Sunday, July 22, 2012

Should you have any questions, please do not hesitate to contact me

Sincerely of course.

Eli has been having some fun with Peter Woods over at the Chronicle, pointing out that Wood's copycatting on the Michael Mann is just like Jerry Sandusky act (very popular in some circles), is, well, as Steve McIntyre would put it, defamatory.

  It has come to Eli’s attention that you have made defamatory statements about Michael Mann, in an article by juxtaposing him with the odious Jerry Sandusky.  Moreover you have made serious, defamatory and untrue statements about the Penn State Investigation on Prof. Mann's scientific work
This, of course, was a take on McIntyreGate XCII, where Steve tried to first bludgeon David Karoly, by sending him, what, on the face of it, was a demand letter, sincerely, of course
This is a very welcome initiative. The threats of legal action and FOI requests are not just occurring in North America. In Australia, I have just received a threat of legal action from Steve McIntyre in Canada and am currently dealing with 6 different FOI requests.
The usual comedy of errors ensued when the publisher of Karoly's book review moved it from free access  behind the paywall (for their reasons, which themselves added to the fun read the comments over at the skeptical science thread hijack that followed) and McIntyre upped the Gate count to XCIII by doing the innocent old me act with a dash of belittlement thrown in.  Tom Curtus (HInAL and an Aussie one to boot), summed it up both at Skeptical Science AND at Climate Audit
That claim is simply absurd. All that McIntyre needed to do so that the letter did not have the form of a concerns notice under Australian law was to drop the phrase "defamatory". By excluding that word, the letter no longer makes a claim of defamation and therefore no-longer clearly presents claims of defamation.

Further, McIntyre's claim that his only intention was to persuade Karoly to "behave as a professional" is dubious. A professional, and certainly a scholar is concerned to b truthful. Simply alleging that Karoly's claims where untruthful would have been sufficient if McIntyre's purpose had only been to persuade Karoly to desist from allegedly unprofessional conduct. Given that, the only point in including the term "defamatory" would appear to be to make Karoly (at a minimu) reflect on his legal situation - and if that was the intent it was definitely an implicit threat. On McIntyre's say-so I will accept that his letter was poorly drafted for his stated intent. But as drafted, it was legally a "concerns notice" and as such represented a threat of legal action.  
For true high comedy, head on over to Climate Audit to watch pro parsing at work with a fair dollop of confusion.

Well, another shoe has dropped, a demand letter from Michael Mann's lawyers (published on Mann's Facebook page) showing that, well, yes, the word defamatory in a letter DOES have legal meaning even in North America.  Evidently Prof. Mann has decided to pull the football on the denialists.

The letter, to National Review, starts

The purpose of this letter is to put you on formal notice of the defamatory content of a recent article that was published on your webside, National Review Online, regarding my client Michael Man and to demand a retraction and an apology.  We also demand that the publication be removed immediately.

A copy of the defamatory publication is attached to this letter.  It is entitled "Football and Hockey" and was authored by an individual named Marc Steyn.  The letter makes the false allegation that Dr. Mann has engaged in academic fraud an allegation which, of course, is defamatory per se.  Specifically  the publication states that Dr. Mann "was the man behind the fraudulent "hockey stick" graph the very ringmaster of the tree-ring circus"

Your allegations of academic fraud is false, and clearly made with the knowledge that it was false.  It is well known in the scientific community, and certainly well known to you and Mr. Steyn, that there have been numerous investigations into the issue of academic fraud in the wake of the disclosure of certain e-mails from the the Climatic Research Unit of the University of East Anglia and that every one of these investigations has concluded that there is no basis to these allegations and no evidence of any academic fraud.
. . . . .
further you draw insidious comparison between Dr. Mann and Jerry Sandusdy, who as you point out, was recently convicted of child molestation.  This reference is simply outrageous and clearly subjects your publication to a claim of intentional infliction of emotional distress
Now, Brian (BISAL) might disagree, but that last paragraph is a neat piece of jujitsu, because, as all bunnies know, the rest of the denial sphere is going to start making the same comparison, but their doing so strengthens Mann's claim against NRO.

Popcorn please, sincerely of course.  UPDATE:  Eli will share with J Bowers


Tom Curtis said...

Very entertaining, and I appreciate being quoted. However you have left me confused on two counts.



EliRabett said...

He is a lawyer. Brian is a lawyer. Eli is often accused of being obscure. It is a feature.

Brian said...

The minimum standard for defamation of a public figure (Mann) in the US is that statement is made with reckless disregard for the truth (and of course that the statement is false). The defendant doesn't have to have subjective certainty that his own statement is a lie, a state of mind that is very difficult to prove, but rather exhibit actions or inactions that show disinterest in the truth.

Reckless disregard isn't an easy standard to reach, but it may be possible for both the NRO and Wood especially given that they're sophisticated enough to read the actual investigations and have shown sufficient interest to indicate they've been following the many vindications of Mann post-CRU email theft.

Showing damages is another matter. If someone with zero reputation defames you, it's hard to say that defamation actually caused harm to your reputation in the professional community. Wood might be in a little more trouble by publishing at the Chron than NRO is by publishing online fishwrap.

I believe statements that are defamatory per se (accusation of academic fraud) might not need to prove damages but automatically involve some level of damages. Less sure about this, probably varies by state. None of this is my area of law, although I'm getting increasingly interested.

Intentional infliction of emotional distress claims are hard to win I think, especially when the defendant is a stranger. But if Mann's lawyer convinces a judge that the defendants are knowingly lying on defamation, it might not be too big a reach for IIED.

Holly Stick said...

I see over at WUWT the idiots are busy strengthening Mann's case, but at least one comment by J. Bowers was clipped.

John Mashey said...

And there is this at CEI, whose main foundation funders (~Scaife, L&H Bradley} are coincidentally the same as those of Wood's NAS.

Anonymous said...

Old favs

John Mashey said...

Recall that as the Brits say, Wood has form.
A year ago, it was events chronicled here and then later summarized at Deltoid. See the longer analysis, including Wood and Monckton.

Last year it was Mann (+me) ~ P. T. Barnum and Bruno Latour.

Wood likes to use false associations.

Russell said...

This now favors Curyy, but it may not last long :

Those discouraged by recent developments in thermometric temperature data review way wish to consider joining the North American Man Barometer Love Association, which has denounced CAGW as a hoax arising from an elitist bias in barometer siting. Many of the nation's barometers belong to urban academic liberals, whose contempt for individual liberty is reflected in the frequency with which they site this component of the national meteorological instrument grid in high-rise cooperative apartment buildings.

The failure of the IPCC to take the resulting Urban Height Effect into account is compounded by the barometers' increased exposure to galactic cosmic rays, contributing to collective errors in boundary layer height and temperature, and a clearly defamatory data bias towards belief in a so-called 'lapse rate' ., when all that has lapsed is morality in America's Heartland, witness the ongoing scandal at Penn State.

To elimate these height-induced errors NAMBLA re-sited a grid of NBS tracable mercury barometers, orienting the instruments's columns horizontally on a level playing field parallel to the galactic plane and orbiting its no spin zone to eliminate the elevation errors common to vertical barometer orientation, and so have found perfect agreement in all their readings and null responses to axial rotation and land tides.

J Bowers said...

"I see over at WUWT the idiots are busy strengthening Mann's case, but at least one comment by J. Bowers was clipped."

Oh, I was just pointing out the smear and how some, like Joe Bastardi, do like to associate climate scientists with things like child rapists on the same page.

J Bowers said...

Just to say it was seen by others.

Tom Curtis said...

Eli, sorry to disappoint, but I am not a lawyer.

Anonymous said...

Well, a CEI flack recently left a turd on Dr. Mann's FB page, Dr. Mann deleted it, and then said flack tweeted a complaint about it.

Dr. Mann replied on twitter by smacking the flack with this rolled-up newspaper:

@RyanRadia Oh, you are with *CEI*, front group dedicated to dishonest smears & promotion of disinformation. That's why. Take it elsewhere.

Dr. Mann definitely has been eating his Wheaties these days...

--caerbannog the anonybunny

jyyh said...

the 13th comment naturally falls to speculation about legalizing slandering in the supreme court. but, if I've understood this correctly cases like this have to be allowed to enter the supreme court that has an equal amount of car users and pedestrians/public transportation users to get a fair trial?

Antiquated Tory said...

Quoting Brian: "The defendant doesn't have to have subjective certainty that his own statement is a lie, a state of mind that is very difficult to prove, but rather exhibit actions or inactions that show disinterest in the truth."
Isn't that pretty much Mark Steyn's entire oeuvre?

Anonymous said...

"Eli is often accused of being obscure."

I don't understand...

Bernard J. Hyphen-Anonymous XVII, Esq.

EliRabett said...

Sorry J, Eli had seen your comment, but also had some ears up from others. RR is by policy not trying to hog the carrots:)

Jeffrey Davis said...

I'm glad Mann is turning the tables. The creeps of denialism have long since quit being amusing bozos and have become gangsters.

Anonymous said...

Ah, I just noticed to what it was that Holly Stick referred.

I often think of scum as a lipid bilayer. In this matter Woods and Watts seem intent on performing the roles as complementary farce/faux/lie-pid* monolayers.

Bernard J. Hyphen-Anonymous XVII, Esq.

[*It helps to say it quickly...]

susan said...

"reckless disregard for the truth" sounds about right to me. Would we had more of this in the public eye.
(Susan Anderson)