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.” [66]…
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.”[71] 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. [1]
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.
Discussion
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.
Postscript 1:
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.
Postscript 2
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.
Postscript 3:
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.
Climate Audit 
48 Comments
They’re not expected to show such deference. In the realm of administrative law, an agency such as EPA gets “deference” in limited circumstances: if the word is part of a statute that the agency itself is supposed to administer. Thus, if this were a pollution case that turned on the meaning of a technical term in the Clean Air Act, the EPA would get deference on the meaning of that term. (The case that started this doctrine is Chevron v. NRDC – the phrase “Chevron deference” comes from there.)
This isn’t that line of goods. It’s a tort case. I don’t see how the meaning given words by the EPA is even relevant – though it makes a great rhetorical point against Mann.
On the “actual malice” side of the case, the test is entirely subjective. Therefore, for that part of the case, the only meaning that matters is the meaning Steyn himself attached to the word. (The f-word is in Steyn’s post, not Simberg’s.) Now I doubt Steyn spends much time in the weeds of EPA complaints, but I’m quite sure he knows the song “You Did It” from My Fair Lady:
Oozing charm from every pore
He oiled his way around the floor;
Every trick that he could play
He used to strip her mask away!
And when at last the dance was done,
He glowed as if he knew he’d won,
And with a voice too eager and a smile too broad
He announced to the hostess that she was….a fr*ud!
(I understand that in this part of the oral argument they weren’t focusing on actual malice, which I believe should be the truly decisive issue on this appeal, but I simply point that out as a reminder.)
Perhaps I should have used a different word than “deference” since that is laden with administrative law meaning that is more than I’m trying to invoke. But if you permit some near-equivalent word without the obligation – I can’t imagine that a Court would not feel some obligation to pay attention to how EPA regarded the term, particularly if they were being asked to give weight to EPA findings on other points.
There’s also an interesting horns-of-dilemma here as well. One of the few misconduct allegations actually addressed by EPA was Mann’s use of defamatory language. EPA’s “exoneration” on that count was premised on its finding that Mann’s use of the term “pure scientific fraud” was “appropriate” if he believed that the criticism was “scientifically flawed”.
If the Court rejects EPA’s view, then EPA’s “exoneration” of Mann on this misconduct allegation falls apart at the same time, removing this leg of Mann’s argument. I don’t see how they can have it both ways.
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There’s reductio ad absurdum lurking if the defendants are being enjoined to show proper respect to the EPA, I feel sure.
Why?
Steyn didn’t write his post in a technical complaint to the EPA. He wrote it to the general public, people who read NRO’s blog “The Corner.”
If you’re looking at actual malice, you’re looking at Steyn’s own views…in which case Lerner & Loewe showtunes are far more relevant than EPA standards to see what he meant.
But if you’re looking at the meaning of the word in the context of the defamation, D.C. courts allow a case to go forward “if the publication is capable of bearing a defamatory meaning.” (Kahl v. Bureau of National Affairs). I don’t claim a deep knowledge of D.C. defamation law — I have never practiced there, and I only did a quick search to find that case — but I don’t see any room for the EPA definition to matter to that.
If the broad, general meaning of “fr**dulent hockey stick” is capable of bearing a defamatory meaning…as I believe it is…then Mann doesn’t lose because of any distinction between what the EPA means by the word and what a “Corner” reader understands by the word. No, not even if Mann himself benefited from the EPA definition and urged it in a different proceeding. Tu quoque won’t work in a common-law libel suit any more than it does in logic (the maxims of equity do not apply in common-law suits; you don’t have to come in with “clean hands”). It’s a fun point to score…but not a substantive one.
It wouldn’t lead to a satisfying win even if it did work…if the case turns on the meaning of that word, it just means Mann has to find other words to sue over; the SLAPP cases will continue. If it turns on malice, on the other hand, it means his “believe the government – or else!” theory is dead, and he is stuck being criticized like everyone else.
Steve: from day one, I’ve taken the position that actual malice is by far the easiest aspect of this case and that Mann has gotten this far only by blatantly misrepresenting the investigations. I’m looking at the actionability issues for thoroughness.
I understand the “tu quoque” point. In my post above, I expressed a similar point in feeling that the defendants’ illustration of bad language did not foreclose the following sort of argument:
I was trying to develop a non-tu quoque line of argument – hence the attempt to invoke a NYT v Sullivan concept that citizens should have similar immunity/impunity as public officials. Whether or not I’ve got the exact line of reasoning or not, notwithstanding your comment, it seems to me that the EPA precedent changes the discussion from the simple tu quoque without the EPA precedent.
As to your comment about show tunes, I think that there is an important difference between the stances of the two defendants on their use of words.
CEI avoided using the word “fraudulent”, using lesser words instead. As someone who’s written lots of highly critical articles, I think that their avoidance of the word ought to have been clearly recognized by the Lower Court. For them to defend themselves properly, it seems to me that they ought to try to sever their side of the case from National Review and Steyn’s, since the epithets in question are so different.
On the other hand, Steyn clearly used the word “fraudulent” more casually than CEI or I would have used the word. I agree with you on his subjective meaning. So it would make sense for Steyn and National Review to sever their side of the case from CEI as well, because CEI’s usage would be more serious.
A question: could the defendants sever? what reasons would there be not to sever?
Rule 20, D.C. Superior Court Rules of Civil Procedure:
The defendants could try to sever – I mean, they could petition the court to sever. That wouldn’t be required (a joint trial is not a constitutional violation or anything like that, and as best I remember judges get a lot of discretion on things like that). The odds would be against severance. Since part of Steyn’s post was simply a quote from Simberg’s (including the molested/tortured part which is at issue), the question of whether that section is defamatory is a common question between the cases, and furthermore part of Steyn’s natural defense at trial is “I relied on Simberg.” Which is a strong defense on malice, as you can see from the first half of Eastwood v. National Enquirer.
In general, the courts I know about favor joining civil cases when you’ve got common questions of law and fact…so as to avoid waste of judicial resources and inconsistent verdicts. The case we had in law school had the euphonious name of Lasa Per L’Industria Del Marmo Societa Per Azioni vs. Alexander (which I remember because I sang the title to the tune of “La Donna e Mobile”). The case had to do with the construction of a courthouse in Tennessee, which included an order for Italian marble…there were a boatload of claims between contractors, suppliers, and the government…and the court basically said, “yes, it’s complicated, but try them all together anyway.”
Steyn is the only one who used the word “fr**dulent” and his audience was Corner readers. So why would it matter how the word is used by Simberg, CEI, the EPA, Mann, or you? If CEI’s avoidance of the word is admissible against Steyn, which I don’t think it is, I’m sure Mann could find a way to get that avoidance in even in a separate trial.
If Simberg and CEI are worried about the jury parsing out the different statements, they could try to ask for a “special verdict” or for jury interrogatories under Rule 49….thus asking the jury to make specific factual findings on various issues. (“Did Mr. Simberg believe that Mann “molested and tortured” data?…Was the statement about “molested and tortured data” defamatory?” etc.)
there’s another interesting angle to the EPA finding here. In considering Mann’s allegation of “pure scientific fraud”, EPA interpreted the assertion to be an “opinion”, rather than a “fact”, while Mann, in his statement of claim, asserted that allegations of “fraudulent” are statements of “fact” that are “verifiable”.
I wonder how the EPA arrived at this particular finding. ACtually, the entire procedure of the EPA RTP documents is very murky. EPA has refused an FOI request to provide documents that identify authors or reviewers of the RTP documents, though we know that Gavin Schmidt was a reviewer and have plausible support for the identities of some authors (Samenow etc.)
Steve: I agree the “actual malice” element is fatally weak, but fear Courts will tend to allow limited discovery on such an issue before dismissing. It might be against the purpose of SLAPP, but if the statute requires evidence from a plaintiff, and one element touches on the subjective belief of a defendant then easy to imagine a court finding SLAPP compels limited discovery. From the start my view has been that the weakest point is “political comment/opinion”. I admit bias, as this is also my preferred outcome. It also relates to Steve’s point, I think, because the public policy advocacy is key. Even without SLAPP, courts often throw out libel suits brought by political actors against political commentators at the outset, and make strong statements about courts not being the place to air political debates. Courts seem to more readily recognize the “chilling effect” of letting the case proceed at all when public policy is involved (as opposed to public figure in entertainment, sports, or other business). The complaint on its face makes clear that Mann didn’t just research, publish, and go quietly back to the lab-he’s a figure in a public policy debate; He was accused of something, investigations occurred; Mann claims gov’t “exoneration”. Plainly defense statements were comment on public policy (fair comment? Ask Rev. Falwell). No discovery, no further proceedings (except maybe an award for frivolous suit or SLAPP violation). Mann’s side would have no trouble seeing this if it were flipped, if Steve (with financial backing) sued Mann to “break” him, and Mann was forced to spend time and money on lawyers in prolonged suit instead of saving the planet.
They’re not expected to show such deference. In the realm of administrative law, an agency such as EPA gets “deference” in limited circumstances: if the word is part of a statute that the agency itself is supposed to administer. Thus, if this were a pollution case that turned on the meaning of a technical term in the Clean Air Act, the EPA would get deference on the meaning of that term. (The case that started this doctrine is Chevron v. NRDC – the phrase “Chevron deference” comes from there.)
The term “Deference” under Chevron has to do with the deference an administrative agency is allowed to interpret a statute when such statute is ambiguous.
Whether the lower court judges had a legal obligation to defer to EPA, in practical terms, J Combs-Greene totally treated the EPA investigation as the lead singer. EPA and the Investigations, with the lesser Investigations singing harmony to the EPA’s Smokey Robinson or David Ruffin.
Consider statements like:
The EPA was also central to Williams’ narrative on the term “manipulation”. Of course, as I’ve previously written, the EPA’s statement on “manipulation” had nothing to do with Mann’s work, but that didn’t stop Williams from putting it in a central place in his narrative.
We’ll see what they do in time, but reflect on this: This is an appellate court opinion. I’m guessing it will be written by one of the judges’ law clerks, who will bear in mind that this opinion will likely (1) set serious precedent for D.C. trials in the future, and (2) have a good chance of getting examined by the Supreme Court, especially if they explicitly find for Mann. That means they’ll want to write it tightly, or at least that is what I’d want in their place.
“In this other case, Mann complained to the EPA about something else done by someone else, and the EPA agreed that his use of the word was ‘appropriate’ for that situation…” — I don’t see how that’ll make it into the opinion, especially as it’s supported by brief statements and lawyers’ talk rather than affidavits and testimony.
Even if that stuff actually persuaded one of the judges, in their place I wouldn’t want it gumming up the final, written opinion. I’d want an opinion that moved in nice, straight lines – “This is what the complaint says, and this is why it does/doesn’t save the case.” Or, “This is the kind of proof Mann had to bring, and he didn’t, so this is why he loses.”
I agree with your comment. As I mentioned before, I think that their best strategy for a bulletproof opinion is to stick as narrowly to actual malice as they can. If they wander off into actionability, they are really taking a chance of establishing a precedent for things that they don’t want to set a precedent for.
BTW, have you looked at libel per se as a distinct D.C. tort. There’s a current dispute Washington Travel Clinic v Kandrac that is heatedly disputing whether the tort exists in modern D.C. for statements that do not allege commission of a crime. Most discussion so far has presume that Mann’s claim is for libel (per quod) whereas it is actually libel per se, and for this claim, there seem to me to be some technical defences that haven’t been pursued yet.
Joseph W,
Yes, it is an interesting issue as to whether or not the Court of Appeals will remand for an evidentiary hearing to allow Mann to offer evidence proving that he is “likely to prevail on the merits” as the anti-SLAPP law explicitly requires; a procedure ignored by the trial court at Mann’s insistence. I have seen appellate courts in Florida tell appellees that they had their chance to offer evidence at trial, but convinced the trial judge otherwise, so therefore the appellees would not get a second chance to do what a law plainly required; appellee loses and the case is dismissed for lack of that evidence.
SteveMc – No, I haven’t looked at that. I might later. I don’t know if the appellate court will end up examining that side of things at all. They can’t avoid addressing “immediate appealability.” But if the defense wins on that one, and on one of the other grounds (of which “malice” is the easiest), they certainly can avoid addressing the others.
WJR – A remand for an evidentiary hearing would be far less pernicious than a remand for discovery…because of the effect on future cases. Assuming Simberg/CEI/NR win, it tells future plaintiffs: you have to have your evidence of malice right up front, or you lose. Although I suppose they could try calling Steyn and Simberg at a hearing, and use it like a deposition – so it’s better still if the court does not do that.
My experience, like yours, is in courts that are very ready to say: “You had your chance and you blew it. Too bad, how sad, now go away.”
Joseph W,
I think that Doe v. Burke pretty well resolved the appealability issue:
WJR, you’ve made my day – thanks!
Joseph W,
One caveat. The appeal in Doe v. Burke involved the right to identify someone with a subpoena, and the Court of Appeals did talk about the right to anonymous speech as important. However, I do not know how they would distinguish the the First Amendment concerns here as less worthy of protection.
It’s striking when something obviously and importantly true also seems to unlock so much complex legalese. We’ve learned something vital here about New York Times v Sullivan, something which could perhaps restore some respect for the rule of law in the USA as it plays out in the court system.
“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.”
Gavin’s quote is meaningless in this context? After all, Styne is not scientist. Also, I seem to recall some discussion about defendants not having to take the EPA’s word for it in their so-called exoneration of Mann. Why should their word be taken on the issue of when the word “fraud” can be used? No new hurdle has been created.
Thanks for these thoughtful posts.
Work through either branch of the argument. If the defendants are not obliged to take EPA’s word on the exoneration, then how does Mann get to actual malice?
The case is then: if the defendants are obliged to take EPA’s word on the “exoneration”, why can’t they also rely on EPA’s interpretation that the term “pure scientific fraud” is “appropriate” if one believes that the criticism is “scientifically flawed”.
Steyn evidently had thought that the hockey stick was “scientifically flawed” for a long time and had used the term “fraudulent” in precisely the sense seemingly advocated by EPA.
“The case is then: if the defendants are obliged to take EPA’s word on the “exoneration””
Are they? Maybe my memory fails me but I don’t recall that being the case. Don’t get me wrong, the Mann case should not have made it this far. However, the EPA’s feelings about about how fraud should be defined (in the context of Mann’s use of the term about other parties)should carry little weight in the courtroom.
Steve: you’re not understanding my argument. one more time. Obviously defendants do not believe that they are obliged to accept EPA’s findings (least of all, Mann’s false characterization.) Judges Combs-Greene and Weisberg both appeared to give credence to Mann’s characterization of EPA findings. But the Appeals Court hasn’t ruled on this. But let’s say the Appeals Court says that they have to treat an EPA finding as a “fact” for the purpose of actual malice, then the Appeals Court would then have to explain why the defendants could not then point to the EPA finding on Mann’s own defamations. No one’s saying that the Appeals Court has ruled on it.
There is much merit to your points. Note — I don’t think that the Court is obligated to defer to the EPA on the question of what is or is not defamatory. Certainly though, the EPA finding adds strength to the Defense argument regarding what meaning to give the statements.
If anything, Steve is making the case for Styne in his counter-suit.
Ditto
Mann makes much of the EPA finding, but ignores the finding to SLAPP a lawsuit on the defendants. It would be interesting to see how Mann responds to the countersuit, assuming that it goes forward. Dilemma of his own making.
First – Happy New Year Steve & all at CA.
Second, from the post – “Dr. Mann himself has harshly condemned his critics, branding them as “climate deniers,” and denouncing them as liars and frauds.”
OMG – I may have read/heard this before but forget, did he really put this in words/email ?
lost for words on your (and others) fortitude/patience
Steve: I’ve added hyperlinks to the written briefs. Yes, Mann accused us of committing “pure scientific fraud”; that accusation was what EPA was asked to consider. That’s what I was writing about. Elsewhere he accused us of being “dishonest”. So yes, he absolutely used that sort of language.
Mann’s words were “published” within the meaning of defamation law, so if they were (legally) defamatory, they were libelous. The fact they were intended to damage McIntyre’s reputation privately with Revkin, rather than communicated more widely as part of the public debate could arguably afford them less First Amendment protection.
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.:
Moreover, since the credit report was made available to only five subscribers, who, under the terms of the subscription agreement, could not disseminate it further, it cannot be said that the report involves any strong interest in the free flow of commercial information. There is simply no credible argument that this type of credit reporting requires special protection to ensure that debate on public issues will be uninhibited, robust, and wide-open.
(Alterations and citation omitted.)
MJW:
That might be technically true, but Mann’s words were not intended to be published at all. Wouldn’t it be true that if Steve decided to sue Mann for libel, he’d have an even weaker case than Mann does now? Mann’s statement was defamatory, but the fact that he was trying to keep Steve’s work from the public eye instead of having it publicly attacked seems to me to be devious, but not actionable for libel. How can he damage Steve’s reputation if he is trying to prevent his work from gaining public attention?
Read the first paragraph of MJW’s comment, again.
The term “publication” has a technical meaning in defamation. For the purposes of defamation law, Mann “published” his description of McIntyre’s work when he sent the email to Revkin, even though Mann intended the communication to be private. If that were not the law, a person would be free to defame someone and damage their reputation and business by communicating defamatory statements to a number of persons one at a time by keeping the correspondence otherwise private.
Pottereaton,
Would you agree that by describing McIntyre’s work as “pure scientific fr*ud”, Mann intended to impugn McIntyre’s reputation and character to Revkin? Why wouldn’t that be defamation?
Mann further committed an ad hominem attack against McIntyre:
A. Manipulation of Peer-Reviewed Literature to Prevent Publication of Undesired Papers and to Favor Publication of Desired Papers, 1. Efforts Against Disfavored Papers, Authors and EditorsEPA VIII-2 (p 204/238)
Michael Mann has no authority to arrogate to himself the right to redefine the scientific method. While “scientific peer review” is helpful, it is NOT required to test models against evidence that is foundational to the scientific method as so eloquently stated by Richard Feynman.
MJW
Re: “who, under the terms of the subscription agreement, could not disseminate it further”
There does not appear to be any “subscription agreement” covering Mann’s email to Revkin. Mann only said: “I hope you don’t mention MM at all. It really doesn’t deserve any additional publicity”
Why should an email to a reporter not be considered public?
Steve: Every lawyer who’s commented has confirmed that Mann’s email to Revkin, also distributed to Jones and his crowd (thus in the Climategate emails) was published in terms of libel law. It’s one of those issues where non-lawyer comments don’t help. No need for people to discuss this further.
Steve, I know you said there’s no “need for people to discuss it further,” but I hope you’ll forgive me for saying a little on the subject. I haven’t seen anyone explain just what “publish” means in terms of defamation law. It might help if it’s cleared up a bit.
In general terms, all “publish” means in defamation law is the material was expressed to a third party. That third party can be a single individual, a group of subscribers, or the entire world. It doesn’t matter (except possibly in terms of damages). As long as you say something about a person to anyone other than that person, you’ve “published” your remarks under defamation law. That means even something as simple as two neighbors gossiping about a third can qualify.
That’s why the average person may get confused when they hear Michael Mann’s e-mails qualify as “published.” Under defamation law, they were published whenever he sent them out. That’s true even if it wasn’t “publishing” in a sense people usually think about.
Hopefully that might help some people understand. It’s just a matter of the word being used differently under defamation law than in regular conversation.
Two comments: On the question of publication, I recall a higher court case in which the court ruled that the typing secretary’s initials on the bottom of a typed letter constituted publication to a third person.
As a sitting judge for twenty-five years I can say with confidence that you would be surprised to realize what judges pay attention to and/or give some “deference” to, in and out of court. Years ago, when I first started hearing cases I tried a matter in which the prosecuting witness first testified, very credibly I thought, as to what happened; and then the defendant took the stand. During his testimony, which I almost immediately began to find not credible, I realized that I was watching the reactions to his testimony of the prosecuting witness sitting in the audience. Her facial expressions of incredulity were, to say the least, very persuasive. Afterwards I was troubled by this and talked to a senior judge about whether it was appropriate for me to consider her reactions. He just smiled and said “You can pay attention to any damn thing you want to. Just be fair”
Judges are human too, and if one or more of them want to pay attention to the EPA statements, they will.
PhilH
Joseph W.
While Mann has to show “actual malice”, does it help Steyn to show honest belief supported by prior evidence that he believed Mann’s “hockey stick” etc. was 1) scientifically flawed/falacious, and 2) that Mann had taken actions contrary to the scientific method which in popular terminology were “fr**dulent”?
Yep.
In general, even if the other party has a very high burden of proof, it’s a good idea to try to prove your side is right. So in defending a criminal case, it helps to try to prove innocence even though the prosecution has a huge burden in proving guilt and the defense doesn’t have to prove anything.
David: I think it’s self-evident Steyn and his team will attempt to do that in any trial that might occur. Like most here, I don’t believe he will have a problem proving that.
But it should be noted that Steyn is not part of the present appeal.
Everyone should know that the reason for this lawsuit was that Mann was offended by the comparison to Sandusky. But the first judge whom was very sympathetic to Mann threw that out as hyperbole and that was the end of his case but it drags on for no apparent reason. Look back at what Mann and his followers responses were to see what their problem was with the article. It really wasn’t about fr–d.
True. A “dog that hasn’t barked” in the case so far is that Penn State has not filed any amicus actions in the dispute.
Reminder quotes from Simberg’s original comparison of the facts of the Sandusky investigation and the facts of the Mann investigation:
“So it turns out that Penn State has covered up wrongdoing by one of its employees to avoid bad publicity …Michael Mann, like Joe Paterno, was a rock star in the context of Penn State University, bringing in millions…The same university president who resigned in the wake of the Sandusky scandal was also the president when Mann was being investigated… the university administration was willing to do to cover up heinous crimes, and even let them continue, rather than expose them…”
Simberg’s clear implication and the inference CEI’s readers are invited to draw is that Mann’s “heinous crimes” have been or at least could have been covered up.
I’m not sure that the Sandusky issue has in fact been judicially disposed of. But if so then Steyn’s follow-on remark should introduce a term-or-art into a free speech debate that we have so far neglected: Steyn wrote: “Whether or not he’s ‘the Jerry Sandusky of climate change’, he remains the Michael Mann of climate change, in part because his ‘investigation’ by a deeply corrupt administration was a joke. ”
Joke.
The investigation was a “joke”.
“Jokes” — parody, satire, prank, ridicule, pastiche, irony, and other artistic forms of critique, comment, and disrespect — have a long tradition of protection in US courts. Jokes are legal, protected, and in practice encouraged in vigorous policy debates.
To whatever extent Steyn is protected in saying Penn State’s works are a “joke” it would seem a parallel protection extends to his word choices in the same article regarding Mann’s work.
Why would there be a parallel protection? The words “joke” and “fraudulent” are not synonymous. Had Steyn called the hokeystick a “joke”, he wouldn’t be in court.
Pouncer, Look at what is in this new article about this defamation case. Last page:
“…some of Mann’s most persistent critics used the Jerry Sandusky scandal to attack him (a blogger for the Competitive Enterprise Institute
called him “the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science”), Mann responded with a defamation suit. The case is still working its way through the courts.”
Click to access MannProfile_PennStater_Jan15.pdf
“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. [1]”
If Mann were a professional architect, engineer lawyer or scientist 🙂 etc then of course an opinion may be offered on another professional’s work however there has to be a justification for the opinion held?
There is no official professional sanction to be exacted upon a scientist. That is probably why they are paid less than Architects, Lawyers, and Engineers.
Will R Richardson:
Yes, and I yield the point.
As Eli said in Part I, the major thing the CofA judges were paying attention to is what level of proof is needed to reject a SLAPP motion by defendants, not the particulars of this case. Immediate appealability appears to be a ship that has sailed. Odds are they toss it back with instructions to the lower court.
Reblogged this on I Didn't Ask To Be a Blog.
I haven’t posted here for a long time. I’m an attorney and used to make legal comments here, years ago.
Steve, I appreciate the fairness of your arguments.
There are plenty of flaws in your legal argument here, though.
1 – Assume Mann defamed you. You had the right to file suit at that time and opted not to.
I recall that plenty of readers wanted you to file suit for defamation at the time. You chose to stay out of court [I’m not criticizing that decision, btw]
The Appeals court will RIGHTLY give ZERO deference to an administrative finding pursuant to an unlitigated tort claim. Administrative agencies are not “experts” in defamation; we have courts for that. You chose to avoid court.
On the other hand, administrative agencies ARE considered to be “experts” in technical subject matter within their domain, and their reports and findings [no matter how bone-headed…] are properly allowed as evidence by a trial court judge. It’s proper for a court to rely on an agency’s technical fact-finding.
2 – Your reciprocity arguments re use of the word “fraud” are essentially equitable arguments about “issue preclusion” because of res judicata. If there had been prior litigation, then maybe so… There wasn’t, because you chose not to pursue it.
3 – You are making a pretty huge leap in legal logic by assuming Mann is a “public servant”, just because he received public funds. Is every student who goes to school on a federal Pell grant a “public servant” ? I think not…
What is a “public servant” for the purposes of Times v. Sullivan ? That’s the sort of question that courts determine that we would call a “question of law”.
4 – Steve, I think you do great technical and investigative work but cut your legs off when you get to strategy.
You know, about nine years ago on this blog you and others on this blog were arguing that scientists should prepare their work to a higher standard of proof if their work was going to be used for public policy.
I thought that by seeking a Bridge Too Far and demanding Mann and company do more than every other scientist in the world, you guys were going to come off as crackpots and just lose the argument before the facts were examined. I disagreed with the majority and made a nuanced argument:
That we should expect only sufficient description from a scientist to achieve reproducibility for his work in order to publish. [I think you demonstrated Mann would have failed this test… you might have won this argument early on if you had pursued it..]
…but that a GOVERNMENT AGENCY [or IPCC] should have a higher burden of only using reproducible and fault-free “science” in their reports. I argued the point this way because I understood the law and was anticipating that there would ultimately be public policy founded upon findings of fact that should be based upon “good science” or science performed by the agency itself – and not just uncritically accepted circle jerk reports published by IPCC.
You called me out as being nit-picking and just being unnecessarily argumentative.
…and you kept arguing that Mann and company should be expected to prepare their work to a higher standard if it was to be used for public policy. You were treating Mann and co. as if they were the Bre-X promoters, selling bad equities – so you were demanding the scientific establishment enforce a business standard upon a group of scientists. That was a non-starter.
Nuance matters in these debates.