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"Mann could be said to be the Jerry Sandusky of climate science..."
January 31, 2014 2:57 PM   Subscribe

Climatologist Michael E. Mann, known for introducing the famous "hockey stick" graph, has filed a defamation suit against the National Review and the Competitive Enterprise Institute.

In 2012, National Review writer Mark Steyn accused Mann of fraud, quoting approvingly from an article by CEI's Rand Simberg, which compared Mann to child molester Jerry Sandusky.

National Review editor Richard Lowry was initially defiant about the suit ("Get Lost"), but things have not beeng going well for the defendants. "Is National Review doomed?"
posted by brundlefly (90 comments total) 16 users marked this as a favorite

 
In my head, I've apparently taken to subbing National Lampoon when I read National Review because my first thought was, "surely this is protected as parody."

Sadly, nope.
posted by gauche at 3:00 PM on January 31 [5 favorites]


NOTE: CEI has since removed the title quote from their article.
posted by brundlefly at 3:02 PM on January 31 [1 favorite]


The comparison to Sandusky is protected opinion. The nub of the defamation claim lies in the claim that Mann manipulated data. Or, rather, the fact that he was compared to a child molestor isn't legally relevant; it's the claim of manipulation that is.
posted by jpe at 3:02 PM on January 31 [12 favorites]


Also, I'm all about vigorous debate, but likening cooking scientific data (the alleged activity -- an allegation I also think is bullshit) to systematic and ongoing child molestation is, um, not that.
posted by gauche at 3:05 PM on January 31 [18 favorites]


Looks at that The Week link. Thinks: "What does Seth Rogen have to do with this story?"
posted by yoink at 3:05 PM on January 31


Climate scientist’s defamation suit allowed to go forward
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.
posted by 1970s Antihero at 3:05 PM on January 31 [17 favorites]


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.
Riiiiiiiiiight... Ramesh Ponnuru, author of thoughtful discussions of policy and ideology such as his thoughtful book on the Democratic Party, thoughtfully entitled The Party of Death.
posted by Flunkie at 3:10 PM on January 31 [30 favorites]


If made with actual malice, they are actionable.

Which, as I understand it, is a high bar to cross in the US in cases involving the media. Steyn may be making a royal mess of this case, but I wonder if some deep pocket conservative wills tep in and provide him some competent counsel down the line?
posted by yoink at 3:10 PM on January 31 [1 favorite]


Riiiiiiiiiight... Ramesh Ponnuru, author of thoughtful discussions of policy and ideology such as his thoughtful book on the Democratic Party, thoughtfully entitled The Party of Death.

Yeah, I did a real double take when I saw that. If Ponunu is the best example you can give of the contribution the National Review makes to the national discourse, tht's a pretty sad indictment.
posted by yoink at 3:12 PM on January 31 [5 favorites]


Does the child molester comparison indicate malice?
posted by aubilenon at 3:13 PM on January 31 [1 favorite]


Does the child molester comparison indicate malice?

One imagines it doesn't help Steyn's case.
posted by yoink at 3:14 PM on January 31


This is looking to be an interesting battle where Lowry is trying to prove veracity (which will be difficult when every objective organization who has looked into their claims has said there is none) and Mann trying to prove malice, which is difficult in general where the press is concerned.
posted by Navelgazer at 3:17 PM on January 31


from that The Week link (found after the Ramesh Ponnuru stuff):

there is something fitting about the magazine's predicament. National Review once devoted itself to raising the tone of conservative intellectual discourse. As part of this civilizing mission, its founding editor summarily excommunicated the paranoid cranks of the John Birch Society from the conservative movement. He also spent 33 years hosting an erudite talk show in which leading intellectuals and public figures from all points on the political spectrum debated important issues of the day.

The ideological descendants of the Birchers have since taken their revenge. Today they are the conservative movement's most passionate supporters and foot soldiers. But they demand a steady diet of red meat, and National Review now exists in part to provide it.

Hence the career and reckless writings of Mark Steyn, a man of considerable polemical talent who specializes in whipping right-wing readers into a froth of know-nothing indignation. That he decided to impugn a scientist's research and reputation on the basis of little more than convictions rooted in the magazine's ideological agenda isn't surprising at all.

What is surprising is that this same magazine has now been placed in jeopardy because Steyn did his job a little too well.


nicely put
posted by philip-random at 3:17 PM on January 31 [12 favorites]


One of the many delicious morsels in this whole saga is the revelation that a magazine founded to cheerlead the most rabid, unrestrained sort of capitalism (and white supremacy) cannot be run even on a self-sustaining basis. It requires constant cash infusions by wealthy donors, and over the first 50 years has lost approx. $25 million, according to William F. Buckley.
posted by fatbird at 3:18 PM on January 31 [39 favorites]


Which, as I understand it, is a high bar to cross in the US in cases involving the media. Steyn may be making a royal mess of this case, but I wonder if some deep pocket conservative wills tep in and provide him some competent counsel down the line?

The actual malice claim will be hard to push in court, but at this point Mann has the right to PRESENT it in court.

By which point discovery will have been completed.

By which point we will have access to every email discussion about global warming on part of the National Review.

And which will likely contain much that is damning.
posted by ocschwar at 3:19 PM on January 31 [39 favorites]


National Review once devoted itself to raising the tone of conservative intellectual discourse.

Yeah--don't wax too nostalgic for the days of William F. Buckley. He was a bullying shit, too--albeit one who knew how to wrap his bullying very erudite prose.
posted by yoink at 3:21 PM on January 31 [18 favorites]


By which point we will have access to every email discussion about global warming on part of the National Review.

Michael Mann... being responsible for revealing the National Review's emails on how they will spin climate change...

That would be excellent.
posted by indubitable at 3:23 PM on January 31 [9 favorites]


"Mann could be said (by a complete fucking idiot) to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data," said a complete fucking idiot.
posted by pwally at 3:25 PM on January 31 [3 favorites]


One of the many delicious morsels in this whole saga is the revelation that a magazine founded to cheerlead the most rabid, unrestrained sort of capitalism (and white supremacy) cannot be run even on a self-sustaining basis

This isn't unusual at all; Rupert Murdoch's right-wing national newspaper The Australia is run at a loss of, if I recall, about $30 million. It basically exists to stroke Rupert's ego and let him have run trying to manipulate politics back in the old country.
posted by Jimbob at 3:26 PM on January 31 [1 favorite]


I mean, the phrase "poetic justice" comes immediately to mind.
posted by indubitable at 3:27 PM on January 31


It might not be legally actionable, but I think at the very least the Sandusky quote indicates that the people in question are indefensible morons who not only lie about climate change, they also think that sexual abuse is such a minor issue that it bears joking about in this sort of context.
posted by Sequence at 3:27 PM on January 31 [3 favorites]


Great recent NYTimes OpEd by Michael Mann: "If You See Something, Say Something."

Our Department of Homeland Security has urged citizens to report anything dangerous they witness: “If you see something, say something.” We scientists are citizens, too, and, in climate change, we see a clear and present danger.
posted by Asparagus at 3:32 PM on January 31 [2 favorites]


Eh, even if Steyn loses the case, he can probably just put out a call for donations to fight "liberal oppression", and easily raise a couple million.

In fact, this is possibly a plot to raise NR's standing among the Right: "The magazine that the Liberal Elite wants to destroy!"
posted by happyroach at 3:42 PM on January 31



One of the many delicious morsels in this whole saga is the revelation that a magazine founded to cheerlead the most rabid, unrestrained sort of capitalism (and white supremacy) cannot be run even on a self-sustaining basis


Mother Jones and The Nation both rely on non-profit foundation money. Although, they do more than print opinion. They actually send reporters out in the field, something the NR has not done in at least 20 years.
posted by ocschwar at 3:49 PM on January 31 [3 favorites]


National Review, despite its anti-Birchist origin, is now firmly ensconced in the modern conservative ecosystem, which operates mainly by means of paranoia and hucksters.
posted by Bromius at 3:52 PM on January 31


Does the child molester comparison indicate malice?

As a scientist, just about all you have is your reputation. This is why falsifying data is career suicide, for instance.

Conservatives who equate your research data and analysis with child molestation are doing so in order to ruin your character as a public human being and, ultimately, your reputation as an honest scientist.

Conservatives do this, as they have no other way to call your work into question. They have no scientific basis to question what you've done, and so assaulting your personal and professional reputation will help push their agenda.

Those who do this would have to act maliciously, because, in a logical world, there is no direct or indirect logical connection between scientific research and child molestation. Making this (strange) connection would not only require malice but be practically defined entirely by it.
posted by Blazecock Pileon at 3:55 PM on January 31 [13 favorites]


Mother Jones and The Nation both rely on non-profit foundation money.

I don't think either of those publications has ever argued, though, that something not being profitable means it deserves to fail.
posted by Sequence at 3:58 PM on January 31 [37 favorites]


I have no doubt that the right-wing spin machine is already casting the judges who haven't thrown this out as going along with the suit because Obama Fascism Something Something.
posted by rtha at 3:58 PM on January 31


Making this (strange) connection would not only require malice but be practically defined entirely by it.

But the point is not that you have to prove an animus, you have to prove that they lied, deliberately, about Mann with malicious intent. If the statement about the hockeys tick graph being false were true, there is no court in the land that would touch a complaint about the comparison to Sandusky.
posted by yoink at 3:58 PM on January 31


BP, like, I see what you're going for, but that argument isn't really sufficient in court, I don't think.

Here's a page on defamation law in the District of Columbia. From the same site, a page on what malice means. If the defendants in the suit argue that they were convinced of the truth of their allegations, malice is very difficult to prove, especially because they can argue that their animosity towards Mann (thanks yoink) was prompted by their conviction that he was falsifying data.
posted by kavasa at 4:04 PM on January 31 [2 favorites]


If made with actual malice, they are actionable.

Not a lawyer, but doesn't "actual malice" in relation to _Sullivan_ and its progeny still mean that either the publisher knew it was false or acted in reckless disregard of the truth (ie should have known it was false)?
posted by ROU_Xenophobe at 4:05 PM on January 31


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.
posted by dgaicun at 4:07 PM on January 31


I don't think "should have known it was false" counts. Also from kavasa's link:
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.
posted by aubilenon at 4:11 PM on January 31 [2 favorites]


Libel and opinion are two very different things.
posted by pwally at 4:12 PM on January 31 [1 favorite]


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.
This is laughably untrue? Very different interpretations of basic facts that no one disagrees with are an everyday occurrence.
posted by kavasa at 4:15 PM on January 31 [4 favorites]


Does the child molester comparison indicate malice?

nah. Malice doesn't mean "mean spirited" or somesuch, it means "with actual knowledge the statement was false."
posted by jpe at 4:17 PM on January 31 [2 favorites]


How in the world could comparing someone to a child molester be done with anything but malice? Even if that someone were a total lying liar data fakery fraud (which Mann is not) ... isn't child molestation, like, something totally not like that at all?

Reading this thread makes me feel like I'm in the Twilight Zone or something. Maybe I'm missing something.
posted by Asparagus at 4:20 PM on January 31 [1 favorite]


Because we decide things in court based on what's specifically written down in statute. In the District of Columbia, where this suit is being tried, malice has a specific meaning in the context of a defamation suit. Without this sort of slightly arcane hyper-specificity, the rule of law falls even more into the hands of the wealthy and powerful than it already is.
posted by kavasa at 4:22 PM on January 31 [11 favorites]


Re: Steyn

Isn't the old saw that if you represent yourself, you have a fool for a client?

Re: Mann

Is he being treated as a public figure, then? Because if he's not, this looks pretty slam dunk.
posted by klangklangston at 4:24 PM on January 31


To state that in different terms: the same flexibility of meaning in a living language that gives us great poets means that you have to be hyper nailed-down and specific with what words mean exactly in court. Otherwise it's just whichever law-poet the judge likes more, and that's generally going to be the wealthy and powerful. This is part of how the rule of law is supposed to work and supposed to be the same for all persons, regardless of their station in life.

klang: yes, he's being treated as a public figure.
posted by kavasa at 4:27 PM on January 31 [3 favorites]


Okay, I'm reading about defamation law in DC from that site kavasa linked to, where they define "actual malice" in the context of defamation as saying something that you know is false.

Maybe I'm being dense, but what is Steyn defending himself from not knowing was false? That Mann fabricated climate data, or that Mann was a child molester?
posted by Asparagus at 4:28 PM on January 31


"Maybe I'm being dense, but what is Steyn defending himself from not knowing was false?"

That he fabricated data. And it can be broader than just knowing it to be false; a reckless disregard for the truth is sufficient.
posted by klangklangston at 4:31 PM on January 31 [1 favorite]


Also, did anyone catch where this suit was filed? Different jurisdictions have different libel laws and press protections.
posted by klangklangston at 4:32 PM on January 31


DC dude. That's why I keep mentioning it. =|
posted by kavasa at 4:33 PM on January 31 [7 favorites]


several gifted writers (among them Ramesh Ponnuru)

I just finished belly laughing at this. Thanks!

Ponnuru embodies the term "hack." But I suppose that's a kind of "gift."
posted by spitbull at 4:36 PM on January 31


Following the links from the Steyn article to the article he is quoting by Simberg, who links to ClimateAudit.org. If you've followed any of the arguments about climate change, you would know the name Steve McIntyre.

McIntyre has been one of the loudest and most useful fools for industry and global warming deniers since he first tried to say that Mann was manipulating data for the 1999 IPCC report. His blog at ClimateAudit.org is chock full of some really scary paranoid delusional writings from someone who would rather slander Mann and other climate scientists that actually reproduce the work and debate the veracity of the findings based on actual science.

Here's RealClimate.org's take down of pretty much anything McIntyre has ever said related to the science: False Claims by McIntyre and McKitrick".

Since the article linked by Simberg is chock full of links to those allegations made my McIntyre, it is quite easy to show malice, because if you are at all following the skeptic arguments made by anti-global warming shills, you know who McIntyre is, and you know that he's full of shit, because he was one of the first people that the "ClimateGate" emails were leaked to.
posted by daq at 4:38 PM on January 31 [3 favorites]


And it can be broader than just knowing it to be false; a reckless disregard for the truth is sufficient.

Interesting. So then the question is, were Steyn/the NJ simply misguided, or willfully ignorant/not acting in good faith. I'm putting my money on the latter.
posted by Asparagus at 4:38 PM on January 31


Reading this thread makes me feel like I'm in the Twilight Zone or something.

Close. You're in the Lawyer Zone, where the words are familiar, but the commonly-accepted meanings for them are ignored.
posted by Kirth Gerson at 4:46 PM on January 31 [16 favorites]


were Steyn/the NJ simply misguided, or willfully ignorant/not acting in good faith

I have no doubt that they were either being willfully ignorant or outright lying, but there are good reasons why the bar for proving that should be set pretty high. We certainly want the media to do reasonable fact checking in writing their stories, but we also want journalists and opinion writers to be able to make assertions against powerful people when the evidence is less than absolutely clear-cut without fear that well-funded interests will use the courts to hush them up.
posted by yoink at 4:49 PM on January 31 [3 favorites]


Relevant US Supreme Court cases: New York Times Co. v. Sullivan, from which we get the term "actual malice" in this context, and Curtis Publishing Co. v. Butts.
posted by Sticherbeast at 4:51 PM on January 31


Haha, yeah I was getting tripped up over "malice" == "knowing something is false" (as opposed to referring to having ill will).

I also just learned that according to the law hyperbolic language such as comparing a public figure to a child molester is okay, which I didn't realize but I guess makes sense (a blogger can for instance compare a politician to Hitler without being sued).
posted by Asparagus at 4:52 PM on January 31


Good. You can't just say that facts aren't true forever and expect to get away with it. Climate change is not an opinion.

I doubt Mann gives two shits about the Sandusky hyperbole but I'm very, very glad he's fighting for his reputation as a scientist. Possibly in the only way people understand these days
posted by fshgrl at 4:52 PM on January 31 [2 favorites]


We certainly want the media to do reasonable fact checking in writing their stories, but we also want journalists and opinion writers to be able to make assertions against powerful people when the evidence is less than absolutely clear-cut

Good point, I agree, but I wouldn't mind seeing journalists being held accountable for uncuriously parroting out statements that aren't true ("some people say...."), especially when those statments conveniently line up with the self-interest (financial or ideological) of the news organization.
posted by Asparagus at 5:01 PM on January 31


It seems there has been a break between Steyn and the National Review. Here is a piece from his personal website saying as much (at the very end if you don't want to read the rest of his bs), and one of his last posts on NRO where he blasts his editor. The best part is that it seems to have had nothing to do with the Mann case, but rather because Steyn is a raging homophobe.
posted by AElfwine Evenstar at 5:10 PM on January 31


I think that the lawsuit is a terrible idea. This will just be used as evidence of liberal judges, political correctness gone amuck and Obama's tyranny.
posted by humanfont at 5:11 PM on January 31


This will just be used as evidence of liberal judges, political correctness gone amuck and Obama's tyranny.

You can say the same about most things, really.
posted by brundlefly at 5:15 PM on January 31 [26 favorites]


An insider’s story of the global attack on climate science: An epic saga of secretly funded climate denial and harassment of scientists.
posted by homunculus at 5:23 PM on January 31 [5 favorites]


I think that the lawsuit is a terrible idea. This will just be used as evidence of liberal judges, political correctness gone amuck and Obama's tyranny.

Since when has holding back ever modified their behavior, except perhaps to embolden them to double down on the lying? Look at Obama's attempts to meet them halfway: they grabbed the ceded territory and then claimed he refused to negotiate because he wouldn't capitulate on the rest. This line just doesn't work. We have to behave in a sane way and just let them be as crazy as they're gonna be anyway.
posted by George_Spiggott at 5:39 PM on January 31 [26 favorites]


Leading Scientists Explain How Climate Change Is Worsening California’s Epic Drought
posted by homunculus at 6:13 PM on January 31 [1 favorite]


Judge: Think Tank’s Lawsuit Over EPA E-Mails Contains ‘Imaginative Conspiracy Theory’
posted by homunculus at 6:17 PM on January 31


This will just be used as evidence of liberal judges, political correctness gone amuck and Obama's tyranny.

What conservatives whine about has rarely been a good basis upon which to decide against pursuing lawsuits against them for their criminal acts.
posted by Blazecock Pileon at 6:22 PM on January 31 [8 favorites]


I think that the lawsuit is a terrible idea.

It's a great idea. They'll either settle, or be forced to demonstrate they weren't libelous in open court. Using evidence. Which they don't have.

The first will be a small disaster for them, the second would be a catastrophe.

All all for seeing the National Review suffer a catastrophe, aren't you?


Of course Daddy and Poppa Koch will be there to band-aid the booboos with more cash, but I'll gladly take their ideological defeat over turning the other cheek.
posted by clarknova at 6:55 PM on January 31 [1 favorite]


Wow, that "Get Lost" link is a real piece of work. Or perhaps a piece of not-work, from a lapdog with a sugardaddy. Nobody would mistake it for the work of an employable editor.
posted by George_Spiggott at 7:18 PM on January 31


They'll either settle, or be forced to demonstrate they weren't libelous in open court.

other way around. Mann will have to prove the claim is false.
posted by jpe at 7:33 PM on January 31


that "Get Lost" link

I got a little smirk out of it. Smug. Belittling. Ideological grandstanding dressed up as freedom fighting. Stir in a soupçon of threat and a pinch of begging letter for a delicious farrago à la merde.

Yes, it's quite obvious that Mann is coming after you because he can't match Mark Steyn's rapier wit and debonair charm. These science types are notoriously vain, and can't take a joke. Rum show, and all that.
posted by Wolof at 7:41 PM on January 31 [2 favorites]


From the CEI blog post:
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.
And from Steyn:
Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph, the very ringmaster of the tree-ring circus.
(all emphasis mine)

These claims are provably false, and even a cursory glance at the facts would determine that. Mann's temperature reconstruction has been reaffirmed by independent investigations using all kinds of different proxies, over and over and over and over again. This is like someone discreetly being paid by Philip Morris claiming today that the authors of the British Doctors Study deliberately falsified their data to show a link between smoking and lung cancer, even though the study's conclusions have been repeatedly confirmed, and there is no evidence whatsoever that any data had been falsified.

The offending columns are from two years after the "Climategate" emails and all the attendant investigations that failed to turn up any wrongdoing, five years after Joe Barton's congressional witch hunt against Mann, and came on the heels of 14 years of study after study from all over the world using all kinds of methods coming to the same conclusion as the 1998 paper. Steyn and the oil industry toady at the CEI must have known this. They had been flinging shit at him for the better part of a decade, and nothing had stuck. They saw an opportunity to craft a conspiracy theory by tying the Sandusky affair to Penn State's investigation of Mann, which like all the others, found no wrongdoing. To strengthen their argument, both of them flatly assert that he committed academic misconduct. I really don't see how they can mount a credible defense.
posted by [expletive deleted] at 8:52 PM on January 31 [16 favorites]


I really don't see how they can mount a credible defense.

Ignorance is a defense in these cases.
posted by yoink at 9:36 PM on January 31


Ignorance is a defense in these cases.

The National Review could survive roughly ten million lawsuits. But at least we get to read the emails.
posted by deanklear at 2:38 AM on February 1 [1 favorite]


Does the child molester comparison indicate malice?
If I tried to defend my integrity with "but I'm part German, and Germans never do anything wrong!", does the fact that you're now thinking of an obvious extreme counterexample prove you to be malicious?

No?

Likewise with "the Penn State investigation found no wrongdoing".
posted by roystgnr at 6:24 AM on February 1


Isn't the old saw that if you represent yourself, you have a fool for a client?

Given that it's Steyn, that's accurate no matter who the lawyer is.
posted by delfin at 6:28 AM on February 1 [1 favorite]


I find it really hilarious that in his last? post on NRO, Steyn claims "In a real courthouse – in London, Toronto, Dublin, Singapore, Sydney – Dr Mann would be on the hook for what he has cost all the parties through his fraudulent complaint."

Pretty sure if a courthouse in London was involved Mann would already be fielding offers for his new magazine, formerly known as the National Review.
posted by PMdixon at 6:33 AM on February 1 [7 favorites]


From the "get lost" link:

In common polemical usage, “fraudulent” doesn’t mean honest-to-goodness criminal fraud.

So when I said "fraud" that actually meant "not fraud," which was obvious because everyone understands that in common polemical usage words have no meaning; we are just making angry lipflappings at that which we dislike

Which the more I think about it is probably a defensible argument, you could easily gather supporting cites from across the spectrum of modern political discourse
posted by ook at 7:02 AM on February 1 [1 favorite]


These claims are provably false, and even a cursory glance at the facts would determine that. Mann's temperature reconstruction has been reaffirmed by independent investigations using all kinds of different proxies, over and over and over and over again. This is like someone discreetly being paid by Philip Morris claiming today that the authors of the British Doctors Study deliberately falsified their data to show a link between smoking and lung cancer, even though the study's conclusions have been repeatedly confirmed, and there is no evidence whatsoever that any data had been falsified.

Eh....I don't think this is that open and shut. The claim made in the relevant paragraph is not simply "the hockey stick graph is not an accurate representation of climate data" but "emails show Mann manipulating data to bolster the graph."

The graph could be correct in reality, but if the emails showed him to be fugding data in order to gild the lily, I don't think he can win his defamation claim.

I certainly haven't delved into the whole East Anglia climate emails imbroglio, but from what I can recall my bet is that the emails show something more like Mann writing and being like "Hmmm, those are some funky results of yours that don't fit in with my famous graph. Did you guys account for Factor Q when you made your calculations? Because when I do that it lines up a lot better with what we already know."

If the emails are anything at all like that, then I think it devolves into he said, she said --- Mann saying,

"Look, those emails are perfectly normal jawboning between scientists, the questions i was raising were perfectly valid and indeed subsequent research has borne them out"

and Steyn et al saying

"The emails are evidence that Mann attempted to fudge data he didn't like, and regardless of whether the weight of the evidence supports his theories on the whole, he is still a bad bad man and we were correct to criticize him."

If that is the case, then I highly doubt he's going to make his libel claim --- it's not enough to clear the actual malice bar for a public figure. If the emails can be interpreted such that Steyn can claim he legit believed Mann manipulated data, then there's no way they can meet the threshold of actual malice.

Unless, of course, there's some red flag email yanked in discovery with Steyn informing his comrades that this week he's advancing upon their instructions to tear down the reputation of that red blooded patriot Mann in advance of the anti-climate agenda, here's to crime, etc., etc. But that seems astonishingly unlikely to me; the usefullest part of useful idiots is that they usually genuinely believe their idiocy....
posted by Diablevert at 9:07 AM on February 1 [1 favorite]


"The graph could be correct in reality, but if the emails showed him to be fugding data in order to gild the lily, I don't think he can win his defamation claim. "

No, that's not what the emails show at all. The emails show that his "trick" was to compare two data types in a single graph (both of them labeled), and "hide the decline" referred to tree-ring growth, which had a precipitous drop in the '60s. (My understanding is that the growth still correlated to climate, but not at the same rates as prior to the '60s; similar to how the peso value correlated to the dollar both before and after revaluation.)

This is what multiple investigations found; Steyn argues that the Penn State investigation should be ignored because another famous Penn State investigation into Sandusky was flawed. He is recklessly disregarding the results of independent investigations into his false claims, and continuing to allege fraud and scientific misconduct. That's a much stronger claim for libel than the one you outlined.
posted by klangklangston at 10:48 AM on February 1 [5 favorites]


ignorance is a defense in these cases.

Except I think it will be difficult for these defendants to claim ignorance. They've been trying to discredit Mann with the same baseless accusation for a decade. During this time that Mann was subjected to continual harassment from people like Steyn and Simberg he was repeatedly investigated and cleared of wrongdoing, in addition to having his results replicated by every study not funded by the fossil fuel industry. The only ignorance they can claim would be willful, and even that stretches credulity.
posted by [expletive deleted] at 11:38 AM on February 1 [3 favorites]


I certainly haven't delved into the whole East Anglia climate emails imbroglio, but from what I can recall my bet is that the emails show something more like Mann writing and being like "Hmmm, those are some funky results of yours that don't fit in with my famous graph.

He wrote no such thing.

The problem with the "Climategate" emails is that most people don't know what was in them and are happy to be led to a conclusion about their contents by the skeptic noise machine. You can take a minute and read about the content of the stolen email and documents or read the actual messages that are considered controversial.
posted by peeedro at 12:22 PM on February 1 [8 favorites]


The problem with the "Climategate" emails is that most people don't know what was in them and are happy to be led to a conclusion about their contents by the skeptic noise machine. You can take a minute and read about the content of the stolen email and documents or read the actual messages that are considered controversial.

Okay, I read the ones highlighted in the NZ newspaper article. Frankly, I think my point still stands as regard's Mann's legal prospects.

The selected "controversial" emails certainly make Mann look a bit better, in layman's terms --- he seems to have been a mere recipient, and not the author, of the ones the climate critics flipped shit about. Nevertheless, what Mann's got to prove is the claim that he was part of a conspiracy to fudge data a) was false and b) that Steyn et al knew it to be false. I think the results of the multiple independent investigations may be sufficient to substantiate (a). I don't think, having read the emails at the center of the controversy, that it's sufficient to substantiate (b). All Steyn etc. have to assert is that he genuinely believes that there is a conspiracy to promote the climate change theory, and that said independent investigations were a whitewash intended to cover the asses of the institutions involved, and that he interpreted the emails as substantiating that belief. That gets him off the hook for actual malice.

It'll all come out in discovery, of course, which will be interesting. But my bet is that Steyn is genuine in his belief that the emails were damming. You can spend all day arguing that the emails aren't in fact, actually damming because X, Y, Z and Q; it doesn't matter, the key is whether Steyn believed they were. I doubt they'll be able to prove he didn't.
posted by Diablevert at 1:27 PM on February 1 [1 favorite]


Is the suit against Steyn being funded by Penn State or is Mann footing the bill? Seems like it could be either or both given that Steyn: 1. Accuses Penn State of falsely giving Mann's work a clean bill of health; 2. Accuses Mann of falsifying data.

If Mann is having to pay for the suit, (since it's not a foregone conclusion he'll win and get damages, et al (and even so, they may declare bankruptcy to dodge any damages)? If not, who is funding it?
posted by BillW at 1:36 PM on February 1


"It'll all come out in discovery, of course, which will be interesting. But my bet is that Steyn is genuine in his belief that the emails were damming. You can spend all day arguing that the emails aren't in fact, actually damming because X, Y, Z and Q; it doesn't matter, the key is whether Steyn believed they were. I doubt they'll be able to prove he didn't."

No, because that gets to the reckless disregard point. The claims of fraudulence are demonstrably false, whether or not Steyn believes that's true. As an analogy, if Steyn had just flat out called Mann a child molester, and responded that he didn't believe the investigation clearing Mann, that would also demonstrate a reckless disregard for the truth.
posted by klangklangston at 12:59 AM on February 2


The claims of fraudulence are demonstrably false, whether or not Steyn believes that's true.

That has not, typically, been the standard applied in US defamation cases involving the media. There is not, normally, any requirement to show that so-and-so "should have known" X to be false. In order to show "malice" you need to show that they did, in fact, know X to be false but went ahead an asserted it anyway in order to defame the complainant. Thus, discovery will need to find a smoking gun in the form of an email by Steyn saying "yeah, I know this guy Mann actually didn't do anything wrong, but I'm gonna crucify him anyway" for the defamation case to stick. And it's actually pretty probable (sadly probable) that Steyn genuinely believes there is some kind of conspiracy of eggheads going on to "cover up" the truth about Mann. We see every day that people fervently believe things which have been utterly debunked simply because it suits them better to believe them than not.
posted by yoink at 7:22 AM on February 2


If Mann is having to pay for the suit, (since it's not a foregone conclusion he'll win and get damages, et al (and even so, they may declare bankruptcy to dodge any damages)? If not, who is funding it?

Plenty of plaintiff's attorneys operate on contingency: advancing the litigation costs in the expectation of a settlement or award. I don't know if that's what's going on in this case, but it's not out of the question.
posted by gauche at 7:48 AM on February 2


Atlanta Storm Was a Government Conspiracy? Snow Way!
posted by homunculus at 11:55 AM on February 3


humanfont: "I think that the lawsuit is a terrible idea. This will just be used as evidence of liberal judges, political correctness gone amuck and Obama's tyranny."

This sort of argument is introduced whenever liberals (or even just non-conservatives) fight back against conservatives.

Obama's executive power decisions.
The nuclear option.
Occupy Wallstreet.
Federal review of possibly-racially-motivated changes to voting laws.

All of these "will just be used by the Right to prove to their followers that the Big, Bad Socialist Left Wing Conspiracy is out to get them."

Doesn't matter. Something will be used by the Far-Right pundits to sell their hogwash to the Far-Right media audiences. Kool-aid drinkers will drink kool-aid.

Not fighting back is the bigger mistake, by far.
posted by IAmBroom at 12:46 PM on February 3 [2 favorites]


Hmmmm...I was thinking about this thread, and was curious about whether any libel/defamation cases against the media have turned on the "reckless disregard" language as opposed to the "knowledge of falsehood" definition of actual malice, but my cursory googling hasn't been able to turn up anything. Do any of y'all know of one? Sullivan has both options as part of the definition, but so far I can't seem to find any cases that clarified that. Klang was suggesting above that "reckless disregard" would encompass a situation where evidence to support a contention exists and the reporter ignores it; offhand I would have thought it was more a situation where the reporter makes no effort to verify a claim before asserting it as fact --- you know "too good to check" not "I checked and they said it's wrong but i don't believe them and i'm running with it." Be fascinated if anyone knows of a circuit court case where these issues were ruled on.
posted by Diablevert at 9:19 PM on February 3


Klang was suggesting above that "reckless disregard" would encompass a situation where evidence to support a contention exists and the reporter ignores it; offhand I would have thought it was more a situation where the reporter makes no effort to verify a claim before asserting it as fact --- you know "too good to check" not "I checked and they said it's wrong but i don't believe them and i'm running with it."

"[M]ere proof of failure to investigate, without more, cannot establish reckless disregard for the truth. Rather, the publisher must act with a 'high degree of awareness of . . . probable falsity.'" Gertz v. Robert Welch, Inc., 418 U.S. 323, 332 (1974) (citations omitted) (internal quotations marks omitted).

"[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubt as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
posted by Sticherbeast at 9:56 PM on February 3 [1 favorite]


There's a lot more in this article from the Alaska Law Journal specifically about what the definition of "reckless disregard" is.

I couldn't find any similar papers about the DC courts specifically, though I'd assume they were out there (I just don't have much journal access), but they talk about a lot of the Supreme Court cases.

Mostly, the conclusion is that "reckless disregard" and "serious doubts" are so fact-dependent that arguing about what they may mean in this case prior to any real discovery is pretty useless. (Or so it looks from about two-thirds of the way in.)
posted by klangklangston at 10:34 PM on February 3


For example:
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
But that's the 5th, another circuit. In DC district court:
…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
posted by klangklangston at 10:51 PM on February 3


Yeah, DC explicitly declined to follow Rebozo.

St. Amant is the big case for reckless disregard for the truth. It lays out how reckless disregard for the truth requires the defendant's actual, subjective "awareness" of the "probable falsity" of a statement.

For a relevant DC Court of Appeals case, let's look at Beeton v. District of Columbia, 779 A.2d 918 (2001):
"[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)).
Here's an eye-opening paragraph from that decision:
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.[7] 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.[8]
All emphasis mine, obviously.
posted by Sticherbeast at 5:02 AM on February 4 [1 favorite]


How the U.S. Exports Global Warming: While Obama talks of putting America on the path to a clean, green future, we're flooding world markets with cheap, high carbon fuels
posted by homunculus at 5:09 PM on February 5 [1 favorite]


Apple CEO Tim Cook Shuts Down Anti-Environmental Investors
posted by homunculus at 6:13 PM on February 28 [1 favorite]


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