In a decision released late last week (and hosted by defendant Mark Steyn), the judge recognizes that the comparison to a child molester is part of the "opinions and rhetorical hyperbole" that are protected speech when used against public figures like Mann. However, the accompanying accusations of fraud are not exempt:
Accusing a scientist of conducting his research fraudulently, manipulating his data to achieve a predetermined or political outcome, or purposefully distorting the scientific truth are factual allegations. They go to the heart of scientific integrity. They can be proven true or false. If false, they are defamatory. If made with actual malice, they are actionable.
I certainly wouldn't cheer the demise of National Review (and not just because I wrote a handful of book reviews for the magazine over a decade ago). Aside from its historic importance, the magazine continues to employ several gifted writers (among them Ramesh Ponnuru) who foster thoughtful discussion of policy and ideology on the Right.
Unlike the negligence standard discussed later in this section, the actual malice standard is not measured by what a reasonable person would have published or investigated prior to publication. Instead, the plaintiff must produce clear and convincing evidence that the defendant actually knew the information was false or entertained serious doubts as to the truth of his publication.
I thought the raison d'etre of "opinion mags" was libel. Take out the libel and you're left with either nothing or a very basic newsblotter.
So it turns out that Penn State has covered up wrongdoing by one of its employees to avoid bad publicity.
But I’m not talking about the appalling behavior uncovered this week by the Freeh report. No, I’m referring to another cover up and whitewash that occurred there two years ago, before we learned how rotten and corrupt the culture at the university was. But now that we know how bad it was, perhaps it’s time that we revisit the Michael Mann affair, particularly given how much we’ve also learned about his and others’ hockey-stick deceptions since.
To review, when the emails and computer models were leaked from the Climate Research Unit at the University of East Anglia two and a half years ago, many of the luminaries of the “climate science” community were shown to have been behaving in a most unscientific manner. Among them were Michael Mann, Professor of Meteorology at Penn State, whom the emails revealed had been engaging in data manipulation to keep the blade on his famous hockey-stick graph, which had become an icon for those determined to reduce human carbon emissions by any means necessary.
Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph, the very ringmaster of the tree-ring circus.
Does the child molester comparison indicate malice?
The point of Rebozo is clear. Where ambiguity exists within the facts underlying a story, the publisher may not intentionally abuse this uncertainty by choosing the most damaging interpretation, which, by implication, is the interpretation which he most desires to publish.68
…the court declared: "The issue in this case is . . . not whether the article was partisan, narrow, or one-sided. '74 Rather, the issue was whether the ignored information would have removed the ambiguity of the underlying facts and thus removed the element of interpretation from the editor's task. If the information demonstrated that the article was false, then actual malice could be found to exist. But where the information merely supported a contrary interpretation, where it would have shaded the story in a different direction, then there could be no reckless disregard in ignoring it.75
"[P]roof of defamation and falsity alone affords an insufficient basis for recovery[,] ... plaintiff must prove publication with `actual malice' by `clear and convincing proof' in order to establish the defendant's liability." Nader v. Toledano, 408 A.2d 31, 40 (D.C.1979). See also Foretich, supra, 619 A.2d at 59 ("`actual malice' must be proved by clear and convincing evidence") (citations omitted). In addition, "[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice." St. Amant, supra, 390 U.S. at 731, 88 S.Ct. 1323. See also Sweeney, supra: "To satisfy the reckless disregard standard, plaintiffs had to establish that defendants in fact entertained serious doubts as to the truth of [the] publication or that they actually had a high degree of awareness of [its] probable falsity." 622 N.Y.S.2d 896, 647 N.E.2d at 104 (citing Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 667, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989) (other citations and internal quotations omitted)).
Despite the trial judge's findings, Mrs. Beeton argues that there was evidence presented at trial that Charles Watts wrote the article and that the editor of The Modular Circular (defendant Vincent Gibbons) and the publisher (defendant Leon Hammond) "knew the statements were false," were "grossly negligent" because they failed to review the article before its publication, neglected to conduct an investigation, and later "boast[ed] of the previous defamatory issue's effect" in the next issue. In fact, Charles Watts was suggested as the possible author, but was never called as a witness to confirm that he wrote the article, and there was no evidence presented to establish any negative relationship between the Beetons and Mr. Watts. Furthermore, both the editor and publisher testified that they did not read the article before it was published because they were preoccupied with their other duties at the Facility. The editor testified that he read the article days after it was published and believed that the article was a healthy discussion of a matter of public interest within the facility, and the publisher testified that he was a "publisher in name only," and did not review materials submitted for publication. In short, we are satisfied that Mrs. Beeton did not prove actual malice, and thus, cannot prevail on her defamation claim.
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