So Eli went down to the DC Court of Appeals to listen to CEI and NR tell why they are allowed to tell lies (or at least opinionated prefabrications) about Mike Mann in the pursuit of the First Amendment. The First Amendment was hiding out in the coffee shop across the street hoping not to be recognized. There was some interesting stuff, not all of it concerning climate change.
Before Eli gets to fillet the arguments a brief aside about the first case to be heard, an an appeal Vasile Graure vs. the United States. Graure, after being tossed out of a strip club came back and set the bouncer Vladimir Djordjevic on fire, gravely injuring him. Graure was convicted and sent to jail for essentially forever, but when Djordjevic died two years later Graure was tried on a charge of murder. Seems like Mark Steyn is not the only one to think representing himself was a good idea, and Graure did.
The appeal of his conviction was on a strange ground. It seems that at trial, when Graure was being transported from the jail, the marshall only allowed him to take one inch of paper from the bankers box in which he was storing his material. The attorney representing Graure on appeal took this to be a reversible error (there was a few minutes of muttering at the end about whether the murder charge was double jeopardy but no one took that very seriously. Anyhow, turns out that the judge offered Graure a couple of choices, to have someone else move the box every day, or for him to get copies from the prosecution and Eli forgets the third. Somehow Graure's attorney forgot to mention that in her presentations. Eli has learned to his cost that you listen to what lawyers don't say, not to what they do say, which is the point of this small digression. The only prediction of the day that the Rabett will offer is that Graure will spend the rest of his life in jail and that is no problem.
Which brings us to Competitive Enterprise Institute and National Review vs. Mann. The court was not jam packed but about a third filled with lots of folks in suits and a few scraggly bloggers, Eli amongst them, so you may be hearing more of this elsewhere. As a marker of how the law has changed, the three judges and the three lawyers in the first case were all women. The three judges stayed the same, but the second case was argued by Andrew Grossman, and Michael Carvin, for CEI and NR and John Williams, for Michael Mann. Williams was accompanied by a woman lawyer but she did not present. For those of you interested in change of life issues, Eli suggests the twitter hashtag #feministhackerbarbie cause this is just gonna be same old same old.
What was impressive was how well informed the judges were about the general issues surrounding the case, perhaps not the science part but certainly the public to and fro.
There was a short digression while Mumbles from the DC Government made a presentation about whether the Court was correct in hearing a direct appeal of a ruling based on the DC Anti-Slapp Statute. He said yes, but the judges were much more interested in talking about what the standard should be for granting such a motion for dismissal based on the law. There was back and forth about smell tests, likelihood to prevail criteria and more.
This got hammered in the presentations by the others. CEI made an interesting claim that in the interest of First Amendment Freedom to tell lies (or at least prefabrications) the DC Council accepted that some valid law suits would be quashed that would have prevailed if allowed to come to trial. CEI also conceded that where material facts are in dispute the trial judge will have to weigh the evidence. Something that the trial judges specifically did in denying the Anti-SLAPP motion.
Everyone pretty much agreed that no matter what the standard for allowing a libel suit to go forward, the standard for proving malice should be much higher. Frankly no one actually had a cut and dried answer for what the standard should be, and this is something the Court of Appeals is going to have to settle if it allows (and it seems it has based on some earlier cases) appeals from Anti-SLAPP statute cases to go forward. The court kept trying to get a clear statement, asking for comparisons with the standards for other motions to dismiss and frankly got nowhere. They are going to have to do it themselves probably settling for preponderance.
To give a flavor of the back and forth, CEI asserted that there was nothing to distinguish Simberg from any other pundit in the newspapers or on the internet. That what he wrote was a matter of subjective interpretation, and over there the Climategate Emails.
One of the judges broke in and pointed out that Simberg said Mann was a falsifier, to which the CEI lawyer hemmed: "Not really". The judge then pointed out that the trial judge has said as much in his ruling, receiving in return the haw that what Simberg wrote was a subjective interpretation of facts. The judge asked if subjective interpretation was opinion, and was told that interpretation was too subjective. The CEI lawyer was then asked if the distinction was that opinion required a factual basis.
The reply to this was that opinion is supportable when the writer reveals the facts on which the opinion is based and this immunizes the writer from libel suits. We then went down the Climategate Email hole for a while. The Court asked if the Emails were the facts. CEI responded that the Emails were evidence of conspiracy and pulling tricks. The Court pointed out that this reply was the equivalent of accusing Mann of fraud, and the response was read the Emails, which, of course was not a response because, as the bunnies will see, most of CEI and NR's pleading is that juries should not be asked to draw conclusions about such things because they are matters of dispute not facts.
NR was next up, and FWIW, the NR lawyer, called NR hereafter, was much better at pleading his case.
To give nothing away, Eli heard time and again that NR was not claiming that Michael Mann falsified the data, rather that he messed with it. Of course, a constant reprise of how dishonest Mike's trick, joining the dendrology data to the instrumental record, was. No one pointed out that the instrumental data is the most reliable data we have. NoNoNo, and the Court appeared to miss this too, also that the instrumental data shown in the various figures extended back to 1880 or so. This is rather an own goal because both NR and CEI in their pleadings denied that there has been any change in global temperature since like forever, or a millennia (OK, lawyers, not bloggers).
The Court pointed to a couple of places where whether writing by Steyn and Simberg on its face claims that Mann has committed provable fraud, but with a charitable reading would only be a caustic claim of opinion. Much back and forth on this, an injection from NR that if their appeal is not granted, that their writers frequent claims that Obama committed this or that would clog the courts. Besides which Climategate and Michael Mann distorted and cherry picked the data,
Since this is an appeal against the denial of relief under the anti-SLAPP statute, the court asked, ok, why not let a jury decide if this was distortion or not? NR said that, well we don't let juries decide about whether one opinion or the opposite is correct and then the Court brought the hammer, pointing out that Rich Lowry had written in NR challenging Mann to meet NR in court so what are they doing here in the Court of Appeals.
Well harumphed the NR, these are not objectively verifiable things, or at least not objectively verifiable as a matter of opinion, and in that case as far as the law is concerned they are not objectively verifiable and therefore cannot be decided by a jury.
The Court had some thoughts on the matter, for example, does that take science out of court, well yes says NR. Does that mean there is a First Amendment exception for science asks the Court, well only for matters of public concern. The Court points out that accusations of academic misconduct and calling for investigations are not debates about science. NR says, yes they are. The Court demurs softly. NR goes full Climategate and says anyhow, the stuff they imagine in those Emails, whether that happened or not is not for juries to decide.
So thence comes John Williams (JW) who has 30 minutes, and a good lawyer he is. Speaks slowly but continually which limits the opportunity of the Court to throw questions at him, and frankly they appeared less interested in doing so than for the other two. Williams starts by pointing out that the NSF IG report specifically cleared Mann of "falsifying data, concealing, deleting or otherwise destroying emails, information or data, misusing privileged information or seriously deviating from accepted practices for proposing, conducting or reporting research and other scholarly activities", which, of course NR and CEI in their presentations did accuse him of, well maybe not the first.
JW pointed out that Simberg continuously said the nasty about Mann and that CEI's complaints to the EPA about Mann were accusations of mopery and more. So what about all those investigations asks the Court. NR and CEI believes they are all whitewashes. JW points out that in their briefs neither CEI or NR argue that their charges against Mann are true. Well, he says a bit later in response to the Court pointing out that neither NR or CEI believe that humans cause climate change, that does not immunize them. Purposeful avoidance of truth is sufficient to establish actual malice.
The rebuttal by NR degenerated into table pounding on the WMO report cover, perhaps a sign that he knew they were in trouble, but the Court needs sufficient background to see through it.
And so to bed.
SMALL FACTUAL UPDATE:
PAGES 2k is the most recent and complete multiproxy paleoclimate reconstruction of global temperatures in the last millenia. MBH 99 was the first.
UPDATE: Somebunnies have been posting some of the stolen Emails as proof of whatever. A number of the folks who comment here regularly object to this as encouraging thievery. Having been involved in sharp Email exchanges in real life, Eli kind of agrees, so if the fences want to post elsewhere (Eli is sure they can find places and link back to their now defenestrated headers, that's OK.