Friday, July 26, 2013

Bus Tossing

As many have noted, the judge, Natalia Combs Greene, has tossed out the National Review Online (NRO) and Competitive Enterprise Institute (CEI), petition to apply the  anti-SLAPP law to Michael Mann's suit against them for libel.  Eli has commented on the suite previously, others have done the job on the judge's denial, but Eli, Eli always has an eye for the amusing, and NRO's recent filing claiming that the judge blew it by confusing poor old innocent them with the evel CEI is a new record in kicking your friends under the bus.

Judge Greene was not pleased with CEI's and NRO's claims of innocence writing

There is sufficient evidence presented that is indicative of “actual malice.” The CEI Defendants have consistently accused Plaintiff of fraud and inaccurate theories, despite Plaintiff’s work having been investigated several times and found to be proper. The CEI Defendants’ persistence despite the EPA and other investigative bodies’ conclusion that Plaintiff’s work is accurate (or that there is no evidence of data manipulation) is equal to a blatant disregard for the falsity of their statements. Thus, given the evidence presented the Court finds that Plaintiff could prove “actual malice.
with similar for NRO.  This is a worse defeat for CEI and NRO than it appears on the surface which is bad enough, because their motions argue that their statements about Prof. Mann were opinion, not fact, which is going to make it tough for them to argue that they were telling the truth about him and askin for discovery to dig dirt, but wait, there is more.

In a new motion, NRO argues that well yes, CEI libeled Mann, but they didn't
Specifically, the Order conflates the conduct of co-defendant Competitive Enterprise Institute (“CEI”) with that of National Review and Steyn, who never petitioned the Environmental Protection Agency to investigate Plaintiff or otherwise pressured the agency concerning Plaintiff’s research. Similarly, National Review and Steyn did not criticize Plaintiff’s scientific research for years, as CEI did
Eli does not remember NRO and Mark Steyn being especially friendly to Mann, and indeed if not before, after this people are going to go looking in the archives, but this is a sharp message to CEI that they are on their own.

More popcorn.
1.  Michael Mann's complaint

2.  CEI's motion to dismiss based on the DC anti-SLAPP act

3.  NRO's motion to dismiss based on the DC anti-SLAPP act

4.  Mann's reply to the NROs anti-SLAPP petition

5.  CEI's response to Mann's reply

6.  Judge's decision denying the CEI motion to dismiss

7.  Judge's decision denying the NRO motion to dismiss

8.  Judge's decision denying the NRO motion to dismiss based on the anti-SLAPP law

9.  NRO's motion to reconsider
10. Mann's reply to the motion to reconsider
11. NRO's motion to reconsider gets tossed and their lawyers are dissed for being clueless about how to file motions UPDATED


Anonymous said...

This is a worse defeat for CEI and NRO than it appears on the surface which is bad enough, because their motions argue that their statements about Prof. Mann were opinion, not fact, which is going to make it tough for them to argue that they were telling the truth about him...

It seems that Mann doesn't need lawyers - the defence is doing that job for him.

It surely takes special training to be that stupid.

Bernard J.

Steve Bloom said...

Hmm, doesn't Randian philosophy hold that you should never pass up an opportunity to advance your own position by throwing someone under the bus?

dhogaza said...

We should all bow in thanks for the very existence of anti-SLAPP suit legislation. It's recent (Clinton years), and came after some years of "novel" persectution of environmental/conservationist activists. I myself nearly became a target of a SLAPP suit, but the anti-SLAPP suit legislation was adopted before things reached that point (but after it had for a sister conservation organization which saw individual SLAPP suits filed against board members).

John Mashey said...

It is eurythmics rummaging the NRO website for words like Mann or Wegman.
Pleasantly, the Internet Archive copied them very often.

Anonymous said...

WUWT, The Bishop etal. have been (not so) oddly silent about the ruling.

John Mashey said...

Hmm, my iPhone';s spell checker has gotten weird lately :-)
eurthymics = amusing or instructive

But as for WUWT or BH ...

Between them and Jo Nova, they generated 1500 (breathless) comments in 4 days on the Salby affair (~July 09-12).

SO, for 4 days:
Salby: Galileo, Copernicus, Einstein

Macquaire: inquisition, Orewellian, Stasi, Nazis, Lysenkoism, Deutsche Physik, dictatorial, criminal, Stalin's best ... (those just from JO Nova's)

Then on July 12 Readfearn and I published thisand this

Suddenly, the topic as uninteresting and they moved on. SO, I am unsurprised that little concern is given to court cases.

Anonymous said...

Theme music:

Shaggy: "It wasn't me!"

Anonymous said...

Oh, if it's theme music we're talking, I think a nod to John's use of "eurythmics" sets the tone, so wih apologies to Annie Lennox:

Tell you straight, no intervention
To your face, no deception
You're the biggest fake
That much is true
Had all I can take
Now I'm suing you...

Frank D. Mouse.

Jeffrey Davis said...

I've never understood how Mann is a public figure.

John Mashey said...

Jeffrey Davis said...

Exactly. There was nothing in there that makes Mann a "public figure". His scientific papers became sensationalized by the presss and his personalty became an issue after his attackers decided to cull one figure from the herd. But that becomes circular: he's a public figure because his attackers decided to make him one. Could you libel Francis Crick because you don't like evolution?

There has to be more to being a public figure than mere fame. Or even accomplishment.

Brian said...

Mann's pretty clearly a limited purpose public figure, especially with his new book that gets us out of trying to decide whether he's an "involuntary" public figure. The idea isn't so much a matter of choice by the individual but whether they're discussed in the public sphere, and therefore someone the courts are hesitant to rush in and order media around.

Outside of climate, he's probably not a public figure. If someone defamed him over his honesty while selling a house, that would proceed like it would with anyone else.

Jeffrey Davis said...

Brian, you do see that the definition of "public figure" becomes circular. As a ploy to add "malice" to the standards for libel, all a group would need to do would be to act in concert. Any schmoe could be elevated to the rank of public figure simply due to the mass of voices raised against him.

I can't imagine how it serves freedom of speech, if anyone who publishes a book becomes a "public figure" for the purpose of libel.

Neal J. King said...

Jeffrey Davis:

from the Wikipedia article on public figures:
"A fairly high threshold of public activity is necessary to elevate people to public figure status. Typically, they must either be:

- a public figure, either a public official or any other person pervasively involved in public affairs, or
- a limited purpose public figure, meaning those who have "thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved." A "particularized determination" is required to decide whether a person is a limited purpose public figure, which can be variously interpreted."

It seems clear to me that Mann would qualify as a limited-purpose public figure on climate issues.

Ronin Geographer said...

I linked to this post - since the link doesn't show up here, here it is:

Ed Darrell said...

Generally, Times v. Sullivan applies to "public officials," someone who has some discretionary authority in the affair, and who might be excused from liability for actions by dint of that official status, like a cop (who would probably NOT be called a public figure just because of immunity), or a police commissioner, or an appointed official at NIH or Energy.

I don't think Mann qualifies, but I'm sure they'll argue that if they get a chance. I hope Mann's attorneys keep pushing for summary judgment, and get it.

Freedom Forum has some instructive stuff on the issues:

Paul Klemencic said...

WUWT posted on this lawsuit on July 29th. One of the comments linked to an NRO article by Steyn in 2009, with this nice quote:

The more their echo chamber shriveled, the more Mann and Jones insisted that they and only they represent the “peer-reviewed” “consensus.”
And gullible types like Ed Begley Jr. and Andrew Revkin of the New York Times fell for it hook, line, and tree-ring.
The e-mails of “Andy” (as his CRU chums fondly know him) are especially pitiful.
Confronted by serious questions from Stephen McIntyre, the dogged Ontario retiree whose Climate Audit website exposed the fraud of Dr. Mann’s global-warming “hockey stick” graph), “Andy” writes to Dr. Mann to say not to worry, he’s going to “cover” the story from a more oblique angle:

I’m going to blog on this as it relates to the value of the peer review process and not on the merits of the mcintyre et al attacks.
peer review, for all its imperfections, is where the herky-jerky process of knowledge building happens, would you agree?
And, amazingly, Dr. Mann does! “Re, your point at the end — you’ve taken the words out of my mouth.”

And that’s what Andrew Revkin did, week in, week out: He took the words out of Michael Mann’s mouth and served them up to impressionable readers of the New York Times and opportunist politicians around the world champing at the bit to inaugurate a vast global regulatory body to confiscate trillions of dollars of your hard-earned wealth in the cause of “saving the planet” from an imaginary crisis concocted by a few dozen thuggish ideologues. If you fall for this after the revelations of the last week, you’re as big a dupe as Begley or Revkin.

So even before the article cited in this lawsuit, NRO was calling Mann's work a fraud.

If the link doesn't work, try googling National Review circus, and the link will work.

Conrad Dunkerson said...

"Similarly, National Review and Steyn did not criticize Plaintiff’s scientific research for years, as CEI did."

Not only is this 'throwing CEI under the bus'... it is a flat out lie.

Steyn DID criticize Mann's research for years;

Google shows a similar multi-year list of anti-Mann/hockey stick articles from NRO. Is there such a thing as perjury for a false statement in a motion, because this should qualify.