Mann v CEI, National Review, Simberg, Steyn and their amici is being argued today. Amici for Steyn, CEI, Simberg and NR include: American Civil Liberties Union, the Reporters Committee for Freedom of the Press, American Society of News Editors, the Association of Alternative Newsmedia, the Association of American Publishers, Inc., Bloomberg L.P., the Center for Investigative Reporting, the First Amendment Coalition, First Look Media Inc., Fox News Network, Gannett Co. Inc., the Investigative Reporting Workshop, the National Press Club, the National Press Photographers Association, Comcast Corporation, the Newspaper Association of America, the North Jersey Media Group Inc., the Online News Association, the Radio Television Digital News Association, the Seattle Times Company, the Society of Professional Journalists, Stephens Media LLC, Time Inc., Tribune Publishing, the Tully Center for Free Speech, D.C. Communications, Inc. and the Washington Post.
Disappointingly, Scott Mandia and the costumed vigilantes of the Climate Response Team elected not to appear as Mann amici. (Nor anyone else.)
Climate Audit 
159 Comments
Rush Limbaugh has declared an intention to sue an agency of the Democratic Party for defamation because in a fundraising e-mail they declared that he ‘is advocating for the tolerance of rape’
Bit tiny that list of amici. 🙂
Steyn is looking very confident in this latest interview apparently after this latest court appearance: http://www.nasdaq.com/video/opinion-journal–is-questioning-climate-change-illegal–518533520
try – http://www.wsj.com/video/opinion-journal-is-questioning-climate-change-illegal/C336402F-F428-4990-B1C0-8C0214DF21DD.html
Can any one point me to a detailed summary of todays court proceedings? Mark’s comments here seem to point to a failure of at least one judge to understand the nature of the case and is trying to determine whether “the HS is fraudulent” or not. Is the hearing over? If so, when are they likely to rule?
The best I’ve found is this from a Mann supporter: http://rabett.blogspot.co.uk/2014/11/pro-se-cei-nr-michael-mann.html
I wouldn’t trust Eli/Josh to tell his left foot from his right….
I definitely need a second opinion to Eli’s. I have trouble with his syntax and his objectivity.
I would like a way to access the audio. If anyone can point me to it, I would appreciate it.
JD
PS Have posted this at a couple of other sites, hoping to find a like or file.
I think a lot of us have added Steyn Online to our daily list of browsing sites. As I have said here before, I don’t like 90% of what he writes (but I love his history of ‘modern’ songs and music). In fact I disagree with almost everything he writes. As a pinko lefty commie, I should expect that as natural.
It actually ticks me off that Steyn is so right on this particular subset of the climate debate. I don’t want his correctness on the Rights of Mann to legitimize his other views. But he is so obviously correct on the merits of this case that there’s no denying it.
I’m a lukewarmer–probably far closer to Mann than Steyn on the overall subject of climate change. But it is so clear that the usual gang of fools (Mann, Gleick, Lewandowsky, Romm, Rabett, McKibben, ad nauseum) are blocking any chance of reasonable consideration of the issues that I am wholeheartedly rooting for Steyn.
Mann is clearly a public figure–endorsing politicians, constantly in the media. Steyn’s speech is obviously protected.
Mann’s suit says that Steyn called him a fraud. Steyn didn’t (that came after the suit was filed). Steyn said Mann’s Hockey Stick Chart was fraudulent.
That this suit is still on the calendar is both amazing and dispiriting. Has the American system of justice really come to this?
Steve: I too was fascinated by his history of the modern songbook. Something that’s been part of our lives, but about which we really knew nothing. ALthough Steyn had been a well-known commentator in Canada, I’d never followed him before either.
Mann is the stick. The stick is Mann. The sad thing is so many have made the case for AGW on the stick.
It’s a boneheaded move that never fails to remind me of that day when Chris Darden handed OJ the gloves.
Well, it was one glove not two, but I agree. What a spectacular own goal.
The court will let the case go forward, but with a substantial discussion calling Mann to the carpet, and so giving hints to the trial judge, who does not want to be overruled later. That’s my opinion.
I’d be very grateful for a pointer to Mark Steyn’s “History of ‘modern’ songs and music”.
Martin, at his weblog (Steyn Online) he has frequent posts about the popular music of the past.
Tom – Thank you. From what had been said, I had imagined he had published a comprehensive work on the subject.
Martin,
Steyn is a very good musicologist. He has two published books of song histories. They are as comprehensive work on that subject as has been published by anyone else.
Tom Fuller: As one who agrees with just about everything Steyn writes, I very much appreciate your frank post. I try to hear the other side on occasion, used to follow Chris Matthews ’til…no, too OT. Anyhow, most just talk past each other, never admitting the other side can be right on anything. Good to hear.
snip – this type of political editorializing is well outside blog rules.
Anyone remember the pre-game warm up in “Slap Shot”?
I do, funniest scene ever. The Hansen Brothers showed up at my door for some candy this Halloween. I couldn’t believe these kids even knew who they were, but was glad to see them!
Regardless of one’s political slant, Steyn deserves kudos for entertaining penmanship.
His chronicling of the U.S. government bureaucracy’s insane jihad on classic bagpipes is priceless!
http://www.steynonline.com/6505/piper-lament
http://www.steynonline.com/6531/the-punitive-bureaucracy-day-off
It is not classic bagpipes but ivory and with it ivory poaching that is the issue. The intent of the law is good. The practicality of its application is the problem.
And that’s never happened before.
transcript, transcript wherefore art thou
I’ve heard from one person at the hearing.
As CA readers are aware, I think that the anti-SLAPP case will turn on whether CEI and others are required to accept the supposed exonerations as overcoming the malice hurdle.
Apparently Williams, Mann’s lawyers, asserted once again that that eight separate investigations had exonerated Mann leading one judge to ask:
This question seems a little off-point. Yes, CEI sincerely believed that the investigations were “flawed”, but there argument went further than that: they pointed out that most of the investigations did not investigate (let alone exonerate) Mann himself and that Mann’s claims that they had were fabricated.
Another question from a judge:
That has always been a large hurdle for Mann. His attempt to show malice led him to make fabricated claims (in Steyn’s terminology, “fraudulent”) that various investigations had exonerated Mann himself, when Mann was not even within the remit of most of them.
Apparently Williams, Mann’s lawyers, asserted once again that that eight separate investigations had exonerated Mann leading one judge to ask:
“What if CEI sincerely believes that those investigations are flawed? They take them apart quite thoroughly in their reply brief.”
That would show the judges were very much up to speed on many of the facts, the exonerations and possibly the work of certain individuals at CA. FWIW, the mere fact of the judge asking the question should be a good indication of leanings on the judges.
if they asked whether or not each an every investigation explicitly exonerated mann, that would have shown me something.
I doubt that the justices would be prepared for the scale of the audacity of the untruthfulness of Mann’s claims about the investigations. Steyn’s instinct was that it’s easier to deal with such untruthfulness at trial. In most motions, as I understand it, plaintiff’s claims, even if untruthful, have to be stipulated for the motion. However, there seems to be a substantial legal question about the degree to which anti-SLAPP judges are required to accept assertions or whether they are obliged to consider evidence even at a motion stage. I understand that much of yesterday’s discussion was about such standards.
Exactly my thought as I read a few descriptions of yesterday. Steyn seems to have eyes open which helps.
I think it is a toss up on how they will rule. Williams appears to be all in in his prior misrepresentations
“Exactly my thought as I read a few descriptions of yesterday. Steyn seems to have eyes open which helps.”
yes, separating from the other defendents has made this really interesting.
““What if CEI sincerely believes that those investigations are flawed? They take them apart quite thoroughly in their reply brief.””
Thanks for that Steve, I too found that a remarkable comment and was a brief glimpse of what they really felt about the plaintiffs case.
It is also a great tribute to you as reading between the lines you appear to have been instrumental in putting the evidence together to “take [it] apart quite thoroughly”.
And thus CA became the instrumental record 🙂
The praise is I’m sure due but there’s a note of caution from Steve here as well. Nothing hinges on the investigations being flawed if they didn’t exonerate Mann in the first place. It’s the whole idea of exoneration that the CEI brief took apart. I hope that is fully understood by the end of the hearing.
Instrumental record – LOL
This is the most telling and promising interaction that I have heard to date. It sounds like one or more of the judges is at least thinking critically.
Judges are not necessarily paid to think critically per se. The judges are paid to think legally. Law is a strange and tangled space. If the judges are aware that CEI “took apart” the investigations “quite thoroughly” they should also be aware that those investigations in no way “exonerated” Mann of anything. Which leaves us with the disturbing question of how and why this case made it to court at all, and more, why Mann and his lawyer aren’t being asked harsh questions about misrepresenting things to the court and wasting the court’s time. I can think of two possibilities, one very promising, one not promising at all.
Steve,
““What if CEI sincerely believes that those investigations are flawed? They take them apart quite thoroughly in their reply brief.””
I think when the judge stated that CEI “took them apart quite thoroughly”, she is pretty much accepting that the investigations were, at a minimum quite flawed. An appellate court is generally not supposed to weigh the facts. (This is more complicated under DC’s Anti-Slapp Act than normal however) Whether there was no investigation or deeply flawed investigations is immaterial to the appellate court. In either event, the “investigations” are useless to Mann in the context of the defamation suit because the defendants don’t have to give them credence.
The fact that the judge responded in this manner is quite positive for Steyn. I realize there was much else that was debated at the hearing, but I was glad to see the defendants punctured the false image of academic respectability that most casual observers would tend to give to Mann.
JD
JD Ohio:
Because it was strictly out of scope and she wanted to anyway? That could be heartening.
One lawyer friend of mine thought that in securities cases, judges liked to make their formal ruling based on technicalities, but only when they were also reassured by the facts that they were not doing any injustice.
In the present case, one logical course of action would be for the judges to rule that CEI et al were not obliged to accept the findings of government inquiries (on lines argued by ACLU), while being reassured in their own minds that Mann’s assertions about the inquiries were over-egged, if not flatly untrue. But by deciding on the more technical argument, they would not need to rule directly on the truthfulness of Mann’s false assertions about the inquiries. But showing the untruthfulness would still have been important for the defendants. We’ll see.
One interesting tidbit. The original trial judge stated that she thought that the issue before her was a close call. If she had understood how phony the so-called investigations were, she probably would have ruled for the defendants.
SM “But showing the untruthfulness would still have been important for the defendants.” That is true, but, considering all of the other cases the judges have to rule on, I doubt that they would have time to parse all of the investigations. Particularly, if they considered them to be legally irrelevant, as, at best seriously flawed. I suspect that at best each judge, only has 6 hours to devote to this case.
JD
“I think when the judge stated that CEI “took them apart quite thoroughly”, she is pretty much accepting that the investigations were, at a minimum quite flawed.”
What’s at issue is whether a reasonable person could have genuine doubts about the investigations, not whether the judges doubt the investigations. It’s a small but important difference.
JD, I don’t think the judge is making a judgment on the quality of the investigations, only reinforcing the point that CEI doesn’t accept the investigations. They ‘took them apart quite thoroughly’ could just mean that they noticed CEI made strong objections.
MikeN ” I don’t think the judge is making a judgment on the quality of the investigations,”
Not having listened to the arguments, I can’t say for sure. However, in my experience a judge wouldn’t make that statement unless she really meant that in her view, she had found the investigations to be seriously flawed. Of course, I have no experience with the DC judges.
JD
Harry Passfield apparently attended the oral argument and stated on Bishop Hill: “When the NR (etc) brief was doing his pitch and tearing into the fraud that was the HS – including a good piece of extempore on ‘hide the decline’ – the judges were quite pointed in their questions about how it was so very wrong to use various sources of data in one chart. They really got into detail about the use of the HS in the WMO cover page and IPCC first AR.”
As a gut feeling, if the judges truly believe that Mann’s work is poor and substantially deceptive, I find it hard to believe that they will allow Mann’s suit to proceed in light of the very high level of protection under the First Amendment accorded to comments made about public figures. Calling deceptive work “fraudulent” to me is not actionable under the First Amendment, particularly when you make clear that you are not accusing anyone of directly falsifying data. Of course, I would like to be able to hear the rest of the oral argument, but this portion is helpful to Steyn and the defendants.
JD
Some claim that cases can’t be won at oral argument, (the briefs do that) but CAN be lost there. I haven’t seen transcripts of this yet but do the excerpts available suggest that the briefs from any side or friends were better received than others’?+
In discovery, Steyn’s lawyers (ie we’ll) get access to exactly the questions that were put to Mann in each of the investigations. And Mann’s answers. That should be quite revealing.
Mann’s discovery could potentially do more damage to Climate Science perception than Climategate.
Pouncer, even the NR article by Cooke made it clear that the CEI and NR lawyers were questioned much more than Prof. Mann’s lawyer.
I gather (from here) that Mann’s lawyer was asked pointed questions about the supposed “exonerations” as follows:
Given the fabrications by Mann and his lawyers about the findings of the various investigations in respect to Mann’s conduct, these questions seem much politer than they might have been, but equally show awareness of the extreme weakness of Mann’s case in respect to establishing actual malice, as defined in U.S. libel law, a weakness that was coopered up in the pleadings by false claims by Mann and his lawyers about the investigations.
Yes, Mann’s lawyer, John Williams, was asked some questions, but the NR and CEI lawyer were asked more. Thank you for raising another point.
Which implies nothing about whose argument was doing better. If the court’s fewer questions to Williams denoted that they had somewhat lost interest in Williams’ argument, that wouldn’t presage well for Mann.
The central issue in the hearing was what was the level of proof necessary for a judge to grant or not grant an anti-SLAPP motion. No one had a good answer to that, no one had any case law and everyone fumbled. That really was the issue that occupied the judges. It was asked of every lawyer including the dc government lawyer who commented on the issue of whether the anti-SLAPP motions were appealable. That appeared to be a ship that had sailed. Mann’s lawyer said nothing about it, and neither did the CEI or NR lawyers, even though the issue was heavily covered in the briefs. It appears that the Court of Appeals had pretty much settled that in previous cases in the intervening time.
Anybunny can see why, if they don’t define it now they are going to get appeal after appeal on the issue.
The only agreement was that the level of proof for malice was higher.
The rest was a side show.
If Eli had to guess about the outcome of this, it will be that the Court of Appeals will define levels of proof needed in anti-SLAPP motions and if that level had not been met by the Superior Court, send it back for a rehearing. If it had, they will let the case proceed
As the Scots guy said, read about it at Rabett Run
The central issue in the hearing was what was the level of proof necessary for a judge to grant or not grant an anti-SLAPP motion.
As I’ve said previously, even if the proof required to defeat an anti-SLAPP motion is the same as the standard required to defeat a motion for summary judgment, I think the proof of actual malice should be “clear and convincing.” Which is to say, there should have to be evidence which, if believed, would allow a reasonable jury to find that actual malice had been shown with “convincing clarity.” (Mere assertions that the defendants acted with actual malice is not the sort of “evidence” the court must accept as true when considering a motion for summary judgement.) The clear-and-convincing standard to avoid summary judgement was established by the Supreme Court in Anderson v. Liberty Lobby, Inc.
Rabbettes never pass bar exams.
Eli, I can’t help but wonder if you think it increases your credibility when you write about yourself in the third person and use words such as “anybunny”, instead writing like a normal grown-up. I tried read your blog post that was linked by Scottish Sceptic and gave up. It makes no difference to me if you don’t care what I think, but if you believe others are more inclined to take you seriously when you write like that, you’re very mistaken.
In another lifetime, I used to turn into someone else when I got a bit into my cups. Not that I used the 3rd person form except when assigning blame.
RE: Daryl M
Posted Nov 29, 2014 at 4:27 PM
” . . .but if you believe others are more inclined to take you seriously when you write like that, you’re very mistaken.”
Agreed. Just scroll on by . . .
Au contraire,
The third person is quite often used when trying to dodge legal blame. Others might say this”….”. but not me. Eli has obviously been burnt or reads a lot of Private Eye and wishes to avoid being drawn into a Mannian legal saga now or in the future.
In view of this I find it surprising that he is not more sympathetic to Steyn’s seeming predicament, although I think he might secretly feel a bit on his side hence his postings.
Obviously he and Steyn are poles apart on their general world views which does not help.
I would love to see Eli try a devil’s advocate role for a few days but feel he would lose all his friends rather quickly.and friends are what sustain us.
I think it’s simpler than that. For some reason Joshua thinks that it’s funny. And witty. And original. It’s non of these, of course.
Perhaps the professor plays the odd rabbette, because he is not proud of his real identity:
http://www.ratemyprofessors.com/ShowRatings.jsp?tid=543236#
Or,maybe he believes he is Eli Rabbette and Josh Halpern is his underachieving imaginary friend. According to the review from one of his hapless students, he talks to himself in class:
“This man is the WORST teacher ever, he doesn’t care, he talks to himself, he doesn’t help you and his notes are pointless. If you like to teach youself take this class but that still won’t help you on his exams!”
Don,
I’ve actually met Eli. We had a nice conversation. Writing in the third person about yourself, in character, is a tried and true literary technique.
The best example is John Berryman’s “Dream Song’s” which I highly recommend.
It’s Eli’s Schtick or adopted persona.
Why adopt a persona? Well, I adopt moshpit now and again.
There are many reasons to do this.. underlying them all is a need to separate who one is versus what one says. it’s a recognition that words sometimes have a life of their own.
it also comes in handy when you want to run away from what you said.
Strangely enough I read this having just met the person who calls themselves Dr Slop on Bishop Hill and other blogs, after the character in Tristram Shandy. The information was volunteered without rancour. Such unveiling I always find a fun process. There are many hidden depths to pseudonyms and their impact on overall discourse, even when the first person is preferred.
“Strangely enough I read this having just met the person who calls themselves Dr Slop on Bishop Hill and other blogs, after the character in Tristram Shandy. The information was volunteered without rancour. Such unveiling I always find a fun process. There are many hidden depths to pseudonyms and their impact on overall discourse, even when the first person is preferred.”
I used to play tristram here at climate audit and had nice convos with Dr. Slop.
If you go back and read that great anti novel or a Sentimental Journey, then
you understand me a little bit better.
first its related to irony, and undermines the whole notion of ‘sincerity’.. you cant say say what you mean or rather control the meaning of your words.
second you have no priviledged access to who you are. Your self awareness, your knowledge of yourself is mediated by the prism of language.
third, go research Sterne on the political controversy of the day.. specifically can you separate the man from his policies.
People who assume Eli is somehow dumb or stupid for adopting a persona need to re think their evaluation. He’s dumb for other reasons.
( note I dont mean that last sentence, it just sounded good)
Well Steven, Halpern’s use of that particular literary technique is not interesting and just invites ridicule. You would think he gets enough of that in his professional life.
don
“Well Steven, Halpern’s use of that particular literary technique is not interesting and just invites ridicule. You would think he gets enough of that in his professional life.”
That is an assessment I can live with.
In my mind it makes perfect sense to criticize the style and execution of the schtick. ELi invites artistic criticism by adopting a persona. I would say that it’s entirely reasonable to engage him on the field he has chosen. Which is not science, but theatre about science. You can see that when people talk about his comments and call them rabbet droppings-extending the metaphor, of course other people can extract his arguments and re purpose them as ‘not art’. all is not lost.
on grumpty days I don’t like his schtick. On happy days I’m glad he has found a way to delight and inform.
Hop
The wabett deserves some credit for engaging with skeptics.
canman,
yes. one of the advantages of using schtick. your character can go places that you might find detestable.
Steve, with respect, that question wasn’t off point at all, it went directly to the issue of intent, or malice if you prefer. The question struck me as coming from a person who is well informed on the matter, it wasn’t just casting about.
It is my understanding that an audio version will be available next week.
That would be great. I was told they sell CDs of the arguments for $5. Am a little worried that something went wrong because so many people, including me had difficulty logging on.
JD
The Washington Post amongst the amici for Steyn? That must hurt Jason Samenow. the Post’s resident Meteorologist and ex-EPA co author of the RTP documents.
“The Washington Post amongst the amici for Steyn”
They aren’t amici for Steyn. He’s not even an appellant. Their status is amicus curiae. Friend of the court. To put their POV on the law.
Newspapers are never friends of libel laws. Doesn’t matter who does it.
“Newspapers are never friends of libel laws.”
The NYT could not be reached for comment.
As evasive as ever Nick, carefully avoiding to address the content of the amicus briefs supporting the freedom of speech argument forwarded by Steyn. So what if the amici are not holding the hands of Steyn as long as they stand by him?
And as friends of the court, which side are they recommending should win the case?
“They aren’t amici for Steyn. He’s not even an appellant. Their status is amicus curiae. Friend of the court. To put their POV on the law.”
Kinda like exonerating Mann when he isnt even investigated.
as friends of the court they file papers in support of Steyn. If we are as liberal with out interpretation of “amici” as you are with your interpretation of “exonerate”
then one can say in racehorse fashion that they are ‘amici for steyn’
One trick of climateballers is to be hyper literal when it suits them and less literal when it doesnt.
Touche. Nipped a potential thread jack in the bud.
Well said Steve. Perfect bullseye.
Why did the Post seek to intervene in the case ?
Have you read their application ?
also see this, Mark Steyn on the ACLU/news media amici brief:
My New Best Friends
“And when Williams claimed that preponderance of evidence should suffice….”
I am surprised that Williams did not say “multiple lines of independent evidence.”
“….a judge asked, ‘but you need clear and convincing evidence for malice.'”
Looks like Mann needs to coin a derogatory term for a legal skeptic.
It is great to see the list of media entities listed as amici. One hopes that they will exert salutary influences upon the court.
The absence of the NY Times in that list is an utter disgrace, particularly considering their historic role in the development of US libel law (New York Times Co. v. Sullivan, 376 U.S. 254 (1964)). Current NY Times officials passed over the opportunity to stand up for an important part of citizen freedoms in the US.
Perhaps they hate that Mark Steyn considers that case to be a travesty of justice.
I could be wrong about this, but I assume this is the case he is referring when he says a win by Mann would be the biggest setback to the First Amendment in 50 years.
Steyn has some interesting comments on the first day. He emphasizes that Mann does not show up in court for his own case as plaintiff. Does that matter? It seems to indicate a remarkable detachment, for a case that is supposedly all about his reputation. I don’t know how often plaintiffs don’t show up in court but I would have assumed he’d be there:
Steyn on the first day at DC COurt of Appeals
Thanks Skip. Steyn is helpful and intelligent right through, taking the opportunity to explain the situation to those of us who haven’t followed all the previous articles, but he’s scathing, quite rightly, about Mann’s no-show:
Steyn doesn’t make a good victim and I mean that as a high form of praise.
“Steyn doesn’t make a good victim and I mean that as a high form of praise.”
Absolutely.
In his latest piece written after the hearing, Steyn says that he expects the judges will rule for Mann and that a trial will go eventually go forward.
In his interview with the WSJ reporter, Steyn focuses on Free Speech issues as opposed to the substance of Mann’s hockey stick work; i.e., the science of Mann’s hockey stick and the supposed exonerations of Mann and his hockey stick.
If the judges did eventually rule for Mann, would the anti-SLAPP laws have been largely nullified simply for the fact that such a clearcut case of SLAPP applicability had been rejected by the courts?
FWIW, in this case the plaintiffs were CEI and NR and Mann was the defendant. The case that was heard was an appeal by CEI and NR against the ruling of the Superior Court not to grant their motion to throw out Mann vs CEI, NR, Steyn and Simberg et al on the basis of the DC Anti-SLAPP Statute. Steyn was neither plaintiff nor defendant. He chose not to join this appeal.
Mann was not there Steyn was Simberg, don’t know, but he is not so easy to recognize.
Wrong again. Mann is and remains the Plaintiff and NR etc. Defendants. In this particular appeal, NR is an Appellant and Mann Appellee, but the terms plaintiff and defendant are always used to relate to the original status in the underlying litigation, as for instance, in one of the briefs, see first page:
Click to access Mann%20-%20NR%20Appellate%20Reply%20Brief%20.pdf
I wonder, Eli, if you really believe everyone is so detached and so stupid that they require your (moronic) clarifications? People understand what was being adjudicated by the DC appellate court.
I’m afraid we don’t. People outside the US, both geographically and in time-zone location, are struggling to understand SLAPP, anti-SLAPP and likely anti-anti-SLAPP or whatever and whether a lawyer/judge can be appealed against on some decision that hasn’t been made yet and likely will not be made
Comments so far are very unhelpful in trying to clarify whatever has to date actually occurred. They always seem to be mixed up with whatever the author thinks should have/might have/must have/maybe will happen, with no succinct separation of fact from wishful thinking. This applies to Steyn’s own comments as well
This is the reason that a Rabbett can make comment without any real discussion. The “discussion” seems to be taking place between constituents located on different planets
Perhaps the US law in this area really is as hopelessly confused as the discussions so far. If so, Mann (who has fathomless pockets) will win by attrition – which is always what I expected
But, WHAT exactly did happen with this hearing ? No soapboxes please, just a succinct, factual summary
Steve: audio should be available early this week and this will yield some commentary
Ian,
Here is a simple summary. Typically, under American law, a defendant has the right to seek the dismissal of the plaintiff’s case prior to a jury trial. (Normally, by what is called a summary judgment procedure) However, if the defendant loses the summary judgment motion, he has to go through a jury trial and, and if loses before the jury, he can then appeal a trial court’s denial of the summary judgment motion.
The Anti-Slapp Act (AS Act)tin Washington DC, significantly changes the procedural manner in which a defendant can obtain a dismissal before trial. Under the AS Act,the trial court is supposed to dismiss the plaintiff’s case unless the plaintiff can prove that he is likely to succeed on the merits. (Normally, a plaintiff in a summary judgment motion can survive the motion if he has some reasonable support for his case — he need not prove that he is likely to prevail.)
The trial court in this case ruled that Mann was likely to succeed in a jury trial. This raised 2 issues. 1. Did the defendants have to wait until after the jury trial to appeal. (They claimed they didn’t, and the court appears to agree with that position) 2. By ruling that the plaintiff (Mann) was likely to succeed on the merits, the trial court was ruling that the defendants had made false statements with malice or reckless disregard for the truth. (This standard comes from the interaction between the First Amendment guarantee of Free Speech and the application of defamation law. ) Mann claimed that he was exonerated by 8 investigations with respect to the issue of whether he improperly manipulated the data, and Steve’s posts clearly show that Mann’s claim is erroneous, which was explained very well by the CEI brief. In fact, one judge on the court remarked that Mann’s claim on this matter was taken apart quite thoroughly in the CEI brief.
Hope this helps.
JD
Ianl8888,
Another thing that helps, for context, is to know what “SLAPP” and “anti-SLAPP” is all about. I’m no lawyer but I can say that SLAPP stands for “Strategic Lawsuit Against Public Participation.” Anti-SLAPP laws have been passed in some states and locales, included the city of Washington, DC in this case, to try to prevent well funded entities such a corporations from punishing individual citizens and less well funded groups for exercising their rights to free expression on matters of public interest.
The idea is to try to give quick rejection of merit-less lawsuits which are brought to cost money and time for defendants who can ill afford to contest the lawsuit (“the process is the punishment” etc.). In this case the initial judge did not invoke the anti-SLAPP statute to throw the case out quickly, as many think should have been done, resulting in the current grind of 2+ years, major expenses, etc. IF there is not a good case for Mann to win on the merits then the defendants are indeed being unjustly “punished” by a process which costs them much time and money.
http://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation
SLAPP suits are well known in the UK. There was a long running one, for example, against people who were not happy with McDonalds. Google McLibel for an explanation. Robert Maxwell, for another example was well known for using threats of libel suits to quiet critics.
Eli stuuupid as ever
Its actually not very common for either the plaintiff or defendant to appear at the appeals level. (maybe 20% on the high side). They are arguing legal points instead of factual points, so having the parties present at oral arguments is not very productive.
Every two weeks, my employer showers me with tens of dollars for my efforts in the previous 14 days. When this occurs, I head over to http://www.Steynonline.com and purchase a $25 gift certificate to help Mark in, what is essentially, our fight. With his counter suit, Mark intends to put Mann on the stand to defend is actions and statements.
Should Mark receive a financial judgment, I may cash a few of the certificates in. Otherwise, I’ll consider them my small contribution to what I see as a critical fight.
New readers may find it helpful to read this post from last August, which provides some context for this week’s hearing:
also, if Mod. permits, here is a handy list of links to past CA posts…. there is quite a remarkable body of work by Steve on so many aspects of the case(s), more than is part of the current appeal process but very helpful to anyone now trying (as I am) to get a grasp on more details of the matters being contested:
one of my favorite quotes about the legal proceedings applies to any stage (even if Steyn is really an observer for this appeal), so long as it’s all still ongoing:
source of Steyn quote
How much weight will the judges give to the amicus briefs, I wonder. Haphazarding a guess, they will give careful consideration to the arguments contained in those briefs.
Perhaps no civil trial has garnered as much attention from the media as this one, that is, in regard to their own interests (freedom of expression, etc.) Venturing another guess, I think that the judges will feel obligated to carefully examine Mann’s basis for his suit.
As I said on my blog – when there’s an overwhelming consensus supporting one side – we sceptics are sceptical.
The fact that the Amicus briefs were so one-sided has no effect on the law. Logically therefore it will have no effect on the case. Therefore logically they are a waste of time.
So, why do people spend all that effort on these briefs if the judges are just cold-heated logicians?
S Sceptic
“The fact that the Amicus briefs were so one-sided has no effect on the law. Logically therefore it will have no effect on the case. Therefore logically they are a waste of time”
Incorrect. Judges are affected by public opinion. The fact that liberal organizations, such as the ACLU support Steyn helps him. In fact a good number of commentators have referred to the (Linda) Greenhouse effect–they believe that her NYT columns unduly affect federal judges.
JD
“when there’s an overwhelming consensus supporting one side – we sceptics are sceptical”
it’s a better sceptical practice to sometimes question the reflexive scepticism of consensus statements.
or rather, be the sceptic who is sceptical of the consensus of sceptics who always question the consensus.
the best path for the sceptic is to disregard head counting altogether rather than taking it as a sign of anything.
I’m following Mr. Steyn’s progress – or lack of it – with great interest. I recall his columns for the Daily Telegraph some years ago which I enjoyed immensely.
But, Steve, you really ought to think about starting a petition to have him confirmed as a mational monument – the world’s only impolite Canadian, and none the worse for it!
G. Palmer
Steve: the very popular Don Cherry already has the franchise for impolite and politically incorrect Canadian.
You have to be Canadian to understand that Steve’s point is unassailable.
Don Cherry is hard to beat in the politically incorrect race.
Don Cherry is a national treasure for you guys
Reblogged this on I Didn't Ask To Be a Blog.
JD wrote: “One interesting tidbit. The original trial judge stated that she thought that the issue before her was a close call. If she had understood how phony the so-called investigations were, she probably would have ruled for the defendants.”
I think you’d have a hard time convincing Steyn of that. On Tuesday he wrote: “The three lady judges – by comparison with that slapdash idiot Combs Greene in the trial court – were on top of the case, and they had some sharp exchanges.”
Sam Katzman, counsel for CEI, had a good summation of the day’s proceedings:
http://www.freerepublic.com/focus/f-chat/3231058/posts
In it he said he was “cautiously optimistic” and made this observation: “All three judges have authored some strong Anti-SLAPP and First Amendment decisions.”
As Steve has noted, I think that the “malice” hurdle will be too hard for Mann to clear. Which suggests that the three lady judges will reverse the denial of the motion to invoke the anti-SLAPP law. Correct me if I’m wrong, butthat will leave the Steyn countersuit as the only remaining issue in the case and I don’t think he will let go of that bone very easily. In the same column, he noted Mann’s conspicuous absence from the hearings: “But no, he’s getting on with his life, and leaving it to the Big Climate-funded lawyers, because, for him . . ., the process is the punishment.”
If the appeal succeeds, I suspect he will want to continue and turn the tables on Mann, so that Mann becomes the one punished by the process.
Thanks for the second link.
The process is indeed punishing. I’m glad, as Mosher said upthread, that there is this variation of approaches in the defendants. I hope Steyn is given wisdom if the current appeal succeeds. The desire to make Mann pay has to matched by a decent chance of it happening.
more than two years already…. the process is indeed the punishment!
On the possible decision facing Steyn (and I know the legal system and situation is different) there’s this cautionary tale from London today:
The friend is Paul Goodman.
Hi, Richard. I have no idea what the chances are of Steyn succeeding in his countersuit, but if the three judges find that this qualifies as a Strategic Lawsuit Against Public Participation, it could get very dicey for Mann. Steyn makes his living as an opinion writer in public media and could likely make a compelling case that the suit was designed not only to damage his reputation but compromise his ability to make a living. If he can prove he’s been damaged, i.e. that all the time spent defending himself prevented him from doing what he does most lucratively, he might prevail. At minimum, he might recover his legal fees and court costs. If he did, I think justice would be served.
Maybe someone here can comment on whether the other defendants are in the same position. Can they can go after Mann for their costs to defend if the suit is dismissed?
Mann made the mistake of picking on some very powerful and influential people this time. After what he did to Tim Ball, who lacks the firepower of the present defendants, he deserves any punishment that might be meted out to him.
Steyn could point at the Armstrong Williams kerfluffle of a few years ago. The accusation that an opinion-maker has “sold” his view, voice and pulpit and is secretly “shilling” for one side in a public debate is at least as defamatory as calling a scientist’s work “bogus”.
I continue to note that Mann’s fans characterize Steyn’s writings as defamation of MANN. The direct quotes refer Mann’s results (the “fraudulent” graph) and discipline (the “tree-ring circus”) rather than the man himself. Rather like sneering at a homeopath’s publications or a chiropractor’s college, I would argue.
Potter “Further up this page in a post of mine from 12/2 is a link to Steyn’s webpage. If you scroll down you will see an interview Steyn did just the other day with Michael Coren. I’d be interested in what you and Joseph W. think about what he says.”
My response is that I think Steyn has an absolutist First Amendment blind spot. Suppose someone decided to tail Einstein and call him a child abuser. If it isn’t true, Einstein (and other public figures) need protection from the type of twit who would do this. In my mind, when you accuse someone of f***d, you put yourself in [legal] harm’s way. To say something that could be interpreted by the public in a way as accusing someone of dishonestly omitting or changing data is a serious accusation that shouldn’t be made lightly. Steyn pretty much believes that he should be able to make that accusation with impunity. I don’t and I believe most courts would agree. In this case, because of Mann’s deceptions in the handling of data, I believe that Steyn should be protected for the comments he made. However, if Steyn were a client of mine, I would advise him to criticize Mann harshly for what he has done but to avoid the “F” word. (Say something like Mann is an obtuse, incompetent, deceptive clown.)
In terms of Steyn continuing the suit, (I realize his case is currently separate from the other defendants) maybe he will. However, I believe the chances are high that it would be dismissed under the Anti-Slapp act or under summary judgment before he could get to a jury. That would necessitate an appeal, which I also think he would lose. A strategic question also arises: Why would he want to fight this battle in the DC courts?
JD
Because Steyn did not join this anti-SLAPP motion to dismiss, if the judges rule in favor of NR and CEI, does the Mann v Steyn still proceed?
Clark – Yes, at least for the moment. The case versus Steyn doesn’t automatically disappear.
But Steyn could then ask the trial judge to reconsider his earlier ruling and dismiss the case, or the judge might bring that up on his own. The judge might also take the opportunity to grant Mann’s motion to dismiss Steyn’s counterclaim, thereby unsubtly saying, “everybody go away and stop taking up space on my docket.”
It’s kind of like what happens if the Supreme Court declares a statute to be unconstitutional. The statute doesn’t disappear until the legislature gets around to repealing it. But it isn’t worth anybody’s time to enforce it anymore.
I’m not without bias, but it seems to me that if the judges dismiss Mann’s suit against CEI and NRO on anti-SLAPP grounds, that strengthens Steyn’s cause of action against Mann. If the lawsuit if found to be strategically against public participation which is to say to shut people up, it could go very badly for Mann. Steyn, CEI and NRO make their living commenting in print and in visual media on the affairs of the day. They should be able to show they have suffered damage because of the lawsuit. If Steyn, merely doing his job as a opinion writer, has to spend inordinate amounts of time and money to defend himself for merely doing his job, that constitutes real damage. A judge who would throw his case out as cavalierly as you seem to think he might would not be doing justice to what has gone on in this case.
My bias is in favor of freedom of expression.
I agree that it would make his claims stronger, since they rely on Mann’s claims being groundless. I haven’t done any research to see how closely Steyn’s counterclaims match a recognized cause of action (such as abuse of process). But he didn’t couch them in ordinary legal terms — you can read them here — and that alone gives the judge some room to dismiss them, in a spirit of “everybody go away,” while using his discretion to let each side bear its own costs and attorneys’ fees.
If Mann’s suit were being dismissed at the same time, I doubt Steyn would appeal that, even if he thinks he has a strong case. He has often expressed his desire to have nothing more to do with the D.C. courts.
Would there be any benefit to be gained which is of larger and lasting importance in defending the cause of free speech if Steyn were to pursue Mann through the courts with his countersuit, and to attempt to force Mann to pay for the costs he has wrongfully imposed upon a journalist and opinion writer who was pursuing his first amendment sanctioned profession?
Beta Blocker: your question occurred to me also. Steyn is a crusader for freedom of expression. He is deeply concerned over free speech rights being infringed every where. If with this case he can strike a blow against those who misuse the courts to curtail the rights of others to engage in public policy debates or outlaw frank and open exchanges amongst disagreeing parties, I believe he will do it. He’s also got some hard-hitting attorneys now working for him who specialize in first amendment cases. I think he wants to go to the mat.
As for Joseph W’s contention that Steyn won’t pursue the case because of his distaste for the D.C. courts, I disagree. He just said he thinks this is the most important free speech case in half a century in the U.S.– since New York Times v. Sullivan. He said this in an interview with him at this link that I think was conducted today:
http://www.steynonline.com/6691/the-chic-of-araby
What I said (and think) is that if
#1, the Appeals Court grants the CEI/NR appeal, and holds that the case should’ve been dismissed, and if
#2, the trial court decides to dismiss both Mann’s case against Steyn, and Steyn’s case against Mann, then
#3, Steyn won’t run back to the appellate court, to spend another year appealing that decision, for a chance at spending a few more years suing Mann.
The odds for a big recovery would be very small, because even if the appellate court ordered the trial court to reinstitute the case, the thing would finally go to a D.C. jury, which is likely to be friendly to Mann and hostile to Steyn. What are the odds they’d give Steyn a big payoff? Close to none, I’d say.
Steyn has very, very often commented on how dreadful the process is (and I can understand that; protracted litigation is bad for everyone involved). If the double dismissal happened, the best thing he could do for free speech is to go on exercising it. Which I’m sure he will.
The reversal itself is the thing that will be best for free speech; because if the appeals court reverses, it will show the futility of filing future cases on this theory.
There might be an extra benefit if, right at the point of dismissal, the trial judge decided to grant attorneys’ fees to the defendants. Which he has discretion to do under the D.C. SLAPP statute. But don’t bank on that one.
Joseph W,
I agree for the most part (IANAL), but if Steyn either can’t pursue or is not awarded any costs, then Mann still has a partial victory and the SLAPP statute is toothless. It will still cost Steyn a lot of money and time. As Steyn himself says, the punishment is the process.
Phil – yes, it will have cost Steyn time and money; but not future defendants. This time the trial judges were able to ignore the law on the basis of a really lame theory of malice. If the appeal succeeds, future courts won’t be able to do that, cases like this will get dismissed a lot faster (or never filed at all), and both the statute and the First Amendment will once again have full force in D.C.
Very helpful overview, JW.
There has been a lot of discussion about the potential continuation of Steyn’s counterclaims. Personally, I believe they are weak. For instance, one of the counterclaims is only supported by a single outlier case from Georgia. The Popehat blog had a post about the counterclaims on February 23rd 2014, and the author stated that he felt that he also thought that they were weak.
Everyone should remember that claims when they are filed are not screened and that anyone with $150 can claim anything that he wishes. Just because the claim is filed does not mean, it has a reasonable chance of success. With Steyn’s aversion to litigation, and the large amount of litigation that would be associated with his counterclaims, I doubt that they will continue if Steyn wins in the court of appeals.
I realize that he comes from a different place than I do, but if I was his lawyer, I would advise him to drop the counterclaims if he wins in the court of appeals.
JD
JD:
I think you know this but it bears repeating: Steyn is not part of this appeal. Only CEI and NR are appealing the denial of the anti-SLAPP motion. He’s been wanting to go to trial as quickly as possible and has said he can’t wait to adjudicate the matter, even if it is in the DC court. I don’t believe that is false bravado, although it could be.
I think that all the information that has come out since Mann filed the suit (in large part due to Steve’s efforts here) has convinced Steyn he can win if the courts and his lawyers allow him to proceed.
Further up this page in a post of mine from 12/2 is a link to Steyn’s webpage. If you scroll down you will see an interview Steyn did just the other day with Michael Coren. I’d be interested in what you and Joseph W. think about what he says.
Are the people who “exonerated” him going to testify that they exonerated him?
I’ve heard a bunch of arguments on this. I suppose it depends on whether or not the “exonerations” are admitted into evidence. Hard to see this happening without a fight.
Even if they are admitted I suppose the authors could be called on. Again, I dont know what results then but it would be funny to see people try to avoid being called as a witness or deposed to verify the accuracy of their investigation. The procedural issues with the Penn state investigation would be most enlightening to discuss in connection with the metaphorical allusions in the “defamatory” text at hand.
Defendants do get to defend themselves. So for example if I had made a comparison between the Sandusky investigations and the Mann investigations, I imagine I would
get to testify that I made the comparison because the same institution was involved in both. It’s kind of the flipside of Nicks exoneration argument. If its reasonable to spread the exoneration from CRU to Mann under a liberal reading of texts, then its reasonable to spread the doubt from the Sandusky investigations to the mann investigations. What’s more we have evidence of procedural irregularietes and Mann’s own admissions about the deleted Mails contradict the investigations findings.
Steve: Mosh, you’re feeling ironic this morning. In retrospect on the irregularities of the Penn State Inquiry, recall that I was personally contacted by a member of the original Penn State Inquiry Committee to say that its claim that Easterling had recused himself due to confict of interest was untrue and that Easterling had personally interfered to ensure that I was not interviewed by the Inquiry Committee. It is further disquieting that the NSF did not take exception to this gross violation of their rules for misconduct inquiries.
I understand why lawyers for CEI and NR want to nip this thing as early as possible, but readers should recognize that a CEI-NR win at this stage will also end the present possibility of finding out what happened in this and other inquiries.
ah yes feeling ironic as ever.
of course I recall “In retrospect on the irregularities of the Penn State Inquiry, recall that I was personally contacted by a member of the original Penn State Inquiry Committee to say that its claim that Easterling had recused himself due to confict of interest was untrue and that Easterling had personally interfered to ensure that I was not interviewed by the Inquiry Committee.”
There is a part of me that wants to see these guys suffer through a trial for the opportunity it might present to clear up certain matters or not.
I imagine that Steyn and NR both had read your pieces. After all the launching of the questions happened here. And so it seems only fitting that when defendants get to defend themselves they would get to inquire about the inquiries. Only this time with the power to depose people, to call them into court. or not that too isnt clear.
I also note this:
It is one thing to not support Mann by not writing an amici.
It will be quite another thing for Easterling to fight answering questions that will vindicate Mann… or not.
in one universe Mann’s friends hope this whole thing get’s thrown out..
of course then comes the counter suit. I’m not too clear on the status of that.
“then comes the counter-suit”
I think it brilliant of Steyn to play that card. But I fear greatly that the Mann complaint will be denied Anti-SLAPP protections and go to trial, while the counter-suit will be dismissed as a SLAPP under the same law. TANJ.
[blockquote]Steve: Mosh, you’re feeling ironic this morning. In retrospect on the irregularities of the Penn State Inquiry, recall that I was personally contacted by a member of the original Penn State Inquiry Committee to say that its claim that Easterling had recused himself due to confict of interest was untrue and that Easterling had personally interfered to ensure that I was not interviewed by the Inquiry Committee. It is further disquieting that the NSF did not take exception to this gross violation of their rules for misconduct inquiries.[/blockquote]
Wowzer! I guess that’s what you call striking the balance between “being effective and being honest”….
Avery comment at NRO: ” … It should be noted that the ClimateGate releases contain an e-mail thread that specifically includes Mann and others plotting the use of lawsuits to silence critics, …”
From here: http://www.nationalreview.com/article/393583/whats-stake-mann-v-national-review-charles-c-w-cooke/page/0/1#comment-1714407777
(That NRO article’s comment thread was hijacked last night by drewphillips … Nick, is that you?)
Pohakea:
I read the post by Charles Cooke that you cited. Unfortunately, there was a significant misstatement by Carvin, NR’s lawyer. He stated that: “what is at stake in this case. “We don’t allow juries to decide scientific questions,” he observed, before asking rhetorically whether anybody would consider it to be acceptable for a court to decide whether “vaccinations lead to autism.”
The statement that juries don’t decide science is wrong. They decide science all of the time. For instance, it is not unusual for an auto accident to cause or aggravate a herniated disc. Quite often different orpthopedic doctors have different opinions as to the severity of the injury. The jury has to rule on the science behind the doctors’ opinions. Same with respect to different evaluations of forensic evidence by coroners or different types of experts in a criminal trial.
When I read NR’s final brief, I stated that I doubted that the NR got its $50,000 worth of legal assistance. The statement concerning juries and scientific evidence doesn’t give me any more confidence in the capabilities of the NR lawyers. (particularly as compared to the CEI lawyers who also seem to be much more conversant with the facts)
JD
JD
Could be the strategy of Garvin, perhaps, who would guess the distaste of the judges for deciding hotly disputed science.
So perhaps he thinks to play on this assumed distaste, a sort of nudging the bench in the right direction: “get this science stuff outta here”
JD Ohio, last year on Lucia’s blog, there was quite an extensive conversation about how a jury might be faced with examining a question of fact which involves examining and interpreting testimony from expert witnesses who present conflicting scientific viewpoints which affect the basic substance of a lawsuit.
I offered an extensive example of my experience in serving on a jury for a civil trial which involved an automobile accident injury case; specifically a question involving whether the pain being suffered by the plaintiff in her arms and wrists was an acute condition caused by the accident, or whether the pain was a chronic preexisting condition caused by workplace repetitive motion injuries.
We were left with the problem of examining the conflicting scientific testimony offered by the expert witnesses and then having to decide what it all meant based on our best assessment of what was said to us by both sides.
One side said the pain was all due to chronic injury factors, the other side said it was all due to acute trauma from the accident.
We looked at the situation of the accident and the expert testimony from both sides and decided that a preexisting chronic condition had been somewhat aggravated by the accident, and gave the plaintiff somewhat more than the insurance company had offered. But not a whole lot more.
Neither side of the lawsuit ever couched their arguments in those terms; i.e., that there might be a mix of injury events from unrelated sources, but we as the jury essentially formed what amounted to a scientific judgement as to what the testimony all meant.
But before we reached our final decision, we asked the judge for a clarification of our instructions, asking him if it was permissible to make this kind of assessment. We didn’t tell him what our specific conclusions were, only that we had reached conclusions which were reflective of a mix of the two opposing arguments. He said that it was OK for us to do this, and so that’s what we did.
BB, I am at a loss as to why Carvin made the statement about juries not deciding science. I found his final brief to be disappointing because it didn’t go after Mann’s false claims that he had been exonerated on 8 occasions hard enough. See https://climateaudit.org/2014/09/22/black-tuesday-of-climate-science/
I thought Carvin’s original brief was pretty good in that it gave a good summary of the “hockey stick” wars. I looked up his bio on the Jones Day website, and it appears that he has been involved in a number of important lawsuits where the firm’s efforts were successful. However, I don’t have a high opinion of his recent work.
JD
One can suspect Carvin and his NR clients faced a tough choice in framing their strategy for the appeal. Do they focus entirely on free speech issues as these apply to journalists and to opinion writers; do they argue some mix of science & methodology issues and free speech issues; or do they focus entirely on science & methodology issues?
That the previous two judges ruled that the suit can go forward is directly counter to the intent of the anti-SLAPP laws, meaning that the cause of free speech has suffered a hard blow simply for the fact that we are here where we are today.
If the current set of judges rule in favor of Mann, and one or more jury trials eventually ensue, is it not so that the defendants will face exactly the same set of choices? Do they focus entirely on free speech issues as apply to journalists and to opinion writers; do they use some mix of science & methodology issues and free speech issues; or do they focus entirely on science & methodology issues?
If the lawsuit goes forward into a trial — something Mark Steyn believes is likely — then it seems to me that the science/methodology issues and the free speech issues have now been bound tightly together, for all practical purposes. Getting each set of arguments properly balanced in a way which first and foremost defends the cause of free speech — and which argues the science/methodology issues as a secondary matter which supports the free speech arguments — will be a very difficult nut to crack.
RE: JD Ohio
Posted Nov 28, 2014 at 10:32 AM
“I am at a loss as to why Carvin made the statement about juries not deciding science.”
Me too. The OJ trial comes to mind, where Barry Scheck thought the jury at OJ’s trial understood – and thereby decided – the science (IE: that someone else’s DNA could be changed to OJ’s by faulty crime scene processing, or whatever) but was publicly dismissive of the jury’s understanding (and the jury’s overall intellect) of the science after the ‘Nanny’ trial didn’t go his way. I thought it poignant that he offered her a job at his office but not looking after his kids . . . I’m guessing he understood very well the science that was presented at trial.
Yes, the briefs were considerably different, and I had the same reaction while reading the NR brief, only by the end did I realize that their argument on defamation grounds was strong.
Carvin phrases his claim badly. Surely it is true that juries decide on whether or not “science” has been correctly applied. Suppose two pathologists differ on whether the fatal injury resulted from a fall or a deliberate blow. The jury does not, and should not be required to, consist purely of pathologists in order to decide which has the more plausible argument.
We don’t however, allow juries to decide claims about an entire discipline or specific cases within a discipline. I have heard certain academic majors, (underwater archeology, for instance) identified with the only possible career path to find another college at which to teach the discipline. The discipline was rudely, even maliciously, described as “A Ponzi con, a multi-level marketing scam which subsists solely on the basis of conning a new generation of suckers into the field every year.”
Should the professor of the department researching and teaching in the identifiable field so described be allowed to argue the value of his discipline in court? Has he been defamed because his chosen area of study has been compared to a famous fraudster, and his research as convincing only to the gullible?
Pouncer “Carvin phrases his claim badly.” I agree. Also, most of the lawsuit revolves around statistics and data and not so much science, which is another way his statement is poorly phrased.
P: “The discipline was rudely, even maliciously, described as “A Ponzi con, a multi-level marketing scam which subsists solely on the basis of conning a new generation of suckers into the field every year.”
This statement raises interesting issues in the defamation area. If the statement was made maliciously and was clearly false, I think, although it would be subject to debate, that the speaker could be liable in defamation. Another practical issue is whether there are any damages.
JD
I would be cautious in saying that Carvin phrases his claim badly. The NR brief showed a masterful use of logic and language, worthy of William F Buckley.
FWIW, I thought that the National Review brief showed considerably less precision than the CEI brief, that it failed to address some important issues raised only in the CEI brief e.g. the misrepresentation by Mann and his lawyers of the findings of the various inquiries; and the EPA position on fraud invective.
Yes, it came out of Doug Keenan vs Phil Jones and SUNY Albany. Mann was really pushing them to sue. We don’t see any responses. It leaves the impression that Phil thought Doug was right.
“Avery comment at NRO: ” … It should be noted that the ClimateGate releases contain an e-mail thread that specifically includes Mann and others plotting the use of lawsuits to silence critics, …”
I read the linked comment but he doesn’t provide a link to substantiate his claim about Mann. Does anyone here know where I can find that email thread? I tried googling but all of the expected search terms just lead me to stories about the current lawsuit.
I believe Mann to Phil Jones, search for Keenan.
Very helpful, thanks MikeN. Adding in Keenan and Jones to my search helped me find this excellent summary of the whole affair:
http://opinion.financialpost.com/2010/03/13/benny-peiser-climate-libel-chill/
Thank you very much, SeanBrady
I made the same reflection looking for the ‘Mann trying to silence dissent via lawsuits’ at NRO, not finding any other than that off-hand claim. This (Peiser’s write-up) was very enlightening and the (attempted) legal pressure was new to me.
I can’t see that this would be helpful to Mann vs Steyn et al.
If you want to get screwed, go to a court house. If you want justice, go to a whore house.
=============
Could a SLAPP shot break a Hockey stick?
Thanks to JD Ohio and Skiphil. The fog is slightly less dense now
JD Ohio:
Confusing. The “appeal” that may/may not have to wait till after a jury trial is an appeal against losing a summary judgement to dismiss before a trial ? Yes or no, please ?
Which court appears to agree ? Agree with what, please ?
My limited understanding to this point says some court or other has decided that Mann as plaintiff has a reasonable case which may succeed at trial; consequently a trial must now proceed. BUT the same (?) court also appears to think that an appeal against loss of summary judgement (and if successful, negating a trial that this same court thinks should proceed) should be heard before any trial ?
If I have that right, any further comment of mine will be accurately construed as contempt of court. Like Mae West, I will do very best to hide it
Ian —
Yes. (Except it’s a “motion” to dismiss, not a “summary judgment” to dismiss. Summary judgment is a different motion that hasn’t happened yet, but if the case is not dismissed, it may happen later.)
The Court of Appeals appears to agree that CEI and National Review can appeal now, without waiting for trial. (“Appears to agree” but we won’t know for sure until they issue their written opinion.)
It isn’t the same court – that’s where you’re getting confused.
The D.C. Superior Court is the trial court. The judges of that court denied the motion to dismiss on free speech/SLAPP grounds.
CEI and NR appealed. To “appeal” is to go to a higher court, in this case the D.C. Court of Appeals. The Court of Appeals is where the oral arguments took place, which are the subject of this thread.
Normally an appeal from a motion to dismiss has to wait until after trial. But there are exceptions. The D.C. Court of Appeals has to decide whether the D.C. SLAPP law creates such an exception. If it does, they’ll have to decide whether the trial judges were wrong to deny the motions to dismiss (they were wrong, but we’ll see if the judges say so). If it does not, then they will say, “go ahead with your trial, and you can appeal this issue later. If necessary.”
The real goat rope was in the trial judges’ rulings, their idea that Mann’s complaint passes muster under the First Amendment. (Though the authors of the D.C. SLAPP statute could’ve made things easier by being explicit about whether pretrial appeals are allowed under the statute.) Had those judges followed the law, none of this would be happening. There’d’ve been a nice simple appeal by Mann, which he would’ve lost, and that would’ve been that.
Joseph W
Thank you for that … a little better
It isn’t the same court – that’s where you’re getting confused
Well, it wasn’t I who thought that. JD Ohio’s comment didn’t spell it out, even though I asked “Which court ?” precisely because I suspected that more than one court is involved
Obviously, I have now reached my Mae West position. My initial judgement was to pay no more attention to this silliness
Where libel/defamation/loss of reputation is concerned, the man with the most money always wins – this is because the legislators always see themselves as wronged plaintiffs and legislation is slanted to allow them to win while hypocritically protesting that they are only defending the rights of common man. It’s the same all over the western world
Ian – Glad to help! (But JD Ohio’s comments have been excellent, and I can assure you he is not confused about which court is which.)
Don’t agree at all. The National Enquirer, as a corporation, probably had more money than Clint Eastwood as an individual…but Eastwood won (Eastwood v. National Enquirer); Robert Welch, Inc. (which was basically The John Birch Society, though it was past its prime in 1969) definitely had more money than Elmer Gertz (a Chicago lawyer who was not famous enough to be a “public figure”), but Gertz won both at trial and retrial (Gertz v. Robert Welch, Inc.).
Furthermore, both the Supreme Court standards and the SLAPP laws are “slanted” to favor the defendant when the plaintiff is a public figure…and public figures are usually wealthy, though they don’t have to be, whereas the people they claim have “defamed” them do not have to be wealthy. (Lillian Hellman was definitely wealthier than Mary McCarthy, for example.) And the U.S. standard is an anomaly in the Western world, which gives non-Americans some trouble in understanding it, as you may have seen in some of these threads.
Opinions have varied on why the trial judges bent the law the way they did, be it incompetence, political bias, or (my suspicion) belief that the cases would settle if they just kept it alive. (Judges like settlements.) But that isn’t the fault of the legislation or the Constitutional standard, but of the trial judges; and the appellate judges may just fix it.
Anyway, glad to have been of help!
jeez this whole thing is goat rope
“We don’t however, allow juries to decide claims about an entire discipline or specific cases within a discipline.”
I agree.
One Trackback
[…] Steve McIntyre has put the case for Mann’s “consensus” quite well: […]