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