Towards the end of Carvin’s mostly cringeworthy rebuttal, he seemed to score on EPA’s rejection of complaints against Mann’s own defamatory accusations of “scientific fraud”. EPA had found that Mann’s use of the term “fraud” meant no more than he believed the articles to be “scientifically flawed” and that, in such circumstances, Mann’s language was “appropriate”. That Carvin brought this point up at all, after omitting it in his written brief and after mangling his rebuttal remarks on falsification and email deletion so badly, was a small miracle, but he managed to draw the judges’ attention to the issue and it’s one that seems to me to be a very big obstacle to Mann’s case.
The defendants had, of course, been long familiar with Mann’s own repeated defamatory statements, including accusations of “fraud”, but, if the Court is expected to show deference to EPA on scientific matters, EPA’s finding on the use of the term “fraud” by scientists will be hard to distinguish. In addition, as I’ll try to argue below, one of the governing principles of New York Times v Sullivan was that citizens should have the same rights and privileges in their criticism of public officials, as the public officials themselves possess. So if the EPA acquiesces in or permits Mann to accuse critics of his work as an IPCC Lead Author of “fraud”, it is hard to see a principled basis for Mann having a right to make such accusations that is unavailable to his critics.
The Written Briefs
Mann’s own accusations of “scientific fraud” have been well-known since the start of the litigation.
In its written brief to the Appeals Court, National Review cited Mann’s own use of such language as evidence of the “tone” of the debate, citing, among other incidents, Mann’s defamation of Ross and myself as “caustic rhetoric”:
Given the strong differences of opinion, the tone of the hockey-stick debate has been intense and at times vituperative, with both sides indulging in caustic rhetoric. Dr. Mann himself has harshly condemned his critics, branding them as “climate deniers,” and denouncing them as liars and frauds. In 2005, for example, Dr. Mann wrote an e-mail to a New York Times reporter asserting that “[t]he McIntyre and McKitrick paper is pure scientific fraud,”
National Review cited numerous other uses of “fraudulent” and similar terms in contemporary U.S. public controversy, but not EPA’s discussion of this incident.
In its opening brief to the Appeals Court, CEI took almost exactly the same line, also quoting Mann’s defamation of Ross and myself:
The context here-the contentious and often acrimonious debate over global warming- is no less charged. This debate is marked by strong opinions often expressed in hard, vituperative language. To Mann, individuals and groups who disagree with him are engaged in “pure scientific fraud,” are “deeply unethical,” publish “bogus” research, and “are essentially serving as shills for the fossil fuel industry,  are doing the bidding of the fossil fuel industry, and are not engaging in good faith debate, good-faith discourse, but are simply looking for a way to malign the science and the scientists and to advance a policy agenda.” …
In this context, forceful, highly opinionated language and hyperbole are not out of place; they are expected from advocates on both sides and signal that a statement is part of this “war” over the proper understanding of the climate and responses to changes in climate. Mann uses precisely this type of language when he describes CEI as dishonest, accuses it of being an “industry front group,” and characterizes its work as “fraudulent.” That is, fortunately or not, the prevailing tone of the debate, and therefore such language falls well within the “breathing space” mandated by the Constitution. For that reason, this Court explained in Guilford, such statements “which on their face resemble statements of fact, may, depending on the circumstances, be treated as statements of opinion not subject to an action for libel.” 760 A. 2d at 597 (quotation marks omitted)
[71- Mann, The Hockey Stick and the Climate Wars, at 70, 110, 195, 249; Michael Mann, Climate Science Review, Climate Cover Up: A (Brief) Review, RealClimate, Oct. 20, 2009, link]
In taking this line, I don’t think that CEI sufficiently emphasized that its own article had avoided use of the word “fraud”. On the other hand, if the Court can acquiesce in the use of the word “fraudulent” in this context, it’s hard to see how a case can exist in respect of the use of the terms “data manipulation” or “torturing data”, terms which seem to me to easily fall within the scope of acceptable discourse.
In his brief to the Appeals Court, Mann did not admit or acknowledge his own repeated use of defamatory language, but simply re-iterated his position that accusations of “fraud and scientific misconduct” were defamatory, ignoring his own seemingly glass house:
There is no public debate exception to defamation or doctrine that allows journalists and so-called “think tanks” to defame scientists with impunity. Defendants’ comments are not part of the debate on global warming. Defendants have not merely asserted that they disagree with Dr. Mann’s views or that they believe his research is incorrect or misleading. Defendants accused Dr. Mann of fraud and scientific misconduct- an explicit and clear assertion of fact regarding Dr. Mann’s reputation and integrity and an accusation that Dr. Mann has falsified his research in the service of a politicized agenda. Nothing could be more damaging to a scientist’s reputation than to be accused of fraud.
If pressed to justify the apparent inconsistency between his own repeated use of defamatory terms and the present action, I presume that Mann would say that the subjects of his various defamations (including myself) each had a similar right to sue him and hadn’t done so, but that their failure to take action did not affect or diminish the claims in the present litigation.
How the EPA Precedent Changes Things
I can see how a Court would be reluctant to preclude Mann’s right to sue for defamation simply because other people had not pursued remedies that might have been available to them. But the EPA handling of complaints against Mann’s defamatory remarks forces the Court to address something much more difficult than the general “tone” of the debate.
Ironically, Gavin Schmidt bears considerable (indirect) credit for drawing attention to the EPA finding. On August 14, 2014, Schmidt tweeted that accusations of fraud were “per se defamatory”. This prompted a Climate Audit post on August 22, 2014, which drew attention to the following EPA finding in relation to Mann’s own use of the term “pure scientific fraud” against critics of his work:
it is entirely acceptable and appropriate for scientists to express their opinions and challenge papers that they believe are scientifically flawed
CEI’s Reply Brief to the Appeals Court on September 23, 2014 forcefully brought the matter to the Court’s attention as follows:
In 2005, Mann deemed a paper by two scientists with whom he disagrees to be “pure scientific fraud” and stated that this view would be “reinforced by just about any legitimate scientist in our field you discuss this with.” In response to claims that this was part of a campaign by Mann and his allies to suppress dissenting scientific views, the U. S. Environmental Protection Agency explained that Mann’s use of the word “fraud” was not defamatory but simply “reflect[ed] his scientific judgment that the. paper was flawed” and that it is “entirely acceptable and appropriate for scientists to express their opinions and challenge papers that they believe are scientifically flawed.” As the EPA recognized, Mann was just airing his opinion in the context of a contentious debate. 
Carvin then used this argument, citing CEI, in his closing rebuttal to support his argument that one of the senses of the word “fraudulent” is as a “general pejorative term” – the explanation provided at the outset by Lowry. He argued that EPA had itself determined that Mann’s use of the term was simply pejorative and that application of the same standard to the present case would yield a win for defendants as a “matter of law”:
General pejorative terms – like fraudulent, misconduct, corruption – are not actionable. He says there’s only one way of interpreting the word “fraud”. But what did EPA say when people accused Dr Mann of defamation when he ran around the world accusing everyone of scientific fraud. EPA, as quoted in CEI brief, said: no, fraud just means “scientifically flawed”, that it doesn’t mean that they engaged in a nefarious activity. If you give the same interpretation to the word fraud that EPA gave to Mann’s use of fraud, we win as matter of law.
The judges did not challenge Carvin on this point and asked him about the term “academic misconduct”. In my opinion, Carvin could have made a stronger response to this question if he had been familiar or more familiar with the definition of academic misconduct as defined in academic misconduct codes, but it also seems to me that a win on the term “fraud” would topple the other dominos almost automatically, either through the application of the same line of argument or due to parsing of the words themselves.
In addition to the lines of argument advanced by CEI and National Review on the effect of the EPA decision, it sure seems to me that, once EPA has taken the position that Mann, who is publicly funded and supported and whose work has been used in government documents, was entitled to use words like “pure scientific fraud” in attacking his critics with impunity, then, according to the equity principles between public servants and citizens enunciated in New York Times v Sullivan, critics of Mann’s “official” conduct (including his work as IPCC lead author) are entitled to equal rights. (I may not have argued this point as clearly as I might have, but bear with me.)
Re-reading New York Times v Sullivan, one of its governing principles is its emphasis on a symmetry between the rights of “public officials” and “citizen-critics” in respect of their rights and duties of criticism.
Analogous considerations support the privilege for the citizen-critic of government. It is as much his duty to criticize as it is the official’s duty to administer. …It would give public servants an unjustified preference over the public they serve, if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves.
It seems to me that it is important and relevant that Mann is not just a limited-purpose public figure (like a celebrity), as he has conceded, but that the controversies in question largely arise from his contribution to government and intergovernmental documents: IPCC 2001 and WMO 1999, and thus pertain to Mann’s conduct in public “service” – as an IPCC Lead Author and/or WMO author. In addition, Mann has been a frequent recipient of government funds, while, in turn, the U.S. government has cited and relied on his work, as, for example, the EPA Endangerment Finding, while disclaiming any reliance on Mann et al 1998-99 or IPCC 2001, did cite and rely on Mann et al 2008.
Our critique of Mann’s work – the critique that Mann alleged to be “pure scientific fraud” – is inseparable from its “official” use in IPCC 2001. Similarly, Steyn’s criticism of the “fraudulent hockey stick” surely is also inseparable from its “official” use, rather than private use and that criticism is of “official” and not “private” conduct.
Once EPA had issued a finding that Mann’s use of the term “pure scientific fraud” was not defamatory, but even “appropriate” if a scientist believed his opponents’ argument to be “scientifically flawed”, it seems to me that the following statements by EPA thereby established a substantial additional barrier and deterrent to any potential claims that we or others might have against Mann for his defamatory remarks.
Regarding the e-mail from Michael Mann to Andy Revkin, Mann’s statements reflect his scientific judgment that the McIntyre and McKitrick (2005) paper was flawed. As discussed thoroughly in our previous responses (e.g., 3-23), it is entirely acceptable and appropriate for scientists to express their opinions and challenge papers that they believe are scientifically flawed. It was on this basis that Mann recommended that McIntyre and McKitrick were not worth interviewing because their paper was flawed.
If we had chosen to sue Mann for defamation, we now had a major additional hurdle: EPA had said that the language was not defamatory, but “entirely acceptable and appropriate” where scientists believed that the papers that were challenging were merely “scientifically flawed”. In response to a lawsuit, Mann could put up exactly the same defence that National Review and CEI are now arguing, but would be armed with an EPA decision finding that the language was merely pejorative.
With EPA having in effect granted Mann a free pass, surely CEI, National Review, SImberg and Steyn should be able to argue that “it would give public servants an unjustified preference over the public they serve, if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves”. This argument is related to the National Review and CEI arguments about the general “tone” of the debate, but I’m trying to establish a different nuance as well.
The minority opinions of New York Times v Sullivan urged even greater freedom of expression in respect of criticism of public officials. One minority opinion argued against retaining even the “actual malice” standard:
We must recognize that we are writing upon a clean slate. As the Court notes, although there have been statements of this Court to the effect that the Constitution does not protect libelous publications . . . , [n]one of the cases sustained the use of libel laws to impose sanctions upon expression critical of the official conduct of public officials.
J Black, who, like the segregationist plaintiffs was from Alabama, observed that plaintiff Sullivan had suffered no actual damage and, if anything, his prestige within his community had likely been increased – a comment that would also seem to apply to Mann in the present case:
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.
In Mann’s brief to the Appeals Court, he stated (as in his brief to the District Court):
at no point have Mcintyre or McKitrick accused Dr. Mann of misconduct or fraud.
While, as is well known, I’ve avoided accusations of “fraud” for a variety of reasons and urged others to do so. However, it is untrue to say that we haven’t accused him of “misconduct”. While we were unaware in 2005 of Mann’s defamatory accusation to Andy Revkin and others alleging that we had committed “pure scientific fraud”, we did file a misconduct complaint in April 2005 to the University of Virginia regarding Mann’s accusations of dishonesty and fraud that were then on the public record, concluding our complaint as follows (see here for the text):
the above communications by Dr. Mann in an academic capacity, especially the public accusations of dishonesty and fraud, do not meet the standards of civility and professionalism as understood in an academic community or as codified in Item 7 in the University of Virginia Code of Ethics.
The University did not investigate or even respond. By mid-July 2005, only a couple of months later, Mann was at Penn State and the University of Virginia presumably took the position that the matter was out of their jurisdiction. Some years later, a University of Virginia spokesman declared that they had “never received a complaint or allegation of academic misconduct” against Mann:
The University has never received a complaint or allegation of academic misconduct on the part of Professor Mann. Had we, as a research institution, we have ample procedures in place to address such allegations. And while we may not understand the basis of the CID, we will gather what information may still reside at the University.”
I wrote to them on that occasion reminding of them of our earlier unresponded-to complaint, but once again did not hear back from them.
I’ve avoided the use of the terms “fraud” and “fraudulent” for a variety of reasons, including a concern that it might be defamatory where other terms aren’t. Among the terms that I do not believe to be defamatory are the terms “data manipulation” and “torturing data”, both of which, in my opinion, have or can have technical meanings in statistics denoting disapproval, but not necessarily denoting academic misconduct, let alone fraud or the “commission of a criminal offense”. Nor do I regard an accusation of “academic misconduct” as equivalent to or necessarily implying an accusation of “fraud”. Each word has to be taken on its merits. Nor do I believe that a call for a fresh investigation of “academic and scientific misconduct” contains the ascribed innuendo (as used in libel law) of “fraud” or the imputation of the “commission of a criminal offense”, but that’s a story for another day.