ACLU and National Media Intervene in Mann v Steyn et al

I get the sense that the Washington libel community and U.S. national media have belatedly woken up to the potential threat of Mann v Steyn and that the tide is now starting to run strongly against Mann in the anti-SLAPP proceedings. The most visible evidence of this is an impressive Amici brief from the ACLU and an imposing list of 25 other media organizations (the Reporters Committee for Press Freedom, the American Society of News Editors, the Association of American Publishers, the Association of Alternative Newsmedia (The Village Voice et al), NBC Universal, Bloomberg News, the publishers of USA Today, Time, The Washington Post, The Chicago Tribune, The Los Angeles Times, The Detroit Free Press, The Seattle Times, The Arizona Republic and The Bergen County Record) filed on August 11, 2014.

In addition, Steyn’s own Amicus brief substantially upped the ante on a separate front. It repeatedly and directly accused Mann of submitting “fraudulent” information to the court and commented adversely on “the ease with which Mann lies about things that would not withstand ten minutes of scrutiny in a courtroom”.

Other briefs are by CEI; National Review, the District of Columbia, the Alliance Defending Freedom; the Cato Institute, Goldwater Institute, Reason magazine and David Horowitz’s Individual Rights Foundation;, The Daily Caller, PJ Media, The New Criterion and various Internet publishers.

The Brief by ACLU and 25 Others
On some points, the ACLU brief takes a pretty similar line to that previously taken by National Review and CEI, but it presents some interesting fresh nuances and authorities. I won’t attempt to precis the brief as it is well written and worth reading, though readers uninterested in the procedural details of anti-SLAPP litigation would do well to skip to section II of the brief (commencing on page 12).

They asserted that the “challenged publications bear all the traditional hallmarks of opinion” and that “permitting such a defamation claim to proceed will substantially chill speech that challenges scientific conclusions, as well as public policies based on them.”

They observe:

Mann essentially complains that the defendants accused him of manipulating data, including by molesting and torturing it, to serve a political agenda. … Because the statements are quintessential opinions about the validity of Mann’s scientific methods and conclusions, they are entitled to full constitutional protection.

The ACLU brief provides detailed commentary on the range of abusive commentary in scientific disputes that courts have found to be permissible, concluding that the commentary in this case was within permissible limits.

In subsection II(D) (page 20), the ACLU et al provide an interesting and, in my opinion, compelling argument against Mann’s claim that the defendants were obliged to accept the findings of the various government agencies – a topic that I’ve focused on in my previous commentary.

CA readers are aware that Mann’s claim to have been “exonerated” by Muir Russell, Oxburgh, NOAA and the UK Government are untrue (“fraudulent” is Steyn’s term), but ACLU’s argument is different: they say that “punishing defendants’ speech because Mann’s work had been backed by other scientists or governmental agencies is contrary to core First Amendment principles”.

They first counsel the court against getting embroiled in trying to resolve scientific questions, no matter how authoritative the apparent support for the scientific assertion – advice that any court would undoubtedly be willing to heed.

The ACLU et al also unambiguously said that any reliance given by the Superior Court to supposed vindications or exonerations by governmental agencies was an “error” and that such government agencies did not give Mann the right to “silence his critics in a defamation claim”:

Furthermore, to the extent the Superior Court credited Mann’s assertion that investigations by the EPA, the National Science Foundation, and Penn State, among other scientific and governmental bodies, “laid to rest” defendants’ questions regarding Mann’s research, Am. Compl. ¶ 24, this too was in error. See also July 19, 2013 Orders at 16 (suggesting that statements were actionable because “Plaintiff’s work has been investigated and substantiated on numerous occasions”). The fact that certain official panels backed Mann’s methodology – facts that were not only disclosed in the challenged publications but in fact formed the basis for them – cannot allow him to silence his critics in a defamation claim. Under the First Amendment, the government is not the final arbiter of truth with the power to foreclose further challenge to its policies.11

In footnote 11, the Amici unambiguously supported defendants’ right to disagree with the findings of government inquiries, describing the right to such disagreement as fundamental to the First Amendment. In doing so, they observed that the defendants had provided substantive criticism of the procedures of the investigative bodies:

11 Indeed, if the First Amendment and case law interpreting it stand for anything, it must be that disagreement with findings of government and quasi-government bodies are fully protected. Here, defendants criticized the investigative bodies as, variously, lacking independence, failing to interview a relevant witness and therefore being too limited in scope, and being overly reliant on evidence provided by Mann’s employers, who had “so much at stake.” See Am. Compl., Ex. A.

In the next footnote, they pointed out that Mann’s pleadings had omitted the relevant information that the commentaries had disclosed that the government agencies had sided with Mann (while disagreeing with the agencies) and had provided hyperlinks to the criticized agency reports thereby permitting readers to form their own conclusions:

In this regard, Mann’s description of the commentaries omits that they disclose that governmental agencies had in fact sided with him while also criticizing those official findings. That background is described in their text – and, in some instances, through hyperlinked sources – thereby allowing readers to formulate their own judgments about the opinions expressed. See, e. g., Boley, supra, 950 F. Supp. 2d at 262 (hyperlinking to an earlier article provided “the necessary context for the allegedly defamatory remark”); Abbas, supra, 975 F. Supp. 2d at 18 & n. 7 (finding hyperlinks were sufficient to disclose background for fair comment privilege); Agora, Inc. v. Axxess, Inc., 90 F. Supp. 2d 697, 704-05 (D. Md. 2000) (dismissing defamation claim based on facts disclosed through hyperlinks), aff’d, 11 F. App’x 99 (4th Cir. 2001); Adelson v. Harris, 973 F. Supp. 2d 467, 483 (S. D. N. Y. 2013) (relying on a hyperlink to a report about an official proceeding in dismissing a defamation claim).

The ACLU brief closes:

At bottom, a participant in the “rough-and-tumble” of public debate should not be able to use a lawsuit like this to silence his critics, regardless of whether one agrees with Mann or defendants. See Guilford Transp. Indus., supra, 760 A. 2d at 595-96 (endorsing Voltaire’s philosophy, “‘I disapprove of what you say, but I will defend to the death your right to say it,'” which “anticipatorily articulated the spirit of our First Amendment”). The “law certainly does not insist” that a speaker “look kindly on [his] subjects,” nor that a plaintiff “simply by filing suit and crying ‘character assassination!,'” may “silence those who hold divergent views, no matter how adverse those views may be to plaintiffs’ interests.” Underwager v. Salter, 22 F. 3d 730, 736 (7th Cir. 1994). Rather, as the Seventh Circuit eloquently put it, expressing a sentiment echoed by other courts: “Scientific controversies must be settled by the methods of science rather than by the methods of litigation. More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path toward superior understanding of the world around us.” Id. (citation omitted).13

Steyn’s Brief
Steyn’s brief (noted up together with the other briefs in Steyn’s blogpost here is far more direct in its allegations against Mann than previous pleadings, repeatedly describing claims and assertions in Mann’s previous pleadings as “fraudulent”.

Steyn rubbed salt into Mann’s false claim to have been a Nobel Prize winner and the imaginary tort of defaming a Nobel Prize winner, describing Mann’s priod claim as a “fraudulent misrepresentation”:

Mann’s fraudulent misrepresentation of his credentials and academic standing later earned him a rebuke from Geir Lundestad, director of the Nobel Institute in Oslo. One can well understand why the exposure of Mann’s fraudulent claim should cause him embarrassment but it should surely not justify resetting the procedural clock back to the beginning on this case, which is what in effect happened.

Steyn repeatedly used the term “fraudulent”, also using phrases like “the audacity of the falsehoods in Mann’s court pleadings is breathtaking” and that it was “deeply disturbing that a plaintiff should make such fraudulent claims in his legal pleadings”:

In his later court filings, Mann has made equally preposterous and objectively false claims. For example, Mann has claimed that he has been “exonerated” by such bodies as the University of East Anglia, the U.S. National Oceanic and Atmospheric Agency, and even by the government of the United Kingdom, none of which have investigated Dr Mann at all, never mind “exonerated” him.

The audacity of the falsehoods in Mann’s court pleadings is breathtaking. For example, on page 19 of his brief below dated January 18, 2013, he cites the international panel chaired by the eminent scientist Lord Oxburgh, FRS as one of the bodies that “exonerated” him, whereas on page 235 of Mann’s own book, The Hockey Stick and the Climate Wars , he states explicitly that “our own work did not fall within the remit of the committee, and the hockey stick was not mentioned in the report.” It is deeply disturbing that a plaintiff should make such fraudulent claims in his legal pleadings.

Steyn added:

It is clear from the ease with which Mann lies about things that would not withstand ten minutes of scrutiny in a courtroom that he has no intention of proceeding to trial.

Conclusion
All in all, it seems to me that Mann is facing far more formidable opposition than in any of the previous hearings, both from the ACLU et al intervention and from increasingly formidable defendant briefs. Mann presumably chose DC as a forum because he thought that it would favor him, but appears to have overlooked the possibility of intervention by the ACLU and national media. I can’t imagine that the DC Appeals Court will want the quixotic decision by J Combs-Greene (mostly adopted by J Weisberg) to represent the public face of DC libel law and I anticipate a different decision.


WG2 Misleads on Undernourishment Trend

Food security was one of the touchstone issues of the IPCC WG2 Summary for Policy Makers.

In its chapter on food security (Chapter 7), IPCC’s single statement on changes on undernourishment was that 75 million were added to the undernourishment rolls between 2003-5 and 2007:

FAO’s provisional estimates show that, in 2007, 75 million more people were added to the total number of undernourished relative to 2003–2005 (FAO, 2008); other studies report a lower number (Headey and Fan, 2010). More than enough food is currently produced per capita to feed the global population, yet about 870 million people remained hungry in 2012 (FAO et al., 2012).

However, yields have steadily increased for nearly all major crops and, according to the most recent FAO statistics, The State of Food Insecurity in the World 2013 published in September 2013, the number of undernourished [in developing countries] decreased by 17% between 1990-92 (995 million) and 2011-13 (827 million), as illustrated in their figure below. [The corresponding world decrease - see central points in 2013 online data is also 17% - from 1.015 billion in 1990-2 to 842 million in 2011-2013.]

fao 2013 undernourished
Figure 1. From FAO, The State of Food Insecurity 2013.

The FAO 2013 report does not directly show the difference between 2003-5 and 2007 undernourishment, but current online FAO data shows a decline in undernourishment of 44 million from 2003-5 (central point) to 2007, as opposed to the increase of 75 million reported by IPCC. [The online FAO data reconciles exactly to 2013 Annual Report Table 1 by comparing the central point in the three-year intervals to the annual figure in the online data.]

The glaring inconsistency between the most recent FAO numbers and the IPCC report raises some obvious questions.

Why the difference? Continue reading

Paper justifying AR4’s use of a uniform prior for estimating climate sensitivity shown to be faulty

This is a guest post by Nic Lewis.

 

In July 2004 the IPCC held a Working Group 1 (WG1) Workshop on climate sensitivity, as part of the work plan leading up to AR4. In one session, Myles Allen of Oxford university and a researcher in his group, David Frame, jointly gave a presentation entitled “Observational constraints and prior assumptions on climate sensitivity”. They developed the work presented into what became an influential paper, Frame et al 2005,[i] here, with Frame as lead author and Allen as senior author.

Frame and Allen pointed out that climate sensitivity studies could be – whether or not they explicitly were – couched in a Bayesian formulation. That formulation applies Bayes’ theorem to produce a posterior probability density function (PDF), from which best estimates and uncertainty ranges are derived. The posterior PDF represents, at each value for climate sensitivity (ECS), and of any other parameters (fixed but uncertain variables) being estimated, the product of the likelihood of the observations at that value and the “prior” for the uncertain parameters that is also required in Bayes’ theorem. Continue reading

Cook’s Trick

In today’s post, I’m going to present a narrative of Richard Tol’s efforts to obtain rater ID and timestamps from the University of Queensland. See pdf here. While there have been a number of references to these efforts, few readers and commenters will (or can reasonably) spend the time to pull the threads together.

Tol requested data including rater IDs. In his initial responses to Tol, Cook undertook to provide the requested data, but asked for a delay due to his busy conference schedule. Cook initially promised to provide the data quite soon, but failed to deliver. Tol then moved his requests upstairs at both the University of Queensland and the journal Environmental Research Letters: Ove Hoegh-Guldberg and then DVC Max Lu at U of Queenslandl and Dan Kammen and then Paul Hardaker at ERL. In all cases, Tol was assured that Cook would provide the requested data, but needed time to properly anonymize the data, with the parties requesting an allowance for Cook’s busy conference schedule.

In mid-August, Cook delivered a file to Tol, which, instead of “meticulous anonymizing” of rater names, Cook withheld rater ID and timestamp/datestamp information by simply deleting the columns, something that could have been done in less than a minute. One can’t tell from the present record whether this was Cook’s plan all along, or whether he embarked on this course only after Hoegh-Guldberg “realized” who Tol was and fostered or condoned an environment in which hostility to Tol was sanctioned.

DVC Max Lu appears to have particularly misunderstood the situation. After Cook’s delivery of data withheld rater IDs, Lu “explained” to Tol that Cook could not deliver this data without breaking conditions of his ethics approval. Lu even told Tol that providing him with rater IDs would be a violation of Australian law. We now know that there was no ethics approval for the SKS ratings program and that the native datafiles were already anonymized to rater IDs.

Although University officials repeatedly provided false information to Tol, there’s no reason to believe that they did so intentionally. However, their communications to Tol were copied to Cook, who had an opportunity to correct the record on many occasions, but failed to do so. Nor did the University officials apologize to Tol, upon learning that they had misrepresented the situation. Instead, they made rude remarks about him and condoned such attitudes on Cook’s part.

But rather than try to summarize or editorialize further, here’s a narrative pdf. I’m not sure why I bothered, other than I had collated some of the correspondence to get an idea without planning to spend much time on it. Then I figured that I’d finish pulling it together for other readers and wasted too much time on it. Andrew Gelman has an apt description for this sort of situation, that he used to describe his attitude towards Structural Equations Models (Lewandowsky’s technique). He recalled an assignment at primary school where a classmate was invited to write an essay. The classmate wrote: “I got locked in a pay toilet and couldn’t get out.” At first, Gelman thought that his classmate ought to have written more, but on reflection, he realized that there was nothing more to say.

Cook’s Fake Ethics Approval

rater_pie_thumbnail For over a year, John Cook and the University of Queensland have repeatedly refused Richard Tol’s requests for information on rater ID and timestamps for the SKS ratings for Cook et al 2013. Recently there have been two events that shed new light on the dispute. First, in mid-May Brandon Shollenberger located the requested information online without password protection, which he placed online a few days ago. The new information shows that the majority of ratings were done by coauthors and nearly all ratings were done by coauthors and named acknowledgees, rather than by anonymous volunteers. Second, Simon Turnill received an FOI response from the University, that showed that the University did not make ANY confidentiality agreements with SKS raters. More surprisingly, Cook had done the SKS ratings program without submitting an ethics application for this program or obtaining ethics approval. Previously, both Cook and the University of Queensland had made public statements referring to “ethical approval” and confidentiality agreements. Each of these statements is, at best, misleading, especially when parsed in the light of this new information, as Brandon has done.

I’ve re-drafted this post to better reflect the lede, now beginning with the new information and moving to parsing of the statements, rather then the opposite.
Continue reading

New Paper by McKitrick and Vogelsang comparing models and observations in the tropical troposphere

This is a guest post by Ross McKitrick. Tim Vogelsang and I have a new paper comparing climate models and observations over a 55-year span (1958-2012) in the tropical troposphere. Among other things we show that climate models are inconsistent with the HadAT, RICH and RAOBCORE weather balloon series. In a nutshell, the models not only predict far too much warming, but they potentially get the nature of the change wrong. The models portray a relatively smooth upward trend over the whole span, while the data exhibit a single jump in the late 1970s, with no statistically significant trend either side.

Our paper is called “HAC-Robust Trend Comparisons Among Climate Series With Possible Level Shifts.” It was published in Environmetrics, and is available with Open Access thanks to financial support from CIGI/INET. Data and code are here and in the paper’s SI.
Continue reading

Was Lawson Right about the UK Floods?

In February 2014, Nigel Lawson and Brian Hoskins (Chair of the Grantham Institute for Climate Change) appeared on the BBC’s Today show to answer whether there was “a link between the rain in recent days and global warming”.

Lawson, an experienced man of affairs though not a “climate scientist”, briefed himself on the matter and gave an answer was in accordance both with the findings of the most recent IPCC report and even with Hoskins’ own prior statements. In contrast, Hoskins, though an eminent climate scientist, gave a woolly response that quickly digressed into Green talking points.

Predictably, green activists complained both about Lawson’s answer and even his appearance on the show. The Today show rejected the initial complaints. However, green activists, including Bob Ward, who like Hoskins is supported by a Grantham institute, filed further complaints. In late June, the Guardian reported that a decision by Fraser Steel of the BBC Complaints Unit had issued a finding that Lawson’s views were “not supported by the evidence from computer modelling and scientific research”:

Lord Lawson’s views are not supported by the evidence from computer modelling and scientific research … and I don’t believe this was made sufficiently clear to the audience …

Steel went on to make other adverse findings against Lawson. However, in respect to the issue raised by the programme – the “link between the rain in recent days and global warming” – Lawson’s views were supported by scientific research, while Hoskins evaded a direct answer, instead quickly digressing into green talking points not directly to Somerset rainfall.

In today’s post, I’ll examine the answers of both Lawson and Hoskins against IPCC statements and, ironically, against Hoskins own prior statements (which are inconsistent with the complaints.)

Continue reading

George Zimmerman’s Libel Lawsuit

Last week, a Florida court dismissed the libel suit of George Zimmerman e.g. here. In today’s post, I’ll discuss aspects of this decision, which are relevant to Mann’s libel suit against Steyn and others.

zimmerman

mann portrair

Figure 1. Two libel plaintiffs: left – George Zimmerman; right – Michael Mann. Continue reading

Abram et al 2014 and the Southern Annular Mode

In today’s post, I will look at a new Naturemag climate reconstruction claiming unprecedentedness (h/t Bishop Hill): “Evolution of the Southern Annular Mode during the past millennium” (Abram et al Nature 2014, pdf). Unfortunately, it is marred by precisely the same sort of data mining and spurious multivariate methodology that has been repeatedly identified in Team paleoclimate studies.

The flawed reconstruction has been breathlessly characterized at the Conversation by Guy Williams, an Australian climate academic, as a demonstration that, rather than indicating lower climate sensitivity, the recent increase in Antarctic sea ice is further evidence that things are worse than we thought. Worse it seems than previously imagined even by Australian climate academics.

the apparent paradox of Antarctic sea ice is telling us that it [climate change] is real and that we are contributing to it. The Antarctic canary is alive, but its feathers are increasingly wind-ruffled.

Continue reading

Mann’s new paper recharacterizing the Atlantic Multidecadal Oscillation

A guest post by Nic Lewis

 

Michael Mann has had a paper on the Atlantic Multidecadal Oscillation (AMO) accepted by Geophysical Research Letters: “On forced temperature changes, internal variability, and the AMO”. The abstract and access to Supplementary Information is here . Mann has made a preprint of the paper available, here . More importantly, and very commendably, he has made full data and Matlab code available.

The paper seeks to overturn the current understanding of the AMO, and provides what on the surface appears to be impressive evidence. But on my reading of the paper Mann’s case is built on results that do not support his contentions. Had I been a reviewer, I would have pointed this out and recommended rejection.

In this article, I first set out the background to the debate about the AMO and present Mann’s claims. I then examine Mann’s evidence for his claims in detail, and demonstrate that it is illusory. I end with a discussion of the AMO. All the links I give provide access to the full text of the papers cited, not just to their abstracts. Continue reading

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