Thursday, December 22, 2016

Christmas Gifts for Michael Mann and Rich Lowrey

Lumps of coal for Mark Steyn and Rand Simberg send the elves from the DC Court of Appeals in a decision handed down today.  Of course, as everybunny knows the elves work long and hard, this little sack having taken more than two years after the hearing on November 25 2014 which Eli reported on and which other may need a refresher course.

As the articles that form the basis of Dr. Mann’s complaint make clear, appellants and Mr. Steyn are deeply invested in one side of the global warming debate that is opposed to the view supported by Dr. Mann’s research. Although animus against Dr. Mann and his research is by itself insufficient to support a finding of actual malice where First Amendment rights are implicated, bias providing a motive to defame by making a false statement may be a relevant consideration in evaluating other evidence to determine whether a statement was made with reckless disregard for its truth.
Concluding therefore that
We, therefore, affirm the trial court’s denial of the special motions to dismiss the defamation claims based on those articles and remand the case for additional proceedings in the trial court with respect to these claims.  We reverse the trial court’s denial of the special motions to dismiss with respect to Dr. Mann’s defamation claims based on Mr. Lowry’s editorial and the claim for intentional infliction of emotional distress.
The decision is a mixed bag for both sides  given the SLAPP law allowing costs for decisions of motions to dismiss against the losing side.  The DCCoA on the one side holds that Mann's case against Steyn, Simberg, CEI and National Review can go forward but remanding for dismissal the claims based on Rich Lowry's editorial (essentially saying bring it on to MM) and demanding to see the blood in order to allow Mann's claim of deep emotional distress for being compared to Jerry Sandusky
The complaint alleges that as a result of the defamatory statements “besmirching Dr. Mann’s reputation and comparing him to a convicted child molester,” Dr. Mann has suffered “extreme emotional distress,” “mental anguish,” and “personal humiliation.” From the statement itself, a jury could infer that the comparison to Sandusky was particularly hurtful. Dr. Mann’s requests for an apology and retraction, and his undertaking this litigation, would allow a jury to infer that he was so deeply aggrieved that he deemed it necessary to restore his public reputation. Dr. Mann has presented no evidence, however, that his understandable consternation met the high bar of “severe emotional distress,” which requires a showing beyond mere “mental anguish and stress” and must be “of so acute a nature that harmful physical consequences are likely to result.”
Pretty high standard.

On the other facts the DC CoA is not so kind to Simberg and Steyn
We conclude that Dr. Mann hurdled the Anti-SLAPP statute’s threshold showing of likelihood of success on the merits because the evidence he has presented is legally sufficient to support findings by the fact-finder that statements in Mr. Simberg’s and Mr. Steyn’s articles were defamatory, were published by appellants to a third party without privilege, and were made with actual malice.
discussing the nature of the attacks
But defamatory statements that are personal attacks on an individual’s honesty and integrity and assert or imply as fact that Dr.Mann engaged in professional misconduct and deceit to manufacture the results he desired, if false, do not enjoy constitutional protection and may be actionable.
and
Tarnishing the personal integrity and reputation of a scientist important to one side may be a tactic to gain advantage in a no-holds-barred debate over global warming. That the challenged statements were made as part of such debate provides important context and requires careful parsing in light of constitutional standards. But if the statements assert or imply false facts that defame the individual, they do not find shelter under the First Amendment simply because they are embedded in a larger policy debate.
Specifically the CoA analyzes why Simberg's article is defamatory
Mr. Simberg’s article does not specifically criticize Dr. Mann’s statistical techniques, except by calling him the “poster boy of the corrupt and disgraced climate science echo chamber.” The article’s focus is on Dr. Mann personally, alleging that he has engaged in “wrongdoing,” “deceptions,” “data manipulation,” and “academic and scientific misconduct.” The article calls Dr. Mann “the Jerry Sandusky of climate science,” comparing Dr. Mann’s “molest[ing] and tortur[ing] data in the service of politicized science” to Sandusky’s “molesting children.” The article also describes Dr. Mann as being, “like Joe Paterno,” a “rock star” at Penn State, who attracted millions of dollars to the University, and, like Bernie Madoff “at the height of his financial career,” “a sacred funding cash cow.”
This court recognizes a dog whistle when it hears it
Appellants contend that Mr. Simberg’s article is more reasonably understood as a criticism of the hockey stick graph and the research that underlies it. This seems to be a forced interpretation — and one that a jury could easily reject — because the article does not comment on the specifics of Dr. Mann’s methodology at all.
But when the phrase is used in conjunction with assertions that Dr. Mann engaged in “deception[],” “misconduct,” and “data manipulation,” and the article concludes that he should be further investigated, the cumulative import is that there are sinister, hidden misdeeds he has committed. These are pointed accusations of personal wrongdoing by Dr. Mann, not simply critiques of methodology of his well-known published scientific research. Cf. Milkovich, 497 U.S. at 21 (“This is not the sort of loose, figurative or hyperbolic language which would negate the impression that the writer was seriously maintaining that the petitioner committed the crime of perjury.”). We conclude that Mr. Simberg’s article is capable of conveying a defamatory meaning.
We note that in the article Mr. Simberg does not employ language normally used to convey an opinion, such as “in my view,” or “in my opinion,” or “I think.” The article’s assertions about Dr. Mann’s deception and misconduct are stated objectively, as having been “shown” and “revealed” by the CRU emails. Thus, Mr. Simberg’s article can fairly be read as making defamatory factual assertions outright.
The court handles the Steyn, not me boss argument with a handy quote from another case
Mr. Steyn first appears to retreat from the comparison to Sandusky, saying that he is “[n]ot sure” that he would have extended the metaphor “all the way into the locker-room showers,” but then adds that Mr. Simberg “has a point.” See Olinger v. Am. Savs. & Loan Ass’n, 409 F.2d 142, 144 (D.C. Cir. 1969) (“The law affords no protection to those who couch their libel in the form of . . . repetition . . . repetition of a defamatory statement is a publication in itself.”) (citation omitted).
and points out that politics does not free one from facts, a novel think these days
As with Mr. Simberg’s article, Mr. Steyn’s is not about the merits of the science of global warming, but about Dr. Mann’s “deceptions” and “wrongdoing.” Like Mr. Simberg, Mr. Steyn compares Dr. Mann’s alleged wrongdoing — “molesting” and “torturing” data to achieve a deceptive but desired result that will court funding for Penn State — to that of Sandusky, which suggests that their characters are similarly base.
On the other hand, they see Lowry's editorial as both protected opinion and a damage limiting exercise
Mr. Lowry’s editorial is clearly an attempt to distance Mr. Steyn’s article that appeared on National Review’s website from Mr. Simberg’s that appeared on CEI’s, and to express to National Review’s readers that it is confident of the success of the vigorous defense that it intended to mount in response to Dr. Mann’s threatened lawsuit. Because Mr. Lowry’s editorial for National Review does not repeat or endorse the actionable defamatory statements in Mr. Simberg’s and Mr. Steyn’s articles or contain defamatory assertions of fact that were provably false at the time they were made, the editorial is an expression of opinion protected by the First Amendment.
Interestingly, the DCCoA goes into detail in analyzing the investigations both in the US and UK of Michael Mann and the UEA emails,
The University of East Anglia Independent Climate Change Emails Review, Penn State University, the United Kingdom House of Commons, and the Office of the Inspector General of the U.S. National Science Foundation, all conducted investigations and issued reports that concluded that the scientists’ correspondence in the 1,075 CRU emails that were reviewed did not reveal research or scientific misconduct. Appellants do not counter any of these reports with other investigations into the CRU emails that reach a contrary conclusion about Dr. Mann’s integrity.
and smash the argument that these investigations had nothing to do with Michael Mann
Appellants argue that the investigatory reports could not be relied upon by a jury because the investigations Dr. Mann claims exonerate him of misconduct “take no ultimate position,” but only indicate that there was “no evidence” of fraud. This is a quibble about wording that does not call into question the import of the investigations’ conclusions. An investigatory body can report only on what it has found; a determination that there is “no evidence” of fraud is an ultimate conclusion that investigation has not turned up any evidence of misconduct.
There is much more about these validity of the investigations, but this post is long and Eli must go 

27 comments:

Canman said...

>>> We note that in the article Mr. Simberg does not employ language normally used to convey an opinion, such as “in my view,” or “in my opinion,” or “I think.” <<<

That would be true for just about any editorial or blog post containing criticism of someone including ones written by Mann.

Hank Roberts said...

see also http://scienceblogs.com/gregladen/2016/12/22/michael-mann-wins-court-decision/#comment-640197 where the conservabot contingent pops in to post predictable comments.

BBD said...

We conclude that Dr. Mann hurdled the Anti-SLAPP statute’s threshold showing of likelihood of success on the merits because the evidence he has presented is legally sufficient to support findings by the fact-finder that statements in Mr. Simberg’s and Mr. Steyn’s articles were defamatory, were published by appellants to a third party without privilege, and were made with actual malice.

Ha, ha, ha. If I had a penny for every clown who asserted that it would be impossible for Mann to win because he could not establish actual malice...

JohnMashey said...

As far as i can tell, few people understand the meaning of "actual malice" in US defamation law

Hank Roberts said...

So is EFF's FOS argument basically that linking to libel is not effectively "repetition/republication"?

Re: See Olinger v. Am. Savs. & Loan Ass’n, 409 F.2d 142, 144 (D.C. Cir. 1969) (“The law affords no protection to those who couch their libel in the form of . . . repetition . . . repetition of a defamatory statement is a publication in itself.”)

BBD said...

John M


As far as i can tell, few people understand the meaning of "actual malice" in US defamation law

I had no idea myself until this awful charade got underway. And as a Brit, I was shocked at the way the concept of 'free speech' is enshrined in American law at the expense of an individual's legal rights to defend themselves against obvious defamation. Actual malice is an excessively high bar.

Canman said...

>>> This court recognizes a dog whistle when it hears it <<<

And what is a "dog whistle"? It's a way to denigrate someone's rhetoric. Should the courts be policing rhetoric?

EliRabett said...

Eli thanks Canman for a great example of a dog whistle

crf said...

Spelling: his name is "Steyn"

crf said...

Similar to the suit filed against the National Post by Andrew Weaver?

Steyn is a Canadian too, and was often published in the National Post too, as I recall.

Russell Seitz said...

Sounds good, but I'll wait for the verdict before siccing Mike's lawyers on Naomi.

Bernard J. said...

"That would be true for just about any editorial or blog post containing criticism of someone including ones written by Mann. "

Not all swans are white.

And when you start to look, you'll find that there's actually a whole continent of black ones...

Sou said...

Thanks for the detailed article, Eli.

BTW, here's a beautiful black swan.

Fernando Leanme said...

Steyn writes he wasn't part of this case, dropped out three years ago, made a motion to proceed to trial, and Mann opposed it. Steyn also mentioned this phase of the case took three years because DC courts are a mess, but that he expects the trial will be shorter. This should increase his book sales.

Toby said...

Fernando,

sour grapes are indeed ill-tasting. Steyn has always been a posturer and a poser, but the judges' words will outlast any book he writes.

Susan Anderson said...

Thanks Sou for the lovely black swan.

There's a gigantic harm here, which probably can't been brought into the lawsuit.

The harm is to the entire human presence on our planet, which is put at risk by the neverending attacks and reversals of meaning promoted by those whose hate for climate science knows no bounds, or whose politics and/or greed allow them to trash the future in favor of present wealth.

Susan Anderson said...

Good gracious Russell, while I could wish that Oreskes and Mooney had got their facts straight about who you are and what you do, I don't think their slapdash misrepresentations come anywhere near the concerted campaign to destroy the reputations of anyone presenting or defending the truth about the climate record (in this I include not only Mann (and death threats to families) but Judicial Watch's collaboration with Rep. Lamar Smith against NOAA/NASA and other campaigns to misrepresent the truth).

In fact, the latter leads me to the conclusion that Hillary Clinton had to put up with orders of magnitude more nonsense and misrepresentation. Though the comparison, I'd agree, is invidious.

@whut said...

"Toby said...
Fernando,

sour grapes are indeed ill-tasting. Steyn has always been a posturer and a poser, but the judges' words will outlast any book he writes.
"


Yup, sour grapes go into making a good whine.
I imagine Steyn's whiny voice when I read Fernando's comments.


Canman said...

From the ACLU's amicus brief:

"Second, the court below erred on the merits by failing to treat the commentaries at issue as constitutionally protected opinion and fair comment. The challenged statements were made in settings and using language that conveyed they were opinions. Against that backdrop, the challenged statements – that Mann manipulated data to serve a political agenda and that governmental bodies improperly endorsed his views – are, as numerous other courts have recognized, protected opinions about both scientific research and public policy based on it. While Mann essentially claims that he can silence critics because he is “right,” the judicial system should not be the arbiter of either scientific truth or correct public policy. While amici may not necessarily agree with the content of defendants’ speech, they believe that, if left to stand, the decision below will chill the expression of opinion on a wide range of important scientific and public policy issues, and therefore urge that it be reversed."

From amicus brief's supporting Mann:

"... Crickets... crickets..."

EliRabett said...

Read the opinion which handles that argument, hell, read the blog post:

"Tarnishing the personal integrity and reputation of a scientist important to one side may be a tactic to gain advantage in a no-holds-barred debate over global warming. That the challenged statements were made as part of such debate provides important context and requires careful parsing in light of constitutional standards. But if the statements assert or imply false facts that defame the individual, they do not find shelter under the First Amendment simply because they are embedded in a larger policy debate."

Sorry, you don't get to trash people's reputations even in this post truth world.

FLwolverine said...

Canman - funny, I can't find that paragraph in the ACLU amicus brief, which seems to entirely about defendant's right to immediate appeal when an anti-SLAPP motion to dismiss is denied. Maybe you could give me a page number?

Canman said...

Page 13, subtitle "Summary of the Argument", third paragraph:

http://www.steynonline.com/documents/6515.pdf

Link came from

http://www.steynonline.com/6522/my-new-best-friends

Link is in the quote by Steve McIntyre.

FLwolverine said...

Canman - thanks. The brief you reference includes the ACLU along with a lot of media groups. They are arguing both that immediate appeal should be allowed and that the Steyn et al statements are opinion and therefore not actionable. There is a separate amicus brief by the ACLU individually which speaks only to the immediate appeal issue. From the DC Docket it isn't entirely clear what was filed.

But in the end it doesn't matter much, does it? On this appeal, only the court's opinion counts, and to them the statements didn't qualify as protected speech. If this case goes to trial, the jury's verdict will control.

Unknown said...

"Facts-don't-matter" and the amicus-curiae arguments from the media make it clear that they like it that way. What the ACLU is doing in it is less clearly motivated, but just as wrong. Because the facts DO matter.

Fundamentally if this case succeeds the media will be on notice that THEY ARE RESPONSIBLE for the accuracy of accusations and assertions that they publish. This hasn't been the case for decades, and the corrosive effects of the lying on the civil society are part of the reason why the USA is now more divided than at any time since the Civil War. This is existential risk to our civil society. It reflects the seriousness of the existential environmental risk to our entire civilization.

The media doesn't want that responsibility because the FALSE information they publish sells more papers, generates more clicks, attracts more eyeballs and money. More popular than real news. Making the facts matter isn't optional in a civil society though. If the ACLU is successful the only recourse someone like Mann would have would be suicide. The ACLU is wrong. If the Media is allowed to discard the responsibilities that they accept with their market access, then there is no-one who can take it up. Speaking and acting responsibly went out of fashion with Boy Scouts, now used pejoratively to describe people who are honest. Real honesty as a pejorative? Yeah... that's where we are now.

Good work that, removing the facts that matter and permitting the liars to prosper.

The media struggled free from those requirements as part of the commercialization of broadcast news. It is now required to attract viewers, the truth be hanged. While Jefferson's warning remains pointed, like a gun aimed at the head of the body politic...

"If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be."

https://www.monticello.org/site/jefferson/if-we-are-guard-against-ignorance-quotation

This lawsuit isn't so much about climate, as it is about honesty and the defense of our civil society. The climate is just some collateral damage from the neo-liberal agenda. Too bad about our civilization.

bj.chippindale

Hank Roberts said...

Much quoted by many bloggers:
https://www.google.com/search?q=%22Tarnishing+the+personal+integrity+and+reputation+of+a+scientist+important+to+one+side+may+be+a+tactic%22&ie=utf-8&oe=utf-8

David B. Benson said...

Merry Christmas to all.

Geoff Price said...

"This is a quibble about wording that does not call into question the import of __________ "

A fun party game might be to list the different ways you can complete this sentence in describing an essentially bottomless list of antics by the climate contrarian movement in attempting to challenge climate science...