CATEGORY: PoliticsLawGovernment

National Review’s new motion to dismiss Mann’s defamation lawsuit contains false claims

On July 19, DC Court Judge Natalia M. Combs Greene rejected multiple motions to dismiss climate scientist Michael Mann’s defamation lawsuit against the National Review (NR), the Competitive Enterprise Institute (CEI), NR writer Mark Steyn, and CEI writer Rand Simberg. On July 24, NR and Steyn submitted a motion asking to reconsider her refusal to dismiss based on what NR and Steyn claim are “material mistakes of fact.” S&R has been investigating the accuracy of three of the claims made in the NR/Steyn motion to reconsider: that Judge Combs Greene had erroneously conflated actions of NR/Steyn with those of CEI/Simberg, that NR/Steyn had not been critical of Mann’s research over a period of years, and that these two claimed mistakes mean that NR/Steyn might not have been aware that they were making false claims against Mann. After reviewing the public record, S&R has found that while the first claim is likely false, the other two claims are clearly false.

National Review has called for investigations into alleged misconduct by Mann

According to the the NR/Steyn motion for reconsideration, Judge Combs Greene supposedly misattributed requests by CEI/Simberg to investigate Mann’s research conduct to NR/Steyn.

the Order conflates the conduct of co-defendant [CEI] with that of National Review and Steyn, who never petitioned the Environmental Protection Agency to investigate or otherwise pressured the agency concerning [Mann’s] research. (emphasis original)

The very specific language of the prior quote leaves open the possibility that either NR or Steyn could have called for investigations in general or other specific investigations such as those conducted by the Parliament of the United Kingdom, the National Science Foundation (NSF), or the National Oceanic and Atmospheric Administration (NOAA) while still being factually true. Only the EPA investigation is excluded by this language, and as such it comes close to qualifying as an “equivocation” logical fallacy. As such, S&R’s investigation searched for examples of public investigation requests for both general and specific investigations by NR writers or Steyn himself. S&R was unable to find any examples calling for specific investigations, lending some support to this NR/Steyn claim.

However, while S&R did not discover any examples, Mann’s legal team did find several of varying strength, as seen in Mann’s response to the NR/Steyn motion to reconsider. The strongest example is in an NR article written by Candace de Russy titled “Your Stimulus Dollars Lavished on Climate-Alarmist Prof.” where de Russy writes about the Penn State investigation into Mann’s conduct. At the end of the article, de Russy writes:

In these crushing economic times, is it too much to ask that university authorities, our political leaders, and the press jump on this case with a bit more rigor?

While this is not a call for a specific body to investigate Mann’s research, it is a call for thorough investigations by “university authorities, our political leaders, and the press.” As such, it demonstrates that, while the specific claim vis a vis the EPA investigation may be true, NR/Steyn did, in fact, call for investigations of Michael Mann’s conduct.

National Review and Mark Steyn have accused Mann of misconduct since 2009

The NR/Steyn motion for reconsideration also claims that Judge Combs Greene confused NR/Steyn with CEI/Simberg again when she took into account “all of the statements and accusations over the years” against Mann. NR/Steyn are essentially claiming that both CEI and Simberg have a history of attacking Mann, but that neither NR nor Steyn has a similar history. S&R’s investigation turned up 10 different NR articles and three Steyn articles going back to 2009 that disprove this claim. Note that most, if not all, of the allegations against Mann in the examples below have been investigated repeatedly and found to be without merit.

Examples of National Review criticisms of Mann

  • Global Warming: Science or Religion by Sterling Burnett on July 21, 2009. This post makes a number of indirect criticisms of Mann, who is the only named scientist in the article, and implies that he and other climate scientists are “fanatics” who, by supposedly making unprovable claims, engage in “sly but abjectly dishonest” activities.
  • Mann-made Warming Confirmed by Chris Horner on September 28, 2009. This post contains a brief history of Mann’s supposed errors and alleged cherry-picking to produce the MBH99 “hockey-stick.” “The conclusion is inescapable. The tree ring data was hand-picked to get the desired result. (emphasis added)”
  • Climategate: Where Are We? by Iain Murray on November 30, 2009. Mann is explicitly mentioned as a “trickster” (a reference to a Climategate email that Penn State looked at specifically during their investigation) and is thus included in Murray’s “perpetrators.”

    “There have been attempts to muddy the waters with assertions that data were publicly available all along (ha!) and the insinuation that anyone using “stolen” emails is somehow more immoral than the perpetrators of the three frauds outlined above. (emphasis added)”

  • Peer Pressure by the NR Editors on December 1, 2009.

    Phil Jones of CRU, Michael Mann of Penn State University, and other leaders of the climate cartel discussed statistical tricks they used to “hide the decline” of atmospheric temperatures. Other data were fudged to cover up warm periods that didn’t fit their theory of anthropogenic global warming (AGW). (emphasis added)

  • Groupthink and the Global-Warming Industry by Jonah Goldberg on December 3, 2009.

    CRU scientists discuss with friendly outside colleagues, including Penn State University’s Michael Mann, how to manipulate the data they want to show the world, and how to hide the often-flawed data they don’t. (emphasis added)

  • Climategate: You should be steamed by Greg Pollowitz on January 4, 2010. “If only scientists had taken Dale Carnegie courses, the fraud and sloppy science of Climategate would never have happened. (emphasis added)”
  • Liberals and the Scientific Method by Mona Charen on February 12, 2010. The reference to Penn State in the following quote implies Mann’s involvement.

    The Climategate e-mails from Penn State and East Anglia University were not trivial revelations. They involved deception, intimidation, and manipulation of records by two of the leading research institutions whose data form the backbone of the U.N. Intergovernmental Panel on Climate Change. (emphasis added)

  • Liberty, Tyranny, and the Globe by Mark Levin on April 22, 2010. “The true believers used to cite Mann’s hockey-stick curve as conclusive evidence of man-made global warming. The graph has been demonstrated a fraud… (emphasis added)”
  • Global Warming — RIP? by Victor Davis Hanson on October 27, 2011. While Mann is not mentioned specifically, he was at the time and remains one of the world’s top climate scientists and is one of the, if not the, most investigated climate scientist as a result of Climategate. Thus this passage refers to Mann indirectly.

    Corruption within the climate-change industry explains some of the sudden turnoff. “Climategate” — the unauthorized 2009 release of private e-mails from the Climatic Research Unit in the United Kingdom — revealed that many of the world’s top climate scientists were knee-deep in manipulating scientific evidence to support preconceived conclusions and personal agendas.

  • Scientists Behaving Badly by Jim Lacey on November 28, 2011.

    Virtually the entire warmist edifice is built around a small, tightly knit coterie of persons (one hesitates to refer to folks with so little respect for the scientific method as scientists) willing to falsify data and manipulate findings; or, to put it bluntly, to lie in order to push a political agenda not supported by empirical evidence. (emphasis added)

    In fact, McIntyre’s work was crucial in proving that Mann’s infamous “hockey stick graph” — the heart of the United Nations’ IPCC-3 report — was a fraud.

Examples of Mark Steyn criticisms of Mann

  • Climate Science and the Peer-Review Consensus Forgery on November 30, 2009. Steyn criticizes Mann and Phil Jones of the Climatic Research Unit (CRU) for allegedly manipulating peer review in order to keep poorly refereed papers out of the IPCC, and Steyn agreed with a Wall Street Journal headline about forgery.
  • The science of global warming on December 3, 2009.

    The Settled Scientists have wholly corrupted the process of “peer review.” (emphasis added)

    Phil Jones, director of the CRU, writing to Michael Mann, creator (le mot juste) of the now discredited “hockey stick” graph… (emphasis original)

    Phil Jones and Michael Mann are two of the most influential figures in the whole “climate change” racket.

  • The emperor’s new carbon credits on December 17, 2009.

    The famous hockey stick graph created by Dr. Michael Mann played a critical role in persuading millions of people we’re all gonna fry…. It took two dogged Canadians, Steve McIntyre and Ross McKitrick, to demolish the hockey-stick fraud (emphasis added)”

In addition to these various examples, there are many more that are similar to the second-to-last NR example above – where Mann is not mentioned specifically, but where the “hockey-stick” is used as a proxy for Mann, or where groups of which Mann would be a member are accused of scientific misconduct such as data manipulation. Whether such examples are sufficient for a court order to be based upon them is beyond the purview of S&R’s investigation.

These lists are by no means exhaustive – they stop in 2011 as the articles published in 2012 and 2013 are dominated by those related to Mann’s lawsuit and NR/Steyn’s responses. There are likely many other examples published by NR and Steyn that are not included above. Regardless, however, the public record demonstrates that both NR and Steyn both had at least a three-year history of criticizing Mann both directly and indirectly before publishing the article that provoked Mann’s defamation lawsuit.

National Review and Mark Steyn were aware of Mann investigations’ results

The NR/Steyn motion for reconsideration also claimed that Judge Combs Greene’s logic was flawed. The motion to reconsider essentially argues that a) there is no evidence that NR/Steyn had ever called for an investigation, b) their awareness of the results of those investigations was not demonstrated in the Court Order, and thus c) there is no evidence of actual malice.

This line of argument is not only based on arguably false information, it’s also illogical. As mentioned above, Mann’s response to the NR/Steyn motion to reconsider provides five different examples, each of which could be interpreted as a call for an investigation into Mann’s conduct. But even if those examples are ultimately rejected by Judge Combs Greene, the NR/Steyn motion essentially argues that there is only one way that NR and Steyn could be aware of the details of the investigations’ results – if NR and Steyn had called for the investigations. Given the media coverage of each of the various investigations, this is an untenable claim to make for both NR and Steyn.

S&R investigated this claim as well and found that NR and Steyn were both aware of the investigations and were very likely aware of the investigations’ detailed results. As with above, the examples below include claims that have been investigated, in some cases repeatedly, and found to be without merit.

  • Climategate and the Scientific Elite by Iain Murray on May 26, 2010. “Few members of the public have accepted the findings of the inquiries exonerating the scientists; most dismiss them as whitewashes. (emphasis added)”
  • Climategate Continues by Andrew Montford and Harold Ambler on May 24, 2012.

    the specific issue of the suppressed record appears to have largely been passed over by the panel, and Briffa’s explanation, like so many others given to the Climategate inquiries, appears to have been accepted without question. (emphasis added)

    However, their machinations have only succeeded in bringing renewed attention to their questionable science and ugly behind-the-scenes shenanigans, reigniting hope that more complete and more independent investigations — on both sides of the Atlantic — will yet be performed. (emphasis added)

  • Senator Inhofe Discusses His Call for a DOJ Climategate Investigation by Greg Pollowitz on February 24, 2010. This is an excerpt of an interview of Senator James Inhofe (R-OK) by Neil Cavuto, excerpted extensively, including the following:

    [W]e have the minority report that we put together which shows that climate-gate, fixing the science, cooking the science, actually took place.

    We have it all documented. And people are being investigated right now (emphasis added).

  • ‘Climategate Inquiry Glosses Over the Facts’ by Greg Pollowitz on July 20, 2010. This is an excerpt from a commentary at the Washington Examiner by NR writer Iain Murray, and Murray’s quoted details, while arguably both cherry-picked and distorted, reveal that he was quite aware of the contents of all of the Climategate investigations:

    Yet the [UK Parliament] hearings did not include testimony from the most severe critics of the hockey stick graphic, such as Canadians Steve McIntyre and Ross McKitrick, who could have explained exactly why the e-mails did suggest impropriety.

    Yet Lord Oxburgh’s panel handed down a short report which did not examine the quality of the science at all. The panel simply reviewed a selection of CRU papers — selected by the UEA itself — and pronounced itself satisfied that the scientific process was fair and proper.

    The final review, conducted by former bureaucrat Sir Muir Russell, was compromised from the start. Its chief scientist, while purporting to be independent, was a former staff member of the CRU. Once again, it failed to interview the chief critics.This panel did not examine the other e-mails on the CRU server, as it was supposed to do.

  • Climategate Whitewash by Iain Murray on April 1, 2010. “Unsurprisingly, the U.K.’s parliamentary investigation into Climategate whitewashed the implications for climate science, although they did wag a disapproving finger at the University of East Anglia for being naughty about the Freedom of Information Act.”
  • The Climategate Graywash by Greg Pollowitz on July 12, 2010. This is a large excerpt from the Financial Post: “The third British investigation into the Climategate scandal — led by former civil servant Sir Muir Russell — amounts, at best, to a greywash.”
  • by Greg Pollowitz on February 10, 2010. This is a press release from Sen. Inhofe’s office:

    Penn State’s internal inquiry found further investigation is warranted to determine if Dr. Mann “engaged in, directly or indirectly, any actions that seriously deviated from accepted practices within the academic community for proposing, conducting or reporting research or other scholarly activities.”

    “As the University moves to the next phase of its investigation, I believe the Inspector General of the National Science Foundation should also commence an investigation to examine possible violations of federal laws and policies governing taxpayer-funded research.”

  • Lord Jones is Indisposed by Mark Steyn on December 2, 2009. “The reviled “skeptics” and “deniers” have forced Prof. Phil Jones in East Anglia to step down “temporarily” and prompted Penn State to investigate Prof. Michael Mann.”

These examples demonstrate that both NR and Steyn were aware of ongoing investigations, and that NR was certainly aware of the results of at least one of those investigations. Furthermore, it is not realistic to imagine that NR cultivated a culture where authors writing about the same subject (climate change/global warming) were so isolated from each other that they never discussed the results of the various investigations among themselves. As such, it is virtually certain that NR and Steyn were aware of the investigations’ results and thus cannot credibly claim ignorance of those same results.

S&R investigated three of the claims made in the National Review/Mark Steyn motion for reconsideration. Simple web searches demonstrated that two of the three claims investigated were clearly false, while a more in-depth investigation found that the third claim (that NR/Steyn had not called for investigations into Mann) was plausible. However, Mann’s legal response to the NR/Steyn motion for reconsideration addressed the third claim and argued that NR and Steyn had both called for investigations following the illegal publication of private emails known as Climategate. As would be expected, Mann’s legal response also addressed the various other claims that S&R did not investigate, such as NR/Steyn’s presentation of a new First Amendment-based argument for dismissal.

Generally speaking, judges react poorly to baldly stated and easily disproved false claims made in legal documents. While S&R’s reading of Judge Combs Greene’s original order finds no reason to believe that she will react any different to the NR/Steyn motion for reconsideration, only time will tell.

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