More SKS in the Mann Pleadings

I am in the process of writing a post showing that Mann’s claim that he had personally been exonerated by the UK House of Commons Science and Technology Committee (report here) of a wide range of counts was also untrue. It’s so untrue that it’s hard to even make an interesting post of it.

In the process of writing the post, I noticed the following quotation from Mann’s Reply Memorandum, which has some extra interest given the evidence that the doctored quotation in Mann’s pleadings came from the SKS blog, rather than original documents. Mann and/or Cozen O’Connor wrote:

In March 2010, the United Kingdom’s House of Commons Science and Technology Committee published a report finding that the skeptics’ criticisms of the CRU were misplaced, and that its actions “were in line with common practice in the climate science community.”

The first sentence is completely untrue: the Committee Report said nothing of the sort. The assertion that “criticisms of the CRU were misplaced” is neither made nor supported in the Committee Report. This phrase originated instead with SKS, who, once again, altered the language, though, in this case, not going so far as to fabricate a quotation.

Contrary to the assertion that the Commons Committee had found that criticisms of CRU were misplaced, the Commons Committee was extremely sympathetic to criticisms of data obstruction, particularly given the importance of climate science. For example, they stated that, if CRU’s practices were “found to be in line with the rest of climate science, the question would arise whether climate science methods of operation need to change”. (It is hard to conceive of a more thorough misrepresentation of this finding than the wording in the Mann/Cozen O’Connor pleading.)

As we explained in chapter 2, the practices and methods of climate science are a key issue. If the practices of CRU are found to be in line with the rest of climate science, the question would arise whether climate science methods of operation need to change. In this event we would recommend that the scientific community should consider changing those practices to ensure greater transparency.

In paragraph 54, the Committee again unequivocally pointed to the importance of climate science for public policy and the resulting transparency requirement:

54. It is not standard practice in climate science and many other fields to publish the raw data and the computer code in academic papers. We think that this is problematic because climate science is a matter of global importance and of public interest, and therefore the quality and transparency of the science should be irreproachable. We therefore consider that climate scientists should take steps to make available all the data used to generate their published work, including raw data; and it should also be made clear and referenced where data has been used but, because of commercial or national security reasons is not available. Scientists are also, under Freedom of Information laws and under the rules of normal scientific conduct, entitled to withhold data which is due to be published under the peer-review process. 78 In addition, scientists should take steps to make available in full their methodological workings, including the computer codes. Data and methodological workings should be provided via the internet. There should be enough information published to allow verification.

Similar statements are made throughout the report. Rather than the report rebuffing “skeptic” demands for data transparency, the Committee squarely endorsed these demands.

In this context, they commented that the “focus” on Phil Jones was “misplaced” – not because transparency was wrong, but because the problem was more far-reaching than Jones himself. They observed that “many of the problems at UEA” would have been avoided with data transparency. In the Summary, for example, they stated:

We believe that the focus on CRU and Professor Phil Jones, Director of CRU, in particular, has largely been misplaced. Whilst we are concerned that the disclosed e-mails suggest a blunt refusal to share scientific data and methodologies with others, we can sympathise with Professor Jones, who must have found it frustrating to handle requests for data that he knew -or perceived- were motivated by a desire simply to undermine his work.

In the context of the sharing of data and methodologies, we consider that Professor Jones’s actions were in line with common practice in the climate science community. It is not standard practice in climate science to publish the raw data and the computer code in academic papers. However, climate science is a matter of great importance and the quality of the science should be irreproachable. We therefore consider that climate scientists should take steps to make available all the data that support their work (including raw data) and full methodological workings (including the computer codes). Had both been available, many of the problems at UEA could have been avoided.

The Committee thoroughly endorsed demands for data transparency as a matter of considerable urgency and categorically did not find that “skeptics’ criticism” was “misplaced” on this point – only the focus on Jones.

As noted above, the phrase “criticisms of CRU were misplaced” does not occur in the Committee Report. The first few Google entries for the phrase point to SKS, with the first entry pointing to the same SKS post providing the doctored quotation in the Mann pleadings about the Muir Russell report. Here is the phrase as occurring at SKS: indeed not only the phrase, but the entire sentence is pretty much lifted from SKS. (This is true of other points in the pleading as well, a matter that I will return to.)

sks on parliament


134 Comments

  1. Steve McIntyre
    Posted Feb 23, 2014 at 12:45 PM | Permalink

    Here’s another place where Mann/Cozen O’Connor directly copied/plagiarized from SKS.

    SKS summarized http://www.skepticalscience.com/print.php?r=120 the Oxburgh panel as follows:

    In April 2010, the University of East Anglia set up an international Scientific Assessment Panel, in consultation with the Royal Society and chaired by Professor Ron Oxburgh. The Report of the International Panel assessed the integrity of the research published by the CRU and found “no evidence of any deliberate scientific malpractice in any of the work of the Climatic Research Unit”.

    Here’s the corresponding statement in the Mann Reply Memorandum:

    In April 2010, the University of East Anglia convened an international Scientific Assessment Panel, in consultation with the Royal Society of London for Improving Natural Knowledge, and chaired by Professor Ron Oxburgh. The Report of the International Panel assessed the integrity of the research published by the CRU and found “no evidence of any deliberate scientific malpractice in any of the work of the Climatic Research Unit”.

    • pottereaton
      Posted Feb 23, 2014 at 9:36 PM | Permalink

      From Cozen O’Oconnors Memorandum to Dismiss (p. 16):

      Subsequently, George Mason [University] conducted a formal investigation into charges of plagiarism and misconduct related to the Wegman Report.
      While Dr. Wegman was not sanctioned for misconduct per se, he did receive a letter of reprimand due to plagiarism and his paper was retracted by its publisher, the journal of Computational Statistics and Data Analysis. It was revealed that Dr. Wegman was provided with a significant amount of material for use in drafting its report from members of Representative Barton’s staff– further demonstrating that his report was neither impartial or unbiased.

  2. Steve McIntyre
    Posted Feb 23, 2014 at 12:48 PM | Permalink

    We’ve already discussed that the Mann pleadings drew their doctored quotation from SKS. In fact, almost the entire paragraph is derived from SKS.

    Here’s the SKS original:

    In July 2010, the University of East Anglia published the Independent Climate Change Email Review report. They examined the emails to assess whether manipulation or suppression of data occurred and concluded that “The scientists’ rigor and honesty are not in doubt”.

    Here’s the corresponding paragraph in the Mann/Cozen O’Connor Reply Memorandum:

    Three months later, the University of East Anglia published the Independent Climate Change Email Review report, prepared under the oversight of Sir Muir Russell. The report examined whether manipulation or suppression of data occurred and concluded that “the scientists’ rigor and honesty are not in doubt.”

  3. Steve McIntyre
    Posted Feb 23, 2014 at 12:51 PM | Permalink

    Here are the full corresponding paragraphs for the Parliamentary Committee discussed above.

    The SKS original:

    In March 2010, the UK government’s House of Commons Science and Technology Committee published a report finding that the criticisms of the Climate Research Unit (CRU) were misplaced and that CRU’s “Professor Jones’s actions were in line with common practice in the climate science community”.

    The Mann/Cozen O’Connor pleading:

    In March 2010, the United Kingdom’s House of Commons Science and Technology Committee published a report finding that the skeptics’ criticisms of the CRU were misplaced, and that its actions “were in line with common practice in the climate science community.”

    • metro70
      Posted Feb 23, 2014 at 8:50 PM | Permalink

      http://www.publications.parliament.uk/pa/cm200910/cmselect/cmsctech/memo/climatedata/uc3902.htm

      The UK Institute of Physics didn’t appear to exonerate Mann et al—[ but rather specifically ans deliberately included them in its criticism]—in its report commissioned by the UK House of Commons.

      The House of Commons issued not this original report, but a very different version with conclusions very different from those expressed in the original.

      Some of their answers to the question….

      [ ' What are the implications of the disclosures for the integrity of scientific research. ' ]
      are….

      1.The Institute is concerned that, unless the disclosed e-mails are proved to be forgeries or adaptations, worrying implications arise for the integrity of scientific research in this field and for the credibility of the scientific method as practised in this context.

       2. The CRU e-mails as published on the internet provide prima facie evidence of determined and co-ordinated refusals to comply with honourable scientific traditions and freedom of information law. The principle that scientists should be willing to expose their ideas and results to independent testing and replication by others, which requires the open exchange of data, procedures and materials, is vital. The lack of compliance has been confirmed by the findings of the Information Commissioner. This extends well beyond the CRU itself – most of the e-mails were exchanged with researchers in a number of other international institutions who are also involved in the formulation of the IPCC’s conclusions on climate change.

       3. It is important to recognise that there are two completely different categories of data set that are involved in the CRU e-mail exchanges:

       · those compiled from direct instrumental measurements of land and ocean surface temperatures such as the CRU, GISS and NOAA data sets; and

      · historic temperature reconstructions from measurements of ‘proxies’, for example, tree-rings.

       4. The second category relating to proxy reconstructions are the basis for the conclusion that 20th century warming is unprecedented. Published reconstructions may represent only a part of the raw data available and may be sensitive to the choices made and the statistical techniques used. Different choices, omissions or statistical processes may lead to different conclusions. This possibility was evidently the reason behind some of the (rejected) requests for further information.

       5. The e-mails reveal doubts as to the reliability of some of the reconstructions and raise questions as to the way in which they have been represented; for example, the apparent suppression, in graphics widely used by the IPCC, of proxy results for recent decades that do not agree with contemporary instrumental temperature measurements.

       6. There is also reason for concern at the intolerance to challenge displayed in the e-mails. This impedes the process of scientific ‘self correction’, which is vital to the integrity of the scientific process as a whole, and not just to the research itself. In that context, those CRU e-mails relating to the peer-review process suggest a need for a review of its adequacy and objectivity practised in this field and its potential vulnerability to bias or manipulation.

       9. Where the nature of the study precludes direct replication by experiment, as in the case of time-dependent field measurements, it is important that the requirements include access to all the original raw data and its provenance, together with the criteria used for, and effects of, any subsequent selections, omissions or adjustments. The details of any statistical procedures, necessary for the independent testing and replication, should also be included. In parallel, consideration should be given to the requirements for minimum disclosure in relation to computer modelling.

      • pottereaton
        Posted Feb 23, 2014 at 10:05 PM | Permalink

        That’s quite a document you’ve linked there. I don’t think I’ve ever seen the issues more cogently explicated.

      • dfhunter
        Posted Feb 24, 2014 at 5:39 AM | Permalink

        Thanks Metro, that is an interesting find –

        “Are the terms of reference and scope of the Independent Review announced on 3 December 2009 by UEA adequate?

        10. The scope of the UEA review is, not inappropriately, restricted to the allegations of scientific malpractice and evasion of the Freedom of Information Act at the CRU. However, most of the e-mails were exchanged with researchers in a number of other leading institutions involved in the formulation of the IPCC’s conclusions on climate change. In so far as those scientists were complicit in the alleged scientific malpractices, there is need for a wider inquiry into the integrity of the scientific process in this field.”

  4. Steve McIntyre
    Posted Feb 23, 2014 at 12:53 PM | Permalink

    SKS:

    In June 2010, the Pennsylvania State University published their Final Investigation Report, determining “there is no substance to the allegation against Dr. Michael E. Mann”.

    Mann/Cozen O’Connor:

    In June, 2010, after having reviewed “all available evidence,” the university published its Final Investigation Report, confirming that “there was no substance to the allegations against [Dr. Mann].”

    • Posted Feb 23, 2014 at 1:21 PM | Permalink

      Taken together, this stuff is astounding. In fact, even one example is astounding. Do these people really think the US legal system is this stupid? Doesn’t Cozen O’Connor realise what deep trouble it is in? Precise quotes from the reports of each inquiry are the only legitimate way to support Mann’s claims.

      I am in the process of writing a post showing that Mann’s claim that he had personally been exonerated by the UK House of Commons Science and Technology Committee (report here) of a wide range of counts was also untrue. It’s so untrue that it’s hard to even make an interesting post of it.

      I’m grateful you’re assembling the evidence – I can only assume Mark Steyn feels the same. Interestingness is secondary.

      • Donm
        Posted Feb 23, 2014 at 2:40 PM | Permalink

        I am amazed at the hubris of Mann, in providing his own secretly adulterated commentary in a rebuttal, and attempting to pass it off as content from reports of public inquiries – in a legal proceeding. One might say his rebuttal is rather full of himself.

        • Luther Bl't
          Posted Feb 23, 2014 at 4:38 PM | Permalink

          When one deals with potential litigants, one soon discovers that some people go to a lawyer so that s/he can tell them what to do, and others go to a lawyer to tell the lawyer what to do.

        • Peter Puusa
          Posted Feb 23, 2014 at 8:15 PM | Permalink

          RE: Donm Posted Feb 23, 2014 at 2:40 PM
          “I am amazed at the hubris of Mann, . . .”

          Me too. At first, I was thinking ‘big balls’, however I’ve since changed my mind to ‘big stupid’.

          I’m sure Mike M. and his attorneys are following these threads. Too bad their corresponding emails are privileged. I mean for entertainment purposes only . . .

        • Posted Feb 24, 2014 at 12:47 AM | Permalink

          @Peter Puusa

          I’m sure Mike M. and his attorneys are following these threads. Too bad their corresponding emails are privileged. I mean for entertainment purposes only . . .

          Well, based on extensive experience with his past performances and (somewhat limited, predictable and repetitive) vocabulary, I suspect there may well be many here who could probably write Mann’s emails for him ;-)

  5. DGH
    Posted Feb 23, 2014 at 1:02 PM | Permalink

    The leaked SKS secret forum show that Mann had editorial powers at SKS. Shub did a nice write up at Bishop Hill about the astroturfing and sockpuppetry…

    http://www.bishop-hill.net/blog/2012/9/7/michael-mann-and-skepticalscience-well-orchestrated.html

    It’s possible that Mann is lifting Mann’s words from those pages.

    • Posted Feb 23, 2014 at 1:26 PM | Permalink

      As Mosh has indicated on the previous thread there are reasons to believe there are limits to the efficacy of such internet techniques in a court of law.

      • A. Scott
        Posted Feb 23, 2014 at 5:08 PM | Permalink

        Re: Richard Drake (Feb 23 13:26),

        That Mann and/or his attorney’s plagiarize from SkS is not te point or issue. It is that they do NOT accurately portray the original documents as a result. And that provides excellent support for the accusations regarding Mann’s practices and misrepresentations.

        It directly shows Mann’s “fabrications” – here the fabrications being made on the record, to the Court.

        • Posted Feb 23, 2014 at 5:24 PM | Permalink

          Of course. Nevertheless, I found the thought amusing that deep experience of ‘astroturfing and sockpuppetry’ might have led the Complainant to feel he had an inside track in a court of law and thus lose his grip on the important realities you mention.

        • A. Scott
          Posted Feb 23, 2014 at 5:31 PM | Permalink

          Re: A. Scott (Feb 23 17:08),

          We most definitely all understand Mr. Mann’s “grip on reality” :-)

    • A. Scott
      Posted Feb 23, 2014 at 5:50 PM | Permalink

      Re: DGH (Feb 23 13:02),

      The leaked SKS secret forum show that Mann had editorial powers at SKS. Shub did a nice write up at Bishop Hill about the astroturfing and sockpuppetry…

      This article by Shub at Bishop Hill is it would seem yet another excellent tutorial for Mann’s pattern of fabrications, deceit and dishonesty.

      Not only does it shows Mann’s concerted effort to game the Amazon review section – both with salted reviews themselves, but as bad or worse by attempting to manipulate the results at Amazon thru a concerted attack campaign managed and directed thru SkS.

    • pottereaton
      Posted Feb 23, 2014 at 9:53 PM | Permalink

      Mann operates on two websites. The good Michael is the dedicated, objective, dispassionate, open scientist at RealClimate. The bad Michael gives voice and animation to the puppets at SkepticalScience.

  6. AndyL
    Posted Feb 23, 2014 at 1:09 PM | Permalink

    Great work.
    I find it interesting that the wording as used in Mann’s pleading changes “the criticisms of the CRU” to “the skeptics’ criticisms”

  7. Larry Hamlin
    Posted Feb 23, 2014 at 1:57 PM | Permalink

    Thank you so much Mr. McIntyre for your outstanding efforts in exposing the extraordinary deceit and deception of Mann’s positions which have been tolerated and hidden by those supporting his schemes. Unfortunately these tactics seem to be utilized again and again by those claiming that man made actions dominant global climate events including those at the SKS website.

  8. Marc
    Posted Feb 23, 2014 at 1:57 PM | Permalink

    Having read the judges opinion again, it is clear that she was grossly in error on the facts and the law.

    The net result of her ruling is that is now illegal to hold the belief and express it publicly, that Mann has misled the public through his published research.

    In her ruling she has deemed that Mann’s research is true and accurate as a matter of irrefutable fact, and that any publicly expressed opinion to the contrary is, first, defamatory, and second, harmful to him in a monetary sense because it is a serious allegation against academic research.

    Criticism of Mann’s misleading research is now illegal.

    This cannot stand.

    • Ian H
      Posted Feb 25, 2014 at 10:55 PM | Permalink

      Respectfully disagree. This was a motion to dismiss. In such a motion the judge assumes that all facts alleged in the pleadings are true and determines whether that pattern of facts constitutes a matter for the law.

      In her ruling she has deemed that Mann’s research is true and accurate as a matter of irrefutable fact, and that any publicly expressed opinion to the contrary is, first, defamatory, and second, harmful to him in a monetary sense because it is a serious allegation against academic research.

      In her ruling she assumed that Mann’s research was true and accurate on the grounds that it was a ‘fact’ alleged by Mann in his complaint. She concluded that any publicly expressed opinion to the contrary is arguably defamatory, and hence Mann is entitled to argue in court that he deserves damages.

      I do think she made a mistake by completely ignoring the SLAPP aspect of the proceedings. But as the ruling is in the context of an appeal for dismissal, it is much more limited than you think.

  9. DaveO
    Posted Feb 23, 2014 at 2:19 PM | Permalink

    Mann and/or Cozen O’Connor wrote:

    In March 2010, the United Kingdom’s House of Commons Science and Technology Committee published a report finding that the skeptics’ criticisms of the CRU were misplaced, and that its actions “were in line with common practice in the climate science community.”

    I’m going to put my money on this be written by the Big Tobacco team. Can anyone ever recall Mann using the term “skeptic”?

  10. Craig Loehle
    Posted Feb 23, 2014 at 2:53 PM | Permalink

    If only I could wrap myself in the cloak of infallibility and “exoneration”!! I could win every argument with the wife, overturn traffic tickets, overcome those uncooperative reviewers (or get them replaced), and tell people the brown shoes do indeed go with a black suit if I say so! But alas, I am a mere mortal in ineluctable contact with reality.

    • Marc
      Posted Feb 23, 2014 at 3:05 PM | Permalink

      Just find a corrupt a mentally mendacious judge to so deem you, and you’re in business.

    • mpaul
      Posted Feb 23, 2014 at 3:24 PM | Permalink

      Yes, a small number of people in the world have an uncanny ability to create a reality distortion field around them.

    • Luther Bl't
      Posted Feb 23, 2014 at 4:44 PM | Permalink

      Craig, I recommend you discover George Washington to be direct ancestor :-) Large charts with many boxes and criss-crossing lines could be conclusive (in an instrumental way).

  11. Posted Feb 23, 2014 at 3:10 PM | Permalink

    I never in my wildest dreams believed that such a low quality propaganda outlet as SKS would be quoted as factual in a legal proceeding. No book could be stranger than reality.

    • mpaul
      Posted Feb 23, 2014 at 3:27 PM | Permalink

      Perhaps Mann’s media empire is larger than any of us knew. If Mann wrote many of the SkS pieces attributed to Cook, then Mann is simply re-cycling his own work.

  12. Marc
    Posted Feb 23, 2014 at 3:15 PM | Permalink

    World-wide epidemic of controloholism, US judges hardest hit. News at 10:59

  13. Phoenix
    Posted Feb 23, 2014 at 3:23 PM | Permalink

    I assume copies of SkS’ web pages have been or are being archived by interested parties, as it seems possible that they might disappear rather quickly with so much more likely to be found.

    • Duke C.
      Posted Feb 23, 2014 at 3:31 PM | Permalink

      Well, that didn’t take long. The sks article with the quote in question now shows “rigour”.

      http://www.skepticalscience.com/Climategate-CRU-emails-hacked.htm

      archive.org shows “rigor”.

      https://web.archive.org/web/20140222223459/http://www.skepticalscience.com/Climategate-CRU-emails-hacked.htm

      • Duke C.
        Posted Feb 23, 2014 at 3:34 PM | Permalink

        h/t to Sven, commenter at the Blackboard

      • MrPete
        Posted Feb 23, 2014 at 3:59 PM | Permalink

        Re: Duke C. (Feb 23 15:31),
        Can I assume that some folks are saving these? Even the evidence at Archive.org can be removed.

        • Duke C.
          Posted Feb 23, 2014 at 4:01 PM | Permalink

          I have screencaps of both.

      • UC
        Posted Feb 23, 2014 at 4:01 PM | Permalink

        They change something http://www.youtube.com/watch?v=z_KmNZNT5xw

      • GrantB
        Posted Feb 23, 2014 at 6:06 PM | Permalink

        Not in their copy and paste response at post 22 however. Strange, but as Dr Stokes keeps telling us, it probably doesn’t matter.

    • Steven Mosher
      Posted Feb 23, 2014 at 4:06 PM | Permalink

      kool.

      Now let the legal types here opine about whether this can in any way open a fishing expedition.

      Let’s see. The Lawyer submitted a document that purports to reference a text that it does not. One could argue this is perjury.

      Are SkS accessories after the fact..

      dunno could be fun

      • Posted Feb 23, 2014 at 4:14 PM | Permalink

        “One could argue this is perjury.”
        You’d be laughed at.

        • thisisnotgoodtogo
          Posted Feb 23, 2014 at 4:18 PM | Permalink

          “You’d be laughed at.”

          Maybe not if it’s Mikey at the keyboard

        • Don Keiller
          Posted Feb 24, 2014 at 5:10 AM | Permalink

          There’s only one person being laughed at here, Nick.

          Guess who?

        • Don Keiller
          Posted Feb 24, 2014 at 5:14 AM | Permalink

          Nick what part of this definition do you not understand?

          “Perjury, also known as forswearing, is the willful act of swearing a false oath or of falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding”

        • Posted Feb 24, 2014 at 6:04 AM | Permalink

          Don, no-one swore an oath here, false or otherwise.

        • Steven Mosher
          Posted Feb 24, 2014 at 10:53 AM | Permalink

          true. thepleading documents, it appears, are not notarized nor signed under threat of perjury. too bad.

        • Ben
          Posted Feb 26, 2014 at 6:18 PM | Permalink

          Nick and Steve,
          Most lawyers are required to take an oath prior to receiving the right to practice law. Below is Maine’s oath.

          “”You solemnly swear that you will do no falsehood nor consent to the doing of any in court, and that if you know of an intention to commit any, you will give knowledge thereof to the justices of the court or some of them that it may be prevented; you will not wittingly or willingly promote or sue any false, groundless or unlawful suit nor give aid or consent to the same; that you will delay no man for lucre or malice, but will conduct yourself in the office of an attorney within the courts according to the best of your knowledge and discretion, and with all good fidelity, as well as to the courts, as to your clients. So help you God.” “

      • thisisnotgoodtogo
        Posted Feb 23, 2014 at 4:16 PM | Permalink

        Oh, Mosher.

        They can change it back!

        • Steven Mosher
          Posted Feb 24, 2014 at 1:14 PM | Permalink

          At some point the question of whether Cook is assisting Mann may become interesting. I suppose folks interested in him might check down those alleys.

  14. Unscientific Lawyer
    Posted Feb 23, 2014 at 4:51 PM | Permalink

    The facts alleged in a complaint may allow one to survive a Rule 12(b)(6) motion to dismiss, but those same alleged facts may subject one to sanctions under Rule 11(b)(3).

    In ruling on a motion to dismiss, the court must accept the factual allegations in a complaint as if they were true. If those alleged facts (assumed to be true) would support a cause of action, then the motion to dismiss must be denied. However, if it later becomes clear that those factual allegations were false (“without evidentiary support” in the language of Rule 11), then the court can sanction the person responsible for the violation. However, the rule also allows the party who filed the offending pleading to correct it upon notice.

    It is possible that the defendants in this matter may have already served the plaintiff with a motion for sanctions based on the lack of evidentiary support for some of the allegations. The sanctions motion is not filed with the court, however, unless the offending pleading is not corrected within 21 days of receiving the motion for sanctions.

    To what extent the court relied upon the exonerations alleged in the complaint by Mann to defeat the motions to dismiss is unclear to me because, although both orders denying dismissal seem to rely heavily on Mann’s claim to have been exonerated, the orders don’t cite the specific allegations upon which the court relied. If a judge relied upon certain factual allegations to deny a motion to dismiss, and it later turns out that those allegations were unexcusably inaccurate (like, say, intentionally misquoting a document), my guess is that the judge might be inclined to revisit its previous orders.

    • Posted Feb 23, 2014 at 5:18 PM | Permalink

      If a judge relied upon certain factual allegations to deny a motion to dismiss, and it later turns out that those allegations were unexcusably inaccurate (like, say, intentionally misquoting a document), my guess is that the judge might be inclined to revisit its previous orders.

      So, revisiting Dickens, the law may be an ass but it’s not quite that much of an ass.

  15. Marc
    Posted Feb 23, 2014 at 4:54 PM | Permalink

    Is it not dispositive that Mann’s original hockey stick is persona non grata in later IPCC reports after it first appeared in an earlier one? — someone else has the correct order and references.

    Doesn’t that alone show that the original version was flawed enough to get ejected? How it got so flawed is a matter of opinion, but that it was demonstrated to unsupportable and and thus became unusable is very important, n’est-ce pas?

  16. Unscientific Lawyer
    Posted Feb 23, 2014 at 4:56 PM | Permalink

    “One could argue this is perjury.”

    No. Pleadings are not statements under oath.

    • A. Scott
      Posted Feb 23, 2014 at 5:13 PM | Permalink

      Re: Unscientific Lawyer (Feb 23 16:56),

      “One could argue this is perjury.”

      No. Pleadings are not statements under oath.

      You CAN however argue this is perpetrating a fraud upon the Court, is a direct violation of Court Rules of Procedure, and is direct evidence of the pattern of fraudulent acts by the Plaintiff

    • tomdesabla
      Posted Feb 23, 2014 at 6:40 PM | Permalink

      Well, wait a minute. Is a Motion (or a response to a motion) a “pleading”? If it is, and I think it is, then maybe you are wrong, because motions are signed by the plaintiff or defendant, and the language is some version of – “I hereby certify under penalty of perjury that the contents of the foregoing Plaintiff’s Response to the Defendant’s Petition for Contempt are true and correct to the best of my knowledge, information, and belief.”

      I’m looking right at one, so I’m not imagining anything here.

      • Will J. Richardson
        Posted Feb 23, 2014 at 7:21 PM | Permalink

        A motion is not a pleading. There are only seven formal pleadings: complaint or petition, answer, answer to a counterclaim, answer to a crossclaim, crossclaim, third-party complaint, and a third-party answer.

        • tomdesabla
          Posted Feb 23, 2014 at 7:32 PM | Permalink

          Note that my above language came from an answer to a petition. Are the items at issue here going back and forth from Mann to Steyn and vice versa pleadings or not? Are they sworn to under penalty of perjury or not?

      • Unscientific Lawyer
        Posted Feb 23, 2014 at 7:33 PM | Permalink

        The language at issue comes from, I believe, the January 18, 2103, Plaintiff’s Memorandum of Points filed by Mann. It’s not a sworn document so, no, perjury would not apply. It is a pleading under Rule 11, however, so certain false statements could result in sanctions.

      • Steven Mosher
        Posted Feb 24, 2014 at 10:56 AM | Permalink

        The document I was referring to wasnt signed. my bad.

    • Posted Feb 23, 2014 at 7:50 PM | Permalink

      Re: Unscientific Lawyer (Feb 23 16:56), “No. Pleadings are not statements under oath.”

      However, there may indeed be a need for many corrections. I suspect it may take a few passes. How do American judges view “many times corrected pleadings”…?

      In Canada at least much corrected documents earn little sympathy. Perhaps there will be a suggestion that the case be re-filed correctly if it is that important.

      • Unscientific Lawyer
        Posted Feb 23, 2014 at 8:05 PM | Permalink

        There are many legitimate reasons for amending pleadings, so the fact that a pleading has been amended, even numerous times, is not necessarily an indication of the quality of the claims made. In some jurisdictions, a party can amend pleadings just about any time and as often as they wish. In federal court, there are more restrictions on when and how many times you can amend without first getting permission from the judge.

        • tomdesabla
          Posted Feb 23, 2014 at 10:31 PM | Permalink

          In my experience, there are time limits in that you can only amend without leave until a certain amount of time before trial, then you need the leave of the court, especially if the opposition objects.

          It seems to me though, that repeatedly needing to amend facts and quotes, particularly if the correct information was available all along, could be brought up to discredit the amending party.

    • Steven Mosher
      Posted Feb 24, 2014 at 10:55 AM | Permalink

      Ya I saw that after I made the comment.

  17. minarchist
    Posted Feb 23, 2014 at 5:02 PM | Permalink

    It worries me that Steyn has fired his lawyers and is apparently representing himself now. Does he have a fool for a client?

    http://www.popehat.com/2014/02/23/mark-steyn-has-a-fool-for-a-client/

    • tomdesabla
      Posted Feb 23, 2014 at 6:49 PM | Permalink

      I think you/we are right to be worried. It has been my experience that the courts in general do not like pro se litigants. They don’t “know the ropes,” and are taking business away from an attorney. Judges and attorneys are cut from largely the same cloth, and like legislators and lobbyists tend to exchange places with relative frequency.

  18. Jan
    Posted Feb 23, 2014 at 5:08 PM | Permalink

    I’m beginning to think that some of these people have a language processing problem. What goes in as criticism, comes out the other end as praise.

    • Jimmy Haigh
      Posted Feb 23, 2014 at 9:06 PM | Permalink

      Maybe he ran it through his climate model?

  19. mpaul
    Posted Feb 23, 2014 at 5:09 PM | Permalink

    If Mann is the true author behind many of the literary stylings of John Cook, I wonder what other Cook’ed works are actually Mann’s. One can’t help but be struck by the familiar look of the Post-Normal statistics used in the works of Lewandowsky and Cook (neither of whom have a background in statistics). Its also remarkable how well the results confirm the narrative about skeptics that has long been promoted by Mann.

    In fact, wasn’t it one the peer reviewers of Lewandowski, Cook, et al, 2013 that said of Cook,

    “Ah! methinks ’twere impossible that there could breathe a man on this earth skilled to say as sweetly as he all the pretty nothings that mean so much– that mean all! At times his mind seems far away, the Muse says naught–and then, presto! he speaks–bewitchingly! enchantingly!”

    … I might have that wrong.

  20. RichieRich
    Posted Feb 23, 2014 at 5:09 PM | Permalink

    Legal opinion from Climate Etc

    http://judithcurry.com/2014/02/22/steyn-et-al-versus-mann/#comment-463781

    _______________

    Thylacine | February 23, 2014 at 11:23 am | Reply

    I put the following comment on WUWT yesterday:

    1. This lawsuit is about whether it can be fairly said that Mann did something “fraudulent,” or “molested and tortured data” in a scientifically discreditable sense. Everything else is a diversion.

    2. A pleading is not evidence; it is merely a claim about what the party hopes to establish. Clearly judges are lenient when it comes to interpreting the codes relating to a lawyer’s duty to verify the basis of a claim, since most claims fail and lawyers are rarely (never, in my experience) punished for filing even very frivolous claims.

    3. If Jones “replicated Mike’s Nature trick,” and Muir Russell gave an opinion that exonerated Jones of any “fraud” in that endeavour, then Muir Russell also indirectly gave an opinion exonerating Mike, to the extent that they used the same methods. This supports Mann’s defense, to the extent that Muir Russell’s opinion is reliable.

    4. A counterclaim has the same status as a claim. The Plaintiff by Counterclaim (Steyn) has the same onus of proof as any Plaintiff, and the Defendant by Counterclaim (Mann) has the same defenses as any Defendant. If Steyn truly believes this is a “pure” free-speech case, then he would have no grounds for a counterclaim; he would have to acknowledge that Mann has the same free-speech defense to the counterclaim as Steyn claims for himself in his defense to the original Claim. So Steyn’s counterclaim must logically be understood as a pleading “in the alternative”: Mann’s claim should be dismissed on First-Amendment and Anti-SLAPP grounds, or in the alternative, if these defenses are not available to Steyn then they are also not available to Mann.

    5. A plaintiff may claim any amount of damages he wishes; if successful, a court will still only approve an amount that has been proven as damages. (Does Steyn honestly believe he has suffered $20 million in damages from Mann’s lawsuit? If not, then is he guilty of filing false pleadings, with all of the supposed consequences thereof? See #2 above…) The amount of the damages claimed by Steyn are only relevant when it comes to calculating “costs” (penalties for the losing side) at the end of the trial – on the theory that if you stand to lose $20 million you will pay more for legal assistance, and therefore are entitled to a higher schedule of costs.

    6. Steyn’s counterclaim, however entertaining it might be, might not be wise legal strategy. If he fails to prove the defamation claimed, or if he fails to prove damages, he could be liable for costs on the Counterclaim. Those costs could well negate any costs he would otherwise have won by being successful in the original action by Mann.

    7. Buying gift certificates to support Steyn’s lawsuit might have the consequence of making it impossible for Steyn to prove any damages on his counterclaim. That is, if his “business” actually improves consequent to the lawsuit, he will be hard pressed to establish that he suffered any specific damages.

  21. A. Scott
    Posted Feb 23, 2014 at 5:29 PM | Permalink

    Steve Mc … your direct comparisons between SkS and the Mann pleadings are great … might I suggest a third counterpart to each … a simple re-write of each claim using the real source documents and real facts (as opposed to the SkS version of same).

    All presented grouped together as you did above – to allow direct comparison. Your (and the others) work on this might be worth exploring an Amicus brief to the Court as well, as you most certainly do have direct relevant information and experience with both Climate Science, and with Mann’s actions, ethics and the accuracy of his work.

    Literally, friend of the court. A person with strong interest in or views on the subject matter of an action, but not a party to the action, may petition the court for permission to file a brief, ostensibly on behalf of a party but actually to suggest a rationale consistent with its own views. Such amicus curiae briefs are commonly filed in appeals concerning matters of a broad public interest; e.g., civil rights cases. They may be filed by private persons or the government. In appeals to the U.S. courts of appeals, an amicus brief may be filed only if accompanied by written consent of all parties, or by leave of court granted on motion or at the request of the court, except that consent or leave shall not be required when the brief is presented by the United States or an officer or agency thereof.

    An amicus curiae educates the court on points of law that are in doubt, gathers or organizes information, or raises awareness about some aspect of the case that the court might otherwise miss. The person is usually, but not necessarily, an attorney, and is usually not paid for her or his expertise. An amicus curiae must not be a party to the case, nor an attorney in the case, but must have some knowledge or perspective that makes her or his views valuable to the court.

    There is considerable “horsepower” within the crowd sourced community that I suspect could/would help with this work.

    I expect Mann would vociferously object, however, I also think the Court would be hard pressed to reject such a request considering your deep involvement with both reviewing and rebutting Manns work, and your standing in the climate “industry”

    • A. Scott
      Posted Feb 23, 2014 at 6:20 PM | Permalink

      Re: A. Scott (Feb 23 17:29),

      From the other thread this is worth repeating here …

      First – Jonathan Adler at Volokh posts a link to a particularly important and relevant recent D.C. court decision – this is IMO a must read:

      Readers may also be interested in this recent decision by the U.S. Court of Appeals for the D.C. Circuit upholding the district court’s dismissal of Joseph Farah’s defamation claim against Esquire magazine under D.C.’s anti-SLAPP statute

      I disagree with the Courts decision in Farah v. Esquire … to me the actions of Esquire and its writers rise to the “shouting fire in a theater” level … yet the Court STILL found that despite Esquire publishing outright lies about Farah’s book, that to any outside observer were intended to damage the release and sale of the book, which they disagreed with.

      That said – with the extremely broad brush the Court allowed in this case there is NO way Mann can prevail here.

      Also you might find some useful information in the Amicus briefs:

      … the defendants received substantial support in their effort to seek interlocutory appeal of Judge Combs Greene’s initial order, in the form of amicus briefs from the ACLU, Reporters Committee for the Freedom of the Press (joined by several more media organizations), and the District of Columbia.

      All of Volokh’s coverage at this link

  22. Will J. Richardson
    Posted Feb 23, 2014 at 5:32 PM | Permalink

    Ken White at Popehat has another post up about this litigation which is worth reading. MarkSteyn Has a Fool for a Client

    • A. Scott
      Posted Feb 23, 2014 at 5:58 PM | Permalink

      Re: Will J. Richardson (Feb 23 17:32),

      Most definately worh a read …. Steyn is apparently proceeded pro se, on his own – representing himself. As Popehat observes, considering the potentially high stakes this seems a particularly unwise path …

      Being right does not unfortunately guarantee a favorable ruling in the US Court system …

      • Posted Feb 23, 2014 at 6:22 PM | Permalink

        Agreed, well worth anyone reading – but most of all well worth Mark Steyn reading. To give the polemicist credit, on 1st February he himself quoted in full a letter from a Kentucky judge ending:

        And in his courtroom, no judge likes a smart ass.

        Ken White’s final words also bear repetition:

        I’ve supported Steyn’s efforts against censors for years. But I can’t support what appears to be either a grand mal seizure of self-indulgence or an ill-considered piece of performance art. Steyn’s approach to this makes it significantly less likely that this case will produce a result favorable to free speech. That hurts not just him, but his codefendants and everyone who might face a censorious and politically motivated lawsuit. If Steyn’s antics help Mann win, censors everywhere will be emboldened. I hope someone with Mark Steyn’s ear convinces him to stop treating this as a show trial.

        Important stuff.

        • Posted Feb 23, 2014 at 7:00 PM | Permalink

          The Kentucky judge’s advice is at the end of Stick Yourself Up on the first of the month.

        • johanna
          Posted Feb 23, 2014 at 8:18 PM | Permalink

          Does anyone seriously think that Mark Steyn has been sitting in front of his computer all by himself drafting his legal documents? He has had a shedload of lawyers offering advice at no charge, not to mention some who are being paid.

          What the pompous commenters in various places don’t get is that the lawyers do tactics, and Steyn is a master of strategy. That’s how he won in Canada against the thought police, and eventually got the law repealed.

          People like Steve, and the many lawyers who have offered advice, are giving him plenty of sound tactical material to work with. The fact that he is providing a masterclass in strategy seems to get up the collective nose of some sections of the legal and blogging community.

          But I suspect that their chagrin is nothing compared to that of Mann and his lawyers, who seem to have forgotten the Rule of Holes.

        • tomdesabla
          Posted Feb 23, 2014 at 10:41 PM | Permalink

          Yes Richard, good post, and I’m not sure I agree with Johanna about Steyn not drafting his own legal documents. The passages I’ve read are nothing that any lawyer I’ve ever heard of would allow in their legal documents. I think it looks for all the world like Steyn is writing at least some of his own stuff.

          And I do agree that it’s risky, and I do agree that it could end up hurting not just Mark Steyn, but others later on. I hope I’m wrong though.

          We had all make sure there is plenty of popcorn in the pantry, because this is really going to be something else ; )

        • johanna
          Posted Feb 24, 2014 at 12:00 AM | Permalink

          Tom, what do you mean by “no lawyer would allow?” You mean, like misquoting government reports, as Mann’s lawyers did?

          I am also intrigued by the notion that a legal case is dictated by what lawyers “will allow.” That is precisely the pompous, self-referential cant that caused this case to get bogged down in procedural swamps, at a cost of at least half a million dollars to the defendants, in the first place.

          Still, it’s reassuring to hear once again that this is how lawyers think. Steyn will leave them looking at a cloud of dust, and wondering what the hell happened.

        • Posted Feb 24, 2014 at 3:55 AM | Permalink

          johanna:

          What the pompous commenters in various places don’t get is that the lawyers do tactics, and Steyn is a master of strategy. That’s how he won in Canada against the thought police, and eventually got the law repealed.

          What’s really helpful to know is that this comment and the one that followed were written in their turn without a trace of pomposity. I might not have known this if you had not made it crystal clear. For it’s a well-established fact that to see the speck in one’s brother’s eye is proof positive of having no plank in one’s own. Thank you.

          One thing still puzzles me however. This outburst of humility seemed to come in response to my quoting two legal practitioners who I judged (in my ignorance, obviously) to be lacking precisely the pomposity you so expertly detected. Thus Mike Henry, the Kentucky judge, wrote:

          There is nothing in my background that ever made me feel a sense of entitlement or privilege on the bench, and humility is one of the virtues I prize most highly. I never demanded or expected “fawning and groveling” or any other form of obsequiousness from either litigants or lawyers. I wore a .38 under my robe much of the time because frequently “court security” meant an 80-year-old bailiff, working part-time, snoozing in a chair in front of the bench. I didn’t tolerate being cursed or verbally abused in open court, fist-fights, screaming matches or any other disturbance of that kind. I had all these things happen at one time or another but such infractions were punished. There is no other way to keep some kind of order.

          And a great deal more in the same vein. Naive chump that I am, I didn’t realise that this was simply more ‘pompous, self-referential cant’ and could therefore be safely ignored, most of all by Steyn himself.

          Like the two men I quoted I appreciate much of what I’ve read of Mr Steyn. I’m open to the possibility that pottereaton is right in his view of what is happening and likely to happen. But something in me also mutters that too much of the wrong kind of cheer-leading could be bad for the guy’s judgment – and the humility that is the necessary foundation for it – as he enters the business end of his encounter with the US legal system.

        • tomdesabla
          Posted Feb 24, 2014 at 7:47 PM | Permalink

          Johanna, what I meant was that, under most conditions, lawyers do retain the final word/edits on their pleadings, and they rarely if ever break into poetry and other funny stuff.

          Keep in mind that having bogus facts or quotes in pleadings is something that a lawyer would or at least might include if a client gave them to him, and might not check up on their accuracy.

          That, to me, is worlds different from having a client actually compose entire sections of a pleading, especially if those parts were poetry, satire, or other such humorous wordplay – like Steyn’s pleadings apparently contain.

          The latter is the kind of stuff lawyers would nix for sure, at least in my experience. They put their names on the pleadings, and can’t just take off on flights of humorous fancy like writers such as Steyn are wont to do.

        • johanna
          Posted Feb 26, 2014 at 1:27 AM | Permalink

          Tom, Steyn put his own name on the pleading. What I said was that he is being advised by lawyers,not that they are formally representing him. So they have no say whatsoever in what he does, which was his objective when he seceded from the joint representation with NRO.

          His objection was that the lawyers were driving the bus, a situation which no longer applies as he is representing himself. That doesn’t mean he is not taking some of the advice and assistance that has been freely offered to him – indeed, he has indicated in his posts that he has done so – but he is doing so on his own terms.

        • Posted Mar 10, 2014 at 7:23 AM | Permalink

          Mark Steyn has finally mentioned and responded to the critical article by Ken White – who remains a Steyn supporter, it’s worth remembering:

          I am slightly surprised by the naivety of those who pedal the fool-for-a-client line. I don’t want for lawyers: I have a corporate lawyer (because I have a small business), I have an intellectual property lawyer (because I have copyrights), and I have a personal lawyer. And that’s just in America. I have longtime solicitors in other jurisdictions I’ve lived and worked in. I enjoy the company of lawyers, including my old friend from the Maclean’s case, Julian Porter, QC, who testified in Ezra’s trial on Thursday.

          But my white-shoe lawyers in the Michael Mann suit charged half-a-million bucks for a year in which everything they filed on my behalf they lost. Or, rather, I lost. The last thing I heard from them, in late 2013, was a proposal with regards to billing rates for 2015. That doesn’t suggest they were planning on reversing their losing streak any time soon. I fired them on Boxing Day, and, when shortly afterwards they filed a formal notice of withdrawal with the court, there were no fewer than five listed lawyers, one of whom I’d never even met.

          So, when Popehat says Mark Steyn has a fool for a client, I would humbly suggest that for over a year those five lawyers had a fool for a client.

          That’s in An Inspiring Day, posted yesterday.

  23. Colonial
    Posted Feb 23, 2014 at 5:37 PM | Permalink

    I would bet that news of the fabricated quotes will light a fire under Mann’s attorneys. As officers of the court, they have an obligation to ensure that the pleadings they file with the court are factual and not misleading. The court can sanction them if they fail in this duty. I fully expect them to jump like so many fleas to notify the judge of the problem and ask permission to correct the erroneous statements on the record.

    • kim
      Posted Feb 24, 2014 at 8:17 AM | Permalink

      Nits blossom caulifloric hopes.
      ==============

  24. Marc
    Posted Feb 23, 2014 at 5:50 PM | Permalink

    The other issue here, in reading Steyn’s column — which can only be seen as commentary/opinion — is that Steyn specifically refers to the PennS investigation clearing Mann and suggests that it is a white-wash.

    The judge has essentially ruled that we can’t have the opinion that the investigation WAS a whitewash.

    Can I be precluded from saying “OJ obviously DID murder Nicole, and I think the jury that acquitted him got it wrong.” in a commentary piece?

    His commentary was substantively directed at PennS as much as Mann.

    I think an Amicus brief is appropriate, because free speech and commentary are under attack in this judge’s ruling, and we all have a stake. She got it so damn wrong on this.

    I think she failed to quote those specific comments, verbatim and in full, that can be proven “true or false.”

    She just got this so terribly wrong by merely forcing a man to go to trial over his opinion about a hotly debated, highly topical subject of public interest and policy.

    • A. Scott
      Posted Feb 23, 2014 at 6:04 PM | Permalink

      Re: Marc (Feb 23 17:50),

      The replacement Judge has also seemingly accepted much of Mann’s commentary at face value, with no critical review. At this stage in the suit, he does not have to go on any particularly detailed review, and is required to review in the light most favorable to Mann (when it comes to motion to dismiss etc.), but there were outright falsehoods and Steve and others have noted. Falsehoods that the Defendants pleadings pointed out and the Judge seems to have ignored.

      That said – at THIS stage of the suit, the Judges treatment of Mann’s pleadings is not really any indication of his position on the case. It is a comparatively small burden to overcome a motion to dismiss.

      When it comes to a finding on the merits of the case – the motion to dismiss is often meaningless.

      • Marc
        Posted Feb 23, 2014 at 7:23 PM | Permalink

        Yes, I agree that granting a motion to dismiss is a different matter and standard than the merits of the case.

        However, I am contending the judges got in wrong on the motion.

        To prevent the quelling of free speech, the intent of the law is to create a high bar for a plaintiff to get over in bringing a defamation suit for speaking on issues of public policy. The very act of being required to defend yourself at a trial is, in and of itself, a major squelching of free speech.

        I am contending that the plaintiff did not meet the required burden, and that judge got it wrong, even assuming the facts Mann alleged, as follows:

        1) erroneously ruling that Steyn’s comments were factual misstatements, rather than opinions over Mann’s behavior in proffering the original hockey stick, and over PennS’s behavior in vindicating him.

        The judge’s ruling is circular. Since Steyn referred to Mann’s vindication by PennS, which he criticizes, in his opinion, for reaching a biased and inaccurate conclusion, she can’t then turn around and say that Mann’s vindication by PennS, is factual proof that Steyn knew Mann’s work was unassailable. Crazy….

        2) more later…. busy with family

  25. FerdiEgb
    Posted Feb 23, 2014 at 6:17 PM | Permalink

    Some years ago (1996) I was sued by Greenpeace e.V. (Greenpeace Germany) for slander, because we produced an essay in different languages, including German, about “The Hidden Side of Greenpeace”. The complaint was on 15 quotes in the essay:

    http://home.scarlet.be/chlorophiles/en/cases/en_gp_ham.html

    The same reason as for Ball and Steyn: to keep me busy with the case (it did take 3 years) and the costs (I needed a lot of fundraising!) so that I should shut up (which didn’t work at all). The case was possible in Germany, because of differences in law between Germany and other European countries. In Germany if you quote anything from someone else, you are assumed to agree with the quote and you have to prove yourself that the quote is right, or you must expressly distance yourself from the quote.
    All together it did not go too bad: the verdict was about 50:50 for each side.

    Anyway one of the points Greenpeace lost is of interest here, because Greenpeace didn’t use the exact words in the essay:

    “Furthermore, the plaintiff is not entitled to the injunction in the writ of summons (paragraph 11) as the request does not cover the actual form of violation. The injunction request must be based on the actual violation, i.e. the injunction claim is limited to the inadmissible statement which the violator has disseminated (cf BGH, GRUR, 1984, 593). This condition is in casu not met because the plaintiff has combined two statements of the defendant into one statement in such a way that it contains a new statement which was not made by the defendant. The defendant made two statements in the press release in question, namely, firstly, that under the guise of praiseworthy work to protect nature the organisation is in reality devoted to “making a profit” and is exploiting the respectable sentiments of citizens, whereby the environment and science are being used as merely a pretext and, secondly, that Greenpeace makes no secret of the fact that the issues of its campaigns are carefully selected according to the financial profit that can be derived from them. Contrary to the statement described by the plaintiff in the writ of summons, the defendant did not maintain that Greenpeace makes no secret of the fact that it is in reality devoted to making a profit. Insofar as the word “also” has been used in this context, this does not mean that Greenpeace is not making a secret of the two complaints, but the reader bases this on the fact that two complaints are to be raised against Greenpeace, namely that Greenpeace in reality is not only devoted to “making a profit”, but that, moreover, their campaigns are selected according to the financial profits that can be derived from them.”

  26. A. Scott
    Posted Feb 23, 2014 at 6:45 PM | Permalink

    Robert Tracinski at Real Clear Politics writes a good story on Mann v Steyn … I thought this was a great comment:

    Mann has recently declared himself to be both a scientist and a political activist. But in attempting to intimidate his critics and suppress free debate on global warming, he is violating the fundamental rules of both science and politics. If it is a sin to doubt, then there is no science. If it is a crime to dissent, then there is no politics.

  27. A. Scott
    Posted Feb 23, 2014 at 6:59 PM | Permalink

    Mann’s abject arrogance … excusing his own activism … no worse, making the case he MUST be an activist – and that his wholesale disregard for the scientific process is somehow justified.

    STATE COLLEGE, Pa. — THE overwhelming consensus among climate scientists is that human-caused climate change is happening. Yet a fringe minority of our populace clings to an irrational rejection of well-established science. This virulent strain of anti-science infects the halls of Congress, the pages of leading newspapers and what we see on TV, leading to the appearance of a debate where none should exist.

    In my view, it is no longer acceptable for scientists to remain on the sidelines. I should know. I had no choice but to enter the fray. I was hounded by elected officials, threatened with violence and more — after a single study I co-wrote a decade and a half ago found that the Northern Hemisphere’s average warmth had no precedent in at least the past 1,000 years. Our “hockey stick” graph became a vivid centerpiece of the climate wars, and to this day, it continues to win me the enmity of those who have conflated a problem of science and society with partisan politics.

    Are Dr. Hansen and his colleagues going too far? Should we resist commenting on the implications of our science? There was a time when I would, without hesitation, have answered “yes” to this question.

    It is not an uncommon view among scientists that we potentially compromise our objectivity if we choose to wade into policy matters or the societal implications of our work. And it would be problematic if our views on policy somehow influenced the way we went about doing our science. But there is nothing inappropriate at all about drawing on our scientific knowledge to speak out about the very real implications of our research.

    If scientists choose not to engage in the public debate, we leave a vacuum that will be filled by those whose agenda is one of short-term self-interest. There is a great cost to society if scientists fail to participate in the larger conversation — if we do not do all we can to ensure that the policy debate is informed by an honest assessment of the risks. In fact, it would be an abrogation of our responsibility to society if we remained quiet in the face of such a grave threat.

    Un … believable…

    • Geoff Sherrington
      Posted Feb 23, 2014 at 7:29 PM | Permalink

      A. Scott,
      You quote Mann “If scientists choose not to engage in the public debate, we leave a vacuum that will be filled by those whose agenda is one of short-term self-interest. There is a great cost to society if scientists fail to participate in the larger conversation — if we do not do all we can to ensure that the policy debate is informed by an honest assessment of the risks. In fact, it would be an abrogation of our responsibility to society if we remained quiet in the face of such a grave threat.”

      Strange but true, this is a description of what drives me to be a ‘sceptic’.

      Damage is done to all when a matter becomes a public debate too early through the release of scientific findings known to be incomplete and possibly speculative.

      The better course of action is to conduct good science and to examine its implications when it is complete. Crying wolf is far too common in climate work — as is the call to use the ‘Precautionary Principle’.

  28. jaffa
    Posted Feb 23, 2014 at 7:17 PM | Permalink

    This stuff is precisely in line with Mann’s psychosis, he’s a legend in his own mind.

  29. jaffa
    Posted Feb 23, 2014 at 7:20 PM | Permalink

    Wow, he’s actually a better fit than I thought.

    Psychosis may involve delusional beliefs, some of which are paranoid in nature. Put simply, delusions are false beliefs that a person holds on to, without adequate evidence. It may be difficult to change the belief even with evidence to the contrary. Common themes of delusions are persecutory (person believes that others are out to harm him/her), grandiose (person believing that he or she has special powers or skills) etc.

  30. pottereaton
    Posted Feb 23, 2014 at 11:24 PM | Permalink

    Steyn is not a fool. His celebrity is far greater than Mann’s. For those who don’t know, he sits in on a regular basis for Rush Limbaugh, who at one time had over 20 million daily listeners. My sense is that what may seem like a provocative, insulting and self-destructive legal strategy is designed to produce long-term results in his favor.

    Steyn is now fighting as much in the court of public opinion as in the actual court room. I don’t think he cares if he insults Combs Greene, annoys Judge Weisberg, upends courtroom decorum, etc. He feels he’s emulating the free speech advocates of our revolutionary period and the consequences be damned. (Would anyone in America be better off if Tom Paine or Patrick Henry had bee cowed into not uttering their inflammatory statements?) He calls himself a “human rights activist” and he may be the most important one working in that field.
    If we all lose the right to speak or write forcefully in public for fear of the oppressive nature of libel/defamation suits, then only those who can afford the privilege of suing someone for those alleged crimes will be victorious in the end. The rest of us will be cowed into silence.

    I believe Weisberg, by not applying the anti-SLAPP statute, showed he was prejudiced against the defendants in this case. If I may speculate, I believe that Steyn is looking at this as a long term process in which he will eventually be exonerated and the right to free expression in open debate will be affirmed. (My cursory readings in case law suggest he’s right.) He’s aware that given the Judge’s proclivities, that he could very easily lose in the first round, but probably believes that he will win on appeal.

    I agree with him, and as long as you are going to lose, you might as well stir the emotions of the people in the court of public opinion.

    His behavior is not unlike the Yippies in the 60s, Jerry Rubin, Bobby Seale, Abby Hoffman et al. They lost in court in most cases, but they had a profound effect on the Larger Debate.

    • pottereaton
      Posted Feb 23, 2014 at 11:34 PM | Permalink

      Post above was in response to A. Scott here:

      http://climateaudit.org/2014/02/23/more-sks-in-the-mann-pleadings/#comment-483939

    • mpaul
      Posted Feb 23, 2014 at 11:42 PM | Permalink

      I think you are right. Steyn is applying game theory to his particular situation — which is far different from the run-of-the-mill defendant situation. Steyn has the ability to put every decision this judge makes under enormous public scrutiny. Rarely will any judge in any case come up against a defendant that can marshal public attention so powerfully as Steyn. He also has the backing of nearly all of the media. Freedom of speech trumps every other issue for the media. Mann might think that academic freedom is something the press cares about — well not when he’s goring their ox. They will come to Steyn’s defense in this case. Ultimately, Steyn knows he has a winning hand and is going to use it to promote an historic ‘freedom of speech’ battle. If he loses, he’ll appeal. But he will win ultimately. His only real concern should be whether he can adequately finance this battle. But I suspect he’s not worried about that.

    • Bob K.
      Posted Feb 24, 2014 at 2:53 AM | Permalink

      Steyn’s unorthodox style might make it tempting for the judge not to allow him to put on his defense the way that he wants to, but that might give Steyn grounds for appeal if he loses. I think the judge will be in a bind figuring out how to deal with him.

    • j ferguson
      Posted Feb 24, 2014 at 8:22 AM | Permalink

      pottereaton:

      I agree with him, and as long as you are going to lose, you might as well stir the emotions of the people in the court of public opinion.

      His behavior is not unlike the Yippies in the 60s, Jerry Rubin, Bobby Seale, Abby Hoffman et al. They lost in court in most cases, but they had a profound effect on the Larger Debate.

      It may well be that Steyn has visibility where it counts although I suspect that “appearances” on Russ Limbaugh’s programs would not be enough to have any such effect as the ’60s “show trials” you mention.

      I continue to think that he’s sitting at his computer writing this stuff himself and that he has misjudged the balance in benefit between winning in the court of public opinion which may largely be unaware of this contest and in the much more valuable win of inducing a legal rejection of Mann’s assault.

      • johanna
        Posted Feb 24, 2014 at 7:36 PM | Permalink

        He’s not “sitting at his computer and writing this stuff himself.”

        He has just commented in his “Mailbox” segment that he has been bombarded with advice, and offers of advice, from lawyers.

        His countersuit was obviously drafted by a lawyer, with additional input from Steyn (e.g. the classic “Windmills of my Mind” reference in para. 111).

  31. Steve McIntyre
    Posted Feb 23, 2014 at 11:28 PM | Permalink

    Mann’s letter to National Review on July 20, 2012 (see here http://climatecrocks.com/2012/07/22/mike-mann-calls-out-slime-vending-conservatives-at-national-review/) copied the list and description of the “investigation” from SKS almost exactly, a point noted up by SKS here http://www.skepticalscience.com/mann-fights-back.html

  32. Ian H
    Posted Feb 23, 2014 at 11:37 PM | Permalink

    With Mann directly and obviously quoting the misstatements of SkS, the door is open for other examples of SkS work to be introduced into the trial to illustrate the “quality” of Mann’s primary sources of information. In particular I believe there are some photos that the judge might like to see …

  33. Posted Feb 24, 2014 at 1:37 AM | Permalink

    I am not sure where to post this — it does not fit well into any of the posts so far: From the amended Pleading…

    In November 2009, thousands of emails were stolen from a computer server at the Climate Research Unit (“CRU”) at the University of East Anglia in the United Kingdom.

    I went looking for a ruling that there had been a finding of theft. (i.e. it was now accepted that the documents were “stolen”) I am not sure if the following is accurate though:

    http://en.wikipedia.org/wiki/Climatic_Research_Unit_email_controversy

    However, the police cautioned that “major investigations of this nature are of necessity very detailed and as a consequence can take time to reach a conclusion.”[27] On 18 July 2012, the Norfolk police finally decided to close its investigation because they did not have a “realistic prospect of identifying the offender or offenders and launching criminal proceedings within the time constraints imposed by law”. They also said that the attack had been carried out “remotely via the internet” and that there was “no evidence to suggest that anyone working at or associated with the University of East Anglia was involved in the crime”

    Is there an official finding of theft? Is there is a document supporting the above — is this sufficient to support the claim of “stolen”?

    • Posted Feb 24, 2014 at 3:32 AM | Permalink

      From the fact that all the bits and bytes of the original emails were still on the CRU server when the police took it away for forensics, it’s obvious the emails weren’t stolen.

      They were copied.

      • Posted Feb 24, 2014 at 10:29 AM | Permalink

        Re: tallbloke (Feb 24 03:32), Tallbloke I am well aware that they were copied. That’s not the point. I just wonder if someone here can actually state with certainty the final disposition of the case. The fact that a copy was extracted via a server in Russia (or wherever) is also meaningless — as someone sitting at CRU who legitimately had access to, possessed or was a caretaker of the files could have done this.

        The question is whether filings or dispositions by the police or courts make the claim accurate. Regardless of what actually happened — which I do not know…

        • Posted Feb 24, 2014 at 10:37 AM | Permalink

          Will, forgive me, it was a flippant piece of humour. There is no ‘official’ document having any legal force of judgement so far as I’m aware. Just the police statement you mention. Case unsolved.

    • climatebeagle
      Posted Feb 24, 2014 at 9:35 AM | Permalink

      So the pleading can’t even get the name of the CRU correct: “Climate Research Unit (“CRU”)”.

      http://www.cru.uea.ac.uk/

      • Posted Feb 24, 2014 at 10:25 AM | Permalink

        Re: climatebeagle (Feb 24 09:35), There are so many mistakes that I completely missed that one. It’s a cornucopia of misquotes and errors… lol

        The aim of the Climatic Research Unit (CRU) is to improve scientific understanding in

        past climate history and its impact on humanity
        the course and causes of climate change during the present century
        prospects for the future

  34. A. Scott
    Posted Feb 24, 2014 at 2:44 AM | Permalink

    First – Jonathan Adler at Volokh posts a link to a particularly important and relevant recent D.C. court decision – this is IMO a must read:

    Readers may also be interested in this recent decision by the U.S. Court of Appeals for the D.C. Circuit upholding the district court’s dismissal of Joseph Farah’s defamation claim against Esquire magazine under D.C.’s anti-SLAPP statute

    Farah v. Esquire is (a) a recent case (b) from US Court of Appeals D.C. District, and (c) is almost directly related to Mann v. Steyn. I’ve run thru the case and tried to make it more readable and accessable for the average reader.

    The history of the case:

    This case is principally a defamation action based on the publication of an article by journalist Mark Warren on Esquire Magazine’s Politics Blog.

    The article was posted one day after the release of a book entitled “Where’s the Birth Certificate? The Case that Barack Obama is not Eligible to Be President,” written by Jerome Corsi and published by Joseph Farah’s WND Books.

    Warren’s [Esquire] article was entitled “BREAKING: Jerome Corsi’s Birther Book Pulled from Shelves!” (emphasis in original). It stated, in part: “In a stunning development one day after the release of [the Corsi book], [Farah] has announced plans to recall and pulp the entire 200,000 first printing run of the book, as well as announcing an offer to refund the purchase price to anyone who has already bought . . . the book.”

    Approximately ninety minutes later, Esquire published an “update” on its blog “for those who didn’t figure it out,” that Warren’s article was “satire”; the “update” clarified that the article was untrue and referenced other “serious” Esquire articles on the birth certificate issue. Also that day, Warren told The Daily Caller, an online publication read by an audience that is interested in the “birther” issue … that he had “no regrets” about posting
    the articles and referred to Corsi as an “execrable piece of shit.”

    Esquire and its journalist Warren were vehement and virulent critics of Farah, Corsi and their beliefs on the issue. Farah’s complaint alleged:

    “… that Esquire maliciously made false and defamatory statements that caused damage to their business, good will, and reputation … “held . . . Farah and Corsi up for extreme ridicule in the community where they reside and where their works are viewed and read … further … that Esquire, with knowledge of Farah’s “business relationship with distributors and booksellers,” intentionally interfered with these relationships causing
    “abridgment, limitation, breach or termination of these relationships as concerns the sale of the [Corsi] book”

    Any rational read of the story and update by Esquire in their entirety must on first read, in my opinion, find these claims to be true. Esquire and Warren posted knowingly outright lies clearly intended, to an intelligent reader, to damage Farah and Corsi, and to negatively impact sales of their book. Within hours of publication, and due to the large number of complaints, Esquire had to issue a clarification that what they wrote was allegedly satire.

    What Esquire and Warren did was not satire – not by the wildest stretch of imagination. Their intent was clear – their disgust with Farah and Corsi’s beliefs was transparent.

    Yet despite all this the D.C. Appeals ‘tortured’ the statutes and held there was:

    “… no defamation, false light, or interference with business relations.” … the complaint was properly dismissed … for failure to state a claim because the blog post was fully protected political satire and the “update” and Warren’s statements are protected opinion … that Esquire’s statements were protected under the First Amendment

    The Court noted that to meet the requirements for defamation under District of Columbia law:

    … a plaintiff must prove (1) that he was the subject of a false and defamatory statement; (2) that the statement was published to a third party; (3) that publishing the statement was at least negligent; and (4) that the plaintiff suffered either actual or legal harm.

    Despite all of those things appearing to have occurred the Court was not persuaded.

    The Court spent some time laying the groundwork for their findings. Their comments sound much like Steyn’s defense and the comments in these blogs:

    ““Because the threat or actual imposition of pecuniary liability for alleged defamation may impair the unfettered exercise of . . . First Amendment freedoms, the Constitution imposes stringent limitations upon the permissible scope of such liability … Various doctrinal protections preserve “the breathing space which freedoms of expression require in order to survive … Indeed, this court has observed that summary proceedings are essential in the First Amendment area because if a suit entails “long and expensive litigation,” then the protective purpose of the First Amendment is thwarted even if the defendant ultimately prevails.”

    The Appeals Court then visits the more specific requirements for defamation including 3 protections:

    Under the First Amendment, liability for defamation arises only if, at a minimum, a defendant’s statement “reasonably implies false and defamatory facts” … Implicit in this requirement are three protections:

    First, the First Amendment “provides protection for statements that cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual.”

    Second, “a statement on matters of public concern must be provable as false before there can be liability under state defamation law, at least in situations . . . where a media defendant is involved. Where a statement is so imprecise or subjective that it is not capable of being proved true or false, it is not actionable in defamation.”

    And third, a defendant will not face liability unless the disputed statement is “reasonably capable of defamatory meaning.”

    These threshold inquiries are questions of law for the court to decide.

    The Court then addresses how these issues apply in specific regard to the Esquire article (all bold below is mine):

    To determine whether Esquire’s statements could reasonably be understood as stating or implying actual facts about Farah and Corsi and, if so, whether those statements were verifiable and were reasonably capable of defamatory meaning, the “publication must be taken as a whole, and in the sense in which it would be understood by the readers to whom it was addressed.”

    “[T]he First Amendment demands” that the court assess the disputed statements “in their proper context.” Context is critical because “it is in part the settings of the speech in question that makes their . . . nature apparent, and which helps determine the way in which the intended audience will receive them.”

    “Context” includes not only the immediate context of the disputed statements, but also the type of publication, the genre of writing, and the publication’s history of similar works. The “broader social context,” too, is vital to a proper understanding of the disputed statements.

    After all,“[s]ome types of writing . . . by custom or convention signal to readers . . . that what is being read . . . is likely to be opinion, not fact. It is one thing to be assailed as a corrupt public official by a soapbox orator and quite another to be labelled corrupt in a research monograph detailing the causes and cures of corruption in public service.”

    The Supreme Court has repeatedly extended First Amendment protection to statements that, in context, do not reasonably state or imply defamatory falsehoods in the requisite sense. In Greenbelt, 398 U.S., the Court concluded that use of the word “blackmail” to describe the plaintiff’s hard-nosed negotiating tactics could not reasonably be understood to mean the plaintiff had committed a criminal offense.

    In context, “even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the plaintiff’s] negotiating position extremely unreasonable.”

    Consequently, “the imposition of liability . . . was constitutionally impermissible” because “as a matter of constitutional law, the word ‘blackmail’ . . . was not slander when spoken, and not libel when reported in the Greenbelt News Review.”

    Similarly, in Letter Carriers, 418 U.S., the Court held that the use of the word “traitor” in a literary definition accompanying a union-published “List of Scabs” could not reasonably be understood to accuse the listed individuals of treason, because the word was used “in a loose, figurative sense” and was “merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members.”

    And in Hustler Magazine, 485 U.S,. the Court held that an ad parody depicting the Rev. Jerry Falwell in an incestuous relationship with his mother could not support an emotional distress claim because the offending speech “could not reasonably have been interpreted as stating actual facts about the public figure involved.”

    With the instructions noted by the Court from past case law, the Court notes the conclusion reached:

    the Court held in Weyrich, 235 F.3d, that a political magazine’s statement that a conservative leader “began to suffer bouts of pessimism and paranoia” following his successful rise to power was not actionable because, in context, the description was merely “rhetorical sophistry, not a verifiably false attribution in fact of a ‘debilitating mental condition’” as the plaintiff had contended.

    Next the Court addresses Esquire’s claim that there can be no defamation because their statements were protected satire. The Court spends considerable time defining (and defending) satire:

    “Satire” is a long-established artistic form that uses means such as “ridicule, derision, burlesque, irony, parody, [or] caricature” to censure the “vices, follies, abuses, or shortcomings” of an individual or society. Although satire has been employed since the time of Ancient Greece, it remains “one of the most imprecise” of all literary designations — a notoriously broad and complex genre whose “forms are as varied as its victims.”

    Sometimes satire is funny. Othertimes it may seem cruel and mocking, attacking the core beliefs of its target. And sometimes it is absurd, as in the classic example of Jonathan Swift’s proposal to “solve” the problem of Irish poverty by killing and eating Irish children. Satire’s unifying element is the use of wit “to expose something foolish or vicious to criticism.”

    A “parody” is to the same effect: the style of an individual or work is closely imitated for comic effect or in ridicule.

    Not satisfied with dictionary definitions, the Court goes further yet in building its strong case in support of satire:

    Despite its literal falsity, satirical speech enjoys First Amendment protection. Consistent with the “actual facts” requirement, “the ‘statement’ that the plaintiff must prove false . . . is not invariably the literal phrase published but rather what a reasonable reader would have understood the author to have said.”

    Thus, a satire or parody must be assessed in the appropriate context; it is not actionable if it “cannot reasonably be interpreted as stating actual facts about an individual.”

    In light of the special characteristics of satire, of course, “what a reasonable reader would have understood” is more informed by an assessment of her well-considered view than by her immediate yet transitory reaction.

    Without First Amendment protection, there is a risk that public debate would “suffer for lack of ‘imaginative expression’” and “the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation.”

    Therein lies the Courts key finding. Despite satire on its face being false …it is not WHAT is actually said that is deciding, but rather what a “reasonable” reader THOUGHT was said, and that considerable latitude must be afforded satire so as to avoid the chilling effect on discourse.

    The Court addresses Farah and Corsi’s claims in light of their findings:

    Farah and Corsi do not suggest that satire, as a genre, lacks constitutional protection. Rather, in their view Esquire’s particular attempt at satire is not protected because reasonable readers would take the fictitious blog post literally. They point to the inquiries they received following the blog post, as well as to Esquire’s own “update” clarifying that the post was satire, as evidence that many actual readers were misled by
    Esquire’s story.

    But it is the nature of satire that not everyone “gets it” immediately. Indeed, satire is effective as social commentary precisely because it is often grounded in truth.

    In a similar case involving a satirical news article, the Texas Supreme Court observed that
    satire works by “distort[ing] . . . the familiar with the pretense of reality in order to convey an underlying critical message.” Esquire’s story conveyed its message by layering fiction upon fact.

    The test, however, is not whether some actual readers were misled, but whether the hypothetical reasonable reader could be (after time for reflection).

    And there you have it… the Court built the foundation, and here is the specific measure – the “test” …

    The Court then blathers on about the readers at Esquire and what the Court believes they should know. I think here is where they make their great reach. I think it is entirely possible and likely that the average reader DID believe the Esquire story to be factual. That they had to issue a clarification I believe confirms this.

    The Court disagrees, by now its clear their minds are made up, to the Court; “Esquire can hardly be penalized for attempting to set the record straight and avoid confusion” by those readers who did not at first “get” the satirical nature of Esquire’s article:

    Considering the blog post in its context, the reasonable reader could not understand Warren’s article to be conveying “real news” … The article’s primary intended audience — that is, readers of “The Politics Blog” — would have been familiar with Esquire’s history of publishing satirical stories … followers of “The Politics Blog” were politically informed readers … With that baseline of knowledge, reasonable readers of “The Politics Blog” would recognize the prominent indicia of satire … Most notably, the very substance of the story would alert the reasonable reader to the possibility that the post was satirical.

    Sensing perhaps that this explanation was just not quite believable enough the Court then undertook to rewrite their own further defense:

    The essence of the fictitious story was that Farah, a self-described leader (along with Corsi) of the movement to challenge President Obama’s eligibility to serve, had suddenly and without any warning decided to recall and “pulp” the Corsi book the very day after it was released. The supposed basis for this decision was President Obama’s earlier release of his long-form birth certificate; yet that release occurred three weeks before Corsi’s book was published, and, as Farah acknowledges, he and Corsi remained (and still remain) committed to the book even after that event.

    After the release of the birth certificate, Farah appeared on MSNBC and published more than 40 articles on WorldNetDaily continuing to promote the book. The day of the Corsi book’s release — the day before Esquire posted its fictitious story — WorldNetDaily announced the publication on its website with an article entitled, “It’s out! The book that proves Obama’s ineligible: Today’s the day Corsi is unleashed to tell all a bout that ‘birth certificate.’” It is inconceivable that Farah would reverse course so abruptly, as Esquire’s fictitious story claimed.

    Readers of “The Politics Blog” would have recognized that the article was “reporting” events and statements that were totally inconsistent with Farah’s and Corsi’s well-publicized views, and could not reasonably have taken the story literally.

    Even if none of these elements standing alone — the story’s substance, outlandish and humorous details, stylistic elements — would convince the reasonable reader that the blog post was satirical, taken in context and as a whole they could lead to no other conclusion.

    The Court spent several more pages explaining each reason why the Esquire post could not possibly have been seen as anything other than satire by any reasonable person, even working in a “Moon Landing Hoax” angle in the process.

    But the Court STILL felt a need for just one more explanation … they as much as admit that their case is perhaps still specious – that the article is poorly executed, and does not employ the “imitation and mimicry typical of parody”, but gosh darn it they are right regardless:

    Admittedly, apart from its headline, the article did not employ the sort of imitation and exaggerated mimicry that are typical of parody. But satire is a far broader concept than parody, incorporating a variety of literary forms and devices. And poorly executed or not, the reasonable reader would have to suspend virtually all that he or she knew … in order to conclude the story was reporting true facts.

    With all that said, and the case for the Courts decision explained and reinforced repeatedly, we get to the Courts finding:

    Because the reasonable reader could not, in context, understand Esquire’s blog post to be conveying “real news” — that is, actual facts about Farah and Corsi — the blog post was not actionable defamation.

    To the contrary, almost everything about the story and the nature of the issue itself showed it was political speech aimed at critiquing Farah’s and Corsi’s public position on the issue of President Obama’s eligibility …

    Farah and Corsi were entitled to express their opinion that its delayed release signaled it was a forgery, but they could not then sue for defamation because Esquire conveyed its contrary view by using satire, rather than straightforward attack.

    Because the blog post was entitled to First Amendment protection, the district court properly dismissed the defamation count as to the blog post for failure to state a claim

    The Court continued, applying its findings to Esquires updates and Warrens subsequent attacks on Farah:

    Esquire’s “update” and Warren’s post-publication comments to The Daily Caller are protected because they merely represented Esquire’s interpretation of Farah’s and Corsi’s publications on the well-known facts underlying the dispute over the President’s birthplace. The “update” and Warren’s comments used strong rhetoric and salty language, but were nonetheless public statements on an issue of national concern; such speech lies at the heart of the First Amendment.

    The Court continued, expressly addressing each of the alleged defamatory claims Warren and Esquire made and dismissing them. Having done so, the Court offered the “money” statement:

    Any reasonable reader of political blog commentary knows that it often contains conjecture and strong language, particularly where the discussion concerns such a polarizing topic as the President’s birth certificate. A reasonable reader would understand Warren’s statements to be expressions of his own opinion.

    His reference to Corsi as an “execrable piece of shit,” does not appear to convey any factual assertion, but is rather “the sort of loose, figurative or hyperbolic language which would negate the impression” that a factual statement was being made.

    United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued October 3, 2013 Decided November 26, 2013
    No. 12-7055
    JOSEPH FARAH, ET AL., APPELLANTS v. ESQUIRE MAGAZINE, ET AL., APPELLEES

    There you have it. The entire defense for Steyn et al. All wrapped in a shiny new US District Court of Appeals District of Columbia finding and order.

    Although the Farah v Esquire case involved “satire/parody” the underlying legal claim is still defamation and the legal concepts are generally nearly identical.

    Using the Court’s own words:

    Any reasonable reader of climate change blog commentary knows that it often contains conjecture and strong language, particularly where the discussion concerns such a polarizing topic as Catastrophic Anthropogenic Global Warming claims. A reasonable reader would understand Defendant’s statements to be expressions of their own opinion.

    When reviewed in context, none of the alleged defamatory statements regarding Mann can be interpreted by a reasonable person, familiar with the writings and positions of the defendant’s and their blogs, to be anything other than the writer’s personal opinion and legitimate criticism.

    And in fact the Court – in one of the old Judges orders, has already found affirmatively for part of this:

    “The Defendants comments … were made with respect to climate issues, which are environmental issues, thus an issue of public interest. In addition, the comments were made in publications (blogs, columns and articles) that were published to the public (available on online websites) thus the comments fit under the definition of an act in furtherance of the right of advocacy. Thus, the Court finds application of the Anti-SLAPP Act appropriate because the case involves the issues of climate change, clearly a topic of public interest.”

    • mpaul
      Posted Feb 24, 2014 at 1:50 PM | Permalink

      A. Scott, thanks for this.

      Regarding anti-SLAPP, Steyn has a new post up where he highlights a Climategate email that I had not seen before. http://www.steynonline.com/6121/it-may-be-difficult-for-me-to-sue-them-over

      In it, Mann writes to Jones:

      Phil,

      thanks for forwarding. It may be difficult for me to sue them over a footnote, and in fact he is very careful only to intimate accusations against me in a response to your comments. Note that he does not do so in the paper. I’m sure they know that I would sue them for that, and that I have a top lawyer already representing me.

      Wei Chyung needs to sue them, or at the least threaten a lawsuit. If he doesn’t, this will set a dangerous new precedent. I could put him in touch w/ anleading attorney who would do this pro bono. Of course, this has to be done quickly. The threat of a lawsuit alone my prevent them from publishing this paper, so time is of the essence.

      [My bold].

      “The threat of a lawsuit alone m[a]y prevent them from publishing this paper, so time is of the essence.” Wow. That one is going to leave a mark.

      Steyn is using the antiSLAPP statue as the basis for his counter-claim. Some commentators online have criticized Steyn for this saying that Steyn is merely suing Mann for being sued. But I think this email is pretty damning. I’d be interested in other people’s opinions.

      • RomanM
        Posted Feb 24, 2014 at 3:18 PM | Permalink

        Steyn must be reading Lucia’s blog. This was posted there three days ago.

        • Posted Feb 24, 2014 at 3:32 PM | Permalink

          Seems unlikely to be a coincidence.

        • mpaul
          Posted Feb 24, 2014 at 4:24 PM | Permalink

          The power of crowd-sourcing.

    • MikeN
      Posted Feb 24, 2014 at 2:00 PM | Permalink

      A surprising lawsuit as Farah himself was sued by friends of Al Gore for defamation for an article series that Farah claims led directly to Gore’s loss in 2000.

    • Luther Bl'y
      Posted Feb 24, 2014 at 3:35 PM | Permalink

      A. Scott – an enjoyable summary. Thanks. Without wishing to debate the taxonomy of rhetoric and figures of speech, perhaps your concerns over the Court’s reasoning might be alleviated by considering the text at issue as irony – a device which does not travel at all well over the intertubes.

    • pottereaton
      Posted Feb 24, 2014 at 4:03 PM | Permalink

      A. Scott: Below another case that is similar, in which the anti-SLAPP statute was invoked in favor of a well-known journalist. It is, however, a stretch to say that Mann is as unsavory a character as Boley:

      http://www.rcfp.org/sites/default/files/docs/20130627_130516_boley_opinion.pdf

    • Bob Denton
      Posted Feb 24, 2014 at 6:03 PM | Permalink

      “Farah v. Esquire is (a) a recent case (b) from US Court of Appeals D.C. District, and (c) is almost directly related to Mann v. Steyn”

      In this case both parties agreed that the words complained of were false, and both agreed that they were a parody. Some readers didn’t immediately get that it was a parody, adverse consequences followed for the Plaintiff. Does parody still attract constitutional protection if some people don’t immediately get it? That was the point at issue. The answer is “Yes.”
      It’s not really any more relevant to Mann v Steyn than any other case based on dissimilar facts.

      Steve: to my knowledge, no one has “agreed” , for example, that accusations of data “torture” or “manipulation” are false.

      • Bob Denton
        Posted Feb 24, 2014 at 6:57 PM | Permalink

        ???? The relative pronoun relates back to Farah v Esquire.

      • A. Scott
        Posted Feb 24, 2014 at 7:37 PM | Permalink

        Re: Bob Denton (Feb 24 18:03),

        “Farah v. Esquire is (a) a recent case (b) from US Court of Appeals D.C. District, and (c) is almost directly related to Mann v. Steyn”

        In this case both parties agreed that the words complained of were false, and both agreed that they were a parody

        The legal case was one of defamation. Parody/satire is a subset – a defense – for defamation. It is my belief the general legal findings are at least generally applicable to all defenses for defamation.

        • Bob Denton
          Posted Feb 24, 2014 at 7:51 PM | Permalink

          The general legal propositions are, of course, applicable to Mann v Steyn but, so far as I can see, they add no new proposition to those already well known; the novelty lies in the application to a set of facts not previously canvassed.

    • johanna
      Posted Feb 24, 2014 at 7:56 PM | Permalink

      Thanks for bringing this case to a wider audience, in a form that non-lawyers can understand. It would have taken considerable time and effort, and kudos to you for it.

  35. Rob Ricket
    Posted Feb 24, 2014 at 7:40 AM | Permalink

    “There is no vice that doth so cover a man with shame as to be found false and perfidious.”
    Francis Bacon

  36. MrPete
    Posted Feb 24, 2014 at 8:06 AM | Permalink

    Re: Steven Mosher (Feb 23 16:06),
    Nick’s correct at this point. I’m learning a lot:

    Pleadings are assumed to be statements that will eventually be supported by the facts, but can be amended etc as the facts become known. They’re actually quite weak… which means that any media reports based on this stage of the case shouldn’t come to any conclusions about the merits of the case (as has already been discussed.)

    Once we get to Discovery and the associated Affidavits, THEN everything’s under oath.

    • Salamano
      Posted Feb 24, 2014 at 9:41 AM | Permalink

      Wouldn’t that mean then the best thing for Steyn is to lay off pointing all the errors out in their memorandums and replies, and instead wait for these things to get lodged under oath..?

      • thisisnotgoodtogo
        Posted Feb 24, 2014 at 9:50 AM | Permalink

        Maybe it’s good to bring public attention to what is going on.
        In the end the offensive thrust consists of forlorn whining, anyway.

    • Steven Mosher
      Posted Feb 24, 2014 at 1:26 PM | Permalink

      Ya, when I went back to the pleadings I saw they were not under oath.

    • Bob K.
      Posted Feb 24, 2014 at 1:43 PM | Permalink

      Saying that my lying is o.k. because I wasn’t under oath is hardly a ringing endoresement of my honesty. I suppose Mann can just call them little white lies and wink to the jury, trusting that his effusive charm will win the day just as it does with his Twitteratti.

    • Steven Mosher
      Posted Feb 24, 2014 at 2:41 PM | Permalink

      Having been involved in a case where the pleadings misstated the evidence I will say the lawyers are not keen on making it an issue of sanctions. They prefer to use it to win the case. Primarily because ( I guess) they dont want other people going over their stuff with a fine tooth comb.

  37. william
    Posted Feb 24, 2014 at 12:13 PM | Permalink

    this came in a few hrs ago.

    http://junkscience.com/2014/02/24/mikey-in-trouble-after-defaulting-to-ball/

    Steve: this is total BS. NOTHING from O’Sullivan can be relied on.

    • thisisnotgoodtogo
      Posted Feb 24, 2014 at 12:25 PM | Permalink

      william, thanks but that is a false report. check up on it.

    • Posted Feb 25, 2014 at 3:22 AM | Permalink

      Not only is it BS but it’s provocative BS which has elicited this response from Mann’s lawyers and potentially damaged Tim Ball’s case.

      O Sullivan needs to wind his neck in.

  38. pottereaton
    Posted Feb 24, 2014 at 12:20 PM | Permalink

    In response to Richard Drake

    http://climateaudit.org/2014/02/23/more-sks-in-the-mann-pleadings/#comment-484321

    I believe that Steyn will calm down once the actual trial begins. At the moment they are just throwing accusations and paper at each other. And, as we’ve seen from Steve’s posts, the plaintiff’s side is not exactly acting like a paragon of legal decorum either.

    I previously quoted the following from plaintiff’s last memorandum: “Rather than defend the falsity of their words, because they cannot, Defendants attempt to hide behind the opinion defense– the last bastion of the apprehended liar.”

    Although that could be construed as their opening salvo on the issue of malice, I think that’s far more egregious than anything Steyn has said. Granted, the behavior of Combs Greene really set him off and some of things he said were excessively insulting.

  39. tlitb1
    Posted Feb 24, 2014 at 5:28 PM | Permalink

    It’s interesting that the “common practice” phrase is seen 3 times in the report and it is always associated with a clear implication that the “common practice” is not actually a very good thing, eg:

    On the accusations relating to Professor Jones’s refusal to share raw data and computer codes, we consider that his actions were in line with common practice in the climate science community. We have suggested that the community consider becoming more transparent by publishing raw data and detailed methodologies.

    So the report says Professor Jones’s refused to share raw data and computer codes, identifies that action as “common practice” in climate science, and then suggests it should be stopped. But the legal team just pick out the middle bit!

    I also noticed a climate progress article from around the same time also used the quote and then stopped at the key point:

    In the context of the sharing of data and methodologies, we consider that Professor Jones’s actions were in line with common practice in the climate science community….

    That article is also notable for a quote from Mann at the time:

    Climatologist Michael Mann called the report an “exoneration” of Jones and said:

    Those of us who know Phil personally never had any doubt about this. I’m very pleased to hear that this distinguished panel saw through the dishonest attacks against Phil Jones, and made the correct determination.

  40. Posted Feb 25, 2014 at 3:32 AM | Permalink

    It looks like Mann was fully aware that the Muir Russel Panel conclusion applied to CRU and not himself:

    July 7th 2010 – Realclimate:

    “The main issue is that they [The Muir Russell Inquiry panel] conclude that the rigour and honesty of the CRU scientists is not in doubt. For anyone who knows Phil Jones and his colleagues this comes as no surprise, and we are very pleased to have this proclaimed so vigorously.” Mike [Mann] & Gavin [Schmidt]

    http://www.realclimate.org/index.php/archives/2010/07/the-muir-russell-report/

  41. seanbrady
    Posted Feb 25, 2014 at 10:28 AM | Permalink

    This kind of sloppiness happens when a busy partner tasks a summer associate to write the first “draft” of a brief, the summer associate pulls an all nighter on google to draft it, assumes without checking that references will be accurate, and then the partner is too busy to check it, so he just submits it.

    This happens more often when the law firm has taken on the case pro-bono. Even though they claim they apply the same standards, the pro-bono case gets attended to after all billable matters, hence the all nighter and the lack of checking.

    I don’t know if the lawyers representing Mann are doing this for free but it feels that way. in my experience, most lawyers in major law firms are incredibly liberal and would instinctively defend “climate scientists” and instinctively dislike National Review.

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