Saturday, July 27, 2013

Late to the lawsuit party (even Eli got there first). Anyway, mind the footnote

Started writing out a little happy dance over Michael Mann's defamation suit winning a preliminary battle and then saw Eli's already covered it several hours ago, so go read. I'll just add four points:

1. It's especially good because one motion by the naughty parties was an anti-SLAPP motion, intended to shut down, quickly, those frivolous SLAPP cases that are brought to oppress free speech. Among other things, a successful anti-SLAPP motion usually changes the normal American rule and allows the defendant to recover attorney fees from the suing plaintiff.* Barring a successful appeal, Mann is now free of that monetary threat.

2. It's good news for Mann, but mind the footnote following the statement (p. 15) "The Court must, at this stage, find the evidence indicates that the CEI Defendants' statements are not pure opinion but statements based on provably false facts." The footnote reads in full, "The Court does view this as a very close case." IOW, it could go the other way at trial.

3. A difficult issue even if Mann wins may be proving damages to Mann's reputation, in that it's difficult for statements by disreputable liars to have much effect on the reputation of honest people. OTOH, Mann's claim for intentional infliction of emotional distress also gets to proceed, and that can get him damage awards, especially if the judge is angry with the defendant over the defamation and looking for a way to make the defendant provide compensation.

4. I think this case and the Supreme's actions on California Prop. 8 are good examples of why the law is like The Force, to be used for good or for evil. Anti-SLAPP motions were meant to be used for good, to help the little people who are sued by giant corporations for defamation when they tell city councils to vote down bad developments. Obviously, they can be twisted. Conversely, the modern version of legal standing that shut down Prop. 8 and brought gay marriage back to California was expanded by rightwingers to violate environmental laws by making it difficult for citizens to enforce the laws on their own. Standing then came around to catch the rightwingers on their own petards. This time.

*I don't actually know the law in Washington DC where this case was brought, but I'd be pretty surprised if it's different from anti-SLAPP done elsewhere, and it uses California law as a model which does allow fee recovery.


Steve Bloom said...

I think the big payoff here is going to be what turns up in discovery.

Anonymous said...

Hide the decline.

John Mashey said...

Damage to reputation: do you know if anyone has tried to show such by tracking propagation of NR / CEI stuff through blogosphere and elsewhere? Or, that might show that some people believed them.

EliRabett said...

Remember that the department nominated Mann for a named chair at UVa which was turned down on by the administration because he was the favorite punching ball of the denialists and CEI types. That could be a LOT of damage to reputation

Brian said...

Steve - I think you're right. Mann can use discovery to determine whether defendants knew they were full of it. Good chance it will turn up contempt for the people who believe the stuff they turn out.

John - I don't know about tracking, altho I'm sure it's widespread. How that translates into professional damage for Mann is less clear. One possibility is if institutions shy away from funding climate research because of the "controversy" (per Eli's comment).

Defendants might argue that Mann's recent book means he actually benefits financially from their action.

Russell Seitz said...

Digging up the syncline is more like it , anonymous.

Anonymous said...

Mann will lose.


Anonymous said...

Brian writes several paragraphs footnoted by "I don't actually know the law in Washington DC where this case was brought,"

Wonder if it ever occurred to Brian to research the law before he wrote anything.

Probably not, given that it took all of five seconds to find the following in a search on "DC SLAPP law"
Anti-SLAPP Law in the District of Columbia

Anonymous said...

Brian's post was written around the phrase "disreputable liars", another in a series of biased heavily politically influenced writing style usually seen on MSNBC.

If Brian had actually read what the judge wrote in her ruling and if he were an honest person himself, he may have written something quite different.

Hint: The judge murdered the English language and wrote a political editorial rather than a solid legal opinion.

In the end all this cheerleading is irrelevant, Mann will lose.


Brian said...

Non Anon 1: that's kind of a reasonable thing to say, actually. I was thinking of digging through the statute to confirm and thought about doing an update but was also reasonably confident of what I was saying.

The link you provided is a secondary source that doesn't provide much in the way of statutory references but still seems pretty good. It also confirms what I said in the post.

I would humbly suggest my focus on the anti-SLAPP aspect did add some additional value to the commentary elsewhere, and it appears to be right.

Rattus Norvegicus said...

If #1 doesn't want to become a subject in the next Lewandowsky study, he might try reading things without approaching them as if they are all part of the great liberal conspiracy.

Brian is on fairly safe ground. The judge, at least in the dismissal of the CEI motion, accepted that the law was based on the the CA statute. In places where she had no guidance from DC courts she cited CA courts for guidance.

Exusian said...

"Mann will lose," pontificates no 1, who is not a lawyer, thus offering legal opinion worth less than nothing. Quite fitting.

Anonymous said...


Kind of like your contribution and insight on the case.

I appreciate you being a fan though.


Exusian said...

I'll let no 1 have the last word, seeing as his ego seems to need it.

Anonymous said...

Then why did you post?

a_ray has a number to a good doctor.


Exusian said...

Because I knew you would reply, and true to form, you did.

I only posted now to answer your direct question, so have at it, I'll feed you no more.

Anonymous said...


So you are a liar?


Ed Darrell said...

Generally, under defamation law (which is mostly common law), the false allegation of a criminal act is libel.

CEI and NR may not appreciate this nicety -- but under federal law, it's a crime to make false research reports on the federal dime. Mann has had federal grants, and so what they allege is, indeed criminal. More, the law requires such people be barred from future federal funding (after they get out of jail).

Because those are the stakes, many courts presume that such false allegations are libelous per se, and that it's not necessary to await false prosecution and false imprisonment in order to collect.

But, gee, can anyone doubt that Virginia's Very Model of the Modern Attorney General, Cuccinelli, provides the proof of damage from these false claims, in his expensive, money-wasting assaults on Virginia research institutions formerly inhabited by Dr. Mann?

John Mashey said...

Cuccinelli: on of the lingerign questions of interest regarding the 2nd CID is about all the paleoclimate items:

a) Do they teach that in law school?OR
b) Were the lawyers helped by somebody else in VA or nearby, and if so, who?>

Note that Cuccinelli, his lieutenant Wesley Russell, his ex-law partner Milton JOhns (Wegman's lawyer), and David Schnare are all GMU J.D.s.
By coincidence, another GMU graduate, although not J.D. is Marc Morano.

Anonymous said...

Snow Bunny says,

John Mashey, I have no information as to who wrote the pseudo-science in Cuccinelli's brief but I find it interesting that one Fred Singer, a Virginian with a post position at George Mason wrote 2 letters to the editor of the Richmond Times- Dispatch in support of Cuccinelli''s quest. The letter concluded: "I am not really concerned with such legal issues but am primarily interested in examining the climate data that may have been suppressed -- and the tricks used in doing so -- all to convince the world that global temperatures were rising and not declining." Singer excels supplying lots of references; I don't know what percentage agree with what he says they say.

It might be interesting to run a word comparison program on his letters and the brief although likely a lawyer wrote the actual text.