Oral Argument 1: Context

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.


219 Comments

  1. Steve McIntyre
    Posted Dec 23, 2014 at 9:14 AM | Permalink

    I used the new wordpress writing box for this post and inadvertently blocked comments.

  2. Steve McIntyre
    Posted Dec 23, 2014 at 9:20 AM | Permalink

    I’m going to discuss specific language in a followup post, but while I remember, I was listening to a sports talk show on the car radio yesterday which was discussing teams that could compete with Seattle for the NFL championship this year. They dismissed Cincinnati as a potential contender: the commentator said that the Bengals were a “fraud”.

    • Jeff Id
      Posted Dec 23, 2014 at 2:52 PM | Permalink

      Lions all the way!

      Now that would be a fraud …. but we can always hope.

      • David Jay
        Posted Dec 23, 2014 at 4:10 PM | Permalink

        You can take the man out of Michigan, but…

        • Posted Dec 26, 2014 at 4:34 PM | Permalink

          I’m not used to still having a team in the hunt so I’m not sure how to behave.

        • David Jay
          Posted Dec 28, 2014 at 12:00 PM | Permalink

          I think you just don’t want to wear cheese on your head.

    • pottereaton
      Posted Dec 28, 2014 at 12:05 PM | Permalink

      That’s the great thing about football. It’s pretty conclusive once the game ends. This afternoon we will learn if the Lions are a fraud vis a vis the Packers, and this evening we will learn if the Bengals are a fraud vis a vis the Steelers.

  3. Matt Skaggs
    Posted Dec 23, 2014 at 10:21 AM | Permalink

    “the word ‘fraudulent’…meant no more than that those arguments were ‘scientifically flawed’”
    “They dismissed Cincinnati as a potential contender: the commentator said that the Bengals were a ‘fraud’.”

    Dang, fraud was a useful word, now it has become far too versatile. It seems that those of us who use our words carefully are at the mercy of those who don’t.

    • joe
      Posted Dec 23, 2014 at 11:57 AM | Permalink

      Fraud – multiple levels of definitions
      Very similar to the word Dyslexia
      A) the specific medical/reading diagnosis
      B) the general term for learning differences/disabilities
      C) the general use of the term as an excuse for a not very smart student.

    • Posted Dec 23, 2014 at 12:11 PM | Permalink

      Indeed, thanks Matt.

    • michael hart
      Posted Dec 23, 2014 at 2:52 PM | Permalink

      CA wouldn’t be quite the same if it was conducted in German.

  4. joe
    Posted Dec 23, 2014 at 11:53 AM | Permalink

    just a few observations

    1) The judges seemed quite interested in the standard of determining malice.
    2) Carvin – as Steve M observed did a poor job of dismantling the primary objection of the HS which is the use of weak proxy data sets and overweighting those proxies. (which rightly or wrongly can be inferred as massaging the data)
    3) Most of the CA readers have spent upwards of 1,000+ hours becoming familiar/grasping the scientific issues and the specific controversies. It is extremely difficult for the judges to grasp the scientific issues in under the 20-30 hours they would have available to grasp any of the scientific issues.

    My prediction – The ruling will be to the effect that
    1) the plaintiff has to demonstrate actual malice at the SLAPP dismissal stage (the equivilant to motion to dismiss stage – and a shift in the burden of proof to the plaintiff), and the standard for malice is a much higher burden and the slapp dismissal stage.
    2) The case will be remanded to the trial court with instructions to allow limited discovery for determining if malice existed. Further the court will remand with instructions that the defendants are not required to accept the findings of the 8 exonerations.

    • Steve McIntyre
      Posted Dec 23, 2014 at 11:49 PM | Permalink

      Joe said:

      2) The case will be remanded to the trial court with instructions to allow limited discovery for determining if malice existed. Further the court will remand with instructions that the defendants are not required to accept the findings of the 8 exonerations.

      I was chatting with someone the other day and observed that the decision that would result in maximum delay, least amount decided and maximum legal fees would be a remand for limited discovery and, on that basis, had made a private prediction that the Court would so find.

      • Joe
        Posted Dec 24, 2014 at 7:00 AM | Permalink

        I am basing my prediction on the number of times the judges asked the attorneys if any discovery had been done.

      • Posted Dec 24, 2014 at 2:45 PM | Permalink

        Wouldn’t a precedent of (even limited) discovery seriously undermine the intent of the SLAPP statute? I would think the judges would be sensitive to that, more than the fact pattern in this particular case.

        • pottereaton
          Posted Dec 24, 2014 at 5:57 PM | Permalink

          HaroldW: that was my thought also. Mann’s suit is of the type that caused the anti-SLAPP statutes to be written. He’s gone after people who make their living writing commentary. If they don’t dismiss based on the anti-SLAPP statute in this case then the law is useless. Like Steyn said, the process IS the punishment. It’s an injustice that it has gone this far. If the magazines and writers who are under attack were of a left-wing bent, there would be clamorous outrage across the land.

      • mpainter
        Posted Dec 26, 2014 at 9:42 AM | Permalink

        One must not discount the amicus briefs filed by the nation’s media, in my view. I think these will have the effect of directing the judges attention to the need of upholding SLAPP, or to not appear to be undermining the principles embodied in that law. There is much attention focused on this affair and if the appeals court orders the trial court to allow discovery by Mann then this makes a mockery of the SLAPP law

    • Posted Dec 24, 2014 at 7:19 AM | Permalink

      joe (11:53 AM):

      3) Most of the CA readers have spent upwards of 1,000+ hours becoming familiar/grasping the scientific issues and the specific controversies.

      I was already feeling old this Christmas 🙂 Have a happy one, fellow CA scholars.

    • Beta Blocker
      Posted Dec 24, 2014 at 9:16 AM | Permalink

      Re: joe (Dec 23 11:53),

      2) The case will be remanded to the trial court with instructions to allow limited discovery for determining if malice existed. Further the court will remand with instructions that the defendants are not required to accept the findings of the 8 exonerations.

      If the case is remanded to the trial court with those instructions, then what unique approach to developing a case argument strategy is best pursued by the plaintiff and by the defendants, respectively, in deciding what relative emphasis is to be placed upon each of these four topical areas:

      a) Science and mathematics issues — e.g., paleoclimate reconstructions and their impacts on other areas of climate science research, such as the implications for what kinds of scientific conclusions might be indicated if recent warming truly is unprecedented.

      b) Professional conduct issues — e.g., compliance with generally accepted standards for conducting scientific research such as supplying adequate documentation of research activities and the disclosure of adverse results.

      c) Peer review and conduct oversight issues — e.g., the effectiveness of the climate science peer review process as it is currently being applied, and the effectiveness of climate science professional conduct oversight processes, as they are currently being applied.

      d) Free speech issues — e.g., what boundaries apply, if any, in limiting how far a professional journalist or opinion writer can go in criticizing the opinions, actions, and behavior of a public figure without violating civil law.

      If the case is remanded to the trial court, the plaintiff will likely be focusing on topics covering b} professional conduct issues; and on c) peer review and conduct oversight issues. But under these remanded instructions, what relative balance among the four topics should the defendants be adopting?

      • Joe
        Posted Dec 24, 2014 at 10:35 AM | Permalink

        In response to Beta Blocker
        a) & b) & c) While important to science, these really are not applicable to the legal issue

        d) free speech – I would consider Harte-Hanks the key case. In harte-Hanks, the defendant was found to have recklessly disregarded the truth by ignoring factual evidence that was known to him, and therefore had done so with actual malice. The plaintiff is primarily arguing that exonerations show that no fraud existed and therefore he recklessly ignored facts showing that fraud did not exist (though as SM points out Williams repetitively mischaracterized the holdings of those “exonerations”). Based on the “plaintiff’s characterizations” of those exonerations – the defendant should have known those statements were false – I emphasize the “plaintiff’s characterization.

        On remand and via discovery, the defendants will only need to show an honest belief in the flaws of the HS
        One question arises is when did the defendants learn that the HS had flaws
        When did the defendants know that the Penn state inquiry was flawed
        When did the defendants know that the other 7 inquiries were weak/flawed/did not address Mann.

        • Joe
          Posted Dec 24, 2014 at 10:54 AM | Permalink

          Sorry did not finish my comment

          On remand and via discovery, the defendants will only need to show an honest belief in the flaws of the HS, and that substantive questions remain about the inquiries/exonerations.

          questions that will arise is when did the defendants learn that the HS had flaws
          When did the defendants know that the Penn state inquiry was flawed
          When did the defendants know that the other 7 inquiries were weak/flawed/did not address Mann.

          I am modifying my prediction slightly – A) The court will require the plaintiff demonstrate the likelihood of meeting the high burden of proving malice (as defined for libel law) b) the court will allow limited discovery in order for plaintiff to show malice and c) the court will include instructions that the defendant is not required to accept the exonerations as fact as long there is some basis to question the inquiry.

        • Posted Dec 24, 2014 at 11:12 AM | Permalink

          I am modifying my prediction slightly

          Now where else have I heard that in 2014?

        • Beta Blocker
          Posted Dec 24, 2014 at 12:41 PM | Permalink

          Re: Joe (Dec 24 10:35),

          On remand and via discovery, the defendants will only need to show an honest belief in the flaws of the HS, and that substantive questions remain about the inquiries / exonerations.

          questions that will arise are:
          — when did the defendants learn that the HS had flaws:
          — When did the defendants know that the Penn state inquiry was flawed
          — When did the defendants know that the other 7 inquiries were weak/flawed/did not address Mann.

          Under these rules, it would seem best for the defense to present its arguments in an exceptionally tight and cogently-written set of arguments.

          In regard to its topical content, what approach should the defense attorney be using in demonstrating an honest belief in the flaws of the Hockey Stick on the part of the defendants?

          What topical areas does their material cover; in what detail and in what depth?

          Do the defendants need to establish the flaws of the hockey stick as a material fact in order to claim that their beliefs about its alleged flaws are honestly held?

  5. Alan Watt, Climate Denialist Level 7
    Posted Dec 23, 2014 at 12:00 PM | Permalink

    I was one who thought Steyn was a fool to part ways with the NRO attorneys. Now it looks like he is the only one of the bunch not a fool. Considering how much work has been done at ClimateAudit and other sites to discredit Mann’s representations, it is just short of astonishing that the attorneys for NRO and CEI have absorbed none of it.

    Steve: the CEI lawyers were definitely aware of CA discussions and paid attention to it e.g. of Mann’s misrepresentations on the “exonerations” – a position consistent with what CEI had held from the start. The CA posts on the EPA decision on Mann’s own use of the term “scientific fraud” was picked up by CEI and used in their reply brief. Also Mann’s citation of the WMO cover in his CV was picked up. So your point is wrong in respect to CEI. However, Carvin for National Review appears to have taken no notice of CA analysis.

    • Pat Frank
      Posted Dec 23, 2014 at 1:20 PM | Permalink

      All they’d really need to take notice of is your comments on, and the contents of, Mann’s ‘back to 1400 CENSORED” directory plus MM03, to prove f-word activity, Steve, and of Mann’s hockey stick testimony before Congress that calculating an r^2 would be a ‘silly and wrong thing to do,’ to prove the l-word. The basics are not that complicated.

      Steve: I ask readers to keep resolutely in mind that no determinations of truth are made in an anti-SLAPP motion. ALl that is being decided is whether the assertions were actionable as a matter of law, in particular, whether they were made with actual malice. So I urge readers to keep to legal issues relevant to the SLAPP motion.

      • Pat Frank
        Posted Dec 23, 2014 at 3:48 PM | Permalink

        Here is the definition of malice, according to the legal dictionary: “The intentional commission of a wrongful act, absent justification, with the intent to cause harm to others; conscious violation of the law that injures another individual; a mental state indicating a disposition in disregard of social duty and a tendency toward malfeasance.

        It seems straightforward to me that only facts in evidence can imply intentional commission of a wrongful act, absent justification, etc., The contents of ‘back to 1400 CENSORED’ supplies facts in evidence that directly imply a knowing and wrongful commission, not to say “a disposition in disregard of social duty and a tendency toward malfeasance.

        So, all of that seems entirely relevant to the determination of malice in an anti-SLAPP motion.

        Steve: no, it isn’t. “Actual malice” in U.S. libel law is defined differently. This point has been discussed on many occasions.

        • Steve McIntyre
          Posted Dec 23, 2014 at 4:53 PM | Permalink

          CA readers are generally familiar with facts, but, unless you’re a lawyer, it is very unhelpful to make strong and overconfident assertions of your interpretation of terms based on dictionary meanings. I would prefer that non-lawyer readers abstain from such assertions. Sorry to be so terse on this, Pat, but your comment is not on point.

          I only except myself from this rule to the extent that I’ve done a lot of reading of cases in my life, I’ve assiduously read the precedents on U.S. libel law and I have very accurate understanding of the facts.

    • joe
      Posted Dec 23, 2014 at 5:13 PM | Permalink

      I will concur with Steve’s comment on Carvin. Harte Hanks is the case whereby the SC held that actual malice existed where the writer ignored reports / witnesses and other information in disregard to the truth.
      With regard to the 8 exonerations – viewing those exonerations even in the light most favorable to Mann raises legitimate questions as to their completeness, etc.
      That is why Williams repeatedly misrepresented the “exonerations”.
      As S M explains, that is also why Carvin should have demonstrated more knowledge of the underlying facts.

  6. PhilH
    Posted Dec 23, 2014 at 12:40 PM | Permalink

    Try telling Payton Manning that the Bengals are a fraud.

    • CaligulaJones
      Posted Dec 23, 2014 at 2:21 PM | Permalink

      Well, I’m sure a good lawyer could, in an attempt to use the Wookie Defense, show that an interception is certainly an indication of fraud.

      I mean, the expected outcome (run through Madden Football 200 times) is that a good pass from a great QB, to a skilled receiver would be caught 198 times out of 200.

      And yet the ball not only was NOT caught, but was run into the end zone for an interception, a totally (to the Broncos view anyway) and unexpected outcome that can only be explained by re-running the simulation another 200 times, this time drinking RED Mountain Dew…

      • Posted Dec 23, 2014 at 9:31 PM | Permalink

        The Bengals’ DC is known for his “deceptive” coverage schemes designed to “trick” the QB into throwing to the wrong area.

  7. harkin
    Posted Dec 23, 2014 at 2:59 PM | Permalink

    I’m still trying to figure out who that lookalike was that Cincy brought in to replace the prime time fraud that was Andy Dalton. Seriously in November he looked like he was not even familiar with the game.

  8. pottereaton
    Posted Dec 23, 2014 at 3:15 PM | Permalink

    Steve: I think you mean “Milkovich” and not “Malkovich” in your list of cases related to libel.

    http://en.wikipedia.org/wiki/Milkovich_v._Lorain_Journal_Co.

  9. Posted Dec 23, 2014 at 4:40 PM | Permalink

    “in particular, whether they were made with actual malice”

    A read of Steyn’s other missives would allow one to conclude that his writing is laced with rapier wit and hyperbole.

    Thus to prove malice, one would need to prove that the words in contention are somehow unique. Either that or all his works are filled with malice.

    That ship has already sailed in Canada. Steyn won.

    Steve: as discussed on many occasions, the term “actual malice” in libel law requires that a statement be made with knowing falsity, it is not about animosity.

    • Pat Frank
      Posted Dec 23, 2014 at 5:55 PM | Permalink

      … knowing falsity, it is not about animosity.,” which is exactly the not-on-point point I made above.

      A further not-on-point on point post, complete with links to CA discussions and authoritative definitions concerning U.S. libel law, got stuck in moderation limbo.

  10. MikeN
    Posted Dec 23, 2014 at 5:44 PM | Permalink

    > While WIlliams has attempted to assimilate all terms as accusations of “fraud”, it seems to me that there are very large differences …

    The NR brief takes this assimilation and uses it against them by showing that ‘bogus’ is acceptable, and since according to Mr Williams it is no different from fraud, therefore ‘fraud’ is acceptable.

    Steve: it was an interesting effort to hoist them on their own petard. This is the sort of argument that did not depend on knowledge of the facts or details.

  11. kuhnkat
    Posted Dec 23, 2014 at 9:18 PM | Permalink

    Do attorneys “sandbag” the opposing side??

    I would hate to think people pay so much for so little…

  12. Paul Courtney
    Posted Dec 23, 2014 at 9:56 PM | Permalink

    For a non-lawyer, Steve, you have well-grasped that the legal def. of “actual malice” is not same as common usage of “malice”; and that if court applies it properly, Mann failed to bring evidence that any defendant knew any of the listed statements were false. My compliments. If memory serves, you earlier suggested the court might take a wide swing, tossing Steyn’s case even though it’s not on appeal. I can’t be certain it was you, in any event it’s another good insight from a non-lawyer. Most courts are very reluctant to dismiss a suit on the pleadings, but libel cases are the exception. Even where there is no SLAPP law, courts will take a motion to dismiss seriously. As a practical matter, many libel suits are grudge matches, and finding a statement to be “opinion”, “fair comment”, “political comment” or some other protected category is a way of showing a hyper-sensitive (maybe publicity-seeking) plaintiff the door. The SLAPP law sets a hurdle for Plaintiffs, to produce evidence at a very early stage. If my info is correct, Mann brought no evidence, and relied on pleadings (exoneration reports of which defendants were aware). Most courts would have dismissed this without hesitation when Mann filed no affidavit or other exhibit. My opinion is, Mann’s lawyers are activists trying to “make law”, and filed in this particular court for a reason. That they picked the right court is evident from the decisions thus far: they seem to swallow whole the notion that a scientist is some special sort of public figure, very likely the very thing Mann’s lawyers are after. You have shown a much better grasp of this than the two trial judges.

    • Steve McIntyre
      Posted Dec 23, 2014 at 10:41 PM | Permalink

      While I was working on some notes on this today, I had the following idea which seems interesting enough for a thread, but I’m still mulling over the thought. I had read many of the recent cases and re-read (or read) NYT v Sullivan, which was about “official conduct”, before the expansion of the doctrine to “public figures” generally. But in the original NYT decision, citizens were held to have not only the right, but the duty to criticize official conduct.

      Here’s the factual point that intrigues me. The two most controversial graphics were produced as figures in public reports: 1) the IPCC 2001 spaghetti graph with its truncation of the Briffa reconstruction so as not to “dilute the message” or “give fodder to the skeptics”; and 2) the WMO 1999 cover with its splicing of proxy and instrumental data to “hide the decline”.

      These were not figures for academic articles, but for official government documents intended to influence policy-makers, with Mann an IPCC Lead Author in the former case. WHile the defendants’ lawyers are obviously aware of this, neither of them directly emphasized that the controversial graphics were in government documents. Their role in government (intergovernmental) documents also accounts for the interest in them.

      Because so much of the legal narrative since NYT has been to the extension of the actual malice standard to public figures, the role of official conduct has been less explored. However, in NYT v Sullivan, one of the considerations was the desire of the court to discourage litigation by government officials to suppress critical speech rather than to recover damages – litigation that ironically seems similar in objective to Mann’s stated objective in the present case. Ironic because the plaintiffs in Sullivan v NYT were unsympathetic Alabama officials who opposed civil rights.

      • MikeN
        Posted Dec 23, 2014 at 10:47 PM | Permalink

        Still not sure why Steyn considers that case a travesty.

        • Joseph W.
          Posted Dec 26, 2014 at 12:01 AM | Permalink

          Still not sure why Steyn considers that case a travesty.

          Because the trial judges have failed to follow the law — twice — and the second one tried to pressure him into settling (with heavy-handed language about how the case “only has to be as expensive as the parties want it to be”). And so years have passed with no resolution. For a factually simple case where the defendant is not refusing discovery, that is a travesty.

        • pohakea
          Posted Dec 26, 2014 at 2:18 AM | Permalink

          MikeN: me too (why Steyn considers that case a travesty) re NYT v Sullivan (ie, JosephW, not Steyn’s current case); happy to have seen Steve McIntyre’s excerpt ” … in the original NYT decision, citizens were held to have not only the right, but the duty to criticize official conduct …” and researching for more such gems, there. So very on-point, to our human condition.

        • Joseph W.
          Posted Dec 26, 2014 at 10:55 AM | Permalink

          Pohakea, Steyn never said he considered NYT v. Sullivan a travesty, or at least I have never seen that.

          He’s often said a Mann victory would be “the worst setback for the First Amendment since New York Times v. Sullivan,” but I read that to mean “since the days when Sullivan and company could try to shut down the civil rights ads with a libel suit, days which ended with the Sullivan decision,” not that he thinks Sullivan itself did something bad.

          Also he has sometimes remarked that the protections of Sullivan and the First Amendment don’t mean much if the plaintiff can tie you up in court for two years vindicating them….but that is the result of the judges disregarding the law, not a problem with the law itself.

        • pottereaton
          Posted Dec 26, 2014 at 11:11 AM | Permalink

          I think Joseph W. is correct in interpreting Steyn’s statements about NYT v Sullivan.

          Anyone who would like a succinct description of the events that led up to the hearings on Nov. 25th, might like to read this fellow’s exposition

          It gives context to some of the judges’ questions.

        • pohakea
          Posted Dec 26, 2014 at 7:52 PM | Permalink

          Now I’m seeing that Steyn’s reference to NYT v Sullivan as “a travesty,”is referring to the Alabama case as originally decided. D’Oh; my bad. (ie, *Not* referring to the US Supreme Court’s unanimous overthrow of that decision and the Alabama Supreme Court’s upholding.)

        • MikeN
          Posted Dec 29, 2014 at 3:19 PM | Permalink

          That makes more sense.

      • Posted Dec 24, 2014 at 3:48 AM | Permalink

        Steve (10:41 PM):

        Here’s the factual point that intrigues me. The two most controversial graphics were produced as figures in public reports: 1) the IPCC 2001 spaghetti graph with its truncation of the Briffa reconstruction so as not to “dilute the message” or “give fodder to the skeptics”; and 2) the WMO 1999 cover with its splicing of proxy and instrumental data to “hide the decline”.

        These were not figures for academic articles, but for official government documents intended to influence policy-makers, with Mann an IPCC Lead Author in the former case. WHile the defendants’ lawyers are obviously aware of this, neither of them directly emphasized that the controversial graphics were in government documents. Their role in government (intergovernmental) documents also accounts for the interest in them.

        Not just ‘interesting enough for a thread’ but central to everything Steyn, CEI and the others are fighting for, ethically and legally. But what do I know?

        • kim
          Posted Dec 24, 2014 at 10:39 AM | Permalink

          Here we go round the mulberry bush.
          ===========

      • Paul Courtney
        Posted Dec 24, 2014 at 5:58 PM | Permalink

        Steve: A thought worth pursuing, in a vein that leads me to wonder (once again) why Mann accepted “public figure” status. He could have denied it, fought it, an expensive, protracted threshhold issue and nothing for him to lose but much to gain (maybe allowing Mann to avoid the strong point you make here, he could argue the document is public but he’s just a private citizen research scientist-not saying I agree, but why not make defendants prove he’s a public figure?). He might avoid the (I hope fatal) point you’ve made re: actual malice if he’s not a public figure. This leads me to conclude Mann’s lawyers are trying to create a “public figure scientist” who has been lab tested and found “not a fraud” to some scientific certainty. They are trying for a two-fer: Anyone calls Mann or his research “fraudulent” proves both a false statement and actual malice. As you note, Williams wants to avoid an itemized list and lump it all into “fraud”. He evidently hopes the court will follow along, concluding that the truth is settled-he’s not a fraud, so calling him a fraud is libel (bangs a gavel). This puts the cart ahead of the horse of course, effectively using the defendant’s SLAPP motion to virtually determine liability against defendant before the first bit of evidence comes in! An obvious error, yet two trial judges followed Williams like he was the pied piper. Sorry to ramble a bit, but I think this “activist” strategy by Plaintiff may drive some of the defense moves (I shudder to think NR’s attorney is this ill informed on such a central issue, particularly where Mann is relying on the “exonarations”). On the “remand for discovery” guess, your friend knows courts. Since Mann chose not to present evidence, it’d be like giving him another bite at the apple, so I’m hoping against it.

        • pottereaton
          Posted Dec 25, 2014 at 10:55 AM | Permalink

          A claim put forward by Mann and his lawyers that he is not a public figure would be even more ridiculous than the claims that he’s been exonerated in seven (?) inquiries or that he is a recipient of the Nobel Prize. I’m sure it would set off a round of eye-rolling by the judges.

          Mann wrote a disputatious book on this subject that was published in 2012. He’s been engaged in this public debate for well over a decade now, ever since creating the website RealClimate. He’s been an advocate. His book is titled The Hockey Stick and the Climate Wars and has the vainglorious subtitle, Dispatches from the Front Lines. The book alone is solid proof he’s a public figure. The book has garnered over 300 reviews on Amazon, many of them strident.

          The publication of the book is also evidence that the ubiquitous meme that “the science is settled,” is a false narrative, since Mann spends a lot of time excoriating his critics in the book, many of whom are scientists. (Or so I gather from reading excerpts, not having the stomach to read the book myself.) If the science is settled, if his work is beyond reproach and accepted as authoritative, why did he have to write a book defending his work and attacking his critics?

          The lawyers and judges may, as Steve notes, be “playing blind man’s bluff with the facts,” but Mann’s status as a public figure should be eminently clear to them.

        • Paul Courtney
          Posted Dec 26, 2014 at 12:13 PM | Permalink

          Potter: I agree, but if Mann’s primary strategy was to delay and run up costs for defense, he would not concede this. It would have to be fought out at the threshold, and it’s for defendants to prove (if Mann says he’s not a public figure), made-to-order IF you are only after delay and running up costs. So I’m speculating that Mann’s attorneys conceded for a reason more important to them than delay and defense costs (which is still very important to them IMO). They want to establish precedent that “scientist” or “method” can’t be called fraudulent if other scientists have found “not fraudulent” is my guess. Likely Mann’s boys didn’t even consider the point our host makes above (imagine if the Court finds Steyn et al have a duty to criticize, not just Mann but the gov’t reports!). As for eye-rolling, I roll my eyes at both pubic figure denial and on “exoneration” claims, but Mann’s team is doubling down on the latter argument. Two trial judges did not roll eyes at the exoneration claims, instead they swallowed it whole. Mann’s team had to know by oral argument that these exoneration claims are mostly falsifiable, but they aren’t asking to go back and present evidence (as, I think, they should have back when J. Combs was still presiding). What do you think Mann’s team is really after here?

        • Joseph W.
          Posted Dec 26, 2014 at 11:10 PM | Permalink

          Paul – I’ve certainly seen lawyers try to gum up the works by making the simplest things a big fight. But as Potter rightly points out, trying to fight the “public figure” issue would be such a losing issue that it wouldn’t even succeed in wasting the defendants’ time and money. Refuting it wouldn’t take much more trouble than Potter took in writing his blog post.

          From Mann’s point of view, any win…even if the damages are trivial…is a win, because it has the desired effect of intimidating his critics (since they know they will be dragged through the mire for two or more years, and then lose as much money as the jury cares to take from them). In fact, even a Steyn win on the merits is good for Mann’s purposes – how many people can afford to fight for two years to vindicate his freedom to speak? (Remember, the jury’s factual findings are not “precedent”…another jury can find different facts on the same evidence. Look up Blonder-Tongue Laboratories v. University of Illinois if you want to see a Supreme Court discussion of that issue.)

          Only a dismissal on legal grounds really gets the point across, that such lawsuits are pointless and the threat of them shouldn’t scare anyone anymore. (This includes an appeal that says the case should’ve been dismissed on legal grounds.)

      • mpainter
        Posted Dec 25, 2014 at 1:57 PM | Permalink

        Excellent point. Mann, a public figure, engaged in deception (hide the decline) in the production of a document meant for official use and as a reference for public officials in policy formulation. Mann cannot deny these facts.

      • pottereaton
        Posted Dec 26, 2014 at 1:10 PM | Permalink

        If I understand it correctly, I think Steve is making an important point here.

        I think he is suggesting we now have three classes of people who might file libel suits: private persons with limited resources and little or no recourse except to sue for libel, public persons who face increasing burdens in proving actual libel because they have other options to confront and correct the libel, and what Hugo Black in his concurring opinion in NYT v. Sullivan referred to as “public functionaries,” people in government who face an even higher burden to prove libel because they have the enormous power of government behind them, a power that could be very easily abused in order to suppress dissent.

        I think it has been established that Mann is a “public figure.” Is he a “public functionary,” as was plaintiff Sullivan in his suit against the NYT?

        • Craig Loehle
          Posted Dec 26, 2014 at 1:24 PM | Permalink

          I would argue that Mann is a self-appointed public functionary via his RealClimate blog, involvement with IPCC, public speaking, and books. It is like someone heavily involved in helping fund and campaigning for politicians without actually being elected to anything (think Tom Steyer, George Soros, Koch bros).

        • Steve McIntyre
          Posted Dec 26, 2014 at 2:45 PM | Permalink

          Craig, it seems to me that you’re worrying about a different point. Mann has not contested that he is a public figure.

          The point that I’m mulling over – and pottereaton has understood – is that the main issue in dispute arise out of Mann’s participation in IPCC and WMO, both governmental or intergovernmental organizations.

          One of the major premises of NYT v SUllivan was to extend the rights of critics of public officials. Most of the post-NYT-SUllivan narrative has been towards the inclusion of celebrities as public figures and it has taken the narrative away from the original focus of NYT-SUllivan on public affairs.

          Discussion of Mann as a “public figure” digresses from the public affairs role of the Stick.

          This point doesn’t matter for invoking actual malice, which is conceded by public figure status, but the tenor of NYT-Sullivan nonetheless places the Mann litigation in a glaring light that seems relevant to me. I haven’t articulated precisely why it seems relevant to me and am mulling it over, but the reason why I’ve brought it up is not to argue that Mann is a public figure, that’s conceded.

        • stan
          Posted Dec 26, 2014 at 3:36 PM | Permalink

          I don’t think Steve is focusing on the nature of the plaintiff so much as the nature of the speech underlying the complaint. The Supreme Court took the Sullivan case because of the applicability of the free speech clause of the first amendment. As with a lot of cases that end up with the Supremes, it comes down to a conflict between two important rights.

          I think Steve has pointed out something very important that is separate and apart from the nature or status of the plaintiff. And that involves the discussion inherent in issues of great public importance.

          I hope I’m not going far afield here, but let’s imagine that Peter Private is a scientist who doesn’t even work for govt or even take govt funds. He publishes a study on temps or polar bears or assault on college campuses or whatever that is seized upon by a special interest group or politician and becomes the key statistic used to demand wide-ranging changes in law. Opponents call the study or statistic “fraud”. Peter Private sues for libel. His professionalism has been impugned.

          Peter is not a public figure or even a public functionary. Yet, heated and robust debate in the public arena has to be supported. And those crying “fraud” may not even know his name or his role in the study which gave rise to the famous statistic. There may be all kinds of reasons why the special interest use of the study are wrong, improper, or even dishonest without the study itself involving the slightest bit of academic or research misconduct. [the study might be badly flawed in its assumptions, etc. but so are most studies]

          It would be bad public policy if Peter could chill public debate with a libel suit in this type scenario — for reasons that have nothing to do with Peter and his status, but everything to do with the use being made of his work in the public sphere.

        • pottereaton
          Posted Dec 26, 2014 at 3:52 PM | Permalink

          According to this article in the American Spectator from 2009, which took figures from Mann’s CV at the time and printed them in case they disappeared (which they did), by my estimation, Mann and his colleagues have received over $5 million in funding from government agencies, including NOAA, NSF, USAID, and DOE.

          Does that make him a “public functionary?”

        • Craig Loehle
          Posted Dec 26, 2014 at 4:07 PM | Permalink

          Steve: I was following up on Pottereaton’s point about someone being closely connected with public reports like the WMO report but not being a public official per se. That is, somewhere between “public figure” and “government official”.

    • GHoff
      Posted Dec 25, 2014 at 5:51 PM | Permalink

      “That they picked the right court is evident from the decisions thus far….” It seems that crusading lawyers know hot to “pick the right [judge]” with unsettling accuracy. Just how do they do that?

  13. Posted Dec 24, 2014 at 4:08 AM | Permalink

    Steve, thank you so much for posting the audio of the court hearings. I wanted to hear them. Hours after the hearings were ended I for what ever reason was unable to retroactively gain access to them like a number of other fellow travelers.

    Mann OA Audio 2.mp3 @about after 0.13.00 mins

    Sandusky, Penn State, Buckley v. Littell, 394 F. Supp. 918 (S.D.N.Y 1975) and WTH(what the heck) are you talking about? Now who is comparing apples and oranges?

    In Buckley v. Littell, Buckley was equated to Westbrook Pegler. In the current matter of Dr Mann being discussed Dr Mann was never equated to Sandusky. In context, the disputed Mann-Sandusky text belittles the white wash of the internal procedural rubber stamping of Dr Mann as good enough for Penn State(Good enough for Govt.).

    In all my readings I had never equated that statement as comparing the actions of Mann & Sandusky but instead always thought as laughable that someone(Dr Mann) would say well the same exact people that were fired from Penn State for blindly condoning the known crimes of such a vile character of Sandusky also rubber stamped me(Dr Mann) as good enough for Penn State.

  14. Ed P
    Posted Dec 24, 2014 at 8:53 AM | Permalink

    My various experiences with the legal system have been almost universally disappointing. Lawyers typically work on so many cases that you have to re-educate them each time you meet with them. If you are unlucky enough to be out-lawyered, you are likely to lose the case regardless of the merits.

    • tomdesabla
      Posted Dec 28, 2014 at 11:11 PM | Permalink

      I’ve had some experience in the family law arena, where the case files get thick, and it takes a lawyer a long time just to know the particulars of the agreement between the parties, and even longer to know the history of the case, so I totally agree with this statement. Even if it was their only case, they rarely invest the time needed to know the history. In this case, with all the scientific and statistical details to go along with the long history – the problem is even more pronounced.

    • joe
      Posted Dec 31, 2014 at 10:50 AM | Permalink

      Michael Carvin of Jones Day is also the attorney represting the plaintiffs/appealants in the King Burwell case which filed its merits brief last week with Scotus.
      So you point that that attorneys often work too many cases is somewhat valid. With the Burwell King, case, I would have to say Carvin’s bucket was full.

      The bulk of the critisism of Carvin was on his the limitations of his knowledge of the underlying HS dispute. However, since the question before the court was A) if the dismissal of the denial of the SLAPP motion was immediately appealable and B) what threshold level of proof was required to defeat the motion to dismiss the slapp motion, knowledge of the law is vastly more important than the facts, at least at this stage.

      That is not to say the underlaying facts are unimportant, and the use of the facts would have been useful to anniliate the plaintiffs argument.

  15. mrmethane
    Posted Dec 24, 2014 at 9:20 AM | Permalink

    As one wag put it: “Why do I always feel worse after a conversation with a lawyer, than I do after same with a doctor?”.

    • j ferguson
      Posted Dec 24, 2014 at 11:26 AM | Permalink

      I suppose it would be self evident, but it depends on the doctor, proctologists for example who spend their professional lives in environments much the same as do lawyers. Both pursuits have my sympathy.

  16. per
    Posted Dec 24, 2014 at 4:55 PM | Permalink

    much appreciation for the audio.
    For establishment of reckless disregard in malice, harte-hanks is quoted:
    http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=491&invol=657

    It does seem quite different from the current case. A witness made a statement of what happened, and this was reported in a newspaper. There were six other witnesses and a tape-recording that contradicted the witness’ version of what happened. The newspaper didn’t listen to the tape-recording and didn’t interview the seventh, arguably key, witness. But all this is regarding a finding of a fact, and the newspaper’s failure was reckless disregard.

    in this case, i understand that the seven or eight inquiries are to contradict a view that Mann’s science is questionable, or not reliable (i put it politely). Even if all the inquiries were on this exact subject matter, and that is in dispute, they would be giving an opinion about the value of Mann’s science, and that is a very different thing from a finding of fact. So harte-hanks is very different from this case.

    there is another matter, which is the standard which should be applied to the anti-SLAPP motion, and which hasn’t been discussed. One of the earlier rulings used the standard for a request to dismiss, i.e. they evaluated the case on the basis that all of Mann’s arguments/facts are true. This being the standard, it does seem right that the anti-SLAPP case is dismissed. However, there does appear to be some discussion over what standard to apply, and how that is implemented in detail. I cannot recall the statute, is it likely to succeed on the merits ? But if it is 50% or greater chance of success, then that means quite a close examination of each of the strands of the argument. One of those strands is malice. There was a related case from the DC court in May 2014 (http://www.popehat.com/wp-content/uploads/2014/06/Doe-v.-Burke-D.C.-Anti-Slapp-Opinion.pdf), and i am wondering if it isn’t dispositive for the standard of evaluation of the case.

    yours
    per

    • joe
      Posted Dec 28, 2014 at 11:50 AM | Permalink

      Per – Harte Hanks – “It does seem quite different from the current case. A witness made a statement of what happened, and this was reported in a newspaper. There were six other witnesses and a tape-recording that contradicted the witness’ version of what happened.”

      I think that is why Harte Hanks is such a key case. They were able to establish actual malice via the disregarding well known facts, credible witnesses, etc. whereas Simburg / Styen were committing on the quality of Mann’s scientific conclusion which remains subject to legitimate scientific debate (paraphrased from nsf report).

      • Layperson
        Posted Jan 2, 2015 at 9:25 PM | Permalink

        It appears that in Harte-Hanks the question was whether respondent offered witnesses tangible benefits (including employment opportunities and a trip to Florida) “in appreciation” for helpful testimony, and whether such an allegation of fact was made with actual knowledge of its falsity. In the current dispute, neither CEI nor Steyn/NRO made any such similar allegation of specific verifiable conduct which was at the time of publication known to be false. No one, for example, accused Dr. Mann of rolling back the odometer on his Prius before putting it up for sale, all the while knowing full well that Dr. Mann never actually owned a Prius and instead drives a Hummer H1. /sarcasm off

  17. gallopingcamel
    Posted Dec 25, 2014 at 1:14 PM | Permalink

    Steve,
    Thanks for taking an interest in this tiresome business so the rest of us won’t need to.

    It seems to me that the defendant’s lawyers could use your help but won’t ask for it as they don’t want to confused by facts.

  18. Posted Dec 25, 2014 at 2:02 PM | Permalink

    In Eli’s original report the evalaution of Colvin’s (the NR lawyer)rebuttal was more or less the same:

    The rebuttal by NR degenerated into table pounding on the WMO report cover, perhaps a sign that he knew they were in trouble, but the Court needs sufficient background to see through it.

    however, you appear not to have a very good understanding of the role of the Court of Appeals. They are not a court of first instance where a record is built, but rather can only look at what is before them. Thus anything that is not in the briefs or the record from the DC Superior Court hearings is besides the point. All they really could do if they think the record is insufficient is remand for further proceedings. Thus the historical fulminations at Climate Audit are really besides the point.

    In this case, the Court’s primary interests were a) should immediate appeals of denials of SLAPP motions to them be allowed (probably yes from the arguments and questions), and if so, what is the level of evidence necessary for granting such a motion either in the Superior Court or the Court of Appeals. Likely

    So, as Joe said, the case will probably be remanded with instructions, but what the instructions will be is up for grabs. Oh yeah, Eli is a bunny, not a lawyer.

    • Political Junkie
      Posted Dec 25, 2014 at 9:57 PM | Permalink

      ‘Besides’ the point is a grammatically incorrect harebrained expression.

    • Paul Courtney
      Posted Dec 26, 2014 at 3:06 PM | Permalink

      Mr. Bunny: Look again-the source of the “exoneration” claims is in the record; that some reports were issued by gov’t or quasi gov’t agencies is in the record, and appears to be a point of emphasis for Mann’s argument that defendants’ statements are falsifiable. By your own assessment, the Ct of App can look at Mann’s argument, read the record, and apply NYT v. Sullivan-Defendants have a right, even a duty, to criticize gov’t. It’s a hell of a point, and if the ct of App is as ready to get rid of this mess as the trial judges appeared ready to make history and send it to trial, it may find its way to Steve’s argument above, or it may find Mann’s failure to present evidence against the SLAPP motion is fatal. ‘Course you’re a bunny not a lawyer, so forgive me if I just hop on by your evaluation of Colvin.

      • Steve McIntyre
        Posted Dec 26, 2014 at 10:17 PM | Permalink

        The dissents in NY Times v Sullivan are very much worth reading, especially J Black’s (from Alabama himself.) The dissents argued for even more free speech. As a reminder, the libel plaintiffs were Southern segregationists seeking to suppress criticism.

        Black observed that plaintiff Sullivan (like plaintiff Mann in the present case) had suffered no actual monetary damages and, if anything, “Commissioner Sullivan’s political, social, and financial prestige has likely been enhanced by the Times’ publication”, something that also appears to be true of Mann in his academic profession from the CEI/National Review articles.

        J Black observed the potential risk to free speech from state libel laws that permitted enormous punitive damages to public officials and presciently observed that the technique would not be limited to racists.

        The half-million-dollar verdict does give dramatic proof, however, that state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials. The factual background of this case emphasizes the imminence and enormity of that threat. One of the acute and highly emotional issues in this country arises out of efforts of many people, even including some public officials, to continue state-commanded segregation of races in the public schools and other public places despite our several holdings that such a state practice is forbidden by the Fourteenth Amendment. Montgomery is one of the localities in which widespread hostility to desegregation has been manifested. This hostility has sometimes extended itself to persons who favor desegregation, particularly to so-called “outside agitators,” a term which can be made to fit papers like the Times, which is published in New York.

        The scarcity of testimony to show that Commissioner Sullivan suffered any actual damages at all suggests that these feelings of hostility had at least as much to do with rendition of this half-million-dollar verdict as did an appraisal of damages. Viewed realistically, this record lends support to an inference that, instead of being damaged, Commissioner Sullivan’s political, social, and financial prestige has likely been enhanced by the Times’ publication. Moreover, a second half-million-dollar libel verdict against the Times based on the same advertisement has already been awarded to another Commissioner. There, a jury again gave the full amount claimed. There is no reason to believe that there are not more such huge verdicts lurking just around the corner for the Times or any other newspaper or broadcaster which [p295] might dare to criticize public officials. In fact, briefs before us show that, in Alabama, there are now pending eleven libel suits by local and state officials against the Times seeking $5,600,000, and five such suits against the Columbia Broadcasting System seeking $1,700,000. Moreover, this technique for harassing and punishing a free press — now that it has been shown to be possible — is by no means limited to cases with racial overtones; it can be used in other fields where public feelings may make, local as well as out-of-state, newspapers easy prey for libel verdict seekers.

        J Black also seemed to be concerned that the process not be the punishment. When one reads the narrative of subsequent cases, the problem of legal costs arises if the existence of actual malice becomes a question of fact for a jury. One interesting case along these lines involved Ralph Nader, who, having lost a case as plaintiff at a motion stage, appealed that the motion judge should not be determining facts. Perhaps the anti-SLAPP laws arose as response to this dilemma, but there still seem to be very puzzling problems for judges and lawyers as to how a motion judge decides on evidence without a trial.

        • pottereaton
          Posted Dec 27, 2014 at 11:41 PM | Permalink

          From Wiki:

          Before this decision, there were nearly US $300 million in libel actions outstanding against news organizations from the Southern states, and it had caused many publications to exercise great caution when reporting on civil rights, for fear that they might be held accountable for libel.[citation needed] After The New York Times prevailed in this case, news organizations were free to report the widespread disorder and civil rights infringements.

      • Steve McIntyre
        Posted Dec 26, 2014 at 10:19 PM | Permalink

        Paul, you mention Mann’s failure to present evidence in respect to the SLAPP motion. Does it surprise you that none of the parties presented affidavits? In Canada, even much simpler motions would need to be supported by affidavits, and the opposite parties would have the right to examine on the affidavits.

        • Paul Courtney
          Posted Dec 27, 2014 at 10:20 AM | Permalink

          Steve: Very surprised at Mann, even more surprised that you took my thought one step further than I had, excellent. Yes, now that you mention it, all defendants missed the opportunity to file an affidavit, very simple, just say “at the time, I believed what I wrote-published was true, and believed the ‘exoneration’ reports were (fill in blank-rigged, inadequate, Canadian word for BS)”. Could be oversight, could be defense thought of this but decided not to make any submission in view of Mann’s non-submission. In hindsight, seems obvious that they could have easily crafted a “bullet proof” affidavit, and should have filed it while still hilighting Mann’s non-submission, too late now unless there’s a remand (I hope not, for same reasons as Joseph W. and J. Black cover above). As for J. Black, his strong language rings true, but was also an attack on segregationists, his ideological enemy at the time and widely (now universally) reviled. Will a court be as firm against a libel plaintiff who is an ideological ally? I know it’s not supposed to work that way. My compliments again.

        • Steve McIntyre
          Posted Dec 27, 2014 at 2:44 PM | Permalink

          From a Canadian perspective, the lack of affidavits surprised me. In Canada, facts pleaded in a motion have to be supported by an affidavit, so that someone’s on the record. It amazes me to see the voluminous assertions of fact in the present pleadings without no one actually attesting that the asserted facts are true to their knowledge and belief. Right now, the falsity of many assertions about the exonerations in Mann’s pleadings are evident. I wonder if anyone on his side would sign an affidavit warranting similar claims.

          In Canada, where it seems that we try to dispose of things earlier than the U.S., a party can be cross-examined on their affidavit and refusals to answer can be appealed. It’s a procedure that is less comprehensive than discovery but one that might be considered by U.S. courts trying to figure out how to implement anti-SLAPP. In the oral argument, no one seemed to have very good ideas on how SLAPP was to be distinguished from ordinary motions.

        • Posted Dec 27, 2014 at 4:00 PM | Permalink

          What could a Mann affidavit helpfully say? What the defendants wrote is not in dispute. The authenticity of the inquiry docs is not in dispute. The main argument put here is that they don’t exonerate Mann. They have been tabled – it’s for the reader to judge. An affidavit expressing Mann’s opinion of them wouldn’t add anything.

        • Steve McIntyre
          Posted Dec 27, 2014 at 8:47 PM | Permalink

          Nick, your questioning of the usefulness of affidavits in motions in civil proceedings is totally ignorant. In our two countries, such affidavits are standard practice as accompaniments to motions in civil proceedings. Do you know anything about civil procedure in Australia? I didn’t think so. It sure sounds as though you don’t. But if you don’t, then you should clarify this, before opining as though you do.

          Relative to civil procedure in our two countries, the absence of affidavits in the Mann case, especially given the lengthy pleadings, is really quite startling – as you ought to have pointed out, if you knew what you are talking about.

          In the present case, because the authenticity of Mann’s characterization of the inquiry documents is very much in dispute and because Racehorses can claim that it was the “lawyers” and not Mann himself who was responsible for these misrepresentations, an affidavit would be all the more helpful in seeing if Mann would actually sign an affidavit making these false claims. If he did, then he would, of course, be cross-examined on his affidavit and that would help create a record that the motion judge could use in deciding the SLAPP motion.

          Your assertion that requiring Mann (or anyone else) to sign an affidavit would not be useful to a decision is deranged and lousy Racehorsing.

        • Will J. Richardson
          Posted Dec 27, 2014 at 9:10 PM | Permalink

          Nick Stokes

          We have been through this before. Mann can claim anything he wants in his pleadings and he can file the reports which he alleged “exonerated” him. All of those documents, including the reports, are in the court file. It is an entirely different thing to have a document or testimony admitted into evidence. Unless an offer of proof is actually admitted into evidence, it does not exist legally and cannot be relied on as the basis of any judge or jury decision. That is why courts require affidavits made under the threat of sanctions for perjury, and why all such testimony is subject to cross-examination in an evidentiary hearing conducted with regard to the rules of evidence.

        • Posted Dec 27, 2014 at 11:11 PM | Permalink

          Affidavits are sworn statements of fact. Stuff that you witnessed. So my question remains – what could a Mann affidavit actually say? Claiming that, say, Oxburgh exonerated him, and presenting O’s report, states an opinion. The jury (or judges) after reading it may or may not agree. Having Mann’s opinion sworn in an affidavit won’t help them.

          WJR
          “it does not exist legally and cannot be relied on as the basis of any judge or jury decision”
          Well, clearly it has been submitted and the judges have read it. What could Mann actually say in an affidavit that would enhance its existence?

          Steve: Nick, unless you have some case law or references, would you please stop making unsupported comments? You are becoming the equivalent of a legal skydragon.

        • HAS
          Posted Dec 27, 2014 at 11:44 PM | Permalink

          Nick

          In the old commonwealth (incl. NZ) you would expect an affidavit introducing the key evidence of the case one wished to rely on including exhibits e.g. the mean things were published, there have been a series of govt reports that said nice things about me etc. I doubt it would be admissible to argue exoneration in the affidavit, but one would seek to establish the existence of the reports.

          I had thought there were filings that had established some of this, but I haven’t followed that closely.

        • Posted Dec 28, 2014 at 12:39 AM | Permalink

          HAS,
          “In the old commonwealth (incl. NZ) you would expect an affidavit introducing the key evidence of the case one wished to rely on including exhibits e.g. the mean things were published, there have been a series of govt reports that said nice things about me etc.”
          Well, the mean words were said, and the reports written. That seem to be uncontested. Niceness is opinion. In any case Mann doesn’t have special knowledge about this that he can that he can bring to the court.

          It seems to me that people aren’t distinguishing between Mann’s case, which the lawyers have presented, with some inaccuracy, and Mann’s personal testimony, if any. It seems to me that the case as written does not even require Mann’s testimony. It’s all public data; even if Mann’s scientific work is challenged, he may well call independent witnesses.

        • Steve McIntyre
          Posted Dec 28, 2014 at 1:10 AM | Permalink

          Nick, you say that “Mann’s lawyers” have presented information with “some inaccuaracy”. Again, you have no basis for saying that these inaccuracies are due to “Mann’s lawyers”, as opposed to Mann himself. This is simply fabrication on your part. And given your admission that Mann’s pleadings contained inaccurate information, all the more reason for requiring a signed affidavit from Mann in which Mann affirms that he believed that these false characterizations to be true. Right now, there’s no one accountable for the misrepresentations in the pleadings.

          If a disciplinary hearing were held on the false misrepresentations in Mann’s pleadings, then the lawyers would blame Mann and Mann would blame the lawyers. So it’s important that someone be on record as swearing to their belief in these supposed “facts”. And if no one on Mann’s side is prepared to swear to these misrepresentations, the court should know this.

          And remember that Mann has to provide evidence at this stage that the defendants did not believe what they wrote – for which there isn’t a shred of evidence – or that they “recklessly disregarded” the real facts, for which his only argument is that the defendants didn’t perceive various reports as “exonerating” Mann (when the reports didn’t) and had the temerity to criticize the defective Penn State report, carried out under an administration charged criminally for their failure to properly investigate misconduct.

          if, as you say, Mann “doesn’t have special knowledge about this that he can that he can bring to the court”, i.e. no special information demonstrating knowing falsity or reckless disregard, then his case ought to have been tossed long ago. YOu’re not doing a good job of defending him.

        • Posted Dec 28, 2014 at 1:02 AM | Permalink

          “Steve: Nick, unless you have some case law or references”
          Steve, I’m asking a simple question, which no-one has answered. What could Mann actually swear to in an affidavit? What evidence is required from Mann personally to establish the libel (with actual malice)?

          Steve: Nick, in many jurisdictions, someone with personal knowledge has to set out the “facts” in an affidavit. Therefore an affidavit would set out Mann’s understanding of the “facts”, including his understanding of the various inquiries. The lawyers’ memorandum (factum in Australia and Canada) would then cite the affidavit as authority. The D.C. process seems to be different, but it leaves the judges in a peculiar position of purportedly weighing evidence, when no one with personal knowledge has attested to the facts. No wonder the system drives Steyn crazy. he’s the only one-eyed man in the room.

        • Paul Courtney
          Posted Dec 28, 2014 at 2:07 PM | Permalink

          Nick, a direct answer-Mann could state that defendants’ statements (or any one of them) are false. He could say he lost a nickel or more of revenue. A third-typically done-is to state generically that the facts in the complaint are true. You seem to think 3 is out due to “inaccuracies” of which Mann is not the source, and you have a point (there sure are some “inaccuracies”), but the first two answers beg the question, why not? Isn’t Mann’s legal team relying on these reports and not even attaching an affidavit verifying the reports themselves? This needn’t be Mann’s affidavit, should be from an author of the report. Maybe when Mann called to ask for that little favor, all those clisci’s were out. Point is, the statute requires evidence, to rely on unverified material when you can simply attach an affidavit (I have answered your question re. what Mann can say, but it could easily be someone else) is a mistake (or a strategy). You may get your answer from the Court, a proper holding here would be as follows: Mann failed to submit evidence, reports not evidence, and since Mann failed to submit, no remand. That is, defendants win SLAPP motion for want of plaintiff’s affidavit!

        • Joseph W.
          Posted Dec 28, 2014 at 7:56 PM | Permalink

          In Canada, where it seems that we try to dispose of things earlier than the U.S., a party can be cross-examined on their affidavit and refusals to answer can be appealed…

          Note that the “cultures” of U.S. courts vary between the state and federal systems (and between state and state too). I don’t have experience in many states, but what I have seen suggests that our federal courts are very willing to dispose of things at an early stage, and take motions to dismiss, summary judgment, etc. very seriously. Also they are stricter on their deadlines. State courts, on the other hand, are more dismissive of motion practice, and much freer with extensions. I believe this is driven by the knowledge that most of the cases are going to settle, and a desire to let them do so with minimum effort on the courts’ part.

          I speculate that this may be related to the relative caseloads. When I worked in federal court we were pretty busy, but a properly-grounded motion to dismiss (or remand to state court) got proper attention and was often granted. I wouldn’t say we were “swamped” and always felt we had time to give the motions the attention they deserved. It helps that U.S. federal courts are courts of limited jurisdiction – a great many lawsuits simply cannot be brought there. They have a duty to inquire into their own jurisdiction, and dismiss any case for which they don’t have it. That left us time.

          State courts with a much heavier caseload simply may not have the resources to give as much thought to each case. If you grant many motions to dismiss, they get appealed, and the ones that come back continue to clog the docket. If you deny the motions, most cases settle before trial anyway….and if the case settles then there is nothing to appeal, no matter how bad the judges’ decisions were.

          The D.C. Superior Court is the equivalent of a “state” court even though D.C. is not a state. As you know that is my primary theory of why the judges disregarded the law – that they were acting reflexively and hoping for a settlement.

        • Beta Blocker
          Posted Dec 28, 2014 at 8:47 PM | Permalink

          Joseph W.: As you know that is my primary theory of why the judges disregarded the law – that they were acting reflexively and hoping for a settlement.

          Would you care to make a guess as to how much time will pass before the latest panel of judges announces a decision? Three months? Six months?

        • MJW
          Posted Dec 29, 2014 at 11:30 PM | Permalink

          Would you care to make a guess as to how much time will pass before the latest panel of judges announces a decision? Three months? Six months?

          Keeping in mind that past performance is no guarantee of future results, the DC appellate reversal of the denial of the anti-SLAPP motion in Burke v. Doe took four months. It was argued January 29, 2014 and decided May 29, 2014.

      • joe
        Posted Dec 28, 2014 at 12:09 PM | Permalink

        Paul, Steve and Will are making good points on the evidence.

        As Will pointed out, the exonerations remain hearsay until admitted into evidence. Until the affidavits are filed or other testimony entered into evidence, there are no facts which to rule on. Styen / Simberg could also have entered the NSF Report which stated in its conclusion (paraphrased – something to the effect that – The statistical methods and weighting remains open to scientific debate. That would go a long way in establishing a credible reason to question the science.

  19. James in Perth
    Posted Dec 25, 2014 at 8:16 PM | Permalink

    Steve,

    Let me add my thanks too for taking on the challenging task of digesting the legal arguments of the parties and providing a good critique of those arguments. As you indicated, this seems to be one of those cases where the technicalities and complexities may overwhelm the abilities of the court. But you’ve done well to bring it into focus! In short, thanks for doing the work that counsel for the parties should have done.

    James

  20. Paul Courtney
    Posted Dec 26, 2014 at 3:29 PM | Permalink

    James: Agreed, Steve gets some of these issues and explains them quite well. Sorry if my “public figure” post took away from this discussion, wasn’t my intent, just trying to think out loud on what Mann’s lawyers are really after.

  21. Will J. Richardson
    Posted Dec 26, 2014 at 9:59 PM | Permalink

    All commenting here should remember, if the appellate court remands the case to the trial court, the defendants don’t have to prove anything. Mann has the burden of proof. It is most likely that the appellate court will remand to allow Mann to attempt to present evidence demonstrating that his defamation “claim is likely to succeed on the merits” as required by the D.C. Anti-SLAPP statute. §16.5502, Wash. D.C. Code (quoting section b). The trial court erred when it denied the defendant’s Special Motion to Dismiss (anti-SLAPP Motion) based on the assumption that the allegations made in Mann’s complaint were true, as would be done on an ordinary Motion to Dismiss.

    However, on remand Mann will probably be required to offer actual evidence proving his “claim is likely to succeed on the merits” as to each element of his claim. Those elements include that the alleged defamatory statements are false, and that the defendants made the statements with “actual malice”. Doe v. Burke, No. 13-CV-83 (D.C. Appeals May 29, 2014)(Section IV, B. Likelihood of Success on the Merits).; Moss v. Stockyard, 580 A.2d 1011 (D.C. App. 1990)(“[T]he weight of authority has been that falsity must be pleaded and proven by the plaintiff.”).

    The “exonerations”, upon which Mann may offer into evidence to prove the falsity of the alleged defamatory statements, are hearsay, an out of court statement offered to prove the truth of the matter asserted. FRE 801(c). The “exonerations” are out of court statements and are therefore inadmissible hearsay. FRE 802. That means Mann will necessarily have to offer witness testimony to prove falsity and those witnesses will be subject to cross examination. There are exceptions to the Hearsay Rule, but there are none clearly applicable here.

    But as Mr. McIntyre has emphasized, Mann will have to prove a “likelihood of success on the merits’ on the element of “actual malice”. The D.C. Court of Appeals held this year that:

    If the plaintiff is a public figure, however, the fault component embodied in the third defamation element is heightened; the plaintiff must then show by clear and convincing evidence that the defendant‟s defamatory statement was published with actual malice, i.e. either subjective knowledge of the statement‟s falsity or a reckless disregard for whether or not the statement was false. [citation omitted].

    Doe v. Burke, No. 13-CV-83 (D.C. Appeals May 29, 2014)(Section IV, B. Likelihood of Success on the Merits).

    Mann will have a difficult time on remand, IMHO.

    • Beta Blocker
      Posted Dec 27, 2014 at 4:24 PM | Permalink

      The “exonerations”, upon which Mann may offer into evidence to prove the falsity of the alleged defamatory statements, are hearsay, an out of court statement offered to prove the truth of the matter asserted. FRE 801(c). The “exonerations” are out of court statements and are therefore inadmissible hearsay. FRE 802. That means Mann will necessarily have to offer witness testimony to prove falsity and those witnesses will be subject to cross examination. There are exceptions to the Hearsay Rule, but there are none clearly applicable here.

      Are you saying here that if a jury trial ensues, Mann’s lawyers cannot cite the purported exonerations as evidence of malice on the part of the defendants, and must push some other line of argument for proving malice — one which has not been offered before and which ignores most, if not all, of what has been said previously in earlier court filings?

      • Joe
        Posted Dec 27, 2014 at 6:47 PM | Permalink

        Will stated the likely holding quite well.

        The likelihood of the case going to trial is virtually nil. The best Mann can hope for at this point is a remand where he is afforded the opportunity to present evidence to overcome the high standard of likely success of demonstrating actual malice.

      • Will J. Richardson
        Posted Dec 27, 2014 at 8:26 PM | Permalink

        Beta Blocker

        At this point I do not think he can get the “exonerations”, in the form of written reports, admitted into evidence at all; not even as proof of “likely to prevail on the merits” at the anti-SLAPP hearing. If Mann wants to prove he was exonerated by the various inquiries, he is going to have to call live witnesses from the committees that conducted those inquiries.

        There were several threads at The Blackboard where we discussed the Hearsay Rule and exceptions in depth. Google “hearsay site:http://rankexploits.com/musings/” and you can find them.

    • pottereaton
      Posted Dec 27, 2014 at 6:57 PM | Permalink

      Will J. Richardson: thank you for that and the link to Doe v. Burke, which makes you wonder about the state of the law in this country. What was the Superior Court judge thinking?

    • Joe
      Posted Dec 27, 2014 at 7:40 PM | Permalink

      The old hearsay rule – correct – all the exonerations remain hearsay until they are brought into evidence.

      ( Assuming the case is remanded with discovery allowed for the purpose of establishing the actual malice) Mann has to enter the exonerations into evidence which will require the authors of those reports to testify as being the authors and to what the reports state. And what are the authors of those reports/exonerations going to testify to – “that we did not conduct an inquiry into mann’s research” That is not going to go well for the prospect of establishing actual malice.

    • MJW
      Posted Dec 28, 2014 at 8:47 PM | Permalink

      I think the some of the reports might conceivably be admissable under the Federal Rules of Evidence. There’s a hearsay exception for government reports (Rule 803(8)(C)). The SCOTUS held, in Beech Aircraft Corp. v. Rainey, that it applies to conclusions and opinions stated in the reports. However, the DC court doesn’t use the FREs, and they don’t seem to have an equivalent hearsay exception.

      • MJW
        Posted Dec 28, 2014 at 9:36 PM | Permalink

        803(8)(C) is now 803(A)(iii)

        • MJW
          Posted Dec 28, 2014 at 10:23 PM | Permalink

          803(8)(A)(iii) (along with the limitation in 803(8)(B)).

      • Will J. Richardson
        Posted Dec 28, 2014 at 10:46 PM | Permalink

        MJW,

        I assume you mean FRE 803(8)(C) is now FRE 803(8)(A)(iii). You have identified Mann’s strongest argument for admissibility of the reports. Citing those parts of the rule applicable it reads:

        Rule 803. Exceptions to the Rule Against Hearsay

        The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

        . . .

        (8) Public Records. A record or statement of a public office if:

        (A) it sets out:

        . . .

        (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

        (B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

        FRE 803(8)(emphasis added).

        However, as Mr. McIntyre has ably demonstrated, there are only two inquiries that arguably “investigated” Mann’s activities and work, the rest of the investigations are simply not relevant. Mr. McIntyre has also demonstrated that each of those two inquiries which actually “investigated” Mann were conducted in circumstances which “indicate a lack of trustworthiness.” In this post Mr. McIntyre points out that:

        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.

        It is also my understanding that the report of the NSF OIG has problems of its own. See McIntyre’s comment here: McIntyre Comment on NSF OIG Report. Furthermore Mann will still have to prove the relevance of the Reports to any issue in this case, and that the “probative value” of the Reports are not “substantially outweighed by a danger of . . . unfair prejudice” or “confusing the issues”, under FRE 403. For those reasons I think Mann will have a hard time using the Public Record exception to the hearsay rule.

        • MJW
          Posted Dec 28, 2014 at 11:54 PM | Permalink

          Even if the DC court used the FRE, I’m doubtful the NSF report would satisfy the trustfulness requirement, considering it’s author isn’t identified and the report doesn’t even mention Mann by name.

          I’ve read every DC appellate decision I could find on the admissibility of information from official reports, and I’ve see nothing to suggest they have the equivalent of the Beech Aircraft version of FRE 803; which is to say, a rule that allows admittance of opinions and conclusions from official records. I could find no examples where anything beyond plainly factual information was allowed. I think it’s absolutely impossible the NSF report would be admitted without some foundational testimony from someone in the NSF. The DC rule for official or public records requires that “a party must prove, first, that the facts stated in the document are within the personal knowledge and observation of the recording official, and second, that the document is prepared pursuant to a duty imposed by law or implied by the nature of the office.” That’s from In re DMC, which, in rejecting the argument a report was properly admitted, notes: “Indeed, [the report] did not even identify the recording official, either by name or by title.”

        • MJW
          Posted Dec 28, 2014 at 11:58 PM | Permalink

          its author….

          I do know that there’s no apostrophe (though both Thomas Jefferson and Jane Austen used an apostrophe in the possessive pronoun, its).

        • MJW
          Posted Dec 29, 2014 at 12:52 AM | Permalink

          A perhaps relevant case is Evans-Reid v. District of Columbia:

          We disagree with appellant that the reports could overcome the multiple hearsay objection noted by the trial court. It has long been established that a police report of an accident is not to be admitted under the business records exception if it contains hearsay or conjecture or conclusions. Statements in a police report which are based on what the officer was told by others are just as much hearsay as if stated on the witness stand by the officer himself. Likewise inadmissible are conclusions and conjectures by the officer as to fault or lack of fault.

          (Alterations omitted.)

  22. j ferguson
    Posted Dec 27, 2014 at 1:15 PM | Permalink

    I suspect justice is, or should be, blind to who is funding libel plaintiffs, but is it known if a government funded Sullivan?

    I worry about in-equivalence of means. A government employee might launch a suit funded by his employer, while an individual might be financially hard pressed to do the reverse, assuming similar provocation. Is there any cloak of sovereign immunity which could shelter a government employee from a libel suit? I assume that governments do not always fund the courtroom activities of their employees, or do they?

    I ask because I worry that the efforts, conjectural though they may be, to link Mann to a quasi governmental role might, if successful, have unpleasant consequences in a different situation. Maybe my worry is nuts.

    • Steve McIntyre
      Posted Dec 27, 2014 at 2:28 PM | Permalink

      Some people are missing the nuance of “quasi governmental role”. I’m mostly trying to focus on the documents rather than the work status. The two documents at issue in the trick to hide the decline are from the IPCC 2001 report and the WMO 1999 report. Both of these are government documents, not academic publications. I’m trying to show that the controversy concerned government documents, not academic articles. I haven’t clearly articulated the point in mind, but I don’t want people to assimilate the issue to standard public-private issues. The precise legal status of IPCC volunteers in administrative law terms is not clearcut, an issue that arose in FOIA requests. I presume that the precise legal role of military contractors is also not clearcut, and depends on the issue.

      If you read NYT v Sullivan, which I recommend if you wish to discuss these issues if you want to be up to speed, you will see that it notes that public officials in their official capacity have a form of privilege as long as they are acting without “actual malice”. I don’t think that it’s helpful to think of this in terms of ‘sovereign immunity”, but the NYT Court very much wanted to place give critics of a public policy more similar rights to those possessed by the public officials being criticized.

      • Posted Dec 27, 2014 at 3:12 PM | Permalink

        “Both of these are government documents”
        Which government?

        • Steven Mosher
          Posted Dec 27, 2014 at 3:53 PM | Permalink

          same shameless trick was proposed for FOIA requests.

        • Don Monfort
          Posted Dec 28, 2014 at 11:55 AM | Permalink

          What squirrel, nicky? You are in danger of being sued by your client for malpractice of ersatz Racehorsing.

  23. pottereaton
    Posted Dec 27, 2014 at 4:51 PM | Permalink

    Judge Brennan in NYT v. Sullivan:

    In Beauharnais v. Illinois, 343 U.S. 250, the Court sustained an Illinois criminal libel statute as applied to a publication held to be both defamatory of a racial group and “liable to cause violence and disorder.” But the Court was careful to note that it “retains and exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel”; for “public men are, as it were, public property,” and “discussion cannot be denied, and the right, as well as the duty, of criticism must not be stifled.”

    Regarding the issue of “public functionaries” and libel, the relevant question as it relates to this case is this: is a member of the IPCC, a working author whose influence on the findings of the IPCC was apparently substantial and who has promoted the IPCC as an important intergovernmental body and celebrated its award of a Nobel Prize (for which he tried to claim a measure of personal credit), is that person a public functionary? It’s an important question for this reason: if we consider it our civic duty to criticize when warranted conduct of elected public officials, do we have any less a duty to criticize the conduct or work product of UNelected functioionaries who are not required to submit to electoral processes where they might be held accountable for their misdeeds? And especially if that work product has a profound effect on the adoption and implementation of important national policies?

  24. Posted Dec 27, 2014 at 10:10 PM | Permalink

    Well EINAL, but it would be straightforward to introduce such documents as the NSF IG final report w/o the IG office testifying to anything, under <a href="http://www.law.cornell.edu/rules/fre/rule_902"Federal Rule 902of Evidence that is Self Authenticating as a certified copy of a public record. The same for all of the other reports, which were generated by and/or for various governmental committees/agencies.

    Oh yeah Steve, as you may have noticed Canada is not the US, and rules differ so saying here is how we do it in Canada is not much of a point.

    Now the Rabett is not much of a betting bunny, but it would be worth a few bucks to see Steyn et al try and haul the IG office into court to testify.

    • Steve McIntyre
      Posted Dec 28, 2014 at 12:34 AM | Permalink

      Now the Rabett is not much of a betting bunny, but it would be worth a few bucks to see Steyn et al try and haul the IG office into court to testify.

      Actually, I think that it would be Mann who is obligated to haul the IG in. The NSF Inspector General document does not identify its authors or provide a record of what they did. My understanding (and the report is very unclear on this) is that the NSF limited its consideration to grants while Mann was lead (i.e. it did not consider events from 1998-2001, including the hide the decline controversy.) Nor does the report itemize or identify things that it actually looked into. I’ve planning to review this report for some time.

      Eli, I am obviously aware that Canadian and US rules vary on many points, but they are also similar on others. I raised the issue of affidavits to elicit comments from U.S. lawyers and several responses from U.S. lawyers thought that the point was valid. In other words, your stupid comment about geography was irrelevant.

      Your comment about Federal Rules is also incorrect. This issue was discussed at length some time ago at Lucia’s and U.S. lawyers observed that D.C rules of evidence are not the same as federal rules. If you wish to opine on D.C. rules, you should read the D.C. manual, not the manual from some other jurisdiction. D’oh.

      • Posted Dec 28, 2014 at 10:19 AM | Permalink

        No need. The evidence can be introduced by Williams simply by asking a witness (any witness, even you Steve or even Mike):

        “Your honor I wish to introduce as evidence this certified copy of the NSF IG’s closeout report on a referral from Penn State. Sir, here is a copy and the original, please read the conclusion of the report underlined in the copy.”

        Meets all the requirements of the Rules of Evidence. What are NR going to do? Sputter that they don’t like the report? It is still a certified copy of a government document. They want to contest the conclusions, they can try and call witnesses, even you Steve, even Lucia. Good luck with getting a dumpster dive into the IG’s files.

        Worth the price of admission.

        As to the rules of evidence, you are just blustering. The DC Superior Court rules of procedure specifically say that they are derived from and follow the Federal Rules, which is no surprise given that the DC Courts ARE Federal Courts.

        Rule 44. Proof of Official Record

        (a) Authentication.
        (1) Domestic. An official record kept within the United States, or any state, district, or
        commonwealth, or within a territory subject to the administrative or judicial jurisdiction of the
        United States, or an entry therein, when admissible for any purpose, may be evidenced by an
        official publication thereof or by a copy attested by the officer having the legal custody of the
        record, or by the officer’s deputy, and accompanied by a certificate that such officer has the
        custody. The certificate may be made by a judge of a court of record of the district or political
        subdivision in which the record is kept, authenticated by the seal of the court, or may be made by
        any public officer having a seal of office and having official duties in the district or political
        subdivision in which the record is kept, authenticated by the seal of the officer’s office.

        (2) Foreign. A foreign official record, or an entry therein, when admissible for any purpose, may
        be evidenced by an official publication thereof; or a copy thereof, attested by a person authorized
        to make the attestation, and accompanied by a final certification as to the genuineness of the
        signature and official position (i) of the attesting person, or (ii) of any foreign official whose
        certificate of genuineness of signature and official position relates to the attestation or is in a
        chain of certificates of genuineness of signature and official position relating to the attestation. A
        final certification may be made by a secretary of embassy or legation, consul general, vice
        consul, or consular agent of the United States, or a diplomatic or consular official of the foreign
        country assigned or accredited to the United States. If reasonable opportunity has been given to
        all parties to investigate the authenticity and accuracy of the documents, the court may, for good
        cause shown, (i) admit an attested copy without final certification or (ii) permit the foreign
        official record to be evidenced by an attested summary with or without a final certification. The
        final certification is unnecessary if the record and the attestation are certified as provided in a
        treaty or convention to which the United States and the foreign country in which the official
        record is located are parties

        • Will J. Richardson
          Posted Dec 28, 2014 at 11:16 AM | Permalink

          Dr. Halpern,

          I note that when you quoted “Rule 44. Proof of Official Record”, you failed to notice the limiting phrase, “when admissible for any purpose”. That language should have tipped you off that your understanding of Rule 44 was erroneous.

        • Steven Mosher
          Posted Dec 28, 2014 at 11:53 AM | Permalink

          ” when admissible for any purpose”

          Calling Dr. Halpern.

          Eli?

          Stokes?

        • Don Monfort
          Posted Dec 28, 2014 at 12:01 PM | Permalink

          Rabbettes make very poor Racehorses.

        • joe
          Posted Dec 28, 2014 at 12:20 PM | Permalink

          Eli:

          Since you mention the NSF report’s conclusion –

          “Much of the current debate focuses on the viability of the statistical procedures the employed, the statistics used to confirm the accuracy of the results, and the degree to which one specific set of data impacts the statistical results. These concerns are all appropriate for scientific debate and to assist the research community in directing future research efforts to improve understanding in this field of research.”

          How is Mann going to demonstrate malice when Styen/Simburg said the same thing the NSF report said – albiet with a little more flair.

        • Paul Courtney
          Posted Dec 28, 2014 at 3:28 PM | Permalink

          Thanks for answering Mr. Stokes “which gov’t” question. Before he asks, “what documents”, are any of these reports certified or authenticated per the rule you cite? If not, why didn’t Mann’s lawyers get a cert copy? Or a cover affidavit from this “IG” you mention, no need to inconvenience him. You make it seem so simple, why didn’t they just submit it as a cert gov’t report? Then NR attorneys couldn’t sputter about the lack of evidence. Your comments suggest not every Rabett wins the battle of wits with a Fudd.

        • Steve McIntyre
          Posted Dec 28, 2014 at 4:16 PM | Permalink

          by the way, one of the defendants submitted an FOI request to the NSF Office of Inspector General for documents that identified the authors of the report. The NSF refused to deliver any such documents or to identify the authors.

        • Joe
          Posted Dec 28, 2014 at 5:15 PM | Permalink

          Steve:
          “by the way, one of the defendants submitted an FOI request to the NSF Office of Inspector General for documents that identified the authors of the report. The NSF refused to deliver any such documents or to identify the authors.”

          That is not going go well in court – The only inquiry that even remotely came close to investigating Mann – basically impeached themselves before Mann has even attempted to get the report admitted into evidence.

        • Will J. Richardson
          Posted Dec 28, 2014 at 6:16 PM | Permalink

          Neither side can really force the NSF OIG to testify or produce documents relevant to the investigation. The Touhy Doctrine precludes subpoenas compelling Federal Officers to appear in State courts except under special circumstances. U.S. Ex rel. Touhy v. Ragen, 340 US 462 (1951)

        • Posted Dec 28, 2014 at 6:52 PM | Permalink

          RE one of the defendents submitting an FOIA request. That’s not surprising. RE: The NSF IG turning it down. Same.

        • Posted Dec 28, 2014 at 7:20 PM | Permalink

          WJR: The DC Superior Court IS a Federal Court. One of the oddities about a very odd place.

        • Will J. Richardson
          Posted Dec 28, 2014 at 7:31 PM | Permalink

          Dr. Halpern,

          The D.C. Superior Court and the D.C. Court of Appeals are not part of the Federal Court System established as “inferior” court authorized under Article III of the Constitution of the United States. Although Congress authorized the establishment of the D.C. Court System under D.C.’s Home Rule legislation, it is not a Federal Court. Your own example proves this. All Federal Courts are governed the Federal Rules of Civil Procedure and the Federal Rules of Evidence. Your example shows that D.C. is not so governed. The Federal Courts are District Courts, Circuit Courts of Appeal, some specialty courts such as the Court of Claims, and the U.S. Supreme Court.

      • MikeN
        Posted Dec 29, 2014 at 3:33 PM | Permalink

        Unless I’m thinking of a different report, NSF also does not identify Michael Mann as the investigated.

    • Will J. Richardson
      Posted Dec 28, 2014 at 11:04 AM | Permalink

      Dr. Halpern,

      Authenticating a document is different from getting it admitted. FRE 902 can be used to prove that a report is what it purports to be, but if the report is offered to prove the facts or opinions recited in the report, it is hearsay and inadmissible under FRE 802 unless it falls under one of the hearsay exceptions. I believe we had this same argument before at The Blackboard.

      Furthermore, the Washington D.C. courts are not a part of the Federal Court system, they are the equivalent of a State’s court system. As far as I can tell, they are not bound by the Federal Rules of Evidence (FRE), but the FRE is considered persuasive.

      • MJW
        Posted Dec 29, 2014 at 1:20 AM | Permalink

        Definitely not bound by FRE. In re DMC:

        Alternatively, the District contends that the document was admissible under another exception to the hearsay rule, that which allows the admission of official or public records. The only authority that the District cites in support of this contention, however, is FED.R.EVID. 803(8), which provides for the admission of public records in the federal courts. Unfortunately for the District, its reliance on this rule is misplaced, for the Federal Rules of Evidence do not apply in the Superior Court.

      • bobdenton
        Posted Dec 29, 2014 at 2:57 AM | Permalink

        At Common Law, hearsay evidence is not admissible as proof of the facts stated therein, but it is admissible as evidence of a party’s state of mind. Malice is a state of mind. How does that work out under the DC Rules of Evidence?

        Have any of the Defendants ever denied knowledge of some, or all, of the reports? That would be highly relevant to the motion presently being considered. By referencing them in detail in papers filed with the court the Defendants/Appellants appeared to tacitly admit that the reports were operating on their minds at the date of the alleged defamation.

        Have any ever referenced any of them in a published document before the date of the alleged defamation?

        Surely, the issue is not whether the reports are admissible, but what effect they could have on the Defendants’ state of mind.

        • MJW
          Posted Dec 29, 2014 at 3:37 AM | Permalink

          Without proving that the reports are believable, how can disagreement with the reports be evidence of actual malice? Does the existence of some contrary evidence, no matter flimsy, prove actual malice? Of course not. The jury would have to believe the reports are true — so true and convincing that no reasonable person could honestly believe otherwise.

          State-of-mind can’t be used as an end-run to introduce otherwise inadmissible evidence for its truth. A somewhat similar situation was analyzed by the DC court in Evans-Reid v. District of Columbia. The court said:

          If the officers’ state of mind is to be shown by a mere assertion of past conduct then the jury in effect must believe that the past act occurred. In other words, the hearsay must be accepted for its truth if it is to provide a basis for evaluating the declarant’s state of mind. Hearsay evidence which is otherwise inadmissible cannot be bootstrapped to a recognized exception in this manner. Here, in order to make the inference appellant would urge — that the officers were motivated by racial animus — the jury would first have to find that the officers in fact said and did what the hearsay statements indicated, i.e., they would have to be persuaded that what was asserted in the interviews contained in the IAD reports was true.

          (Citations and alterations omitted.)

        • Will J. Richardson
          Posted Dec 29, 2014 at 4:00 AM | Permalink

          MJW,

          That is a very good point, which I believe demonstrates that the Reports are not relevant, and therefore are not admissible, even if otherwise admissible under a hearsay exception. The Reports are not really probative of whether the defendants’ defamed Mann with actual malice, or at best, marginally so. In which case, the Reports are probably inadmissible under FRE 403 or its D.C. analog.

        • Joseph W.
          Posted Dec 29, 2014 at 5:05 AM | Permalink

          Bobdenton – Once you get past the “reports” that do not deal with Mann or his Hockey Stick at all, you’re pretty well left with the Penn State report. Which is exactly what Steyn and Simberg were criticizing in their “offending” posts. (Steyn has permalinked his post at steynonline.com; you can read the original here.) So yes, they definitely knew about that one.

          Their original briefs did not betray any knowledge of the other “inquiries”…if they had known about them, they would’ve jumped all over the fact that they were irrelevant to the Stick and thus to the lawsuit. They didn’t raise this point until the appeal was underway (and SteveMc had written at length on the subject), strongly suggesting they were not familiar with those “inquiries” before. That said, Steyn is the only defendant to have responded to Mann’s discovery requests (since he is not joining in the appeal)…so he has probably answered that question, but his answers are not public as far as I know.

          American jurisdictions do allow “effect on the listener” evidence…we discussed it starting near the top of this thread at Lucia’s…but here the insurmountable hurdle is the one the ACLU jumped on in their amicus brief (it was also in CEI’s original brief)…going from “Penn State said so” to “the defendants here believe it.” If the appellate court accepts that as a theory of malice (and it’s a dreadful one, as we have often discussed), then I do think the report comes in on that basis, but as MJW says, never on a “truth” basis.

          It becomes even harder both ways if you look at the Penn State report itself…link here (which I got from one of MJW’s posts), results on pages 14-19. The committee wasn’t examining the Stick scientifically – it was determining whether Mann’s work in general met the “accepted practices” in his field, a field for which Steyn has not shown much reverence. It gave a lot of space to all the grant money Mann’s raised and his stature in the field, but only a passing reference to the science itself (p. 17 – “he used principal components analysis; other people use it too; so it’s within accepted practices”). That would make it double-hearsay or worse on any “truth” issues, as well as extremely self-serving for the university that employed him and benefited from his “star power.”

          On the other hand, as I mentioned in the thread at Lucia’s, “effect on the listener” would be a strong basis for the defendants to introduce the most notorious Climategate emails to establish their own lack of malice. They’d only have to testify that they had read these emails and believed them…very easy in Steyn’s case as he published scathing articles on the subject long before the “Football and Hockey” post.

        • Steve McIntyre
          Posted Dec 29, 2014 at 9:19 AM | Permalink

          Joseph, you say:

          Their original briefs did not betray any knowledge of the other “inquiries”…if they had known about them, they would’ve jumped all over the fact that they were irrelevant to the Stick and thus to the lawsuit.

          This isn’t correct in respect to CEI. CEI raised such issues both in their very first lawyer letter response to Mann in August 2012 and then in their first memorandum in December 2012. In addition, CEI had written on the various inquiries as “whitewashes” long before the Simberg article, as for example in 2010 here:
          https://cei.org/blog/climategate-whitewash
          http://www.washingtonexaminer.com/iain-murray-climategate-inquiry-glosses-over-the-facts/article/31903
          https://cei.org/op-eds-and-articles/climategate-inquiry-glosses-over-facts

          They would also have been aware of: http://www.theatlantic.com/politics/archive/2010/07/climategate-and-the-big-green-lie/59709/

          In their very first response here in August 2012, they stated:

          We reject the claim that this research was closely examined, let alone exonerated, by any of the proceedings listed in Mr. Williams’s letter.

          and later:

          Penn State Professor Michael Mann’s lawyer claims that nine investigations of academic fraud have all exonerated Professor Mann. Most of these investigations did not examine Professor Mann’s conduct or even mention him, and Penn State University’s investigation was typical of that institution’s unfortunate tendencies.

        • Steve McIntyre
          Posted Dec 29, 2014 at 9:52 AM | Permalink

          The Penn State Investigation Report definitely warrants re-reading. Here is their exact statement on principal components:

          most of his research methodology involves the use of Principal Components
          Analysis, a well-established mathematical procedure that is widely used in climate
          research and in many other fields of science

          This is unresponsive to the issue of Mann’s decentered algorithm, which, although labeled by Mann as “principal components”, is not a principal components algorithm within the definition of Preisendorfer or later Jolliffe. Nor does it address the hockey-stick mining property of the Mann algorithm. Mann’s variation of the algorithm is NOT “widely used in climate research” or in other fields of science.

          Mann’s algorithm is particularly relevant to the Steyn branch of the case since Steyn had described the stick as “fraudulent” as early as 2006 (h/t David Appell) and in this original article, had referred to the data mining property of Mann’s algorithm.

          Here’s another interesting statement in the Penn State Investigation report:

          Dr. Easterling was asked whether he knew of any other investigations related to the
          stolen emails other than the University of East Anglia and Penn State University, and he
          responded that he was unaware of any others.

          So in the Penn State Investigation Report published on July 1, 2010, Easterling was unaware of EPA’s supposed “investigation” (published only a few weeks later.)

          In addition, we know, from a personal communication from a member of the predecessor Penn State Inquiry Committee that Easterling had a conflict of interest sufficient to have claimed to have “recused” himself from the Inquiry Committee, but that Easterling had not actually recused himself and interfered with the committee to ensure that they did not interview me.

          The NSF OIG had sent Penn State a letter directing them to ensure that there were no conflicts. It would be interesting to how Penn State dealt with Easterling’s participation in their communications with NSF.

          One last point and this is important for understanding the connection of the NSF OIG report to the Investigation Committee report. The Penn State misconduct code has two policies: RA-10 on research misconduct (fabrication, falsification, plagiarism) and AD47 on professional conduct.

          The Inquiry Committee threw out issues related to RA10 and the terms of reference of the Investigation Committee were limited to AD47. But when you look at the terms of reference for NSF, it is limited to fabrication, falsification, plagiarism – all of which were outside the scope of the Penn State Investigation Committee.

          As always, one has to watch the pea. Consideration of AD47 issues was outside the remit of NSF. The EPA did comment on some AD47 issues, in particular, Mann’s own accusations against critics of engaging in “pure scientific fraud”. EPA here (and Gavin Schmidt appears to have been a reviewer) took no exception to such language as long as the proponent believed that the work that he was criticizing was “scientifically flawed”. This was brought up in the CEI reply brief and the closing remarks by Carvin of the oral argument. It’s going to be very tough for D.C. court to find a principled policy distinguishing EPA’s decision while preserving Mann’s claim.

        • Steve McIntyre
          Posted Dec 29, 2014 at 9:04 AM | Permalink

          CEI’s position – clearly stated in their first lawyers letter – was that “most” of the investigations claimed in Mann’s original letter neither investigated nor exonerated Mann.

          Of the parties, CEI would have the most knowledge. National Review as a magazine would probably have the least, with Steyn knowing more than the editors. CEI was definitely aware of the Penn State, Muir Russell, Oxburgh and UK Parliamentary Committee reports. I doubt that they had been aware of the report of the UK Department of Energy and Climate Change prior to Mann’s lawyer letter in August 2012, but it is irrelevant in any case. CEI was aware of the NOAA report, but it did not investigate or exonerate Mann; indeed, it showed that Wahl had destroyed documents after being contacted by Mann and release of the NOAA report intensified questions about the Penn State inquiry.

          CEI was aware of the EPA report as a denial of the petitions for reconsideration, but its discussion of Mann are buried in supporting documents and I doubt that Simberg or Steyn were aware of these discussions. As I;ve written previously, realclimate was strangely silent about the EPA report as a supposed investigation and exoneration of Mann – perhaps because of Gavin Schmidt’s involvement in the process which they did not want to publicize. There was zero contemporary blog awareness of the EPA report as an investigation of Mann. Nor do the EPA statements about temperature data contain the supposed exoneration claimed by Mann.

        • Joseph W.
          Posted Dec 29, 2014 at 9:11 AM | Permalink

          (got a mid-sized response to Bobdenton in moderation, probably due to links – as a P.S. to that:)

          If the Penn State report were such that simply reading it would overwhelm the reader into believing that Mann’s stick was not fraudulent, yet Steyn did not read it, then we’d arguably be in the territory of Curtis v. Butts or Harte-Hanks v. Connaughton, and a different sort of “effect on the reader” would apply. But that is not the case here.

        • Joseph W.
          Posted Dec 29, 2014 at 9:15 AM | Permalink

          (okay, three comments in moderation…one for links, two for using variants of the “f” word that is at the heart of this lawsuit)

          Steve: online now. it’s hard to discuss this topic without using words that trigger moderation but I’m not going to change policy on these words.

        • Joseph W.
          Posted Dec 29, 2014 at 9:20 AM | Permalink

          SteveMc – Thanks for the correction!

        • bobdenton
          Posted Dec 29, 2014 at 5:49 PM | Permalink

          Joseph W. poster 29 Dec 2014 at 5.05am.

          Re:
          “—going from “Penn State said so” to “the defendants here believe it.” If the appellate court accepts that as a theory of malice (and it’s a dreadful one, as we have often discussed), then I do think the report comes in on that basis, but as MJW says, never on a “truth” basis.”

          Mann’s counsel has pinned his colours to the mast. (~ 55m MannOA 1) He’ll allege that actual malice on the part of the Defendants is constituted by “purposeful avoidance of the truth”, after Harte Hanks. Presumably, he’d seek to have the reports admitted as evidence of purposeful avoidance. If the Defendants are consistently in the business of purposeful avoidance, would it be necessary that reports reference Mann? Need they only evidence a consistent pattern of behaviour? The truth (aka falsity) would have to be proven otherwise than by the reports, and the burden remains on the Plaintiff.

          The concept of “purposeful avoidance” is not well elaborated: So, what is it? How it can be proved is less than clear.

          It appears to me, that even if the Defendants truly believed the Plaintiffs construction of the alleged defamatory words was true, actual malice, by purposeful avoidance, could, as a matter of legal possibility, be shown. If the Defendants were so invested in a particular faction that they immunised themselves from giving a fair hearing to any contrary evidence, that might constitute actual malice, if proved.

        • bobdenton
          Posted Dec 29, 2014 at 6:44 PM | Permalink

          MJW Posted Dec 29, 2014 at 3:37 AM

          A somewhat similar situation was analyzed by the DC court in Evans-Reid v. District of Columbia

          Well, the reports did come into existence after the act complained of. The Defendant had been deposed, and either the matters in the reports had not been put to him, or he had been asked and denied them. There had been a further opportunity to put the matters to him in cross-examination because the defence had closed its case before judgement a matter of law was sought.

          The report was an Internal Affairs report prepared after the shooting, which recorded that the investigator had been told that the informant had heard that someone had said that the Defendant had made racist remarks. The Plaintiff wanted to introduce the report as evidence that the Defendant shot her son as a result of racism and not because her son was pointing a gun at him. Racism is a state of mind, and she sought to introduce the report on that basis. The court ruled that racism as a state of mind could only be established by racist conduct for which there was only the hearsay evidence contained in the report and that the racist state of mind was piggybacked on hearsay evidence of matters of fact.

          What piggybacking would be involved in admitting reports, not to prove the truth of anything contained therein, but to prove an habitually incredulous response to reports of a definable class, on the part of the Defendants?

        • MJW
          Posted Dec 29, 2014 at 8:55 PM | Permalink

          What piggybacking would be involved in admitting reports, not to prove the truth of anything contained therein, but to prove an habitually incredulous response to reports of a definable class, on the part of the Defendants?

          Well, I suppose that might get past the piggypback objection, but it’s so tangential that it would fail miserably the “more probative than prejudicial” hurdle.

        • Joseph W.
          Posted Dec 30, 2014 at 12:06 AM | Permalink

          Bob –

          The concept of “purposeful avoidance” is not well elaborated:

          …but if you read Curtis v. Butts and Harte-Hanks all the way through, you’ll have a pretty good idea of what it means and what it doesn’t mean, and that it doesn’t apply to this case. In fact, I think those cases elaborate it pretty well.

          In each of those cases, there was a piece of evidence (a film or a recording) that unequivocally, as a matter of fact, demonstrated that the printed stories were untrue. The reporters knew about the evidence but simply refused to take a look. Had they looked, they could not possibly have believed their own stories were true.

          The Penn State inquiry, as you can see by chasing my link above, argues mainly from the opinions of others (such as grant committees and journal editors) that Mann’s work lies “inside the mainstream” for climate science. That’s a far cry from demonstrating that the Hockey Stick was honest work, especially in the face of the Climategate emails. One can read the Penn State report and still believe, as Steyn does, that the “consensus” in the climate community and Mann’s stature in it have more to do with politics and ideology than the quality of the work.

        • MJW
          Posted Dec 30, 2014 at 1:34 AM | Permalink

          It appears to me, that even if the Defendants truly believed the Plaintiffs construction of the alleged defamatory words was true, actual malice, by purposeful avoidance, could, as a matter of legal possibility, be shown. If the Defendants were so invested in a particular faction that they immunised themselves from giving a fair hearing to any contrary evidence, that might constitute actual malice, if proved.

          I completely agree with what Joseph W. says about Curtis v. Butts and Harte-Hanks. In Harte-Hanks, the court uses the phrase “purposeful avoidance of the truth” to mean a conscious decision not to look at evidence, knowing that the evidence would likely contradict what the writer wants to say. Purposeful avoidance of the truth isn’t, in itself, reckless disregard for the truth; it’s evidence of reckless disregard. The jury can reasonably infer that a writer who purposely avoids looking a contrary evidence subjectively doubts the truth of what he intends to say.

          Your version, where the defendants don’t give the contrary evidence a fair hearing, does not suggest they subjectively doubted what they said was true. It does the opposite: it suggests the believed what they said, but were unreasonable to do so. Unreasonableness is not sufficient for actual malice. “Highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers” was, in fact, the standard advocated by Harlan (joined by two others) in his plurality opinion in Curtis v. Butts, but that standard was soundly rejected in the later Harte-Hanks.

        • bobdenton
          Posted Dec 30, 2014 at 8:34 PM | Permalink

          MJW Posted 30 Dec 2014 at 1.34am

          Would you say it’s less egregious to look at evidence, then purposely disregard it because it tends to refute your intended allegations, or, to purposefully avoid looking at it in anticipation that it would tend to refute your proposed allegations?

          I think it likely both qualify as purposeful avoidance.

          Remember that reckless disregard is measured by “conduct”, as laid down by Warren CJ in Curtis v Betts.

          Harte Hanks is a “course of conduct” case. Read footnote 6, which sets out the CA analysis of malice. They looked at the fact that there was a factional dispute; that the newspaper adhered to one faction; that consistently, over a period of time, it had bigged up one faction and diss’ed the other, that the newspaper had a commercial rival that supported Plaintiff, and that by discrediting the Plaintiff they could discredit their commercial rival.

          Do you see any parallels?

          I think a lot of readers of this blog will be dismayed by Harte Hanks. It concerns a lawyer standing for public office. The press came by information from an eyewitness that the candidate had engaged in corrupt practices. They interviewed the witness, they interviewed the candidate and put the allegations to him, he accepted conversations had taken place, but put a different spin on them – he was one of those public officials who have special access to the press to deny allegations made against them which the SC singles out for special treatment – the paper published the allegations AND published the candidate’s denials. The election was four days away. This was the sort of thing the public needs to know and needs to be aired before they cast their vote. It seems a classic 1st Amendment case. But the Plaintiff succeeded in suing the newspaper and proved actual malice.

          Much is made of the the fact that of 7 potential corroborative witness only 6 were interviewed and the 7th may have denied the allegations if interviewed. In fact, the other 6 had also denied the allegations. The Defendant also failed to listen to a tape recording of the 7th witnesses account, though it couldn’t have said more than the witness could have said in person. These latter matters were makeweights. It was the totality of the conduct of the newspaper over a period of time, the vituperative nature of its coverage of the candidate, the prediction in an editorial before enquiry had been made that information impugning the integrity of a candidate would emerge.

          Did any of the Defendants in the Mann case predict that the “whitewashes” would be “whitewashes” before the results were announced?

          There’s plenty to argue about, but if, as he told the CA, Mann’s counsel makes his stand on purposeful avoidance, Hank Harte provides enough straw for him to build some bricks.

        • Steve McIntyre
          Posted Dec 30, 2014 at 9:28 PM | Permalink

          I disagree on Harte Hanks though my reading thus far has been based on taking seriously the steps that you deprecate as “makeweights”.

          There are some easy distinctions from the present case. As a starter, Harte Hanks concerned witnesses to the events, whereas none of the Mann inquiries were witnesses to the events. The inquiries reported their conclusions, but gave few details on what they did and little detail on evidence considered. Plus their procedures were so flawed as to much diminish their credibility. IN some cases, as Fred Pearce acidly observed, they made findings that were contradicted on their face by facts known to hundreds, if not thousands.

          In passing, it struck me that the Penn State investigation was an example of “purposeful avoidance”, since we know, from one of the members of the Inquiry Committee, that Easterling interfered with the Inquiry Committee to ensure that they did not interview me – someone who knew the case against Mann – and instead interviewed Gerry North and Donald Kennedy. Their “expert”, North, refused to even read the emails out of “professional courtesy”.

          Nor did CEI “purposefully avoid” examining the Penn State, Muir Russell, Oxburgh, NOAA, NSF, Parliamentary investigations – the ones known to them. In respect to most of them, they correctly stated that they neither investigated nor exonerated Mann.

          Simberg’s article directly drew attention to the Penn State and NSF inquiries, linking to them and quoting from them. The defects of the Penn State inquiry had been severely criticized long prior to the Sandusky affair. I had done so as well. Not acquiescing in its findings was not wilful blindness, but a reasonable decision. I don’t recall CEI or National Review “predicting” whitewashes.

          Nor do I recall such speculation prior to the Penn State Inquiry Committee. I think that CA readers, including myself, were more than somewhat surprised when the Penn State Inquiry Committee reported so quickly and without interviewing any Mann critics. Had the process gone on longer, people might have speculated that it would be a whitewash, but the Inquiry Committee reported back so quickly that such speculation had, to my recollection, not begun.

        • Steve McIntyre
          Posted Dec 30, 2014 at 9:37 PM | Permalink

          Bob, Footnote 6, on which you place emphasis, supports the assertion that the newspapers were rivals. The next sentence, as I read, directly contradicts this rivalry as being relevant to determining libel “actual malice”. It says:

          Petitioner is plainly correct in recognizing that a public figure plaintiff must prove more than an extreme departure from professional standards, and that a newspaper’s motive in publishing a story — whether to promote an opponent’s candidacy or to increase its circulation — cannot provide a sufficient basis for finding actual malice.

          I don’t think that there’s a shred of evidence of “knowing falsity”. As I read it, “reckless disregard” requires a sort of shut-eyed and wilful blindness, but Simberg’s discussion of and references to the known reports seems to me to be the opposite. He may have disregarded the Penn State and NSF reports, but it was reasoned, not “reckless” disregard.

        • Will J. Richardson
          Posted Dec 30, 2014 at 9:35 PM | Permalink

          Just for everyone’s reference, the case is here. Harte-Hanks Comm., Inc. v. Connaughton, 491 U.S. 657 (1989).

        • Will J. Richardson
          Posted Dec 30, 2014 at 9:37 PM | Permalink

          Let me try that again. Harte-Hanks Comm., Inc. v. Connaughton, 491 U.S. 657 (1989).

        • Will J. Richardson
          Posted Dec 30, 2014 at 10:44 PM | Permalink

          The reference to Time, Inc. v. Pape, 401 U. S. 279, 290-292 (1971) in Justice Blackman’s concurrence in Harte-Hanks has an interesting application to the circumstances here. Justice Blackmun cited Pape using the parenthetical explanation, “(erroneous interpretation of Government report not ‘actual malice’)”.

          The Pape court held in part that:

          These considerations [, that newspapers cannot be guarantors of reported facts,] apply with even greater force to the situation where the alleged libel consists in the claimed misinterpretation of the gist of a lengthy government document. Where the document reported on is so ambiguous as this one was, it is hard to imagine a test of “truth” that would not put the publisher virtually at the mercy of the unguided discretion of a jury.

          Pape at 291. So if the defendants here “misinterpreted” the reports Mann relies on to prove the defendants’ alleged defamatory statements were false, that assumed misinterpretation still cannot be used to prove actual malice. I note also, that the defendants could have easily “misinterpreted” Mann’s professional papers and therefore have fallen into the error of thinking them the result of “data manipulation” resulting in a “fraudulent hockey stick paper”.

        • MJW
          Posted Dec 31, 2014 at 1:02 AM | Permalink

          Would you say it’s less egregious to look at evidence, then purposely disregard it because it tends to refute your intended allegations, or, to purposefully avoid looking at it in anticipation that it would tend to refute your proposed allegations?

          But that isn’t what I was responding to. I was responding to: “the Defendants were so invested in a particular faction that they immunised themselves from giving a fair hearing to any contrary evidence.” “Not giving a fair hearing” to evidence is not at all the same thing as “purposely disregarding” evidence. “Not giving a fair hearing” suggests someone so set in his opinion that he doesn’t believe what should be believed. “Purposely disregarding” suggests someone making a deliberate decision to ignore evidence. Your original premise was that even after hearing the contrary evidence “the Defendants truly believed the Plaintiffs construction of the alleged defamatory words was true.” Someone can’t purposely disregard contrary evidence he doesn’t believe in the first place, even when the disbelief is unreasonable.

        • MJW
          Posted Dec 31, 2014 at 1:41 AM | Permalink

          Remember that reckless disregard is measured by “conduct”, as laid down by Warren CJ in Curtis v Betts.

          I’m not sure why you think Warren’s concurring opinion (joined by no other justice) in Curtis v. Butts “laid down” the standard for what conduct constitutes reckless disregard. It’s a fairly muddled exposition that relies in no small measure on the fact that the case was tried prior to New York v. Sullivan, and the defendants made no First Amendment claim in the trail court. There are plenty of clearer statements, in majority opinions, of what reckless disregard is and isn’t

        • Brandon Shollenberger
          Posted Dec 31, 2014 at 5:43 AM | Permalink

          Steve McIntyre, I think you’re off-base when you say:

          Bob, Footnote 6, on which you place emphasis, supports the assertion that the newspapers were rivals. The next sentence, as I read, directly contradicts this rivalry as being relevant to determining libel “actual malice”. It says:

          I can’t see anything in that footnote which indicates motive is irrelevant. It merely says motive is “cannot provide a sufficient basis for finding actual malice.” Motive can certainly be relevant even if it cannot establish malice on its own.

        • Joseph W.
          Posted Dec 31, 2014 at 7:39 AM | Permalink

          MJW – On top of which, there’s no evidence at all that Simberg didn’t look at the Penn State report. In fact, his “offending post” includes a link to the Penn State press release which includes a pdf of the report, and his post (which is longer than Steyn’s) includes specific critiques based on the content.

          If the court turns this into a “willful avoidance” case…because he didn’t cite a whole bunch of other reports or some other such reason…it would be a serious reversal of Harte-Hanks, St. Amant, and a host of other precedents.

        • Craig Loehle
          Posted Dec 31, 2014 at 10:32 AM | Permalink

          I think a fundamental distinction is not being made. “actual malice” is far more clear-cut with regard to FACTS such as “Smith was convicted of bribery” or “Jones beat his wife” than anything to do with the enquiries or Mann’s work. It is well-known, for example, that lots of academics do shoddy (or worse) work but that universities only discipline a handful of them every year and only for the most outrageous stuff like creating imaginary patients for a clinical trial. This would be a case of a “fact” but making up a new and untested statistical technique has no “factiness” to it. It is neither true nor false. You can ignore it or scowl in disapproval but your opinion has to do with values of good scientific practice. What Mann wants to do is turn the enquiries and his reputation into facts in the same sense that an alibi (I was in Miami at the time of the crime) is a fact. Then you can prove defamation. Thus the discussion about whether one read the enquiries with due diligence as a reporter/journalist is moot–it is a matter of judgement about the quality of the work as well as the quality of the enquiries and this makes it opinion.

        • Beta Blocker
          Posted Dec 31, 2014 at 1:15 PM | Permalink

          Craig Loehle: I think a fundamental distinction is not being made. “actual malice” is far more clear-cut with regard to FACTS such as “Smith was convicted of bribery” or “Jones beat his wife” than anything to do with the enquiries or Mann’s work. It is well-known, for example, that lots of academics do shoddy (or worse) work but that universities only discipline a handful of them every year and only for the most outrageous stuff like creating imaginary patients for a clinical trial.

          The judges asked questions which cover this topic; and based on the nature of their questions, it appears they had an understanding of the difference between data analysis methods and the data itself. It seems to me that the point was made by the defendants that manipulating data analysis methods is just as effective in deliberately skewing the outcome of a research process as is falsifying the data itself.

          Craig Loehle: This would be a case of a “fact” but making up a new and untested statistical technique has no “factiness” to it. It is neither true nor false. You can ignore it or scowl in disapproval but your opinion has to do with values of good scientific practice.

          Is that really so? Suppose that after looking at Mannian Methods & Means for several years, someone with a science project auditing background comes to the conclusion that Mann’s approach to creating the hockey stick, and the hockey stick itself, are both contrived research products which are consciously tailored to serve a strong market need in the climate science industry for eliminating the Medievel Warm Period from the paleoclimate record? Does this kind of behavior go beyond the boundaries of what is bad science and into territory that is arguably verifiable f*raud?

          Craig Loehle: What Mann wants to do is turn the inquiries and his reputation into facts in the same sense that an alibi (I was in Miami at the time of the crime) is a fact. Then you can prove defamation. Thus the discussion about whether one read the inquiries with due diligence as a reporter/journalist is moot – it is a matter of judgement about the quality of the work as well as the quality of the enquiries and this makes it opinion.

          Mann’s paleoclimate research work has now become the climate science community’s paleoclimate research work. It does not belong uniquely to Michael Mann alone. If Michael Mann has engaged in unprofessional and arguably f*raudulent behavior in creating the hockey stick, using a contrived analysis approach which produces a science research product consciously tailored to serve a strong market need — a body of research work which arguably could be claimed as being a f*raudulent research product — then the same thing can be said about the climate science community as a whole when climate scientists use Mannian methods to replicate the hockey stick, and when they strongly push the hockey stick as being verifiable scientific fact.

          As it pertains to paleoclimate research and the hockey stick, Michael Mann is a stand-in for the climate science community as whole, for all practical purposes. This is something I think Mark Steyn has understood from the very beginning.

        • Craig Loehle
          Posted Dec 31, 2014 at 2:06 PM | Permalink

          Beta Blocker: While your arguments are not wrong, it is still the case that judgements about how bad the science is are just that, judgements (ie opinions). Well-known experts in many fields have unresolved disputes (Bayesians vs Frequentists, string theory vs calling it nonsense, Freudians vs cognitive therapists) and in such cases there are no “facts” only informed professional judgements.

        • Will J. Richardson
          Posted Dec 31, 2014 at 3:13 PM | Permalink

          Craig Loehle and Beta Blocker,

          I do agree that whether Mann’s statistical methods were “wrong” is not a matter of “fact”. Certainly Mann cannot argue that his way is the only “right” way, and maintain that he is entitled to use novel statistical methods such as “decentered” PCA for which there is no support in the statistical literature. However, if this were to go to trial, Mann would have to explain why his active concealment of adverse results, of both the verification R2 tests he did and later denied doing, and of the sensitivity test he did excluding the bristlecone pines, are not indicative of scientific misconduct or fr*ud.

        • Beta Blocker
          Posted Dec 31, 2014 at 5:28 PM | Permalink

          Craig Loehle:….. Beta Blocker: While your arguments are not wrong, it is still the case that judgements about how bad the science is are just that, judgements (ie opinions). Well-known experts in many fields have unresolved disputes (Bayesians vs Frequentists, string theory vs calling it nonsense, Freudians vs cognitive therapists) and in such cases there are no “facts” only informed professional judgements.

          Craig Loehle, one of the points that NR’s lawyer Carvin harped on throughout the hearing was that questions of science should not be decided in a court of law, a principle which he said had long been a part of American jurisprudence. I believe Lawyer Carvin is referring to fundamental questions of science in his remarks; and so the question of whether there was, or there was not, a worldwide Medievel Warm Period is one of those questions that he believes should not be decided in a court of law.

          On the other hand, I myself have sat on a jury in a civil trial involving an injury accident lawsuit where a narrowly-focused examination of a body of scientific medical evidence was examined.

          In that civil trial, the question of material fact which was in dispute was the actual source of the victim’s pains in her wrists and arms, either the traffic accident she had been involved in, or the repetitive motion injuries she was known to have suffered at work.

          The jury made its decision in a way which can only be characterized as making an independent scientific judgement as to which set of scientific evidence was more credible, and as to what the source of the victim’s injuries actually were, based upon our own independent interpretation of the totality of the evidence.

          One portion of the body of evidence which was presented to us might have swayed us in a different direction than we ultimately chose, but it was collected and documented in a thoroughly unprofessional manner; and for purposes of making our own decision concerning what the source of the plaintiff’s pains was, it was summarily tossed out.

          One of several standards for deciding whether or not a defamation lawsuit should go to trial is the question of whether or not there are disputes of material fact among the parties which are appropriate for a jury to examine.

          As I remember it from the audio transcript, Lawyer Williams’ states the plaintiff’s view of the material facts generally as follows: the allegation of the hockey stick as being a f*raud is demonstrably false; the NR and CEI articles are allegations of fact; read in their context, the NR and CEI articles assert fact, not opinion; the allegation of data manipulation is a verifiable event for purposes of stating that an actionable event has occurred; and that the reference to Jerry Sandusky is also actionable because it demeans Mann’s professional integrity.

          Anyone who cares to, please correct or modify the above description of Lawyer Williams’ position if it is not summarized accurately.

        • Will J. Richardson
          Posted Dec 31, 2014 at 10:20 PM | Permalink

          Beta Blocker, you wrote:

          In that civil trial, the question of material fact which was in dispute was the actual source of the victim’s pains in her wrists and arms, either the traffic accident she had been involved in, or the repetitive motion injuries she was known to have suffered at work.

          The jury made its decision in a way which can only be characterized as making an independent scientific judgement as to which set of scientific evidence was more credible, and as to what the source of the victim’s injuries actually were, based upon our own independent interpretation of the totality of the evidence.

          Your jury was deciding the issue of Legal Cause, also called Proximate Cause, of the damage sustained. You probably got a jury instruction similar to this:

          a. Legal cause generally:

          Negligence is a legal cause of [loss] [injury] [or] [damage] if it directly and in natural and continuous sequence produces or contributes substantially to producing such [loss] [injury] [or] [damage], so that it can reasonably be said that, but for the negligence, the [loss] [injury] [or] [damage] would not have occurred.

          Fla. Std. Jury Inst. (Civ.) 401.12(a). As a juror you decided which of two competing causes likely injured the plaintiff; a question with a binary answer. In defamation the answer to the falsity issue is not so clear cut unless undeniable facts are involved.

          Mann must prove, by a preponderance of the evidence, that he did not: “molest[] and torture[] data”, “engag[e] in data manipulation to keep the blade on his famous hockey-stick”, and that his “‘hockey-stick’ graph” is not “fr*udulent”. Mann’s Amended Complaint. To do so Mann must convince the jury that the defendants’ statements are factually wrong, not just erroneous opinions based on circumstances of which the defendants were aware, including our host’s “audit” of Mann’s corpus of work and the Climate Gate disclosures. In essence, Mann must prove that he is right and no reasonable person could disagree.

          As an example, the Florida Jury instruction on falsity states:

          A statement is in some significant respect false if its substance or gist conveys a materially different meaning than the truth would have conveyed. In making this determination, you should consider the context in which the statement is made and disregard any minor inaccuracies that do not affect the substance of the statement.

          Fla. Std. Jury Inst. (Civ.) 405.7(b)

          The Moss v. Stockyard case, previously linked, describes the D.C. jury instruction on falsity, thus:

          In accordance with the Standardized Jury Instruction, the judge told the jury that “the plaintiff has the burden of establishing that [the] communication … complained of was false.” He further stated that if the jury found the publication to be substantially true—in the sense that its “gist” or “sting” was true—the statement was not false. In determining what the “gist” of a statement is, the jury is not bound by technical meanings of terms such as “misappropriation” . . . . Rather, the “publication must be taken as a whole, and in the sense in which it would be understood by [those] to whom it was addressed.” Afro-American Publishing Co., supra, 125 U.S.App.D.C. at 76, 366 F.2d at 655.

          The D.C. jury instruction does not seem to pose an either-or question. It is my opinion that Mann must try and meet his burden of proof as to falsity through the testimony of experts who can describe and vouch for the “scientific” methods employed by Mann in his “hockey-stick” papers. To be effective, that expert must testify that the defendants’ statements are objectively wrong, and Mann right, as a matter of fact. He must convince the jury that there is only one answer, no shades of grey, no room for a difference of opinion, to set up a binary choice similar to that you faced as a juror.

          Then, if Mann proves falsity, he must then prove, by clear and convincing evidence, that the defendants wrote the articles knowing they were false, in accordance with the “actual malice”standard quoted by Joseph W. here: Proof of Actual Malice. That will not be a scientific question.

        • bobdenton
          Posted Jan 1, 2015 at 4:27 AM | Permalink

          MJW Posted Dec 31, 2014 at 1:41 AM

          Warren CJ was adhering to Sullivan. His opinion was that Public Figures, like Mann, should meet the same standard as Public Officials in proving actual malice, not a lower standard. That is the current position of the SC which follows Sullivan not the majority opinion in Curtis, and which I believe to be the law governing the Mann case.

          Warren CJ.
          “While I agree with the results announced by MR. JUSTICE HARLAN in both of these cases, I find myself in disagreement with his stated reasons for reaching those results. Our difference stems from his departure from the teaching of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), to which we both subscribed only three years ago.

          ———-

          I therefore adhere to the New York Times standard in the case of “public figures” as well as “public officials.” It is a manageable standard, readily stated and understood, which also balances to a proper degree the legitimate interests traditionally protected by the law of defamation. Its definition of “actual malice” is not so restrictive that recovery is limited to situations where there is “knowing falsehood” on the part of the publisher of false and defamatory matter. “Reckless disregard” for the truth or falsity, measured by the conduct of the publisher, will also expose him to liability for publishing false material which is injurious to reputation. More significantly, however, the New York Times standard is an important safeguard for the rights of the [388 U.S. 130, 165] press and public to inform and be informed on matters of legitimate interest. Evenly applied to cases involving “public men” � whether they be “public officials” or “public figures” � it will afford the necessary insulation for the fundamental interests which the First Amendment was designed to protect.”

          What Warren CJ’s explanation does, is provide the solution to the problem famously raised by Elizabeth I – that we cannot make windows into peoples souls. But by careful observation we can tell whether they are in or near church on a Sunday morning. The presumptive test of peoples” mental state is what they actually do. You can only go by behaviour, thus you can only tell if a person is behaving with reckless disregard if you look at the way they have behaved.

          This reveals a paradox, and paradoxes are always useful. Although the test in Sullivan is described as subjective, the test can only be satisfied by objective observation – circumstantial evidence. Behaviour can be ambiguous over a long period of time.

          In Harte Hanks the court was unable to put it’s finger on precisely why it, or any other court was correct in finding actual malice. It was a quantity plus quality assessment. The failure to interview the 7th of 7 witnesses was the straw that broke the camel’s back for them. But although it’s the last straw that’s attained notoriety, it played no greater part in the poor creature’s demise that the first straw, or any other. The result was a cumulative effect.

          In Harte Hanks there was simply a lot of circumstantial evidence of behaviour consistent with purposeful avoidance of the truth, and inconsistent with a good faith pursuit of the truth. Enough to meet the clear and convincing standard when presented to the jury.

          It seems to me if Mann’s counsel does a careful trawl, he will be able to come up with something. In war-gaming it I can see a tactic. I don’t know enough about the history of the parties to know how good a case could be made.

        • Joseph W.
          Posted Jan 1, 2015 at 8:40 AM | Permalink

          It seems to me if Mann’s counsel does a careful trawl, he will be able to come up with something. In war-gaming it I can see a tactic. I don’t know enough about the history of the parties to know how good a case could be made.

          The problem, Bob, is that under American law, you are supposed to do that “careful trawl” BEFORE you file your lawsuit. If you can’t cite the specific facts that lead to “reckless disregard” in your complaint, before a single page of discovery has been provided…you lose. In SLAPP jurisdictions — at least if they follow the California rule — you have to do more: you have to have affidavits or other evidence to establish those facts (i.e., you can’t go on “information and belief” the way you can in a complaint).

          Mann and his lawyers have failed to do that or even come close to doing that. That is why their case should have been dismissed 2 years ago. The best they have been able to argue is the backdoor sedition act…which is not only weak as evidence, but directly contrary to the policy behind Sullivan (because, if accepted, it would let people with friends in the government “Sullivan-proof” their cases; see the concurring quotes from Brennan and Black above in this thread).

          If you read Part V of Harte-Hanks you saw that this goes far beyond any common-law rule; and you also read that the judges have to consider the strength of the evidence themselves (i.e., they can’t just say, “There’s something – so send it to the jury”). If you read some of the other cases that have been cited in this thread you’ll get a feel for what kinds of evidence have been held, as a matter of law, to be too weak to support actual malice. See especially Will J. Richardson’s citation to Time v. Pape above, Keith Sketchley’s to McFarlane v. Sheridan below, and (through a link) my own to Eastwood v. National Enquirer.

        • Steve McIntyre
          Posted Jan 1, 2015 at 9:16 AM | Permalink

          JosephW, your previous example of a “backdoor sedition act” seems all the more apt given present controversy over police misconduct inquiries in the U.S. If a police officer is “exonerated” by an internal police inquiry and a critic criticizes irregularities in the inquiry and calls for a new federal inquiry, surely disbelief in the first inquiry cannot rise to “actual malice”, especially when there are valid reasons for doubting the diligence of the original inquiry. However one expresses it, it surely cannot be the case.

          There are many procedural similarities between inquiry into police misconduct and academic misconduct; certainly enough that the right to disbelieve the findings from one form of inquiry has weight in assessing the right to disbelieve the findings from another.

        • Joseph W.
          Posted Jan 1, 2015 at 8:42 AM | Permalink

          (my link is in my reply to Keith.)

        • Joseph W.
          Posted Jan 1, 2015 at 10:13 AM | Permalink

          Steve – indeed, good examples! I’ve previously pointed out that when the U.S. Senate “cleared” Clarence Thomas, that didn’t mean all his opponents had to tear the “We Believe You, Anita!” bumper stickers off their cars. The House Un-American Activities Committee found that Alger Hiss was a spy and Whittaker Chambers was truthful…but Hiss’ supporters were still calling Chambers a liar (amongst other things) 20 years later.

          Controversy over government investigations is a rich part of our history, and the notion that they can be used to shut down free speech (or even “trim the high notes” from one side of a controversy) is deeply wrong and repugnant to our traditions.

          Steve: one of the many interesting legal experiences of my grandfather McRuer, a prominent judge, was supervising an examination in Canada by the U.S. House Un-American Activities Committee of Igor Gouzenko, who had defected to Canada, an event discussed in his biography. He took considerable care to avoid the event becoming a circus.

        • Beta Blocker
          Posted Jan 1, 2015 at 1:23 PM | Permalink

          Joseph W.: “The problem, Bob, is that under American law, you are supposed to do that “careful trawl” BEFORE you file your lawsuit. If you can’t cite the specific facts that lead to “reckless disregard” in your complaint, before a single page of discovery has been provided… you lose. In SLAPP jurisdictions — at least if they follow the California rule — you have to do more: you have to have affidavits or other evidence to establish those facts (i.e., you can’t go on “information and belief” the way you can in a complaint).”

          After listening to the audio transcripts of the hearing, and at how Lawyer Williams phrases and presents his arguments, I suspect he realizes he is on shaky ground in pushing the eight purported exonerations. If he didn’t understand this at the beginning of the lawsuit two years ago, I think it likely he understands this now. One can speculate that he and Mann persevere in the hope the lawsuit will be remanded to a trial and that the defendants will settle before a trial commences.

          Joseph W.: Mann and his lawyers have failed to do that or even come close to doing that. That is why their case should have been dismissed 2 years ago. The best they have been able to argue is the backdoor sedition act… which is not only weak as evidence, but directly contrary to the policy behind Sullivan (because, if accepted, it would let people with friends in the government “Sullivan-proof” their cases; see the concurring quotes from Brennan and Black above in this thread).

          It has been shown here on Climate Audit that in theory, the plaintiff’s eight purported exonerations ought to be easily disposed of by the defendants. And, as I said above, I have to suspect the plaintiff’s lawyer realizes this too.

          But if against all logical reason, the lawsuit does go to a trial; and if the defendants refuse to settle before the trial begins, will the plaintiffs be allowed to develop some new line of argument for demonstrating actual malice, one which does not rely upon the eight purported exonerations; i.e., some new (or expanded) line of argument which they believe will have a better chance of swaying a jury?

        • Joseph W.
          Posted Jan 1, 2015 at 4:40 PM | Permalink

          But if against all logical reason, the lawsuit does go to a trial; and if the defendants refuse to settle before the trial begins, will the plaintiffs be allowed to develop some new line of argument for demonstrating actual malice, one which does not rely upon the eight purported exonerations; i.e., some new (or expanded) line of argument which they believe will have a better chance of swaying a jury?

          Yes, definitely. Remember – the complaint is drawn up before discovery. One purpose of discovery is to let the plaintiff get information to develop further theories.

          For example, when they take Steyn’s deposition, if he makes an incautious admission that sounds like “malice,” they can (and will) haul it out and hammer on it, quite independently of any “exonerations.” You can bet Mann’s lawyers will be trying hard to force Steyn into such a corner throughout his deposition, and on the stand as well.

          I expect that when the time comes they’ll focus most on his lack of scientific education, to see if they can get him to say he’s so clueless that anything he says on a scientific topic is just flailing around in the dark, and try to go from there to “reckless disregard.”

  25. pottereaton
    Posted Dec 28, 2014 at 10:49 AM | Permalink

    The DC Superior Court is not a federal Court under Article III or Article I. The DC Court of Appeals is a federal court under Article I.

    • pottereaton
      Posted Dec 28, 2014 at 11:25 AM | Permalink

      I should amend that. The Superior Court of DC is an Article I court along with the DC Court of Appeals. They were created by Congress in 1970. But the Superior Court is the equivalent of a local superior court in the fifty states and the Court of Appeals is the equivalent of a state supreme court. As such their rules and procedures would resemble more the state courts than they would the Article III federal courts.

      • Posted Dec 28, 2014 at 7:07 PM | Permalink

        Ah that is why the DC Superior Court Rules of Civil Procedure start

        D.C. Superior Court Rules of Civil Procedure
        One of the primary objectives in the drafting and adoption of the following Superior Court Rules
        of Civil Procedure has been to provide an integral and convenient rules structure modeled closely
        on that of the Federal Rules of Civil Procedure.

        Who knew?

        As to Rule 44 quoted above for DC, the corresponding rule in the US Courts Rules of Civil Procedure Reads

        Rule 44. Proving an Official Record
        (a) MEANS OF PROVING.
        (1) Domestic Record. Each of the following evidences an official
        record—or an entry in it—that is otherwise admissible
        and is kept within the United States, any state, district, or
        commonwealth, or any territory subject to the administrative
        or judicial jurisdiction of the United States:
        (A) an official publication of the record; or
        (B) a copy attested by the officer with legal custody of
        the record—or by the officer’s deputy—and accompanied
        by a certificate that the officer has custody. The certificate
        must be made under seal:
        (i) by a judge of a court of record in the district or
        political subdivision where the record is kept; or
        (ii) by any public officer with a seal of office and
        with official duties in the district or political subdivision
        where the record is kept.
        (2) Foreign Record.
        (A) In General. Each of the following evidences a foreign
        official record—or an entry in it—that is otherwise admissible:

        (i) an official publication of the record; or
        (ii) the record—or a copy—that is attested by an authorized
        person and is accompanied either by a final
        certification of genuineness or by a certification under
        a treaty or convention to which the United States and
        the country where the record is located are parties.
        (B) Final Certification of Genuineness. A final certification
        must certify the genuineness of the signature and official
        position of the attester or of any foreign official whose
        certificate of genuineness relates to the attestation or is
        in a chain of certificates of genuineness relating to the attestation.
        A final certification may be made by a secretary
        of a United States embassy or legation; by a consul general,
        vice consul, or consular agent of the United States;
        or by a diplomatic or consular official of the foreign country
        assigned or accredited to the United States.

        • Will J. Richardson
          Posted Dec 28, 2014 at 7:23 PM | Permalink

          Dr. Halpern,

          Is your iteration of Rule 44, now from the Federal Rules, supposed to mean something? The Rules of Evidence still govern the admissibility of the “exonerations”, including the NSF OIG Report. Rule 44 has nothing to do with the admissibility of a Report which is still hearsay.

        • davideisenstadt
          Posted Dec 28, 2014 at 11:12 PM | Permalink

          you effing rabbit:
          here is the money quote…from your own post:
          “One of the primary objectives in the drafting and adoption of the following Superior Court Rules
          of Civil Procedure has been to provide an integral and convenient rules structure modeled closely
          on that of the Federal Rules of Civil Procedure.”
          See? that little clause: “modeled closely on that of the Federal Rules of Civil Procedure”?
          thats not quite the same thing as “”identical to the Federal Rules of Civil Procedure”…
          silly rabbit.

        • Posted Dec 29, 2014 at 12:41 AM | Permalink

          Well yes, and Eli provided both rules by block quoting them. Parse away.

        • MJW
          Posted Dec 29, 2014 at 1:06 AM | Permalink

          Rabett, what you still seem to be missing is that those are the rules for authentication, not admissibility. Just because something is accepted by the court to be what it purports to be, doesn’t mean it will be admitted as evidence.

        • davideisenstadt
          Posted Dec 29, 2014 at 7:25 AM | Permalink

          Professor Halpern:
          Parsing out the differences between the Federal Rules of Civil Procedure and those adopted by the D.C. courts is precisely what one pays practicing attorneys to do, and “based on” is simply not the same thing as identical.
          I dont practice in D.C. courts; i wouldn’t presume to be aware of the nuances of those rules, and the areas where the D.C. rules dont match up with the Federal Rules…and Im betting that you dont either.To assert that the two sets of rules are identical, when both Federal and D.C. courts have found and held otherwise is simply incorrect.
          The application of rules of civil procedure is nothing but the parsing of sentences, and before you assert that the sets of rules are identical, it would behoove you to…do some research yourself.
          Rabbit isn’t a lawyer, he doesn’t play one on TV, he has however, talked to lawyers at some points i his life.

  26. Craig Loehle
    Posted Dec 28, 2014 at 11:41 AM | Permalink

    Even if the enquiries were admitted as evidence, what would they be evidence of? Just per themselves, they are simply reports. They are not like a hotel receipt proving the defendant was in Hawaii at the time of the crime (ie, self-explanatory). As evidence it would have to be argued that they have relevance to the case, and the relevance is the requirement for proof of actual malice. That is, they are irrelevant to this point except in Mann’s mind. Actual malice in prior cases has to do with knowing as a matter of fact that the defendant has not in fact been cheating on his taxes or beating his wife or been a member of the communist party. But the matters at hand are matters of opinion, not fact. The opinion that a scientific result is junk is….opinion, and can’t be proven to be held with actual malice, unlike factual things per above. This is why it should have been tossed from day 1.

    • Posted Dec 29, 2014 at 12:52 AM | Permalink

      Specifically, Simberg wrote about the Emails

      Michael Mann. Professor of Meteorology at Penn State, whom the emails revealed, had been engaging in data manipulation

      Several of the investigations, including those of the NSF IG talk about looking at the Emails among other things. One of the interesting points however, that re-reading the NSF IG report brings up is

      Regarding the University’s first Allegation (data falsification), however, we concluded that the University did not adequately review the allegation in either its inquiry or investigation processes. In particular, we were concerned that the University did not interview any of the experts critical of the Subject’s research to determine if they had any information that mighfsupport the allegation. Therefore, we initiated our own investigation under the NSF Research Misconduct Regulation. Pursuant to that regulation, we did not limit our review to an allegation of data falsification. Rather, we examined the evidence in relation to the definition of research misconduct under the NSF Research Misconduct Regulation.

      So Steve, did the NSF IG contact you??

      Steve: as I’ve mentioned from time to time, two IG reps came to Toronto and visited me. They said that they were considering an investigation and asked me to provide a narrative. One of their main issues was whether they had jurisdiction over issues pertaining to IPCC 2001 or Mann et al 1998-99, as Mann’s funding for Mann et al 1998 appeared to be from a Hollander fellowship (Dept of Energy). This is one of the reasons why I have been attentive to limiting language in their report in which they stated that Mann was not lead investigator on an NSF project until 2001. So it’s not at all clear that they investigated any of the issues that were actually in controversy (hide-the-decline, withholding verification r2, misrepresentation of robustness to tree rings, etc.) The failure of this and other investigations to describe the issues that they supposedly considered is one of the reasons why this matter has lingered on longer than it ought to have. Also, in their final report, they said that no one had raised misconduct issues – a statement that was definitely untrue in respect to our meeting. I recently requested some documents from NSF and have been meaning to discuss this report for a while, but there are lots of things that I could write on.

      • Posted Jan 2, 2015 at 10:53 PM | Permalink

        This is very strange. The acknowledgement in the MBH 99 paper is

        Acknowledgments. We thank P.D. Jones and two anonymous reviewers for their comments. We gratefully acknowledge the numerous researchers who have contributed to the ITRDB. This research was supported by grants from the NSF (ATM-9626833) and DOE. M.E.M. acknowledges support through the Alexander Hollaender Distinguished Postdoctoral Fellowship Program (DOE).

        The acknowledgement in the MBH 98 paper is

        Acknowledgements. This work benefited from discussions with M. Cane, E. Cook, M. Evans, A. Kaplan and collaborators at the Lamont Doherty Earth Observatory. We acknowledge discussions with K. Briffa, T. Crowley, P. Jones, S. Manabe, R. Saravanan and K. Trenberth, as well as the comments of G. Hegerl. We thank R. D’Arrigo, D. Fisher, G. Jacoby, J. Lean, A. Robock, D. Stahle, C. Stockton, E. Vaganov, R. Villalba and the numerous contributors to the International Tree-Ring Data Bank and other palaeoclimate researchers who have made their data available to us for use in this study; we also thank F. Keimig, M. Munro, R. Holmes and C. Aramann for their technical assistance. This work was supported by the NSF and the US Department of Energy. M.E.M. acknowledges support through the Alexander Hollaender Distinguished Postdoctoral Research Fellowship program of the Department of Energy. This work is a contribution to the NSF- and NOAA-sponsored Analysis of Rapid and Recent Climatic Change (ARRCC) project.

        So someone is being economical with something. Even if Michael Mann were not directly supported by NSF, the work was and clearly falls under the NSF policy.

        Steve: I’d also looked at these acknowledgements and, like you, believe that it was within NSF authority. In our meeting, they raised jurisdiction issue, so it was something that was on their mind. Their memorandum contains the statement that Mann was not funded as a PI until late 2001 or 2002. It seems an odd thing to say unless they are excluding something. By no means conclusive, but because their report contains no information on what they looked at, it’s not a report that settles anything.
        excerpt1

        Their report also says “There is no specific evidence that the Subject falsified or fabricated any data …” In our meeting with the NSF officers, both Ross and I made some very direct statements – much more direct than I’ve made online. We gave them evidence. I recently obtained their meeting notes which confirm that we gave them evidence. I’ll do a post on this some time.

        • Will J. Richardson
          Posted Jan 3, 2015 at 12:59 AM | Permalink

          This is a wonderful example of “circumstances [that] indicate a lack of trustworthiness”, seeFRE 803(8)(b), which would prevent the NSF OIG Report from being received in evidence under the public records hearsay exception in FRE 803(8).

        • Steve McIntyre
          Posted Jan 3, 2015 at 1:20 AM | Permalink

          we also thank F. Keimig, M. Munro, R. Holmes and C. Aramann for their technical assistance

          I presume that “C. Aramann” acknowledged here for technical assistance in Mann et al 1998 is better known as Caspar Ammann, the supposedly “independent” coauthor of Wahl and Ammann.

  27. Posted Dec 28, 2014 at 10:49 PM | Permalink

    Reblogged this on I Didn't Ask To Be a Blog.

  28. pottereaton
    Posted Dec 29, 2014 at 12:06 PM | Permalink

    Not sure how applicable it is to the establishment of actual malice, but Steyn claims he was aware of the divergence as far back as 2001. From a column in Macleans dated 12/17/09:

    In the National Post of April 2, 2001, after the UN had adopted this graph as the official proof of global warming, I pointed out that the first nine centuries of the millennium were measured by using tree-ring cycles, and the modern era was represented by temperatures. Now I’m not a climatologist. I’m not even a railroad engineer. But, if you show me a graph that looks like a long bungalow with the Empire State Building tacked on the end, I’ll go, “Whoa! That looks pretty serious. We better head for the hills.” If it then emerges in the fine print that the bungalow was created with one unit of measurement and the skyscraper another, I’ll postpone my departure and go, “Er, hang on, what’s the deal with that? If we’ve got tree rings for the first nine centuries, why can’t we stick with the tree rings through the 20th?”

    I’ve been unable to find the 2001 column in any archive. But I think this shows Steyn was aware of the problems with the graph at a very early date, more than ten years before Mann filed his complaint.

    Steve: his understanding of the issues in 2006 was more accurate. The 1998 version of the Mann hockey stick used proxy data in the 20th century. ironically this criticizm would be more apt if applied against Mann et al 2008 which did splice instrumental and proxy data in the reconstruction. But you have to take care to be very precise in what you’re saying as inaccurate criticisms give straw men.

  29. Pouncer
    Posted Dec 29, 2014 at 2:49 PM | Permalink

    Steve sez: “his [Steyn’s] understanding of the issues in 2006 was more accurate [than then 2001 quotations being discussed]”

    This would seem to be a good thing for the pro-free-speech side. If so, Steyn can be shown to have paid attention to “the science” and refined his positions rather than taking, and holding onto, a single position regardless of news and developments. In neither the 2001 nor later remarks does he seem malicious (in the lay sense) regarding Mann, personally. Steyn apparently has been speaking his mind to the public about a public issue using general information available to any member of the public as published by public figures for the purpose of inspiring exactly this sort of public discussion. And he began by discussing the STICK, (bog*s, fra*d*lent, valid, or s*perseded by later research) and not the man or The Mann.

    • pottereaton
      Posted Dec 29, 2014 at 4:53 PM | Permalink

      Pouncer: I think we’d need to see the column in question to determine that. Knowing Steyn, I’m sure it had a few zingers in it.

      Steve’s point, and it’s a good one if I’m reading him correctly, relates to actual malice. If anything Steyn has said in the past even hints at “a reckless disregard for the truth,” it will be used against him.

      Steve: I think that you, like so many others, are misunderstooding “actual malice” in libel – it means more or less that the author is saying something that he knows to be false. There isn’t a shred of evidence to that effect in this case. Steyn’s earlier opinions against the Stick, if anything, confirm the sincerity of his belief.

      • pottereaton
        Posted Dec 29, 2014 at 6:11 PM | Permalink

        I understand actual malice to be as it is described in NYT v. Sullivan: “Factual error, content defamatory of official reputation, or both, are insufficient to warrant an award of damages for false statements unless “actual malice” — knowledge that statements are false or in reckless disregard of the truth — is alleged and proved.”

        I agree that they will never be able to prove that Steyn knowingly made false statements. Which means the plaintiff will have to allege and prove in a trial that he displayed a reckless disregard of the truth, or as Bob Denton is phrasing it in his most recent post above, “purposeful avoidance of the truth.”

        • Beta Blocker
          Posted Dec 29, 2014 at 9:13 PM | Permalink

          pottereaton: I agree that they will never be able to prove that Steyn knowingly made false statements. Which means the plaintiff will have to allege and prove in a trial that he displayed a reckless disregard of the truth, or as Bob Denton is phrasing it in his most recent post above, “purposeful avoidance of the truth.”

          If a trial ensues, then there is this very basic question: what is the particular “truth” that Lawyer Williams will be claiming was either recklessly disregarded or was purposely avoided?

          One short example of a “truth”:

          “Michael Mann has been completely exonerated of unprofessional conduct in producing the hockey stick by eight separate reports, as cited herein by the plaintiff.”

          A somewhat more complicated example of a “truth”:

          “The results of Michael Mann’s paleoclimate research have been independently verified and reproduced by other climate scientists; and the research methods and the analytical approach used by Michael Mann in producing the hockey stick have been independently peer reviewed and independently confirmed by other climate scientists as being valid and appropriate for the task.”

        • pottereaton
          Posted Dec 29, 2014 at 10:03 PM | Permalink

          BetaBlocker: interesting contrast. Assuming the quotes come from Mann’s complaint or a supporting document, they are of a different type. The first has been largely disproven by Steve’s posts here at CA, but the second is arguably true, although it only tells half the story and fails to mention the extensive criticism generated by “Michael Mann’s paleoclimate research.” Ianal, but it looks to me that the defense should have little difficulty exposing the second argument as misleading in the trial.

          I was reading two other cases today: Westmoreland v CBS and Sharon v. Time, Inc. If I had to guess, I would say that this case if it goes to trial will end similarly to those. The plaintiffs in those cases did not get the justice they felt they were due.

        • Will J. Richardson
          Posted Dec 29, 2014 at 11:27 PM | Permalink

          Actually, Mann must prove two things that are issue, that the alleged defamatory statements were objectively false statements of fact (not opinions), by a preponderance of the evidence, and that the defendants either knew they were false or recklessly ignored indisputable evidence that they were false, by clear and convincing evidence. Whether or not Mann’s “hockey stick” papers reach “true” conclusions is simply not at issue. Anyone who has followed McIntyre’s dissection of the “hockey stick” papers knows there is plenty of evidence of data torture and deliberate concealment of adverse results by Mann to support a good faith belief that the “hockey stick” was fr*udulent.

        • bobdenton
          Posted Dec 30, 2014 at 2:55 AM | Permalink

          Beta Blocker
          Posted Dec 29, 2014 at 9:13

          Re:
          “If a trial ensues, then there is this very basic question: what is the particular “truth” that Lawyer Williams will be claiming was either recklessly disregarded or was purposely avoided?”

          There an issue with DC complaints, that they can contain primary facts, (the necessary elements of the cause of action as instantiated in the particular action) secondary facts (evidence, facts which tend to prove the primary facts) and argument. In many jurisdictions only primary facts may be pleaded, secondary facts are relegated to affidavits on interlocutory applications.

          But during the hearing the CA did ask counsel for Mann to list the allegations which he says he must prove false, and he did. The list can be found on the audio, I don’t have time to reference it at the moment. It’s in the nature of the litigation that the Plaintiff gets to say what his ground of complaint is, and that would normally be apparent from the document initiating proceedings. There should never be an issue, from the outset, as to what needs to be proved – false, in this case, because the burden of proof is reversed.

          The passages you cite, seem to me to be secondary facts, ie: evidence, and are not included in counsel’s list given to the CA.

        • Joseph W.
          Posted Dec 30, 2014 at 7:51 AM | Permalink

          Beta – the “truth” that matters for libel cases under Sullivan, Harte-Hanks, etc. is the truth of the allegedly libelous statement itself. Which in Steyn’s case is that the Hockey Stick is “fraudulent,” and that Mann “molested and tortured data.” Broad statements like these don’t lend themselves to a “purposeful avoidance” case, especially not here for the reasons WJR mentions. In fact, reasonable minds can and do differ about whether they count as “factual” statements at all. (I think they do but have seen intelligent arguments to the contrary.)

          In Curtis v. Butts, by contrast, the claim was that a game was fixed, and that the “fix” went down in a certain way…a way that you could not possibly believe if you watched the film, because the players simply didn’t do what the article said they did.

          It’s good that things are this way, because it means the plaintiff can’t strengthen his hand in a libel case by redefining the facts that are at issue.

          Bob – Very interesting; is that the common law pleading standard? As far as I know, all U.S. jurisdictions have abandoned common-law pleading (which I never studied though I have known older lawyers who did) in favor of “notice pleading.” The distinction U.S. lawyers learn is not between “primary facts” and “secondary facts,” but between “facts” and “legal conclusions.”

          When it comes to pleading facts, it’s open season; but if you’re facing a motion to dismiss, “legal conclusions masquerading as facts” can’t defeat dismissal.

      • Beta Blocker
        Posted Dec 30, 2014 at 2:07 PM | Permalink

        Joseph W, I’ve now listened to the two audio transcripts of the hearing, and have three questions for you and for the other lawyers who are posting on this thread:

        1) Will the court’s ruling either for or against the defendants in this latest hearing set a precedent for how future lawsuits of this kind are handled, separate and apart from what decision a jury might reach if a later trial ensues?

        2) If the lawsuit eventually goes to trial, will the outcome of the trial set any kind of legal precedent for other similar lawsuits that may be brought in the future and which eventually result in a trial?

        3) If legal precedents are set as result of either outcome in this latest hearing, is it possible at this point to predict what those specific precedents might be if the decision goes in favor of the defendants, as opposed to what they might be if the decision goes in favor of the plaintiff and a trial ensues?

  30. Don B
    Posted Dec 30, 2014 at 2:26 PM | Permalink

    Mark Steyn has a post concerning this CA post:

    • Don B
      Posted Dec 30, 2014 at 2:28 PM | Permalink

      http://www.steynonline.com/6724/the-limitations-of-lawyers

      • Posted Dec 30, 2014 at 3:11 PM | Permalink

        Thanks! The phrase

        That’s the same conclusion I intuited a year ago…

        is worth looking out for. Not sure it’s hopeful but seems important.

      • Beta Blocker
        Posted Dec 30, 2014 at 3:44 PM | Permalink

        After listening to the audio transcripts of the hearing this morning, it is evident that the limits of the DC anti-SLAPP law have not as yet been thoroughly tested; i.e., they are covering new ground in looking closely at Mann’s lawsuit.

        This is probably yet another reason why the plaintiff filed the lawsuit in the District of Columbia.

        I think this lawsuit has become a test case for determining how the anti-SLAPP law is to be applied in practice, especially when the topic of dispute touches upon public policy issues as impacted by government-funded scientific research activities, and so my prediction is that the case probably will be remanded to a trial.

        Someone or some group has to be acting in the role of the trailblazer defendant in a test case like this, and this time around the honor goes to NR, CEI, and eventually Mark Steyn.

        • Joseph W.
          Posted Dec 30, 2014 at 11:01 PM | Permalink

          1) Will the court’s ruling either for or against the defendants in this latest hearing set a precedent for how future lawsuits of this kind are handled, separate and apart from what decision a jury might reach if a later trial ensues?

          2) If the lawsuit eventually goes to trial, will the outcome of the trial set any kind of legal precedent for other similar lawsuits that may be brought in the future and which eventually result in a trial?

          3) If legal precedents are set as result of either outcome in this latest hearing, is it possible at this point to predict what those specific precedents might be if the decision goes in favor of the defendants, as opposed to what they might be if the decision goes in favor of the plaintiff and a trial ensues?

          I think you’ve answered your own question (1). The appeals decision is bound to create some kind of precedent for how these suits are handled in D.C. At the very least, the court will have to tell us whether SLAPP dismissal denials can be properly appealed before trial. (The fact that they heard these oral arguments suggests that they can; but I don’t think the court has yet officially ruled on the subject, and the statute is ambiguous.)

          For question (2), the factual findings of the jury at trial are not precedential for future lawsuits of the same kind…unless there is a lawsuit between the same parties that turns on the same facts or issues. There’s some discussion in the Blonder-Tongue case I cited above.

          However, while there would be no legal precedent, as a practical matter the legal landscape would change. If people saw that Mann could prevail at trial and score a big judgment, defendants would be a lot more likely to give in to his demands, cease criticizing him in public, mute their tones, or settle with him the moment he threatened suit, and the same for anyone else in his position. In fact, because a jury finding is not precedential for other cases, that would still be the effect even if Mann loses…people would see that they can be dragged through the courts for 2+ years to defend against his claims, and do what M4GW did — give in.

          Something similar would be the result if, as SteveMc suggests above, they remand for “limited discovery”…that would mean that defendants can’t get these kinds of cases dismissed before discovery, as they normally can with SLAPP cases. That would encourage the filing of more such cases, and pressure defendants to settle them. It might be a while before a test case reached the Supreme Court.

          For your question (3), if the issue is immediately appealable and Mann wins outright, it means that in D.C. the Sullivan standard has a huge exception carved out — at least for parties like Mann who are “stars” in their professional fields and have friends in the government. In a case like that I’d hope the Supreme Court would take the case and reverse. If they take the case and affirm, free speech throughout the U.S. will have suffered a major blow, at least for those who question a government-approved orthodoxy or a state school’s Favorite Son. If the Supreme Court doesn’t take the case, there’ll be more uncertainty than there was before…other courts, state and federal, will have to address the issue; and other defendants will be more likely to shut up or settle.

          In short, the only way to preserve the stronger free speech standard as established by Sullivan and the other cases is for Steyn or his co-accused to win on appeal, whether in the D.C. Court of Appeals or the Supreme Court.

        • Beta Blocker
          Posted Dec 31, 2014 at 1:37 AM | Permalink

          Joseph W.: “…… In short, the only way to preserve the stronger free speech standard as established by Sullivan and the other cases is for Steyn or his co-accused to win on appeal, whether in the D.C. Court of Appeals or the Supreme Court.”

          Thanks for your analysis. The stakes for the cause of free speech in this lawsuit are immense. If the DC Court of Appeals opens Pandora’s Box by deciding for Mann, it would appear that only the Supreme Court can close it — but only after considerable time, money, and effort have been expended by defenders of a free press.

          I have to say also that it is not possible to gain a reasonably thorough understanding of the various comments being made on this thread without listening to the audio transcripts of the hearing. There are topics in the hearing that are not touched upon in this thread, but which I presume will be covered in future topical threads in the series.

          The topic I heard in the transcript which I am most interested in personally is the distinction to be made between “bad science” and “actual verifiable f*raud” as those two concepts might apply to how the plaintiff will go about demonstrating actual malice on the part of the defendants, if a trial ensues.

        • David L. Hagen
          Posted Jan 3, 2015 at 1:41 PM | Permalink

          Joseph W.
          Re: “for Steyn or his co-accused to win on appeal”
          What if Steyn win’s his countersuit against Mann?
          What are the prospects of his doing so?

        • Joseph W.
          Posted Jan 3, 2015 at 1:59 PM | Permalink

          One of our other frequent commenters — JD Ohio or MJW, I believe — gave the counterclaim a detailed look, and put it down as “slim to none.” I haven’t done that research but my instincts incline me to agree. Steyn filed that one while he had no attorney, and the D.C. courts don’t seem inclined to get creative on his behalf.

          Now the SLAPP law does give Steyn and the others a chance of getting Mann to pay their attorneys’ fees if they win — that really is on the table even without the counterclaim. However, I suspect it will not happen. The trial judge gets discretion on that subject, and he hasn’t shown himself friendly to the defense in this case. But you can’t tell unless you try.

          As I’ve said before, if the defense wins this appeal, my guess is that the trial judge will want to reconsider his ruling on Steyn’s motion to dismiss, dismiss both the claim and the counterclaim, award no attorneys’ fees to anybody, and tell everyone to just go away.

        • pottereaton
          Posted Jan 3, 2015 at 2:17 PM | Permalink

          Joseph W.@ 1:59 PM: I know it’s all speculative, but I assume you are predicting the case will be dimsissed with prejudice. Is there any chance it could be dismissed without prejudice?

        • Joseph W.
          Posted Jan 3, 2015 at 2:51 PM | Permalink

          As a practical matter? I don’t see how. You might get a dismissal without prejudice if the parties settle the case and ask for it to be dismissed…that way they can revive the case if someone breaks the terms of the settlement…but Steyn, at least, isn’t going to settle. I hope the other parties stand firm as well, even if they have to wait for Supreme Court action to vindicate their rights.

        • Joseph W.
          Posted Jan 3, 2015 at 3:04 PM | Permalink

          (Another would’ve been if, say, there’d been a successful motion to dismiss for improper venue…the court might dismiss without prejudice so the case could be brought in the right venue. But nothing like that is going on here.)

    • Salamano
      Posted Dec 30, 2014 at 7:08 PM | Permalink

      Mean Girls, Steve..? Really?

      Steve: there’s a bit of a story. I often buy lunch at The Big Carrot near my house, which is in a neighborhood with a number of media people. One day, much to my surprise, a server thought that she recognized me and asked me if I was someone well-known. I said no. I asked her what celebrities she had served. She said that Rachel McAdams shopped there fairly often – an actress that my daughter and grand-daughter both liked. She’s from Toronto and, I guess, lives somewhere nearby when she’s in Toronto. She is apparently even more petite than she appears on screen. My grand-daughter had liked her in The Notebook. I looked up her filmography and noticed that she, Lindsay Lohan and Amanda Seyfried had all been in Mean Girls. Shortly afterwards, Mark Steyn wrote a column on Mean Girls, as the peak of Lindsay Lohan’s career. Armed with my new trivia, I teased Mark for not reporting that it started the career of our fellow Torontonian, Rachel McAdams, as well as Amanda Seyfried. 🙂

      • Jeff Norman
        Posted Dec 30, 2014 at 10:16 PM | Permalink

        And here I thought you lived in the Annex. You are closer than I thought.

      • Posted Dec 31, 2014 at 6:55 AM | Permalink

        The Big Carrot grated till Google took me straight to downtown Toronto. Fitting context for CA’s Big Cheese. 🙂

  31. Posted Dec 31, 2014 at 6:59 AM | Permalink

    Joseph W. (11:01 PM):

    In short, the only way to preserve the stronger free speech standard as established by Sullivan and the other cases is for Steyn or his co-accused to win on appeal, whether in the D.C. Court of Appeals or the Supreme Court.

    Because that’s so important we the unlawyered continue to brave the impenetrable.

  32. Posted Dec 31, 2014 at 6:25 PM | Permalink

    Here’s another defamation case in the US, back in 1996: http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/DC/957201a.html.

    United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
    No. 95-7201
    Robert C. McFarlane, Appellant
    v.
    Sheridan Square Press, Inc., Appellee

    Appeal from the United States District Court for the District of Columbia
    (No. 93cv01304)

    McFarlane sued for defamation over the publishing of a book by one Ari Ben-Menashe, a claimed arms dealer who later got into legal trouble in Canada. ABM’s book claimed that McFarlane was a key US government person in an alleged scheme to make a deal with Iran to delay release of hostages until after an election, to help Ronald Reagan and George Bush defeat Jimmy Carter.

    Glancing at parts of the court judgement, I pick out:
    – The issue was whether or not there was malice by the publisher, in producing the book.
    – McFarlane’s position was that the publisher should have investigated ABM’s claims because there was widespread skepticism about them, and perhaps some investigations, and should have published a retraction when more became known.
    – The appeals court ruled against McFarlane because there is no legal obligation to retract and ABM had given sworn testimony stating his claim. It used a high standard of proof for malice.

    • Joseph W.
      Posted Dec 31, 2014 at 8:04 PM | Permalink

      Keith – good language there on the standards!

      The actual malice standard is subjective; the plaintiff must prove that the defendant actually entertained a serious doubt. Tavoulareas v. Piro, 817 F.2d 762, 776 (D.C. Cir. 1987) (en banc) (defendant must have “come close to wilfully blinding itself to the falsity of its utterance”). Although this fact may be proved by circumstantial rather than direct evidence, “the plaintiff must establish that even in relying upon an otherwise questionable source the defendant actually possessed subjective doubt.” Secord v. Cockburn, 747 F. Supp. 779, 794 (D.D.C. 1990) (plaintiff cannot survive summary judgment merely by showing that some of defendant’s sources were convicted felons); see St. Amant, 390 U.S. at 730 (when defendant had implicated sheriff and union leader in alleged wrongdoing, actual malice could not be inferred from defendant’s having relied solely upon affidavit of union dissident of unknown veracity and having failed to verify allegations with sources who might have known).

      It’s a point we’ve often hammered in discussing the “actual malice” standard, but some readers resist it, as it is a uniquely U.S. standard (a point made in Part V of Harte-Hanks; we share a lot with the rest of the Anglosphere through the common-law tradition, but on this point we have radically departed).

      I see the publisher in McFarlane not only failed to contact any of the “major figures” mentioned in the book, but had a memo from its attorneys warning of the author’s “credibility problems.” That still wasn’t enough, as a matter of law, to show actual malice. One line seems especially relevant on the subject of the Penn State inquiry:

      Schaap’s failure to contact McFarlane himself about the allegations provides even less support for a finding of actual malice. Schaap knew from Ben-Menashe’s manuscript that McFarlane had sued Craig Unger for defamation based upon similar allegations, PW at 345; Schaap could reasonably expect McFarlane to deny any involvement regardless of the facts. See Edwards v. National Audubon Soc’y, Inc., 556 F.2d 113, 121 (2d Cir. 1977) (“[S]uch denials are so commonplace in the world of polemical charge and countercharge that, in themselves, they hardly alert the conscientious reporter to the likelihood of error”).

      …so a report based largely on interviews with the accused, who denies every kind of wrongdoing, will carry zero weight in showing “reckless disregard” by a person who reads it, or even fails to read it.

      You might also be interested in the third case I linked and discussed here. It partially affirmed a libel judgment for a public-figure plaintiff…a difficult thing in U.S. law…but in so doing illustrates again just how little a person has to do to show lack of actual malice.

  33. Posted Dec 31, 2014 at 6:32 PM | Permalink

    I wish Steyn would get better shipping to Canadian customers.

    But he’s worth supporting.

  34. Posted Jan 1, 2015 at 10:42 AM | Permalink

    For a Narcissist, “public figure” status is highly desirable, as it allows a far greater audience for one’s outstanding qualities. It’s really a Sine Qua Non for that bloke now. Preening rights are assured, and a large and totally uncritical audience of adorers is enabled.

  35. Posted Jan 1, 2015 at 4:57 PM | Permalink

    Have the comments on “Oral Argument 2” been switched off deliberately?

    Steve: no. for some reason, the “new” wordpress screen doesn’t automatically permit comments. I have to figure out how to reset options or remember to do it manually. Comments open now

    • Posted Jan 1, 2015 at 6:31 PM | Permalink

      Thanks. Needless to say my first attempt is kyboshed by quoting your mention of fr**d!

  36. MJW
    Posted Jan 2, 2015 at 1:44 AM | Permalink

    Something odd is going on with the comments on the Oral Argument 2 thread. I made a comment mentioning Dun and Bradstreet in response to a comment that seems to have vanished. The comment I replied to suggested that Mann’s email to Revkin wasn’t libel because it was sent only to Revkin rather than published to a wider audience. My comment is now an embarrassingly non sequitur response to a David L. Hagen comment, and I can’t post anything more to the thread. All my comments are rejected.

    • Posted Jan 2, 2015 at 4:55 AM | Permalink

      MJW: It’s not showing as a response to David’s comment now and I doubt it ever was. It’s how WordPress always deals with responses the moderator keeps to comments he deletes – the response falls to the bottom of the thread and all further responses to it sit underneath but not in a hierarchy. (As one see now with the efforts of pottereaton and Don Montfort.

      This I’m sure is what’s happened with that post. (And sorry if I’m explaining something wearily familiar.) Why you’re experiencing further comments being rejected I don’t know.

      Very helpful explanation it was though, for this layman, thank you!

    • Posted Jan 2, 2015 at 5:25 AM | Permalink

      MJW: It’s not showing as a response to David’s comment now. Helpful explanation too. (My longer response here ‘awaiting moderation’. Sigh.)

  37. MJW
    Posted Jan 2, 2015 at 1:31 PM | Permalink

    Thanks, Richard. I probably overacted a bit. I was sort of embarrassed that my comment seemed so out-of-nowhere, with no way to add an explanation.

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