn State made over $2.8 billion in research grants, and the Penn State football program made $160 million in profits on revenues of $280 million. Compared to the aggregate research grants or the direct profits brought in by Paterno, Mann’s research grants are small potatoes.

While Penn State was apparently willing to trash its good reputation for the public face of the university – the Nittany Lions football team – it would not have any reason to risk embarrassment over a few million dollars brought in by a controversial scientist. Risking the academic reputation of the university would threaten that $2.8 billion in research grants, and no-one would risk that for any single researcher, even one with Mann’s reputation. Quite the opposite – Mann’s reputation could be a drag on research grants, so if anything, Penn State was biased against Mann during the course of the inquiry and investigation.

The second article was written by Mark Steyn of TNR. It referenced the CEI post (complete with the “molested data” sentence that the CEI removed as “inappropriate”) and described Mann’s work as “fraudulent.” As with the CEI, TNR refused to retract the blog post or apologize for comparing Mann to Jerry Sandusky.

Steyn’s own article, short as it was, made some of the same mistakes that Simberg’s did. As an example, Steyn wrote that the Penn State investigation was “a joke,” yet the NSF disagreed. However, Steyn also made a mistake that Simberg did not – Steyn claimed that former Penn State president Grahm Spanier investigated Mann, yet the documentary evidence demonstrates that Spanier was not involved in the Mann investigation – the inquiry committee was composed of William Easterling (Dean of the College of Earth and Mineral Sciences), Alan Scaroni (Ass. Dean for Graduate Education and Research in the College of Earth and Mineral Sciences), Candice Yekel (Director of the Office for Research Protections), William Brune (Head of the Department of Meteorology), Eva J. Pell (then Senior Vice President for Research), and Henry C. Foley (Vice President for Research and Dean of the Graduate School). The investigation committee was composed of Sarah M. Assmann (Professor in the Dept. of Biology), Welford Castleman (Evan Pugh Professor and Eberly Distinguished Chair in Science in the Depts. of Chemistry and Physics), Mary Jane Irwin (Evan Pugh Professor in the Dept. of Computer Science and Electrical Engineering), Nina G. Jablonski (Department Head of the Dept. of Anthropology), Fred W. Vondracek (Professor in the Dept of Human Development and Family Studies), and the aforementioned Candice Yekel as the Research Integrity Officer. None of these individuals has been compromised by the Sandusky scandal.

As the lawsuit announcement points out, Mann has been repeatedly cleared of charges of academic misconduct by multiple different organizations ranging from the National Science Foundation in 2011 to the Pennsylvania State University in 2010 to the National Research Council back in 2006. And while the multiple “Climategate” investigations may not have mentioned Mann directly, none of them found any evidence of scientific misconduct on behalf of any of the scientists whose private emails were illegally published, including Mann’s.

Simberg wrote in the comments to his article that he felt Mann would not sue because “the last thing that Mann wants to do is go under oath with a discovery process.” Rich Lowry, editor of TNR, wrote that a lawsuit would result in Mann going “to great trouble and expense to embark on a losing cause that will expose more of his methods and maneuverings to the world.” The discovery process is when lawyers go through the opposition’s emails and documents to discover what is and is not true, and both Simberg and Lowry clearly believe that Mann has more to lose in that process than either of them do.

Mann’s work and private correspondence has been investigated repeatedly and thoroughly over the last decade. As a result, Mann has little to lose in this kind of lawsuit – unless he truly is guilty of the very misconduct of which his critics accuse him. On the other hand, the National Review and especially the Competitive Enterprise Institute stand to lose much more in the discovery process – donor lists could be exposed, private communications among the climate disruption denial community could be published, and so on.

That Mann chose to move forward with his lawsuit even knowing that his emails and documents would become public should give the CEI, TNR, and their various ideological allies pause. For even if Mann fails to win his defamation claim, this lawsuit could result in the kind of exposure for climate disruption denying organizations and individuals that the tobacco litigation did for Philip Morris, the Tobacco Institute, et al.

Time will tell.

NOTE: S&R has obtained a copy of the legal complaint and will publish its analysis of the document following a review. We’ll also continue to bring you updates and analysis of this story as it develops.

DC Superior Court Case number: 2012 CA 008263 B

Penn State's sports culture is the rule, not the exception

by Brian Moritz

News of the punishment came down first thing on Monday morning, July 23.

More than eight months after scandal first broke at Penn State, about a month after former assistant coach Jerry Sandusky was convicted on 45 counts of child molestation, two weeks after the Freeh Report blasted Penn State leadership and former coach Joe Paterno for covering up the allegations, and one day after the statue of Paterno was removed from Beaver Stadium, the NCAA handed down its sanctions against the program.

The punishments are harsh, severe, and justified. The $60 million eats up more than half of the profits Penn State’s athletic department earns annually. The postseason ban means the team is basically playing four years of exhibition games. The scholarship restrictions mean that it will be 2020 before Penn State fields a football team with four full scholarship classes. Vacating 111 wins is a final punishment for the late Paterno, who had been the sport’s all-time winningest coach. Continue reading

Penn State deserves the "death penalty" – they forgot their mission

<by Rafael Noboa y Rivera

Should Penn State’s football program receive the “death penalty”? The NCAA – far more swiftly than most expected – is set to hand down its decision at 9 AM Eastern, so by the time you read this, we will already know what the sentence will be.

I say sentence, because thanks to the Freeh Report, the university has already been found guilty, if only in the court of public morality.

Many of my friends — some with very close ties to Happy Valley, whether as alumni, fans or residents — have vehemently disagreed with me through the course of the scandal. Continue reading

Land of the Brave and Home of the Freeh

I am not a Louie Freeh sort of guy. He’s of that same Eagle Scout/Opus Dei strain of conservative Catholic as John Roberts. Yeah, he was appointed by Bill Clinton to be head of the FBI, but before that he was made judge by Bush One, and after he left the FBI he was praised by John Ashcroft. Let’s be honest–Ashcroft was so profoundly anti-American that if he praised my mother, I’d probably eye her with suspicion. And Freeh was a lousy head of the FBI, lurching from nightmare to nightmare (Robert Hansenn to the Chinese bribery scandal) and after leaving the FBI, has made his living as a shill for folks like the Saudi royal family. Safe to say I’m not inviting little Lou over to the house for a barbecue anytime soon.

And yet, last week, Freeh did something so brave, so special that he instantly erased a career of mediocrity. He took a stand that he knew would cost him millions and earn him hatred. He threw Joe Pa under the bus.

Continue reading

Alumni support of Paterno damages Penn State's reputation

In any functioning community there are three different levels of responsibility, namely legal, ethical, and moral. The least of these is our responsibilities as defined by local, state, and federal law. That former Penn State football coach Joe Paterno met this lowest of expectations is not in dispute – Sandusky’s prosecutors have explicitly stated that Paterno met the legal requirements of reporting child sexual abuse to his superiors at Penn State. But when the police were not notified, when Sandusky was not shut out of the athletic facilities, why did Paterno not rise to meet his ethical responsibility as an authority figure, or his moral responsibility to report the abuse to the police? I don’t know, and after Paterno’s interview, I’m not entirely sure that he knows either.

Regardless of Paterno’s reasons, it was his failure to meet his higher responsibilities that resulted in the Penn State Board of Trustees voting unanimously to fire Paterno as head coach of the Nittany Lions. The Trustees are charged with guaranteeing the reputation of the university, and as an alumnus (1995, BSEE), I applaud them for having the courage to fire a Penn State icon. Continue reading

What the hell were(n't) they thinking?


Penn State students at a candlelight vigil in support of the victims.
Credit: Lawrence Weathers

When I was in grad school at the University of Colorado, there was a riot in a part of Boulder known as The Hill. It’s just off campus and filled with houses that are rented to college students or have been converted to apartments. The riot was over the dumbest reason I could think of to riot over at the time – the supposed right of underage students to break the law and drink alcohol while underage. It was booze fueled, and before it was over the rioters got within a block of my apartment building, several miles from where they started. The result? No changes in police policy toward underage drinking (duh), but a ban on sofas on porches because sofas had been torched during the riots to make toxic bonfires. Brilliant, the rioters were not.

But compared to the Penn State rioters who went apeshit over Paterno’s firing, the CU rioters were brainiacs. Continue reading

No one can ever take away my experiences of Penn State (Updated)

See update at the end

I’ve been keeping my head down ever since the news broke that Jerry Sandusky, former defensive coordinator for the Penn State Nittany Lions football team, was arrested and charged with multiple accounts of child sexual abuse. I needed time to process how I felt about everything, and yet every time I seemed to get close to grasping onto something, events would send my thoughts and emotions careening beyond my reach again. The Penn State mess has made a stressful period of my life harder for a simple reason: between August of 1991 and May of 1995, I attended the Pennsylvania State University, aka Penn State. And when you spend the four most formative years of your life at a university that is under assault from all sides, it hits you in places and in ways that you’re not prepared for.

What follows is my attempt to make sense of a small part of what I’m feeling right now. Continue reading