I have an audio copy of the oral argument in Mann v Steyn, which I’ve posted up (see link at the end of this post). One of things often under-estimated by those readers (especially at WUWT) who are bloodthirsty for litigation as a means of settling scores is that it’s not easy for litigation lawyers to fully assimilate a complicated history. In the oral argument of the anti-SLAPP motion, both the lawyers and judges seem too often to be playing blind man’s bluff with the facts, making a decision both unpredictable and probably somewhat random.
I plan to do separate posts on the oral arguments of each lawyer. John Williams, Mann’s lawyer, frequently misrepresented the facts (as he did in the written brief). Michael Carvin, National Review’s lawyer, was not only too ignorant of the facts to stuff the misrepresentations of Mann’s lawyer, but made some bizarre gaffes that made me cringe listening to it. In my opinion, Carvin’s representation was only passable when he was tub thumping about the First Amendment in a context that did not require knowledge of the facts in this case. Andrew Grossman, CEI’s lawyer, seemed to me to be the person who understood the facts reasonably well, but he got sidetracked onto technical issues of evidence and, unwisely in my opinion, let Carvin handle the rebuttal for both parties.
In preparing notes on the oral argument, I got diverted into the need for explication on several fronts.
Most of the legal concepts involved in libel defence are unfamiliar to readers. On the other hand, the judges are unfamiliar with the facts, which, unfortunately, are sometimes either poorly represented or not represented at all in the briefs.
The leading cases (Malkovich, Moldea, Guilford, Harte-Hanks) are common ground to the lawyers and judges, but not to readers. In this series, I’ll include some discussion of the main libel defences in play in this proceeding. Because Mann’s lawsuit claims libel not simply from the term “fraudulent”, but also from epithets ranging from “ringmaster of the tree ring circus”, “intellectually bogus” to “data manipulation” and data “torture”, the suit necessarily involves a wide range of libel law.
With all the attention paid to “Mike’s Nature trick” and “hiding the decline”, you’d think that the relevant procedures would have been carefully explained in the briefs. But they haven’t. Three different diagrams are involved in the various controversies (the WMO 1999 cover, the IPCC 2001 spaghetti graph and the Mann et al 1998-99 hockeystick diagram). In my opinion, CA posts are not only the most authoritative source on these procedures, but the only source which carefully describes the procedures, free of disinformation. Carvin, on behalf of National Review, completely failed to understand the differences between the diagrams and thus his factual statements tend to be unintelligible or uninterpretable. (Carvin did forcefully made some First Amendment arguments, but, in doing so, too often failed to observe that various opinions were not only permitted, but reasonable.) During the closing phases of the rebuttal argument, the judges turned their attention to important questions of disclosure, issues that were not addressed in the written briefs as clearly as they might have been.
Assertions from John Williams, Mann’s lawyer, are even less reliable. His overt misrepresentations about the findings of various inquiries has been documented in previous CA posts. Unnoticed in the oral argument and reply briefs was that Williams had slipped an untrue and deceptive characterization of “Mike’s Nature trick” into their most recent written brief, which otherwise mostly tracked his original January 2013 (almost word for word in many sections). I’ll discuss this new disinformation in a separate post.
While much of the recent controversy (including some of Simberg’s references) focused on issues regarding the “trick”, Steyn had described Mann’s particular hockey stick as “fraudulent” as long ago as 2006 (h/t David Appell). In Steyn’s earlier criticism, Steyn had specifically referred ing to Mann’s (undisclosed) use of a biased algorithm in the production of his original Hockey Stick . Inter-related were contemporary controversies about Mann’s withholding of adverse verification statistics and misrepresentation of the supposed robustness of his reconstruction to presence/absence of tree rings, especially stripbark bristlecones. These issues are not directly mentioned in any of the “eight” inquiries that Mann and his lawyers listed as ones that the defendants ought to have been aware of, though they were touched on in the 2006 NAS panel and Wegman report, neither of which were listed as inquiries of which the defendants ought to have been aware of. As noted in the past, Mann lied to the NAS panel about not calculating the verification r2 statistic.
Mann’s brief prominently cited the 2007 IPCC Assessment Report in support of the claim that various criticisms of his Hockey Stick didn’t matter. CA readers will recall that the language of the 2007 IPCC Assessment was not an “independent” assessment, but resulted from surreptitious correspondence between Eugene Wahl, then a close associate of Mann’s, and IPCC Lead Author Keith Briffa (of East Anglia) and that the destruction of this correspondence was carried out by Wahl shortly after receiving an email from Mann containing Jones’ notorious request to destroy the emails. This topic came up in the closing stages of the oral argument and Carvin’s uninformed and incompetent response about the destruction of emails and their relevance to Steyn’s accusation simply beggars belief.
Because Steyn and National Review have parted ways, Carvin and National Review seem to have been unaware of the long backstory and more or less presented the dispute (from National Review’s perspective) as little more than a purely academic controversy over the validity of tree rings as a temperature proxy, leaving the judges completely mystified on why Mann, as opposed to any one of hundreds of scientists, was at issue. I do not see how the judges could possibly understand the articles without understanding Mann’s distinctive role in the Climategate emails and that the widespread calls for misconduct investigations were not “commissioned by” either CEI or National Review, nor did either institution play any role in prompting the investigation at Penn State that was the topic of Simberg’s commentary. Nor did either institution play any role in the formation of any of the other inquiries, such as they were, other than CEI’s petition for reconsideration of the EPA Endangerment Finding.
The only misconduct inquiry to take evidence from Mann himself appears to have been the one at Penn State, an institution, which, as is well known, subsequently received intensely unfavorable publicity for its failure to properly investigate misconduct by Jerry Sandusky. Simberg’s article was written on the remarkable occasion of former FBI director Louis Freeh recommending criminal charges against Penn State president Graham Spanier for his failures in connection with the investigation of Sandusky’s misconduct. CEI’s written brief discussed this context, but, in retrospect, much less forcefully than it might have, while National Review ignored it.
Recently, misconduct and misconduct investigations have been widely publicized in the recent U.S. controversies about police misconduct and police misconduct investigations. No one seriously contends that a report of a misconduct inquiry necessarily puts an end to discussion or controversy. It is hard to contemplate the amount of controversy that would result if an external review of procedures in a police misconduct investigation resulted in a police chief being charged criminally for obstruction. Further, if a police chief was charged in respect to one misconduct investigation, one can presume that there would be vociferous demands that other misconduct investigations be re-examined. Although these analogies seem obvious, they were not pursued in the briefs or oral argument.
In the case of the Mann misconduct investigation, major defects in the procedure were already known. For example, there was the astonishing communication from a member of the Penn State Inquiry Committee that William Easterling, who was said to have “recused” himself due to conflict of interest, had actually interfered with the Inquiry Committee to prevent them from interviewing me. Or that it was Graham Spanier who re-assured the Penn State community about the supposed thoroughness of the investigation into Mann’s conduct.
While CEI’s brief took note of one aspect of academic misconduct, they overlooked Penn State policy AD-47, which was actually at issue for the Investigation Committee. In the oral argument, Carvin did not appear to understand the scope of academic misconduct investigations and, bizarrely, did not appear to understand how the term “falsification” is defined in academic codes of conduct, a confusion that led him into a particularly cringeworthy gaffe.
The definition of academic misconduct as it applies to this case needs to be reviewed and I’ll do that separately.
In my prior commentary on this case, I mostly focused on Mann’s misrepresentations in regard to the various investigations, as it seemed to me that the case could be decided most easily on Mann’s failure to demonstrate “actual malice”. As a result, I haven’t commented on the “actionability” of the various epithets. While WIlliams has attempted to assimilate all terms as accusations of “fraud”, it seems to me that there are very large differences between allegations of “ringmaster of the tree-ring circus”, “intellectually bogus”, “data manipulation”, “data torture”, “academic misconduct” and “fraudulent hockey stick” and that these very different allegations cannot be armwavingly assimilated. This distinction is particularly relevant to CEI and Simberg, who did not use the word “fraud”.
Rather than trying to deal with the language on an overall basis, it seems worthwhile to look at each epithet individual. Both Grossman and Williams commented in oral argument about the term “data manipulation”, with Williams’ reply appearing to me to be a major gaffe. I’ll also discuss an interest precedent regarding use of the word “bogus” that was cited in the National Review brief. (The word “bogus” was one of a number of epithets used by Harry Edwards, then the Chief Judge of the D.C. Circuit, in an academic article responding to critics of the D.C. Circuit). In Carvin’s closing, Carvin forcefully reminded the judges of EPA’s finding in relation to the word “fraudulent” in respect to charges against Mann, reminding them EPA determined that the term when applied to the arguments of Mann’s opponents, meant no more than that those arguments were “scientifically flawed” – a point previously noted in CEI’s reply brief. Though very late in the proceedings, this point seemed to give some pause to the judges.
While there are many interesting and complicated issues pertaining to the actionability of the language, it seems to me (as it has for a long time) that it is relatively easy to decide the case on Mann’s failure to establish “actual malice” as understood in U.S. libel law. In my own commentary to date on this case, I’ve focused on the flagrant misrepresentations of the findings of the various inquiries in Mann’s brief and the dependence of his actual malice argument on those misrepresentations. Mann’s lawyer offered only a single case in support (Harte-Hanks), but it can be trivially distinguished from the facts in the present case.
If a Canadian court were approaching this matter (using the style of Canadian decision given U.S. law), if it could decide the case on Mann’s failure to show evidence of “actual malice” as defined under U.S. law (as I believe to be required on what Mann has produced to the court), a Canadian court would, in many cases, abstain from decision or commentary on actionability issues, lest it make a bad precedent on controversial facts that were poorly argued by the lawyers, but would dismiss Mann’s case on the narrowest issue of his failure to provide evidence supporting “actual malice” as defined in U.S. libel law. Such a decision would, in this case, leave everyone disappointed – an outcome that might well appeal to the D.C. judges as well as being just.
The link to the audio is in two parts: Part 1; Part 2. Stay tuned for more discussion. On those topics where I’ve indicated an intent to comment in more detail, I’d prefer that commenters wait for this more detailed commentary rather than pre-empting a more detailed exposition.