I am a fierce critic of Michael Mann, a scientist made (in)famous for creating what is known as the "hockey stick." I have repeatedly said his "hockey stick" was fraudulent as he intentionally deceived people by doing things like hiding unfavorable results of statistical tests while publishing those which were favorable.
There's a lot of information and detail involved in the controversy around Mann's work. To help people understand it, I've written two short eBooks discussing it. The first deals with Mann's original hockey stick (a free PDF draft version can be found here), the second with Mann's follow-up efforts to disprove his critics (free draft version here). They demonstrate Mann intentionally deceived people by knowingly misrepresenting "scientific" findings. More bluntly, Mann committed fraud.
I am not the only person to say things like this. Many have. Mann is in the process of suing a few of them. You might think I would oppose this. I don't. Or at least, I don't oppose it completely. You see, the remark which caused this particular lawsuit was this disgusting remark:
Mann could be said to be the Jerry Sandusky of climate science, except for instead of molesting children, he has molested and tortured data in service of politicized science that could have dire consequences for the nation and planet
That is not the basis of the lawsuit, but it is what made Mann decide to file one. He was, quite understandably, upset at being compared to a child molester. I have no sympathy for people who get sued because they say things like this. There are consequences to being a despicable person.
That wouldn't be enough to make me support a lawsuit though. People say vile things all the time. Freedom of speech means they can. The reason this lawsuit happened is people accused Michael Mann of committing fraud. While I believe these accusations are true, I do not believe some of the people making them have behaved in a manner which should or would exempt them from legal scrutiny. In this post, I will discuss a recent court ruling allowing a lawsuit Mann filed to continue and explain why I believe that ruling is correct.
I first came across this ruling because I saw this on Twitter:
— GWPF (@thegwpfcom) December 22, 2016
That would be major news as this lawsuit has dragged on for several years now. I immediately followed the link and read the ruling. All 100+ pages of it. There were some things in it I could not agree with, like:
The data showed that global mean annual temperatures have been rising since the early twentieth century, with a marked increase in the last fifty years. The papers concluded that this rise in temperature was “likely unprecedented in at least the past millennium” and correlated with higher concentrations of carbon dioxide in the atmosphere emitted by the combustion of fossil fuels.
The 1999 paper included a graph depicting global temperatures in the Northern Hemisphere for a millennium...
I don't understand how one could show "global temperatures" for a single hemisphere. There are more substantive issues with the ruling as well. None of them affect the decision though. The decision comes from a fairly simple view. The ruling says:
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.”38 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 statements in Mr. Steyn’s article are similarly factual and specific in their attack on Dr. Mann’s scientific integrity. 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. (“Whether or not he’s ‘the Jerry Sandusky of climate change,’ he remains the Michael Mann of climate change.”) The accusation is bolstered by referring to the University’s investigation as a “cover-up” of Dr. Mann’s “wrongdoing” in order to protect someone who was a “star name” at Penn State like Sandusky and Paterno. Because the allegations impugned Dr. Mann’s scientific integrity and likened him to notorious individuals connected to Penn State in whom the University had (according to Mr. Steyn) a similar financial interest to protect, the statements are not merely fanciful or extreme, purely for rhetorical effect. As in Buckley, they deliver an indictment of reprehensible conduct against Dr. Mann that a reader could take to be an assertion of a true fact.45 These injurious allegations about Dr. Mann’s character and his conduct as a scientist are capable of being verified or discredited. If they are proven to be false, the statements breach the zone of protected speech.
The point made here is people were saying things which were, or at least could reasonably be understood to be, factual statements accusing Mann of serious wrongdoing. If those statements were false, Mann's reputation would be unfairly harmed. If the people making such false statements acted in an inappropriate enough fashion, that could justify a defamation lawsuit. One defendant in the lawsuit disputes this:
National Review argues that Mr. Steyn’s statement that “Michael Mann was the man behind the fraudulent climate-change ‘hockey stick’ graph” could be, and therefore should be, interpreted as expressing vigorous disagreement with the idea represented by the hockey stick graph and as criticism of the methodology that Dr. Mann used in gathering the data that led to the graph. As such, National Review contends that the statement is not actionable because it does not possess the clarity of defamatory meaning required by the Constitution.
But the court saw through that pathetic attempt at dodging the issue. They correctly recognized people were accusing Mann of serious misconduct. That's hardly a surprise. A lot of people, including me, do so on a regular basis. When Rand Simberg wrote for the Competitive Enterprise Institute (a copy can be found in the ruling's Appendix):
But now that we know how bad it was, perhaps it’s time that we revisit the Michael Mann affair, particularly given how much we’ve also learned about his and others’ hockey-stick deceptions since. Mann could be said to be the Jerry Sandusky of climate science, except for instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.
To review, when the emails and computer models were leaked from the Climate Research Unit at the University of East Anglia two and a half years ago, many of the luminaries of the “climate science” community were shown to have been behaving in a most unscientific manner. Among them were Michael Mann, Professor of Meteorology at Penn State, whom the emails revealed had been engaging in data manipulation to keep the blade on his famous hockey-stick graph, which had become an icon for those determined to reduce human carbon emissions by any means necessary.
Michael Mann, like Joe Paterno, was a rock star in the context of Penn State University, bringing in millions in research funding. The same university president who resigned in the wake of the Sandusky scandal was also the president when Mann was being whitewashed investigated. We saw what the university administration was willing to do to cover up heinous crimes, and even let them continue, rather than expose them. Should we suppose, in light of what we now know, they would do any less to hide academic and scientific misconduct, with so much at stake?
It’s time for a fresh, truly independent investigation.
He was not merely expressing an opinion. When Mark Steyn wrote for the National Review:
Not sure I’d have extended that metaphor all the way into the locker-room showers with quite the zeal Mr Simberg does, but he has a point. Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph, the very ringmaster of the tree-ring circus. And, when the East Anglia emails came out, Penn State felt obliged to “investigate” Professor Mann. Graham Spanier, the Penn State president forced to resign over Sandusky, was the same cove who investigated Mann. And, as with Sandusky and Paterno, the college declined to find one of its star names guilty of any wrongdoing.
If an institution is prepared to cover up systemic statutory rape of minors, what won’t it cover up? Whether or not he’s “the Jerry Sandusky of climate change”, he remains the Michael Mann of climate change, in part because his “investigation” by a deeply corrupt administration was a joke.
He intended to convey it is fact Michael Mann has engaged in serious misconduct. Recognizing that, the ruling sought to determine whether or not a jury could reasonably conclude these authors entertained serious doubts about what they wrote. It concluded a jury could.
As Mr. Simberg and Mr. Steyn make clear in their articles, they dismiss the Penn State investigation as biased, conducted by insiders with a vested interest in upholding Dr. Mann’s reputation as a leading climate scientist. The articles describe the Penn State investigation as a “cover-up” and a “whitewash,” and argue they have a good basis for believing so in light of Penn State’s shoddy investigation of Jerry Sandusky, in which he was cleared in the face of multiple allegations of sexually abusing children for which he was subsequently charged and convicted. Even if appellants’ skepticism of the Penn State report were to be credited by a jury as a valid reason for not taking its conclusions seriously, that leaves three other reports, from separate investigatory bodies in academia and government, on both sides of the Atlantic, that also found no wrongdoing.
As the preceding discussion demonstrates, appellants’ objections to the reports can fairly be characterized as arguments that could be made to a jury as to why the reports’ conclusions should not be credited or given much weight. We do not judge whether appellants’ arguments will persuade a jury. Our task now is not to anticipate whether the jury will decide in favor of appellants or Dr. Mann, but to assess whether, on the evidence of record in connection with the special motion to dismiss, a jury could find for Dr. Mann.
The court acknowledged the National Review and Competitive Enterprise Institute might be able to convince a jury it shouldn't trust the various "investigations" which were said to clear Mann of wrongdoing. That doesn't matter. What matters is whether or not a jury might believe these "investigations" meant the people making the accusations had serious reason to doubt what they said. That is the standard used when determining if this lawsuit should even be allowed to go to a jury.
Some people argue against this judgment. One such person is Jonathan H. Adler, who writes for The Washington Post to say:
In refusing to dismiss claims against Steyn and Simberg, the D.C. Court of Appeals placed tremendous weight on the fact that Penn State and other institutions investigated Mann and did not find evidence of academic misconduct. Yet it is the alleged inadequacy of Penn State’s investigation that was the focus of the very posts at issue. Indeed, this was the whole point of the Sandusky comparison. Both Simberg and Steyn believe that Penn State failed to conduct a thorough investigation of the allegations against Mann and that other investigations either did not focus on Mann’s conduct or relied too heavily on Penn State. They were explicit on this point, and they cited the reasons for their conclusions. Further, a reader of their posts would be well aware that they were expressing their own opinions and not claiming that some independent investigatory body or tribunal had reached an equivalent judgment.
Because the university and other investigations failed to find evidence of scientific misconduct on Mann’s part, the court declared that claims Mann engaged in such action were “definitively discredited.” On that basis, it concluded, “a jury could find, by clear and convincing evidence, that appellants ‘in fact entertained serious doubts’ or had a ‘high degree of awareness’ that the accusations that Dr. Mann engaged in scientific misconduct, fraud, and deception, were false, and, as a result, acted ‘with reckless disregard’ for the statements’ truth when they were published.” This is a troubling conclusion.
It cannot be that once some official body has conducted an investigation of an individual’s conduct, that further criticism of that individual, including criticism that expressly questions the thoroughness or accuracy of the investigatory body, is off limits.
Adler correctly states people are not obligated to believe the conclusions of "investigations." His argument is the mere fact people disagree with what an "investigation" should not justify a defamation lawsuit. He is correct. However, Adler's examination is incomplete. If a person doubts the findings of an "investigation," they can do many things to indicate why they think that investigation is wrong. One such thing they could do is look for evidence to support what they say. The court notes these authors did not do this:
What was present in Jankovic III that lent support to the claim of good faith belief is missing here. Unlike in Jankovic III, where the court noted that ICG had relied on an able analyst who had researched, reviewed and edited the report prior to publication, in this case there is, at this point, no similar evidence that Mr. Simberg, Mr. Steyn, CEI, or National Review conducted research or investigation that provided support for their defamatory statements that Dr. Mann engaged in deception and misconduct. The only support cited in the articles are the CRU emails, with primary reliance on the language in one email that referred to “Mike’s Nature trick.” But what the court noted was missing in Jankovic III to support a finding of actual malice is present here: evidence that there was reason to doubt the emails as a reliable source for the belief that Dr. Mann had engaged in misconduct. That evidence has been presented in the form of reports from four separate investigations that debunked the notion that the emails and, specifically the reference to Dr. Mann’s “trick,” revealed deception in the presentation of data and scientific misconduct.
Accusations Michael Mann committed fraud or is otherwise guilty of serious misconduct are true. I know that. I know that because I have spent a substantial amount of time investigating and researching Mann's work and behavior. The court takes note of the fact the defendants in this lawsuit have not done the same. They provided the court no evidence they had put any work into investigating what they wrote. Practically, the only basis they offered for what they wrote were flimsy hand-waves to cherry-picked quotations taken out of context.
Adler fails to mention that. Adler is correct people can reasonably disbelieve what "investigations" say, but the issue here is what a jury might reasonably conclude. In this case, the jury would have to decide if they believe someone writing an article in which they vaguely wave their hand at cherry-picked quotations taken out of context truly believed what they wrote when it contradicted what "investigations" conducted by multiple formal bodies said. The court decided a jury might reasonably believe those writers didn't actually believe what they wrote.
I agree. I think the accusations these people made were true. I just think these writers were lazy and/or apathetic enough the truth or falsity of the accusations was irrelevant to them. In other words, they were just interested in "scoring points." That's why they didn't bother to research what they wrote. Given that, I cannot fault the court for deciding a jury might reasonably conclude these people willfully disregarded the truth as presented by the "investigations" of various formal bodies.
This view is further evidenced by another thing the court noted:
Appellants do not argue that Mr. Simberg’s article, if capable of conveying a defamatory meaning, is not actionable because the statements that Dr. Mann engaged in deception and misconduct are true. Their argument is that the statements are not verifiably false because they are simply Mr. Simberg’s opinion.
The defendants in this lawsuit attempted to argue there was nothing factual about what was said in their articles so there couldn't be any defamation. The defendants then argued if there was anything factual about what had been said, it was merely opinion and thus "not verifiably false." The defendants didn't argue any accusations "Mann engaged in deception and misconduct are true." If the defendants are going to resort to such pathetic attempts at dodging even now, it is not unreasonable to think they might not believe what they published was true.
The defendants in this lawsuit could have saved themselves a great deal of trouble by simply saying, "Yes, we accused Michael Mann of serious wrongdoing. We did so because after spending X hours researching the subject, we found the evidence overwhelmingly indicates he committed fraud. Here's that evidence." If they had, I think this appeals court would have ruled in their favor. As it stands though, the court had no basis on which to conclude these defendants actually believed what they wrote. You can't simply say, "I believed what I wrote" and assume the court or a jury will take you at your word.
And that is what this ruling comes down to. If the defendants believed what they wrote, they should win the suit. If they did not believe what they wrote (and what they wrote was false), they should lose. Their apparent laziness, combined with the appearance of a strong body of evidence against them, makes it so a jury could reasonably conclude they didn't really care if what they wrote was true. That is why the court ruled the way it did. That is why I agree with the court's ruling.
My impression of all this is the lawyers for the National Review and Competitive Enterprise Institute are bungling this case. Rather than rely on legal wrangling to try to dodge issues, the lawyers should have taken some time to come up with a compelling case justifying what their clients had published. The defendants should have told the court, "We believed what we published because it is true. It doesn't matter what those investigations might have concluded because we can examine the evidence with our own two eyes and see Mann engaged in serious misconduct." Ideally, the defendants should have done something, anything at all, to indicate they had even the most rudimentary knowledge of the topic they were discussing.
Michael Mann engaged in deception on numerous occasions, repeatedly engaging in behavior that rose to the level of fraud. Any competent speaker or lawyer could demonstrate that. If this case is presented to a jury by anyone who is not a complete nincompoop, Mann will lose his lawsuit. Even so, I believe this court ruling allowing the lawsuit to proceed is correct.
There is obviously much I didn't cover in this post. I tried not to bring up superfluous issues. I would like to bring up one though. The post on Twitter I showed near the start of this post claims the defamation lawsuit against the National Review was dismissed. This is untrue. What was dismissed was any claim of defamation arising from one article the National Review posted titled, "Get Lost." This is a different article than the one Mark Steyn wrote for the National Review, written in response to Michael Mann threatening to file a lawsuit over the Steyn article. It was never important to the lawsuit. That it won't be considered in future proceedings is unimportant. It certainly does not change the fact the National Review is being sued for defamation.
December 29th, 11:30 AM Update: I noticed a number of readers have been visiting this article by way of a piece Mark Steyn wrote. Because of that, I feel I should correct/clarify something. In his piece, Steyn says:
Nevertheless, even though [Brandon Shollenberger] agrees with me that the hockey stick is fraudulent, he's in favor of Mann suing my ass off - on the grounds (if I follow correctly) that, unlike Shollenberger, I haven't done sufficient research to pronounce the hockey stick fraudulent. Truth is no defense if it's breezy, lightly worn, insouciant, insuffficiently credentialed truth.
The first thing I should point out is while I may not have made it clear in this post, I wrote this post only in regard to the defendants who were party to the motion the court ruled on. Steyn didn't involve himself in that motion so I had no reason to discuss his position in this matter.
The other thing I should point out is Steyn has misunderstood my position by a significant margin. I do not approve of Michael Mann suing anybody. I do not support him doing so. I think it is wrong. However, I have no sympathy for someone who gets sued by a person he compares to a child molester. You brought that upon yourself. I can say this lawsuit is wrong yet not feel bad for the people it targets.
Aside from that, my only view is Mann has a strong enough case the court should not dismiss it. I have no doubt Mann will lose at trial, but I do think he has enough of a case he should be allowed to go to trial. That is all I have ever said. Whether I am right or wrong about this, expressing a view on the legal realities of a situation does not in any way mean I am in favor of Michael Mann suing anybody. I have no idea why Steyn would struggle to grasp the distinction.