Why I Side With Michael Mann, For a Second Time

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:

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.

87 comments

  1. hunter, I have no idea what purpose comments like that are supposed to serve. You're not going to change anyone's mind with them. Nobody is going to read your comment and go, "Man, Brandon really sucks" unless they were going to say that in the first place. Is it virtue signaling where you want to make sure everyone knows you're on their side? Are you thinking if you whine and moan it'll relieve stress? What is it?

  2. I have my doubt whether arguing truth as a defense would have mattered. The whole opinion looks like they are quoting from Skeptical Science, or perhaps all this is in the briefs.

    I realize the timing is off, but if Simberg, Steyn, and Co argued, 'We read this text at hi-izuru.org and that is why we disagree with the investigations.' the court would have come back with 'the site they quote argues that this case should proceed'.

  3. MikeN, I can't speak with certainty as to what would have happened had the defendants taken a different course of action, but if the lawyers had put forth a coherent case for why their clients believe Michael Mann is guilty of serious misconduct and asserted the truth as a defense, I do know two things. First, the court would have had less to consider as it would not have been forced to adjudicate several issues. Perhaps that would not have sped up the ruling, but perhaps it would have. It certainly would have required less time be spent by the lawyers, saving their clients money. (I would not be surprised if some lawyers were happy for this case to drag on without going to trial indefinitely to increase their billables.)

    Second, the current ruling would be radically different. The current ruling by the Court of Appeals rests entirely upon how a jury might weigh two possibilities: 1) The defendants said what they said because they didn't care if it were false; 2) The defendants said what they said because they truly believed it was true. That is the issue which determines if this motion should be dismissed. As it stands, the court says it thinks a jury could reasonably come to conclusion 1 because they might disbelieve the defendants' claim of genuine belief. The court says it feels the jury might do so because of the "investigations" it is impressed by and the fact the defendants offer almost nothing to justify the belief they purport to have held.

    If the defendants had offered a substantial case to justify why someone might believe what they said, the court would no longer be able to make that argument. If the National Review, Competitive Enterprise Institute, Mark Steyn or anyone else could show they had investigated what they said and could make a coherent argument for it, that would give compelling evidence they truly believed what they said (whether or not it was correct).

    It's possible the court would have taken an entirely different approach to handling the case had they done so. I don't know. What I do know is no ruling anything like the current one would have been issued.

  4. Oh. I should point out simply defending what was said might not be enough to conclusively demonstrate genuine belief. For instance, Mark Steyn wrote a book criticizing Michael Mann. One might think that indicates genuine belief in what he originally said. One could, however, argue the book proves Steyn acts with reckless disregard to the truth on a regular basis. One could do so because of how many errors and misrepresentations are in the book. It wouldn't be an easy case to make, but it might work. You might be able to convince a court/jury nobody would inadvertently make so many false statements, especially when one can show there are dozens of misquotations and blatant misrepresentations of what people said.

    The point of bringing this up is it's not enough to just argue in defense of what one has been sued over. You have to convince the court/jury you truly believed it. If they feel your defense is opportunistic and disingenuous, they might conclude you didn't (and still don't) believe what you said. In that case, you could lose.

    As a side note, arguing the statements were true has a benefit beyond disputing the existence of "actual malice." Arguing the statements were true would have forced the court to examine that issue directly. Imagine if the defendants said: "We don't trust the conclusions of those investigations because we've examined the evidence, as shown in this report." The judges would have been forced to examine that report and contrast what it said against what the "investigations" said. Perhaps it would still side with Mann, but it'd be harder for the court to do so. And even if it did, it would play Mann's dishonesty squarely in the center of the debate.

    Which is exactly what the defendants ought to have done from the start. Truth is an absolute defense in defamation lawsuits, and forcing people to examine Mann's dishonest behavior throughout the years would make the case far more unpleasant for him.

  5. >You have to convince the court/jury you truly believed it.
    Isn't it the other way around, that they have to prove you didn't, or at least come close?
    I get what you are saying, but I get the overall impression that the court was looking for ways to deny the defendants.
    Indeed, they pretty much say so, that that is how they interpret the statute's requirements.

  6. Mark Steyn said he decided to withdraw from the case when he heard the lawyers discussing billables for 2015.

  7. As a matter of procedure for this anti-SLAPP motion to dismiss, shouldn't the court have to evaluate as if the defendants had argued truth as a defense?

  8. I take that back. Now I'm confused. The ruling has this:
    Appellants contend that because the challenged statements
    reflect their subjective and honest belief in the truth of their statements,
    actual malice cannot be proven.

    I also remember a reference to appellants are not arguing truth as a defense.

  9. "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."
    as i understand, the truth of this is a matter to be resolved at trial. however, it wasn't to be resolved at this point.
    this session was seeing whether the lawsuit could survive an anti-SLAPP motion; for this purpose, the court gives considerable leeway to the plaintiff, and asks if the plaintiff's case is capable/likely of being able to succeed. So there are not findings of fraud (or not), or malice (or not); merely whether there is a whole case that is fit to be addressed at trial.

    Adler's viewpoint is not without merit. If you can force people into a libel trial, you impose on them a punitive cost burden even if they are able to go all the way through to trial and win. It seems a legitimate viewpoint that this sort of libel trial is abusive per se.

  10. MikeN:

    >You have to convince the court/jury you truly believed it.
    Isn't it the other way around, that they have to prove you didn't, or at least come close?
    I get what you are saying, but I get the overall impression that the court was looking for ways to deny the defendants.
    Indeed, they pretty much say so, that that is how they interpret the statute's requirements.

    For a normal motion to dismiss, you have to demonstrate the plaintiffs have no chance to succeed, as a matter of law. Some people think the Anti-SLAPP legislation changes that, but there's no explicit legislation or case law which establishes what the change might be. So basically, if you don't want to have to go to court, you need to be able to convince people you genuinely believe what you say.

    For the actual verdict, I think you just have to convince them it is "more likely than not" you believe what you said. I'm not positive if that's the standard for civil defamation suits, but I think it is. It's only the theoretical standard though. In practice, juries will "fudge" the probability figure based on how they feel about the defendant/plaintiff. I suspect a jury will not be very lenient on people who compare others to child molestors.

    As a matter of procedure for this anti-SLAPP motion to dismiss, shouldn't the court have to evaluate as if the defendants had argued truth as a defense?

    Nope. The court has to establish that, as a matter of law, there is sufficient evidence to believe the defamatory statements were false. That is related to arguing the truth as defense, but it's a different thing. Arguing truth as a defense means you assert you can prove what you said. If you don't assert that defense, the court will merely look at if it would be possible to convince a jury the statements were false given the evidence presented to it.

    If you don't argue truth as a defense, you miss out on a lot of opportunity to present evidence what you said was true. That means the court will, for the most part, only hear the plaintiff's "side" of the argument.

  11. per:

    as i understand, the truth of this is a matter to be resolved at trial. however, it wasn't to be resolved at this point.
    this session was seeing whether the lawsuit could survive an anti-SLAPP motion; for this purpose, the court gives considerable leeway to the plaintiff, and asks if the plaintiff's case is capable/likely of being able to succeed. So there are not findings of fraud (or not), or malice (or not); merely whether there is a whole case that is fit to be addressed at trial.

    This is somewhat true. If the defendants could provide a coherent and compelling enough argument to support the things they said in those articles, the court could decide it is convincing enough the plaintiff could not possibly win his case. If you make a clear-cut case showing the evidence proves Mann has committed fraud (or other such things), the court could decide the published statements were true. They would have to dismiss the suit then.

    That is unlikely, but even if it didn't happen, the court could easily determine there is overwhelming evidence "actual malice" does not exist. If the court is convinced there can be no doubt the defendants believed what they wrote, the court will dismiss the suit. You're correct to say the court wasn't making a determination as to what is true or if malice was present. However, the court had to believe the plaintiff's could make their case. If the defendants could convince them there was no chance of that, the court would dismiss.

    Adler's viewpoint is not without merit. If you can force people into a libel trial, you impose on them a punitive cost burden even if they are able to go all the way through to trial and win. It seems a legitimate viewpoint that this sort of libel trial is abusive per se.

    Yet if Mann had filed a similar lawsuit against someone like me (in Washington DC), the case would have been dismissed and Michael Mann would have been forced to pay for my costs. That's because no jury could ever, as a matter of law, conclude I do not believe Mann committed fraud. A lawsuit would be burdensome, but ultimately, Mann would be the one to suffer for filing it. It'd be no worse than any number of other forms of frivolous lawsuits the get filed. In fact, it'd be better as you're guaranteed to get your legal fees paid for by the plaintiff.

    I suspect Mann would never have sued anyone who could make an even semi-coherent case for why one should believe he's committed fraud or engaged in other dishonest behavior. If he ever does in the future (now that the procedural aspects of the Anti-SLAPP have been worked out,* he will lose. And lose badly.

    *Unless he tries filing a lawsuit in a different area where he can create another procedural quagmire. That's always a possibility.

  12. Here's an example of the sort of nonsense people are using to try to spin this judgment as terrible:

    Essentially, the DC Court of Appeals has ruled that a jury can conclude that the Defendants were required to believe the reports that purportedly “exonerated” Mann and therefore refrain from expressing conclusions contradicting those in the reports.

    This comes from one Will J Richardson, over at The Blackboard. Another user chimes in to praise him:

    (WJR is a lawyer himself and has provided many intelligent and informative legal comments at the Blackboard over the years…I’m just jumping in because I happen to be here at the moment. His question, if I read it right, was just demonstrating his concern with MikeN’s reading of the new Mann opinion.)

    But anyone reading what he quoted should immediately see what he said isn't true. This is that quotation:

    On the current record, where the notion that the emails support that Dr. Mann has engaged in misconduct has been so definitively discredited, a reasonable jury could, if it so chooses, doubt the veracity of appellants’ claimed honest belief in that very notion. 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.

    Now, the phrase "definitely discredited" is incorrect, but it is incorrect because the defendants did such a terrible job showing the problems with these "investigations." Given the defendants failed to provide important information to the court, I can hardly fault the court for being unaware of it.

    The primary issue for this ruling was, "Would a jury be required to believe the defendants' claim of sincerity in what they wrote despite these 'investigations'?" The court ruled a jury might find the "investigations" compelling enough to think people who contradicted them did so for reasons other than genuine belief. It did nothing to suggest a jury might be "required" to believe anything, like the commenter said. The court simply said a jury could weigh the probability the defendants believed the investigations but lied for personal benefit against the probability the defendants believed what they wrote.

    That's fair. Remember, the defendants have had over three years to work on this issue, and they still haven't presented anything resembling a coherent case demonstrating why one should doubt the results of these "investigations." If they can't do it in three years,* is it really unreasonable to think a jury might conclude the defendants knew they couldn't have done it in the first place?

    *I could do it in three days.

  13. My reading of the court opinion is they would find against you as well and take it to a jury. Primarily that the other investigations are evidence in Mann's favor, and thus you are acting in reckless disregard of the facts. You can claim that you have a better case for explaining what is wrong with the investigations, but they could still say a jury might not accept this and could reasonably conclude you disregarded the investigations.

    That you can build a stronger case against the other investigations I don't doubt, but they did provide some reason for doubting these other investigations, and this was shot down with Skeptical Science level argument.

  14. MikeN, I don't think what you say is true at all. Quite frankly, I think it sounds paranoid. The judges gave clear reasoning for their ruling. The ruling specifically notes the defendants gave no indication they investigated or researched what they said. It notes they said not a word about several of the "investigations" in question. It notes they clearly misrepresented what at least one "investigation" said. All of that casts doubt on the idea the defendants actually believed the "inveestigations" were wrong. All of that makes it not-unreasonable to conclude the defendants were just trying to "score points" and didn't care that what they said was contradicted by a not insignificant set of "investigations."

    None of that would be true with me. Not a single thing the court said in its ruling would apply to me. There is nothing in this ruling which could possibly support a finding against me. There is nothing in this ruling which supports your view.

  15. Again, I have no idea what you hope to accomplish with your comments hunter. That question is no better than if I said, "Are you a trained monkey hunter?"

  16. I think that was a legitimate question by hunter, and I had the same reaction to something you wrote.

    Before getting to why I think you are wrong legally, let me address the paranoid assertion with a question.

    Legal issues aside, do you think the court ruling is correct on matters of science and the investigations, and if not how did the errors arise?
    I think the judges are meekly accepting Skeptical Science arguments, and this would apply to your case as well. That's not paranoid, but my
    reading of the ruling. If you go against what I assume is you answer to my question and think the errors are minor, that is a different issue.
    Presumably you would have better case attacking various points, but I have my doubts it would matter. I'm particularly struck by

    Appellants also contend that the investigatory reports cannot be relied upon to find
    that they purposely avoided the truth because the investigations do not, in
    fact, “exonerate” Dr. Mann. They point to the report of the University of East
    Anglia, which states that the hockey stick graph that was submitted for inclusion in the
    1999 WMO Report and IPCC Third Assessment Report was “misleading.”
    The UEA report does use the word “misleading.” As that report makes clear,
    however, what it meant is not that the statistical procedures used to generate the
    hockey stick graph — which involved reconstructions of temperature through the
    use of proxies (such as tree rings) or splicing data from different sources —
    are themselves misleading, but that an explanation of those procedures should have
    been included in the graph itself or in immediately accompanying text. It is not an
    indictment of the deceptive use of data,but a comment on how the graph could...

  17. As an aside, if you felt that they spoke the truth and the lawyers are bungling the case,
    then perhaps you should have filed an amicus brief and the whole thing would have been thrown out.
    Or would it not matter if the defendants are not arguing it?

  18. National Review does claim belief in the truth of the statements, only they are attributing to 'fraud' a more general meaning.
    While you say the lawyers bungled the case, I give a pass to NR because Buckley was known for his vocabulary, selling word a day calendars,
    and that brief looks like something he would write.

  19. MikeN, please do something like use quotation marks to set aside any quotations in your posts? Also, please do not offer quotations without explaining their relevance and/or what people should take from them. I have no idea what you are "struck by" in that quotation. The quotation seems a perfectly reasonable statement given what the court was provided. The defendants did nothing to demonstrate what the "trick" actually was (or how there are in fact different versions of it) or why the UEA report's description of it is misleading. I don't know why anyone would fault the court for examining the evidence it was presented rather than doing original research of its own. You criticize the idea the judges "are meekly accepting Skeptical Science arguments," yet you offer no explanation as to why they should have done otherwise.

    As an aside, if you felt that they spoke the truth and the lawyers are bungling the case,
    then perhaps you should have filed an amicus brief and the whole thing would have been thrown out.
    Or would it not matter if the defendants are not arguing it?

    An amicus brief can provide ideas and perhaps even information to a court, but it cannot introduce new issues. Legally, such filings have no bearing on the legal proceedings. It's possible filing a brief would have led the court to discover factual matters which it could have used in making its rulings, but I wouldn't count on it. I certainly wouldn't spend a signficant time (and pay filing fees) to do something the defendants are choosing not to do.

    National Review does claim belief in the truth of the statements, only they are attributing to 'fraud' a more general meaning.

    Truth as a defense only work if the factual content of what was said is true. Given the defendants disclaim any factual content, that's a difficult position to argue. It also seems highly unlikely as the court didn't consider any such defense, explicitly saying it was not raised. I cannot imagine that would happen if the defense had in fact been raised (and I am certain the defendants would protest loudly so we'd all hear if it did). It appears you are conflating the defendants saying they believe the substance of what they published with the idea of them raising truth as a defense. The two are not the same.

    I think that was a legitimate question by hunter, and I had the same reaction to something you wrote.

    I used to keep a tally of how many times I was asked, "Are you a trained/professional/whatever X?" in response to an argument I made. I quit after the count broke 30. In every case, it was a poorly concealed ad hominem attack. Not once did it serve a legitimate purpose. hunter's question did not either. Whether or not I am a "trained lawyer" has no relevance to anything I've written. One way we can see this is you can be a "trained lawyer" and know practically nothing about defamation law. You can find many lawyers who know less about defamation law than many journalists as journalists often have to worry more about the subject.

    If hunter were genuinely interested in any formal training I might have that would be relevant, he could have asked after that. Instead, he asked a question where a person who practices patent law would say, "Yes."

  20. MikeN:

    Why does this post say 0 COMMENTS

    This site used to be hosted by WordPress the company. I eventually transferred it over to a server I manage (still using WordPress software, just not their servers). When I did so, old comment counts got messed up. It has something to do with the difference in how the various installations handle comments, but I don't know the specifics offhand. I've never felt it mattered enough to take the time to fix.

  21. MikeN, I noticed you asked this over at The Blackboard:

    How much does arguing truth as a defense matter? I find reference in the ruling to the defendants are not arguing truth, and that they are. Brandon thinks his hypothetical case against Mann would be different because he would argue truth as a defense and that he would attack the investigations better.

    Having discussions across multiple locations rarely works out well. This is an example of why. The person you asked answered in the predictable manner of how arguing truth as a defense would work in and of itself during consideration of the motion. I said little, if anything, about that. The issue I raised is different. Your question did not highlight the issue I raised, and the person who answered did not address it either.

    The point I made is simple. :Actual malice" requires a person either know what they said was false or act with reckless disregard toward the probable falsity of what they said. In other words, it's about whether or not they truly believed what they said. Arguing truth as a defense and making a coherent case as to why what you said is true could do a great deal to establish that you do in fact believe what you said. It doesn't matter that the court would most likely determine your arguments about the truth of things is a matter for trial. Just by making them, you do a great deal to undermine the idea there was "actual malice."

    That is why the court brought the fact the defendants didn't raise this defense up, and it is why I discussed the issue. The question you asked and the answer you received over at The Blackboard does nothing to address this point. I'd also suggest the fact the person who answered your question didn't think of this idea on his own suggests bias is clouding his judgment (and/or he doesn't understand this subject well).

  22. > It appears you are conflating the defendants saying they believe the substance of what they published with the idea of them raising truth as a defense. The two are not the same.

    I still don't get the difference. Did you mean to write 'believed'?

    Page 55 of NR's brief says
    "Dr. Mann Cannot Demonstrate Actual Malice By Clear and Convincing Evidence Because National Review Sincerely Believes In The Truth Of The Statements "

  23. > Arguing truth as a defense and making a coherent case as to why what you said is true could do a great deal to establish that you do in fact believe what you said. It doesn't matter that the court would most likely determine your arguments about the truth of things is a matter for trial. Just by making them, you do a great deal to undermine the idea there was "actual malice."

    Are you arguing a legal practicality, like how JD said highlighting Steve McIntyre's math background is important, or the actual law? While the lawyers may be bungling the case, they have certainly made arguments about why what was published is true.

  24. MikeN:

    I still don't get the difference. Did you mean to write 'believed'?

    The distinction between "believe" and "believed" would only matter if someone wished to claim the defendants' beliefs have changed. But since you bring the distinction up, that is certainly one reason why belief in the truth of what is said is different from arguing the truth of what was said. In this case, the statements can only be defamatory if they were false and the people making them had serious reason to suspect they might be false. I have repeatedly argued the statements in question were true, but that doesn't mean the defendants genuinely believed they were true (or that they do so now).

    I can say something I believe to be true even though it is false. I can say something I believe to be false even though it is actually true. A court could rule something is false as a matter of law while I continue to believe it is true. While there may be overlap, claiming to believe something is true is not the same as arguing it is true. This is particularly true as using truth as a defense in defamation law can, depending on jurisdiction, be an affirmative defense. That means, the burden of proof is on the defendant to prove what they said is true rather than the plaintiff to prove it is false.

    Page 55 of NR's brief says
    "Dr. Mann Cannot Demonstrate Actual Malice By Clear and Convincing Evidence Because National Review Sincerely Believes In The Truth Of The Statements "

    Which is a strange position to take as the National Review is telling everyone this ruling is atrocious because their statements were not the sort of thing that could be "true." I think most unbiased people who read Simberg and Steyn's articles would be able to agree they convey factual content. The National Review insists there isn't. Personally, I think that's just them being cowards.

    Are you arguing a legal practicality, like how JD said highlighting Steve McIntyre's math background is important, or the actual law? While the lawyers may be bungling the case, they have certainly made arguments about why what was published is true.

    While you say they have "certainly" done this, you offer no evidence or basis for that claim. Given the National Review insists what they said cannot be proven true or false, I don't know where you get the idea they have "certainly made arguments about why what was published is true." I'm not aware of the CEI doing any different than the NRO.

    To answer your question though, it is not merely a matter of practicality. It is a matter of evidence and law. When judging a defendant's state of mind, one can rarely find conclusive evidence as mind-reading is impossible. As such, judges and juries determine a defendant's state of mind by the defendant's behavior. If you consistently argue something is factually true, that provides evidence you believe it to be true. If one assumes your beliefs are the same now as when matters began, then this provides evidence "actual malice" was not present.

    Right now, the defendants are claiming their statements were not factual and cannot be proven to factually untrue. They then say they believed their statements to be true (though not factual or verifiable). That's nowhere near as compelling a position as, "This isn't defamation as what we said is factually true." The former is them trying to dodge responsibility. The latter is owning what they said. The latter is how responsible journalists would behave.

    (Unless someone is going to seriously argue, like the National Review does, that the criticism of Michael Mann in these articles contains no factual content. If you believe that, the defendants' behavior is proper.)

  25. The court did an interesting reading of this

    "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."

    I think the court is correct that Simberg makes claims that can be factual.

    As an aside I know of no computer models that were in the mails.
    Second, I will have to look at the mails again, but it's not clear that the mails show Mann engaging in any data manipulation to keep the
    BLADE on his hockey stick.

    I suspect folks will get pissy about this but it's the shaft baby.

    In any case, If I were Simberg I'd be searching for mails to bolster his claim.

    I think he pretty much drank the koolaid when to understand what exactly is in the mails and what is not.

    Question: I think Brandon can craft a good case on evidence OUTSIDE the mails that mann engaged in some questionable practice.
    But, as I take it, the claim Simberg made was that the mails show this. is that correct?

    Your opinion, Brandon, can the case turn on such a distinction. That is, they had a true belief ( he was dodgy) but the evidence they "cited"
    ( the mails show) doesn't really support their belief.

  26. I'm on my phone at a family gathering so this will be brief, but Steven Mosher bringa up an important point. If you want to establish that Michael Mann behaved improperly, the Climategate e-mails are a terrible source to use. They let you "get him" on conspiring to delete e-mails to evade FOI requests, but that's about it.

    The reference to Mann's "trick" is a horrible piece of "evidence" to use. It's a claim by someone other than Mann to have done the same thing Mann did in some case. That's basically hearsay, and it turns out that claim is wrong (what Jones did is different than what Mann did).* It's easy to demonstrate Mann did many dishonest things, but the Climategate e-mails have little role in it. (Though Mann did sign off on what Jones did, so one could "get him" on tacit involvement and approval.)

    *Mann's "trick" was about hiding a discrepancy between the "blade" of his hockey stick and modern temperatures. Interestingly, it was not his most serious offense. In one case, Mann actually spliced modern temperatures directly onto a proxy reconstruction without any Indication. This case receives little attention and doesn't come up in the Climategate e-mails, but people like me know all about it. It's easy to demonstrate, is dishonest and is something Mann directly denied having ever done. it just doesn't involve any "sexy" terminology that can be spun like with Mann's "trick."

  27. Brandon,
    If I was opining with great authority and pathological obsession about monkey hunting, then yes it would be relevant to find out if I was in fact a trained monkey hunter.
    But your response tells more than enough to conclude you know as much about the legal issues of this case as you do monkey hunting.

  28. Here's a couple of quotes to compare. From the courts ruling:

    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.

    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.

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

    I agree with the ACLU. How often do people include something like "in my opinion" when they are giving an opinion?

    Simberg's assertion that Mann "molested and tortured data" is pretty vague. This quote from Simberg's post is more specific:

    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.

    He accused Mann of a specific instance of data manipulation and backed it up with a source. While he may not of done it competently or correctly, he did not just maliciously make it up.

    I don't understand anti-slapp law very well, but in a practical sense, I think it should have been written to apply here. But I think most climate skeptics would agree with you. They relish the thought of Mann getting tripped up in discovery and squirming under cross examination.

  29. The Merriam-Webster online definition of "fraud" might be useful to Steyn's or Simberg's atttornies:

    Definition of fraud
    1
    a : deceit, trickery; specifically : intentional perversion of truth in order to induce another to part with something of value or to surrender a legal right
    b : an act of deceiving or misrepresenting : trick
    2
    a : a person who is not what he or she pretends to be : impostor; also : one who defrauds : cheat
    b : one that is not what it seems or is represented to be

    https://www.merriam-webster.com/dictionary/fraud

  30. Canman, NR's brief covers this, turning Mann's case against him. Basically if 'bogus' is the same as 'fraudulent' as argued by Mann, and stated by the first judge in this case, then 'fraudulent' is the same as 'bogus', and thus not a valid basis for defamation.

  31. Brandon, some jurisdictions may change the burden of proof when asserting truth. Does this court?
    You say they are being cowards, but should a court case flip on the difference between
    'The statements are true' and 'NR believes the statements are true'?

    I see arguments in briefs by CEI and NR that the statements are true. That one investigation
    reported 'misleading'. CEI had more examples, and mentioned that there were links within the post in question.
    Yes NR said that there was no verifiable statement. They tried to have an extra way out of the case.

  32. Mosher, I think everyone in this thread knows the hockey stick is about the shaft and not the blade.
    As an aside, are there any e-mails showing Mann messing up the shaft of the hockey stick?

    Hide the decline affects the blade of the hockey stick, and by argument(which is in the legal briefs) affects the shaft.
    Mann was involved, and even included it in his CV for awhile. Checking, it's still there.

  33. Mosher, when you ask Brandon about evidence they cited, do you mean in the legal argument, or the original publication?

  34. hunter, you are free to resort to fallacious appeal to expertise if you want. I think everyone here knows you'd say it was horribly wrong if used by someone defending climate science, but hypocrisy in matters like this is hardly surprising.

    Canman, MikeN, the ruling explicitly states:

    At oral argument, counsel for National Review explained that “fraudulent” was intended to mean (or could reasonably be interpreted as meaning) that Dr. Mann’s research is not reliable because he “cherry-picked” the data on which he relied and compared “apples to oranges” in producing the hockey stick graph, by first relying on temperature data derived from proxy sources (such as tree rings) and, after a certain date, using actual measured temperatures. We agree that if the use of “fraudulent” in this one sentence were the only arguably defamatory statement in Mr. Steyn’s article, we would have to conclude that it is insufficient as a matter of law, as such an ambiguous statement may not be presumed to necessarily convey a defamatory meaning.

    So I have no idea why you would want to discuss the meaning of the word "fraud." The judges are perfectly aware of the meaning you bring up.

    Canman, you say:

    He accused Mann of a specific instance of data manipulation and backed it up with a source. While he may not of done it competently or correctly, he did not just maliciously make it up.

    Yet the source Simberg refers to does nothing to show what he claims it shows. Relying on a source which does not say what you claim it say does little to dispute a charge of "actual malice." It's well-established if you rely upon a source which contradicts what you say, that supports a charge of "actual malice." This isn't quite the same, but it is not too far removed either.

    I agree with the ACLU. How often do people include something like "in my opinion" when they are giving an opinion?

    You can agree with them if you want, but I'd say their brief is just mendacious. They intentionally cherry-picked quotations which make it sound like the articles were opinion while ignoring the multitude of quotations which indicate factual content. There's a reason you'll see the judges discuss many quotations in their ruling as justifying why this lawsuit should be allowed to continue which don't appear anywhere in that brief. I hadn't realized it until you made me reread that brief, but... dang. I don't see any way to read that article and not think, "Dishonest."

    Heck, as far as I can see, the brief doesn't even mention the basic legal reality that opinions can be defamatory if they are presented as being based upon facts (which are in turn wrong).

  35. Brandon, I'm working on a lengthy comment for Climate Audit on this decision, but there are a lot of points to comment on. A few quick points.

    First, you accept the Court's assertion: "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.”"

    From this, you say "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."

    I don't know what research you've done on previous articles by Simberg and/or Steyn on the hockey stick and climategate, but both had written on the topic previously on many occasions.

    Steyn, in particular, had written critically about the hockey stick even before climategate and in a 2006 article http://archive.is/1BX3y had already called it "fraudulent" because of its use of Mannian principal components - an issue that does not clearly arise in the Climategate emails, but which is well known among many "skeptics". Steyn:

    "Hence, the famous "hockey stick" graph purporting to show climate over the past 1000 years, as a continuous, flat, millennium-long bungalow with a skyscraper tacked on for the 20th century. This graph was almost laughably fraudulent, not least because it used a formula that would generate a hockey stick shape no matter what data you input, even completely random, trendless, arbitrary computer-generated data. Yet such is the power of the eco-lobby that this fraud became the centrepiece of UN reports on global warming. If it's happening, why is it necessary to lie about it?"

    In response to Mosh's comment above, I did not and do not understand either Simberg or Steyn to have made the claim that the misconduct case against Mann could be demonstrated by the emails in isolation. I think that it would be more accurate to say that both of them were aware of long-standing Mannian controversies and that neither would have made statements that limited the evidence to the emails by themselves.

    In the above quotation, the Court stated: "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." On this point, I think that the Court has put an unwarranted spin on their position that rises to being untrue on its face. The Simberg article contains many hyperlinks to prior articles on the controversy, including articles by Simberg at PJ Media. I haven't yet parsed these articles to see the degree to which they demonstrate familiarity with sources other than the emails. However, one of the hyperlinks is to a Climate Audit article by Jean S on Nov 20, 2009 on Mike's Nature Trick, which provides a much more detailed exegesis of the trick than any of the "inquiries" (none of which made any attempt at exegesis) and which discusses Mann's notorious 2004 denial of splicing - a quote almost instantly familiar to Climate Audit readers.

    As I wrote a couple of years ago at CA, I think that the easiest course of defence for the defendants is on "actual malice" - as defined in U.S. libel cases. In a SLAPP hearing, the plaintiff has to provide evidence that the defendants believed their statements to be false or had serious misgivings. I am unaware of any direct evidence of any misgivings on the part of the defendants. The trial court said that the evidence was "slight" but that plaintiffs might be able to find some in discovery. The appeal court seemed to recognize that a plaintiff presenting only "slight" evidence would require dismissal under SLAPP. However, they said that they were not bound by the trial court on this finding and were obligated to consider it de novo.

    Mann had adduced "eight" or "seven" inquiries as supposedly exonerating him. The appeal court reduced the number of relevant inquiries to four: Muir Russell, UK Parliament, Penn State and NSF. Defendants observed that Muir Russell and the UK Parliament had limited their inquiries to UK scientists and did not exonerate "Mann" - a point that I examined closely in my CA articles on this issue. However, the Appeal Court found that Mann was supposedly included in their "exonerations" of UK scientists on the ground that emails were exchanged with Mann and/or contained references to Mann:
    "Appellants argue that the investigations of the University of East Anglia and the U.K. House of Commons also cannot be said to have exonerated Dr. Mann because they were primarily focused on the conduct of the scientists in the U.K., at the University of East Anglia’s Climate Research Unit. The CRU emails at the core of those investigations, however, contained exchanges between these scientists, specifically, the CRU’s head, Philip Jones, and Dr. Mann or referred to Dr. Mann."
    This reasoning seems strained beyond the breaking point.

    The Court later relied on this strained reasoning to reject one of Simberg's alternate defences. Simberg's article disclosed and discussed both the Penn State and NSF investigations. Simberg's lawyers argued that this was sufficient disclosure to be able to claim fair comment with full disclosure. The Court rejected this defence on the grounds that Simberg had failed to disclose the Muir Russell and UK Parliament findings as additional supposed "exonerations" of Mann. The Court's position on this seems ludicrous to me.

    Even if the defence were ultimately relying on free speech arguments, I think that their defence needed to clearly articulate why there has been longstanding misgivings not just about the scientific merit (or lack of merit) of Mann's work, but how these misgivings related to potential misconduct, through failure to disclose adverse results. On the one hand, this involves the original hockey stick. In the email context, they needed to provide a clear exegesis of the chopping off of inconvenient data in the IPCC diagram in controversy and how the inquiries had failed to address the specific issue.

    By the way, I thought that the lead lawyer in this case, Carvin, did an appalling job at the oral argument for reasons that are not dissimilar to the misgivings that you express in your post about the presentation of the case.

    I think that both Steyn and Simberg had a grasp of important and relevant details that was not reflected in Carvin's oral argument and was inadequately expressed in the written briefs.

    As a closing comment, I've been reading Steyn for a few years now and the term "lazy", as applied to Steyn, seems wildly inappropriate. To me, his energy seems prodigious. He also strikes me as remarkably intelligent and a very quick study.

  36. MikeN, there is absolutely no reason to make four comments in one thread in 15 minutes. When you have multiple, related thoughts that require little space or text, pleaase try to combine them into a single comment so as to avoid spamming.

    Brandon, some jurisdictions may change the burden of proof when asserting truth. Does this court?
    You say they are being cowards, but should a court case flip on the difference between
    'The statements are true' and 'NR believes the statements are true'?

    To claim the statements are true as a defense against defamation would require stating they are factually true. That means the defendants would have to claim, at least for that argument, there was factual content. Your portrayal may make the difference between these positions seem small, but the law is a precise matter. Small differences in phrasing can indicate very different concepts. That is the case here. To claim something is true is to say it is a fact. To say you believe it is true leaves open the possibility it is an opinion or fact (or potentially both).

    I see arguments in briefs by CEI and NR that the statements are true. That one investigation
    reported 'misleading'. CEI had more examples, and mentioned that there were links within the post in question.
    Yes NR said that there was no verifiable statement. They tried to have an extra way out of the case.

    While you might "see" something, nobody else is likely to "see" it if you don't provide at least a reference (and preferably a quotation) which identifies it. I don't expect many people will try to look up what you're referencing given how vague you are. I'm more patient than most about this sort of thing, but I certainly won't when you say things like:

    That one investigation reported 'misleading'.

    Without making any mention of the fact the statement you reference was false. It probably doesn't matter though. It sounds like you've just ignored the distinction between believing an opinion and stating a fact.

  37. Brandon you say:
    "Canman, you say:

    He accused Mann of a specific instance of data manipulation and backed it up with a source. While he may not of done it competently or correctly, he did not just maliciously make it up.

    Yet the source Simberg refers to does nothing to show what he claims it shows."

    I disagree here. Simberg stated "the emails [he] revealed had been engaging in data manipulation to keep the blade on his famous hockey-stick graph: including a hyperlink to Jean S' November 20, 2009 post http://climateaudit.org/2009/11/20/mike%E2%80%99s-nature-trick/ at Climate Audit providing a detailed explanation of Mike's Nature Trick. I think that the contents of Jean S' post more than adequately support the term "data manipulation". A more comprehensive explanation of the various tricks is here: https://climateaudit.org/2011/03/29/keiths-science-trick-mikes-nature-trick-and-phils-combo/. The bald deletion of adverse Briffa data in Mann's IPCC diagram is a different form of "data manipulation".

  38. Stephen McIntyre:

    Brandon, I'm working on a lengthy comment for Climate Audit on this decision, but there are a lot of points to comment on.

    Hopefully it will be better than the ones you posted on Andrew Weaver's defamation lawsuit where you blatantly misrepresented things in obvious ways and continued to do so even after the misrepresentations were repeatedly pointed out.

    First, you accept the Court's assertion: "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.”"

    From this, you say "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."

    I don't know what research you've done on previous articles by Simberg and/or Steyn on the hockey stick and climategate, but both had written on the topic previously on many occasions.

    I "accept the Court's assertion" because it is the defendants' obligation to provide evidence for their defense. Is there is relevant evidence, I expect the defendants to provide it. If the court has been misled by the defendants failing to provide key evidence of their innocence, then I too will have been misled. I just can't see why the defendants would choose not to provide the court evidence which would prove them innocent of any charge of "actual malice."

    Steyn, in particular, had written critically about the hockey stick even before climategate and in a 2006 article http://archive.is/1BX3y had already called it "fraudulent" because of its use of Mannian principal components - an issue that does not clearly arise in the Climategate emails, but which is well known among many "skeptics".

    Which would matter a lot more if Steyn were involved in this motion. He is not though. That's why I didn't talk about him in this post. The National Review could have cited any research Steyn might have done as part of its defense, but it did not. Since the National Review didn't consider it relevant to their defense, I took the same position.

    In response to Mosh's comment above, I did not and do not understand either Simberg or Steyn to have made the claim that the misconduct case against Mann could be demonstrated by the emails in isolation. I think that it would be more accurate to say that both of them were aware of long-standing Mannian controversies and that neither would have made statements that limited the evidence to the emails by themselves.

    While that might be more accurate, I struggle to see how you reconcile it with saying people were "shown to have been behaving in a most unscientific manner" "when the emails and "computer models were leaked from the Climate Research Unit." Simberg explicitly specified when this was (in his view) demonstrated. If you think people are mis-interpreting it, how would you suggest they interpret instead?

    In the above quotation, the Court stated: "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." On this point, I think that the Court has put an unwarranted spin on their position that rises to being untrue on its face. The Simberg article contains many hyperlinks to prior articles on the controversy, including articles by Simberg at PJ Media. I haven't yet parsed these articles to see the degree to which they demonstrate familiarity with sources other than the emails. However, one of the hyperlinks is to a Climate Audit article by Jean S on Nov 20, 2009 on Mike's Nature Trick, which provides a much more detailed exegesis of the trick than any of the "inquiries" (none of which made any attempt at exegesis) and which discusses Mann's notorious 2004 denial of splicing - a quote almost instantly familiar to Climate Audit readers.

    I think it would be unwise to accuse the court of putting "an unwarranted spin on their position that rises to being untrue on its face" before bothering to read the evidence you use to support your claim. As it happens, none of the articles linked to by Simberg do anything to affect the court's ruling. In fact, I'd go so far as to say they contradict your position. Despite what you think "would be more accurate," in one of the linked articles Simberg wrote:

    It is occasionally reasonable to throw out a bad data point if it is in defiance of an otherwise satisfactory model fit, as long as everyone knows that you’ve done so and the rationale, but a deliberate and unrevealed fudging of results in an attempt to make the real world fit one’s preconceptions is beyond the scientific pale. Journal articles have been thrown out for it; PhD candidates have lost their degrees for it.

    But such behavior, along with attempts to cover it up and dishonestly discredit critics, is exactly what was revealed in a leak of emails last Friday from a research facility in eastern England.

    As far as I can tell, Simberg has been consistent in saying we can prove misconduct based solely upon the (first set of) Climategate e-mails. Another article discusses a bit of technical aspect of Mann's methodology, but it doesn't say anything about any misconduct related to it.

    Even his link to the post at Climate Audit doesn't help as that post does not support what he claims in his article. Jean S clearly shows Mike's "trick" doesn't let Mann "keep the blade of his famous hockey-stick graph." That means you're faulting the court for not accounting for a citation which directly demonstrates what Simberg wrote was false. (Incidentally, the key figure in that post contains an error as it extends the green "no trick" line further than it should.)

    I think that's enough points of disagreement for now, so I'll stop my response here. Hopefully we can resolve some of these before moving on to other matters. Besides, I want to go ahead and collect everything Simberg wrote about Mann prior to the article which started all this. It appears nobody has thus far.

  39. Stephen McIntyre:

    I disagree here. Simberg stated "the emails [he] revealed had been engaging in data manipulation to keep the blade on his famous hockey-stick graph: including a hyperlink to Jean S' November 20, 2009 post http://climateaudit.org/2009/11/20/mike%E2%80%99s-nature-trick/ at Climate Audit providing a detailed explanation of Mike's Nature Trick. I think that the contents of Jean S' post more than adequately support the term "data manipulation".

    Do you also think his post demonstrates Mann's "blade" would disappear without his "trick"? I am quite aware of what the various "tricks" are, but I've never heard you make that claim before. It's the claim Simberg made though.

    A more comprehensive explanation of the various tricks is here: https://climateaudit.org/2011/03/29/keiths-science-trick-mikes-nature-trick-and-phils-combo/. The bald deletion of adverse Briffa data in Mann's IPCC diagram is a different form of "data manipulation".

    Which would matter if what Simberg had said was merely, "the emails revealed [Mann] had been engaging in data manipulation." That's not what he said though. What he said was, "the emails revealed [Mann] 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." Whether or not Mann engaged in "data manipulation" for other purposes does not indicate he engaged in it for this one specific purpose.

    Simberg was quite specific in his accusation. The sources he cited did not support his accusation. That the same material might support other accusations doesn't mean Simberg was correct when he made this accusation. This is where I feel I should be snarky about peas and thimbles.

  40. While that might be more accurate, I struggle to see how you reconcile it with saying people were "shown to have been behaving in a most unscientific manner" "when the emails and "computer models were leaked from the Climate Research Unit." Simberg explicitly specified when this was (in his view) demonstrated. If you think people are mis-interpreting it, how would you suggest they interpret instead?

    No "struggle" at all. In my opinion, the Climategate emails show scientists "behaving in a most unscientific manner". I'm sure that you recall the controversies over peer reviewing, blocking data and other conduct that can reasonably be characterized as "most unscientific manner". I recall my own personal dismay at the attitudes. Saying that the emails show "behaving in a most unscientific manner" does not mean the same thing as the emails by themselves showing fraud or misconduct on Mann's part.

    Do you also think his post demonstrates Mann's "blade" would disappear without his "trick"? I am quite aware of what the various "tricks" are, but I've never heard you make that claim before.

    No, that's not what I said. I think that Jean S' post shows "data manipulation". Simberg didn't precisely grasp Jean S' point which is better characterized as showing that Mann was gilding the blade, rather than that particular data manipulation was necessary to the blade itself. However, I think that Simberg's comment easily falls within fair comment, given that he had linked to a source from which readers could assess his point for themselves. Further, as I said in my comment, Simberg's link to a Climate Audit post, as well as other links, contradicts the Court's assertion that he had only used the emails themselves as references.

    I disagree with your snipe about Weaver. However, I have other issues that I wish to deal with. As an editorial comment, I would discourage you from making that sort of unrelated jibe. I do not claim to be perfect on all issues. John Mashey regularly reminds readers at numerous blogs on multiple occasions that, in 2005, I incorrectly cited something to IPCC (1995), when it was actually IPCC (1990). I had used the correct reference long before Mashey came onto the scence, but he seems to believe that the earlier error was sufficient to discredit anything that I might ever say on any topic. I hope that you are making some other point.

    I'm not responding to all points right now as I'm working on some other things, but will try to deal with all points in time.

  41. Brandon, I am still not comprehending the issue of asserting truth.
    Does this court change things when you assert the truth of the statement as you said some jurisdictions did?

    Can you claim something is true and it contradicts "I believe it is true"?
    Can you say "I believe it is true" and it contradicts "It is true"?
    I get that you can believe something is true and it is actually false or vice versa, but
    you are making a distinction of the meaning of the defendant's making the two statements.

    "To claim something is true is to say it is a fact. To say you believe it is true leaves open the possibility it is an opinion or fact (or potentially both)."

    If it is an opinion, and you say you 'believe it is true', how is that different from saying 'it is true'?
    If you say you believe an opinion, you are declaring it a fact. Are you giving the meaning NR is saying 'We believe Steyn held that opinion'?

    While you might "see" something, nobody else is likely to "see" it if you don't provide at least a reference (and preferably a quotation) which identifies it. I don't expect many people will try to look up what you're referencing given how vague you are. I'm more patient than most about this sort of thing, but I certainly won't when you say things like:

    That one investigation reported 'misleading'.

    Without making any mention of the fact the statement you reference was false. It probably doesn't matter though. It sounds like you've just ignored the distinction between believing an opinion and stating a fact.

    I've already quoted the court opinion on this. It doesn't matter if the statement is false. The point is they did make arguments to the court as to the truth of the statements.

  42. Stephen McIntyre:

    No "struggle" at all. In my opinion, the Climategate emails show scientists "behaving in a most unscientific manner". I'm sure that you recall the controversies over peer reviewing, blocking data and other conduct that can reasonably be characterized as "most unscientific manner". I recall my own personal dismay at the attitudes. Saying that the emails show "behaving in a most unscientific manner" does not mean the same thing as the emails by themselves showing fraud or misconduct on Mann's part.

    Indeed. Which is why I was hoping you would attempt to grasp that nettle. I provided contextual information which indicated timing because I was curious if you would ignore what came immediately after the section I quoted. Here is the full paragraph:

    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.

    The contextual information I provided clearly shows the timing Simberg had in mind. The next sentence, which I hadn't quoted before, continues on in this same context and refers to Mann's "data manipulation." You hold this need not be in the same context as the sentence immediately prior, yet the second sentence explicitly identifies itself as having the same context as it says "whom the emails revealed had been engaging in data manipulation to keep the blade on his famous hockey-stick graph."

    I thought it might be useful to see what would happen if I made a weaker argument regarding this point. Ideally, what would have happened is you would have responded by addressing the full context and phrasing of what Simberg wrote despite me not having done so. Instead, you went with my incomplete context and suggested a meaning which is completely untenable should one simply read a sentence further than I went with my quotations. Even worse, you did this despite my follow-up comment quoting Simberg when he explicitly states ""the emails revealed [Mann] had been engaging in data manipulation to keep the blade on his famous hockey-stick graph." I offer this as evidence you are being biased in your examination of this ruling.

    No, that's not what I said. I think that Jean S' post shows "data manipulation". Simberg didn't precisely grasp Jean S' point which is better characterized as showing that Mann was gilding the blade, rather than that particular data manipulation was necessary to the blade itself. However, I think that Simberg's comment easily falls within fair comment, given that he had linked to a source from which readers could assess his point for themselves. Further, as I said in my comment, Simberg's link to a Climate Audit post, as well as other links, contradicts the Court's assertion that he had only used the emails themselves as references.

    So to be clear, you said you felt Simberg linked to sources which justified his accusation of "data manipulation" while not stating your belief the specific instance of supposed "data manipulation" Simberg claimed happened was false. Instead of making this argument from the start, you made it Only after I pointed out Simberg's error. I hope you understand why I find that annoying. I get "that's not what you said," but then, why did you imply it by not bringing up Simberg's error on your own?

    I disagree with your snipe about Weaver. However, I have other issues that I wish to deal with. As an editorial comment, I would discourage you from making that sort of unrelated jibe. I do not claim to be perfect on all issues. John Mashey regularly reminds readers at numerous blogs on multiple occasions that, in 2005, I incorrectly cited something to IPCC (1995), when it was actually IPCC (1990). I had used the correct reference long before Mashey came onto the scence, but he seems to believe that the earlier error was sufficient to discredit anything that I might ever say on any topic. I hope that you are making some other point.

    You have, as far as I know, discussed only two defamation cases in any detail on online blogs. My impression is you are heavily biased toward the accused. I believe this bias caused you to resort to gross misrepresentations in the last case you discussed, to the point you repeatedly relied upon the same misrepresentation after it was repeatedly pointed out to you (and to this day have not corrected it). I further believe you are misrepresenting the current ruling as well. This is a direct parallel which is well-worth highlighting. It is in no way comparable to what you refer to John Mashey doing.

    I get you may wish to give me editorial advice, but your claim this is an "unrelated jibe" is wrong. If a person makes gross errors to defend a person accused of defamation once, it is relevant to bring that up the next time they they defend a person accused of defamation. Beyond that, I think there is a certain moral imperative to remind people of such past errors.

  43. As an aside, I want to ask a question. You don't have to answer this Stephen McIntyre, but since you say:

    As a closing comment, I've been reading Steyn for a few years now and the term "lazy", as applied to Steyn, seems wildly inappropriate. To me, his energy seems prodigious. He also strikes me as remarkably intelligent and a very quick study.

    I want to ask, have you read his book about Michael Mann? I ask this question because the book is complete garbage. I get a lot of people won't care it contains hundreds of misquotations as they're of a minor sort (changing capitalization/punctuation), but he explicitly derides people for supposedly being paranoid about fake quotations and says he the quotations will be completely unchanged (save for a specified sort of change unrelated to what I refer to). Plus, there are a dozen misquotation that are just real misquotations.

    Then, there are dozens of cases where Steyn provided something which was not directly a misquotation but his mischaracterization and misrepresentation of context made it effectively the same as one. There are dozens of cases where Steyn quoted a person in a way which significantly alters the meaning of what they had said.

    Then there are tons of factual errors. Some of the things Steyn says are so weirdly wrong I can't begin to guess how he came up with them.

    I bring this up because I'm curious if people who have a favorable view of Steyn have read his book, and if so, if they realized how many mistakes and misrepresentations it has. If they did realize that, I'm curious how they reconcile the book with their favorable view of Steyn. My personal interpretation is Steyn was lazy and apathetic when putting his book together as he was far more interested in "scoring points" and using rhetoric than in ensuring the accuracy or truth of what he published.

  44. MikeN:

    Brandon, I am still not comprehending the issue of asserting truth.

    Let me try addressing this as directly as I can. Asserting truth as a defense requires you say the published statement was true. That requires you state it is factual and verifiable. That precludes the published material from being non-factual or non-verifiable.

    At this point, I should note something related to McIntyre's mention of "fair comment" above. In defamation lawsuits, not every factual statement need be true. What (typically) matters is the "substantial truth." The idea is minor errors shouldn't open one up to a defamation lawsuit. A well-known example is a news story claimed a government official wasted $80,000 when in reality he wasted ~$20,000. That error did not make the statement defamatory.

    On the other hand, "substantial truth" is a defense which can easily fail. If Michael Mann's trick was about saving the shaft of his hockey stick instead of its blade, mixing the two up would be a minor error. However, given Mann's hockey stick was an incredibly important piece of work for him, falsely claiming he used "data manipulation" to keep its blade could well fail to meet the test of "substantial truth." That's because the "substantial truth" of that particular claim by Simberg is Mann relied upon "data manipulation" to create his hockey stick. Arguing he used "data manipulation" for things other than his hockey stick would be like accusing a murderer of killing someone he hadn't killed. It could be defamatory.

    I've already quoted the court opinion on this. It doesn't matter if the statement is false. The point is they did make arguments to the court as to the truth of the statements.

    When somebody says they are unaware of what you are referencing, the proper response is never to simply say, "I've already quoted" it. Even if you're not willing to copy and paste the quotation, you should at least be able to tell them when and where you quoted it. If you specify which comment of yours contains the quotation, they can know where to look.

    But again, I think you are misunderstanding what they argued. If I am correct, no amount of looking on my part will find what you claim to have seen as it won't exist. That's why you should quote what you think you saw and explain why you think it says what you think it says.

  45. "Yet if Mann had filed a similar lawsuit against someone like me (in Washington DC), the case would have been dismissed and Michael Mann would have been forced to pay for my costs. That's because no jury could ever, as a matter of law, conclude I do not believe Mann committed fraud. "

    i am not sure this captures the argument before the court at this anti-SLAPP level. In the decision, under 3 Actual malice, 3.1 deals with honest belief. The court found "It is for the jury to determine the credibility of appellants’ protestations of honest belief in the truth of their statements, and to decide whether such a belief, assuming it was held, was maintained in reckless disregard of its probable falsity.56" So it really doesn't matter how honest your beliefs are, or whether they are 'true', it is whether you can convince a jury in the full trial. And the justices also made clear that they thought that the various reports could (arguably) be used to paint a picture that a an appellants honest belief was maintained in reckless disregard of its probable falsity. (3.2, 3.3)

    Re: Truth. "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. " I am not sure that this is a position that the lawyers adopt just for this anti-SLAPP hearing, or more generally in the course of the action. I am fairly sure that even if they had argued "truth", that the justices would have considered that there was a case which survived the anti-SLAPP motion. Lawyers know full well how little they understand of technical matters, and when you have two experts pitted against one another, it is in my view unlikely that they will rush to judgement based on a technical issue unless it is of overwhelming clarity. I have previously seen a judgement saying one of the experts was more credible than the other, and then the judgement just supported the arguments of the more credible expert.

    per

  46. per, your interpretation only holds if we ignore aspects of the ruling. While you quote:

    i am not sure this captures the argument before the court at this anti-SLAPP level. In the decision, under 3 Actual malice, 3.1 deals with honest belief. The court found "It is for the jury to determine the credibility of appellants’ protestations of honest belief in the truth of their statements, and to decide whether such a belief, assuming it was held, was maintained in reckless disregard of its probable falsity.56" So it really doesn't matter how honest your beliefs are, or whether they are 'true', it is whether you can convince a jury in the full trial.

    You fail to quote this part which comes immediately prior:

    The issue for the court is whether, taking into account the substantive conclusions of investigatory bodies constituted to look into the very evidence — the CRU emails — that appellants’ statements claimed as factual proof of Dr. Mann’s deception and misconduct, a jury could find, by clear and convincing evidence, that appellants acted with “actual malice."

    Which explains the reason the court said what you quoted is it felt there was sufficient evidence a jury could rule against the defendants given the defendants only claim of defense is their statement of honest belief. That would not apply to me. I could offer much more in defense of myself than the defendants have. That means the court would not have the same reason to say the part you quoted. The only reason it would appear I'd be at any risk is ignoring the reason the court gave for its decision.

    Re: Truth. "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. " I am not sure that this is a position that the lawyers adopt just for this anti-SLAPP hearing, or more generally in the course of the action. I am fairly sure that even if they had argued "truth", that the justices would have considered that there was a case which survived the anti-SLAPP motion.

    If the defendants argued what they said was true and wrote out a case like, say, the one I provide in my first eBook, how do you propose anyone would argue they do not believe what they said? They'd have to make an argument like, "The defense provides a detailed, coherent argument for what they said which provides substantial evidence, but they're clearly lying about believing any of it. Yes, even now in court, your honor, they are lying to your face when they explain the details of their position. They are dirty liars, and not only should you not dismiss this case, you should summarily rule in favor of Michael Mann. Because he's a swell guy."

  47. The more I look at the what defendants say, the more I think they deserve to lose this case. I might have to write a new blog post about just how many false things they say. Some of what I'm seeing is stunningly terrible. For instance, the National Review says in one brief:

    Since its initial publication, the hockey stick has been at the center of a firestorm of controversy and criticism. Two of the most prominent critics have been University of Guelph professor Ross McKitrick and retired mining engineer Stephen McIntyre, who published two peer-reviewed articles in scientific journals arguing that the hockey stick is spurious in both its methods
    and its conclusions.
    ...
    Critics of the hockey-stick graph have focused on what they believe to be four serious flaws in its underlying methodology. First, they have questioned the reliability of the graph’s underlying data.... In the eyes of critics, any statistical model that uses such data to reconstruct centuries of historical temperature trends is fundamentally flawed and misleading.
    Second, critics have argued that the hockey stick relies on flawed statistical techniques...
    Third, critics have argued that the hockey stick is misleading because it splices together two different types of data without highlighting the change: For roughly the first nine centuries after the year 1000 A.D., the graph shows temperature levels that have been inferred solely from tree-ring samples and other “proxy” data. But from about 1900 onward, the graph relies on readings from modern instruments such as thermometers.

    The first of these points says some critics of the hockey stick say it is impossible to reconstruct temperatures like Mann attempted to do from tree ring data. While I suspect some people have said as much, no serious critic of the hockey stick should. That position is terrible.

    The second point is real and important.

    The third point is where things break down. Michael Mann's hockey stick does not involve what is described there.* One particular portrayal of Mann's hockey stick, used for one particular report, did. I don't know why this filing conflates these two things. It's nowhere near as bad as what comes next though:

    Fourth, critics have contended that the hockey stick is misleading because it omits certain tree-ring data after the year 1960 that show a decline in global temperatures, and instead relies more heavily on thermometer readings that show an increase in temperatures during that period. The omission of these data gained widespread public attention after the leak of multiple e-mails from the University of East Anglia’s Climate Research Unit (“CRU”), prompting an uproar popularly known as “Climategate.” In one particularly controversial e-mail, CRU scientist Phil Jones wrote to Dr. Mann and two other scientists: “I’ve just completed Mike’s [i.e., Dr. Mann’s] Nature trick of adding in the real temps to each series for the last 20 years (i.e. from 1981 onwards) [and] from 1961 for Keith’s to hide the decline.”6 Dr. Mann himself has not denied the omission of certain proxy data after the year 1960, but has argued that the omission is legitimate: “[T]hese data should not be used to represent temperatures after 1960,” he explains, because “the density of wood exhibits an enigmatic decline in response to temperature after about 1960.”7 In other words, because temperature measurements from modern instruments show that these data points are not reliable, Mann contends that it is legitimate “not to show those data during the unreliable post-1960 period.”

    This fourth point is just nonsense. What it describes is true of work by Keith Briffa, not Michael Mann. I have no idea why the defendants would make such a basic error in a filing. As I recall, Mark Steyn makes the same error in his book too. That sort of thing casts doubt these guys put any effort into understanding what they were talking about. The brief even quotes Michael Mann, claiming he doesn't deny this charge, while using a source, and in fact paragraph, in which Mann explicitly says:

    In the same e-mail, Jones uses the phrase "hide the decline" in reference to work by tree-ring expert Keith Briffa. Because tree-ring information has been found to correlate well with temperature readings, it is used to plot temperatures going back hundreds of years or more. Briffa described a phenomenon in which the density of wood exhibits an enigmatic decline in response to temperature after about 1960. This decline was the focus of Briffa's original article, and Briffa was clear that these data should not be used to represent temperatures after 1960. By saying "hide the decline," Jones meant that a diagram he was producing was not to show those data during the unreliable post-1960 period.

    Whatever one might feel about the graphic created for the WMO report and Mann's involvement in such (he tacitly approved Jones' action), it has nothing to do with any "serious flaws in its underlying methodology" of Mann's hockey stick. The defense is making wildly uninformed claims in its legal filings that misrepresent the sources it uses. And that's just a sampling from the first five pages of a fifty page brief.

    I get lawyers may not know much of the details about the hockey stick debate, but even the slightest amount of research would be enough to stop them from making any number of errors I'm seeing. They aren't doing their job. Even if their clients are feeding them a bunch of misinformation, they should have done enough work to check basic aspects of the controversy they're dealing with.

  48. "If the defendants argued what they said was true and wrote out a case like, say, the one I provide in my first eBook, how do you propose anyone would argue they do not believe what they said?"
    they would have to say "It is for the jury to determine the credibility of appellants’ protestations of honest belief in the truth of their statements, and to decide whether such a belief, assuming it was held, was maintained in reckless disregard of its probable falsity.56". For example, they could have an argument that the arguments in your book are crackpottery and that you ignored the exonerations of Mann because you are ideologically opposed to him.

    At this stage, the court is determining whether there is a potential case from Mann. Even if you argue "truth", even if you argue honest belief, the question is whether Mann has a potential case. It is not whether you are 'right', or whether your case would win in court. In order to win at this stage, it would have to be clear that Mann could not win. I would imagine that the standard of proof for this would be something like Mann having a criminal conviction for fraud, or a sworn affidavit from him admitting scientific misconduct.

    I appreciate that you feel that your arguments are so powerful, that the court would have to bow down in supplication and it would be known as truth that "Mann committed fraud". This hearing was to see whether Mann had a coherent case, not to resolve whether your argument was right- that is for the trial. I don't share your certainty about the outcome on the issue of truth even at a full trial.
    per

  49. Per, the first judge in this case used the standard of proof you suggest. The appeals court is using a higher standard of burden of proof for Mann (a standard the first judge said Mann did not meet) of likely to succeed on the merits. No need to give the benefit of the doubt to plaintiff as the first judge said.

    Brandon, while I agree the lawyers have got the science wrong, I don't see the flaw you are claiming as your Exhibit A. WMO has hide the decline, which leads to argument of proxies are unreliable in the past, and thus leads to serious flaws in the underlying methodology of Mann's hockey stick. It occurs to me that perhaps this is what Mosher meant by it's the shaft not the blade.
    The same reasoning applies to Simberg's detail that Mann engaged in data manipulation to keep the blade on his famous hockey stick graph.

  50. "But again, I think you are misunderstanding what they argued. If I am correct, no amount of looking on my part will find what you claim to have seen as it won't exist. That's why you should quote what you think you saw and explain why you think it says what you think it says."

    Now you've got me curious. You clearly have something in mind. So I look up the quote, and I find 'misleading' is more prevalent than I remembered. The shorter reply briefing uses it even more. Perhaps you are thinking of a different quote from what I referenced above?

    Here is the NR brief:
    For example, the East Anglia report expressly found that the hockey-
    stick graph on the cover of the 1999 WMO report was “misleading”:
    Finding: In relation to “hide the decline” we find that, given its subsequent
    iconic significance . . . the figure supplied for the WMO Report was
    misleading in not describing that one of the series was truncated post 1960 for the figure,
    and in not being clear on the fact that proxy and instrumental data were
    spliced together. We do not find that it is misleading to curtail reconstructions
    at some point per se , or to splice data, but we believe that both of these
    procedures should have been made plain–ideally in the figure but certainly
    clearly described in either the caption or the text.

    Looks like an argument for 'fraudulent'.

  51. per:

    "If the defendants argued what they said was true and wrote out a case like, say, the one I provide in my first eBook, how do you propose anyone would argue they do not believe what they said?"
    they would have to say "It is for the jury to determine the credibility of appellants’ protestations of honest belief in the truth of their statements, and to decide whether such a belief, assuming it was held, was maintained in reckless disregard of its probable falsity.56". For example, they could have an argument that the arguments in your book are crackpottery and that you ignored the exonerations of Mann because you are ideologically opposed to him.

    Then you have no idea what you are talking about and have no interest in the reasons the judges ruled the way they did. Not only are you selectively quoting the ruling in a way which hides the judges reasoning, you are also selectively quoting me in a way which hides it. What you say does not, in any way, fit with what was said in the ruling. That you can ignore everything inconvenient for your view does not change that. So while you can say:

    I would imagine that the standard of proof for this would be something like Mann having a criminal conviction for fraud, or a sworn affidavit from him admitting scientific misconduct.

    Your imagination may comfort you on cold nights, but it won't change the detailed discussion of points both in the ruling and on this page which you have done nothing to address. Ignoring them will not make them go away. Neither will misrepresenting people in obvious ways to heap derision and scorn upon them:

    I appreciate that you feel that your arguments are so powerful, that the court would have to bow down in supplication and it would be known as truth that "Mann committed fraud".

    This has nothing to do with anything I've discussed on this page, and it isn't even anything I have ever said. The strength of my arguments has nothing to do with the simple point I've repeatedly made - making a coherent case as to why what you said was true provides evidence you do in fact believe what you said. That is what the defendants have failed to provide, and that is why the judges did not dismiss this case.

    Strangely, this sort of willful obtuseness is what I'm used to getting when people try to defend the hockey stick.

  52. MikeN:

    Brandon, while I agree the lawyers have got the science wrong, I don't see the flaw you are claiming as your Exhibit A. WMO has hide the decline, which leads to argument of proxies are unreliable in the past, and thus leads to serious flaws in the underlying methodology of Mann's hockey stick.

    No, it doesn't. That Keith Briffa truncated series involving data Michael Mann hadn't used doesn't mean the different methodology Mann used somehow becomes misleading.

    It occurs to me that perhaps this is what Mosher meant by it's the shaft not the blade.

    This gives the impression you have no real grasp of the hockey stick debate.

    The same reasoning applies to Simberg's detail that Mann engaged in data manipulation to keep the blade on his famous hockey stick graph.

    I have no idea how. Mann's "trick" barely affects his reconstruction. Not using it might have caused a bit of inconvenience, but ultimately, everything he said in his publications would have remained the same. Given that, I cannot see how it would indicate "serious flaws in the underlying methodology."

    "But again, I think you are misunderstanding what they argued. If I am correct, no amount of looking on my part will find what you claim to have seen as it won't exist. That's why you should quote what you think you saw and explain why you think it says what you think it says."

    Now you've got me curious. You clearly have something in mind.

    Nothing you say from this point on has anything to do with what I said in that quote. To repeat for the umpteenth time, I believe you are conflating the defendants saying they believe an opinion is true with them asserting it is true. The latter is a statement of fact. As far as I am aware, the defendants never made such. In fact, despite your repeated claims, they have explicitly denied such.

    Looks like an argument for 'fraudulent'.

    I'm not going to discuss that idea as what you're claiming is "fraudulent" isn't even Michael Mann's hockey stick. It's the "misleading" portrayal of three different temperature reconstructions, which were altered from their original form. That someone can alter results in a way that is "misleading" does not mean the results themselves are misleading.

    I don't know why people would engage in such blatant misrepresentations. Not only did the defendants use this obvious misrepresentation, but even after the judges explained why it was incorrect, you repeated it.

  53. Brandon, you say

    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:

    You are wrong.

    The author Mark Steyn clearly states he does not believe the investigation conducted by PSU is wrong because it was conducted by the same person who exonerated Jerry Sandusky.

    Now since the entire basis of your article above rests on this fulcrum, which I show above to be wrong, you can draw the one remaining conclusion left yourself.

  54. Oops.

    Read as:

    The author Mark Steyn clearly states he does not believe the investigation conducted by PSU because it was conducted by the same person who exonerated Jerry Sandusky.

  55. Brandon, that an argument is invalid doesn't mean it is not evidence of the arguer's honest convictions. That is why I repeat the use of 'misleading' there.

    The use of hide the decline for Briffa and not Mann doesn't change the argument. Part of Mann's underlying methodology is to use tree rings as proxies.

  56. Shub, PSU is not the only investigation in the case.
    Also Steyn is not part of this appeal, except for an enjoyable amicus brief.

  57. Brandon, I would say you are the only person who could likely argue this case in court successfully regardless of which side you took. I think a lot of lawyers could learn from your example that just because they went to law school, passed the bar and practiced does not make them better equipped automatically to argue a case better than a client could. Like doctors, the most common oversight lawyers make is realizing how valuable an information resource their client/patient is. One of the first posts I followed in climate audit was the Slapp hearing two years ago. I remember everyone's cringe at Carvin's presentation.

    The bottom line is Mann did intentionally manipulate the data, Brandon, as you are well aware. There is plenty of evidence in the climate emails of Folland putting pressure on Mann and then Mann in turn putting pressure on Briffa to "fix" the problems in what Folland knew would be the TAR centerpiece (the hockey stick). It almost became the IPCC logo if not for McIntyre and McKitrick.

  58. Brandon, do you believe that anyone accusing Hillary of obstructing justice is recklessly defaming her since the FBI conducted an investigation and concluded it could take no actions?

  59. Brandon, do you agree with the idea that the first judge(Greene)'s findings combined with the appeals court's standard for evidence by Mann would have led to dismissal?

  60. Brandon, I have been just as critical as you about lawyers making errors. As I recall, this particular narrative comes from the National Review brief, not the CEI brief. The National Review brief appears to be the product of lawyers essentially on their own. To my knowledge, they would not have been coordinated with Simberg (who is with CEI) or with Steyn, who was then separately represented. Their fourth point, as expressed, is botched, but you are not correct in dismissing the issue as unconnected with Mann (" true of work by Keith Briffa, not Michael Mann").

    The post-1960 values of the Briffa reconstruction were not truncated in the original IPCC TAR spaghetti graph, but were truncated in the figure in the Second Order Draft in the section authored by Mann. Climategate emails shed disquieting light on the motives for truncating the Briffa reconstruction in the figure. IPCC officials expressed concern that the Briffa reconstruction with its decline "diluted the message" and that this was a problem in the "room" at the Lead Authors meeting. Mann re-assured the more senior authors that he would be the "last" person that wanted to give "fodder to the skeptics". In the IPCC figure in the Second Order Draft, finalized a few weeks later, the problem was "resolved" by truncating the post-1960 values, a truncation which was carried forward to the final IPCC report. The truncation was not based on published literature at the time, least of all Briffa et al (2001). Mann cited Briffa (2000) in the IPCC report, but Briffa (2000) did not contain a truncated version of the series. The truncated version corresponding to the IPCC graphic occurs in Briffa et al 2001. It seems entirely possible to me that the truncation in Briffa et al 2001 was not independent of the IPCC decision, but done, at least in part, with an eye to coopering up the IPCC truncation. In my opinion, Mann, as IPCC Lead Author, had at least joint responsibility for the truncation, making the issue highly relevant to claims against him.

    In early Climategate times, I connected the IPCC graphic to the emails in a CA post: https://climateaudit.org/2009/12/10/ipcc-and-the-trick/. This post was very widely covered at the time, including a feature article in Daily Mail. Simberg wrote a blog post about this a few days later, http://www.transterrestrial.com/?p=23611, citing a blog post at PJ Media, which was based on my article. If one looks at Simberg's blog, he appears to be considerably more versed in the topic than you give him credit for (as are Steyn and CEI).

    I agree that the lawyers botched the narrative on this point, but I also believe that they could easily have made a relevant and important point, had they checked out their pleadings with someone more expert on the facts.

  61. Shub:

    You are wrong.

    The author Mark Steyn clearly states he does not believe the investigation conducted by PSU is wrong because it was conducted by the same person who exonerated Jerry Sandusky.

    Now since the entire basis of your article above rests on this fulcrum, which I show above to be wrong, you can draw the one remaining conclusion left yourself.

    This response does nothing to call what I said into question, not even with the correction you posted after. First, there were multiple investigations which covered Mann's behavior (to some extent or another). That a person might disbelieve the findings of one does for a given reason not indicate they should disbelieve the findings of the others.

    Second, you claim I am wrong to say the defendants could look for evidence to support what they said yet the court notes they did not. What you describe does nothing to show the defendants looked for any evidence. It might be a reason for them to believe something, but it is not evidence of anything.

    Third and finally, I have continuously limited my statements to the defendants who were party to this motion. Mark Steyn was not. Things that he might say or believe do not inherently translate to what the defendants who participated in this motion might say or believe. As such, your response is largely misguided.

    MikeN:

    Brandon, that an argument is invalid doesn't mean it is not evidence of the arguer's honest convictions.

    Actually, it can be. It's quite common in defamation suits for people to look for post hoc justifications of what they said. A judge or jury might well conclude an obviously incorrect argument being offered at this stage is just an after-the-fact smokescreen which had nothing to do with why the defendant published what they published.

    The use of hide the decline for Briffa and not Mann doesn't change the argument. Part of Mann's underlying methodology is to use tree rings as proxies.

    That some tree ring proxies are unsuitable for temperature reconstructions does nothing to indicate there are serious flaws in Michael Mann's methodology. That bad data might be used by someone in a field doesn't do anything to suggest everyone in the field is guilty of fraudulent work.

    Brandon, do you agree with the idea that the first judge(Greene)'s findings combined with the appeals court's standard for evidence by Mann would have led to dismissal?

    I haven't looked at the first set of rulings since the first judge left the case and another judge took over. As such, I can't say off the top of my head. If you could provide a more direct reference/quotation of what you're asking after, I might be able to answer the question.

  62. Ron Graf:

    Brandon, I would say you are the only person who could likely argue this case in court successfully regardless of which side you took. I think a lot of lawyers could learn from your example that just because they went to law school, passed the bar and practiced does not make them better equipped automatically to argue a case better than a client could. Like doctors, the most common oversight lawyers make is realizing how valuable an information resource their client/patient is. One of the first posts I followed in climate audit was the Slapp hearing two years ago. I remember everyone's cringe at Carvin's presentation.

    While i don't disagree, I think another problem is there is a conflict of interest here. The defendants' lawyers profit by having this lawsuit drag on indefinitely. This is a great case for them. While Michael Mann is trying to punish the defendants by dragging this out, doing so benefits their lawyers.

    On top of that, there seems to be little indication the defendants even care about the truth at this stage. If you look at what the National Review has been publishing, it's in line with what the ACLU and other organizations have argued to support them - there was no factual content in the articles. I think that's complete nonsense. Just on a personal level, when reading those articles, I would believe the defendants meant to convey factual claims.

    But it is better for the defendants to win on that point than to win on grounds of the "truth." That's because the defendants, as well as other media organizations, want to be free to say whatever they want. My impression is this case is, to them, about their freedom of speech regardless of whether or not what they said is true.

    The bottom line is Mann did intentionally manipulate the data, Brandon, as you are well aware.

    Yup. That's why this case bugs me so. People who make bad arguments sabotage the efforts of people like me, who make good arguments. The defendants in this case seem more interested in "scoring points" in some social cause than getting at the truth. That sort of behavior is why Michael Mann has gotten away with fraud. People who co-opt discussion of a real problem to advance their personal agendas are Mann's greatest ally.

    Brandon, do you believe that anyone accusing Hillary of obstructing justice is recklessly defaming her since the FBI conducted an investigation and concluded it could take no actions?

    The answer to this question seems trivial. As far as I know, the FBI didn't conclude Hillary Clinton was innocent, but rather, concluded it didn't have evidence which would let it file such charges. If that is correct, then the answer is obviously, "No." You can't get in trouble for saying something based upon a report which doesn't contradict what you say.

  63. Stephen McIntyre:

    Brandon, I have been just as critical as you about lawyers making errors. As I recall, this particular narrative comes from the National Review brief, not the CEI brief. The National Review brief appears to be the product of lawyers essentially on their own. To my knowledge, they would not have been coordinated with Simberg (who is with CEI) or with Steyn, who was then separately represented. Their fourth point, as expressed, is botched, but you are not correct in dismissing the issue as unconnected with Mann (" true of work by Keith Briffa, not Michael Mann").

    Let me begin by noting something you yourself have said many times. It is helpful when disagreeing with what people say to directly quote what they say rather than just post a (perhaps crude or inaccurate) paraphrase.

    As it happens, your paraphrase creates an inaccurate portrayal. While I agree Michael Mann is not unconnected to the truncation of Briffa's reconstruction (and have discussed one such connection on this very page), the comment you are responding to was given directly in the context of Michael Mann's MBH hockey stick. That is unconnected to the truncation of Briffa's reconstruction. Whether or not Mann engaged in inappropriate behavior in regard to other work, which might involve truncating Briffa's reconstruction, does nothing to indicate there were serious flaws in the underlying methodology of Mann's original hockey stick.

    f one looks at Simberg's blog, he appears to be considerably more versed in the topic than you give him credit for (as are Steyn and CEI).

    I hope you'll forgive me for not simply going with your opinion when you've mischaracterized things multiple times on this page already. If you can present some evidence of the knowledge you suspect these people have, I'd be happy to consider. As it stands, I've seen very little.

    I agree that the lawyers botched the narrative on this point, but I also believe that they could easily have made a relevant and important point, had they checked out their pleadings with someone more expert on the facts.

    I have made the same point many times. I have repeatedly expressed my belief it would be easy for competent defense to win this case. Personally, I think it would have been easy to get the case dismissed by the appeals court. The problem I see is twofold: 1) The defendants claim what they said wasn't true or false as it contained no factual content. I think that's a stupid argument, and I think the court correctly dismissed it. Because the defendants made it though, they couldn't argue what they said was actually true and thus didn't present any real evidence of Mann's wrongdoing.

    2) The defense has made numerous incorrect claims regarding facts. When you keep getting things wrong, it's going to be harder to convince a court you really believe what you say. The court has to weigh the possibility you believe things that are easy to see aren't true against the possibility you're just looking for an excuse to justify what you said.

  64. There is one scenario that Iv'e not seen spoken. Perhaps Simberg, like Steyn, want to have a trial. Perhaps it is only the insurers of the publishing concerns that want the case dismissed. Maybe they did not help Carvin as much as they could have in crafting the briefs.

    I know I want to see the trial. Also, the 5-year statute of limitations has run out against the perpetrator(s) of climategate. They could be potential witnesses to the fraud they were intending to blow the whistle on. That would be very powerful coming from an insider.

  65. Ron Graf:

    There is one scenario that Iv'e not seen spoken. Perhaps Simberg, like Steyn, want to have a trial. Perhaps it is only the insurers of the publishing concerns that want the case dismissed. Maybe they did not help Carvin as much as they could have in crafting the briefs.

    I guess that's possible, but I don't know how we could ever tell. I think the simpler answer that either the defendants don't know the subject well or their lawyers haven't listened to them are more plausible. Heck, I haven't seen any evidence any defendant has any meaningful knowledge of this subject.

    And yes, I get Stephen McIntyre has talked about how Simberg linked to articles/posts. I don't think that tells us much of anything. I've seen links get added to articles by editors after the article was submitted, without the author ever seeing the link. I've also seen people post links they hadn't made any effort to read. That a person can point to a webpage doesn't indicate they understand what the page says.

    Mark Steyn is the only person I've seen write anything involving enough substance to determine breadth of knowledge. He gets tons of things wrong and grossly misrepresents a number of things. That doesn't give me confidence in his knowledge of this controversy.

    It's always possible people know more than they demonstrate, but as it stands, I see little reason to believe any defendant (not just those party to this motion) have any meaningful knowledge of this controversy.

  66. I've updated this post in light of Mark Steyn writing a piece which misunderstands what I said. You can see the update at the end of the post. Put simply, Steyn has conflated me saying I believe Michael Mann has a sufficient case to proceed to trial (rather than be dismissed in the preliminary stages) with me saying I favor Mann suing him. I don't know why he misunderstands me to such an extent, but hopefully the update will clarify things.

  67. Brandon, what would be the minimum change needed for NR and CEI to have won their case?

    For example if
    "Dr. Mann Cannot Demonstrate Actual Malice By Clear and Convincing Evidence Because National Review Sincerely Believes In The Truth Of The Statements "
    had been changed to
    "Dr. Mann Cannot Demonstrate Actual Malice By Clear and Convincing Evidence Because National Review Published True Statements "
    Is that enough?

    Going further, you would have to make changes like
    And similar 'Indeed, proving actual malice is an impossible task because (all of the evidence confirms that National Review sincerely believes that) the
    hockey stick rests on shoddy methodology and depicts a misleading picture of global warming. Furthermore, as Lowry’s article explained
    , National Review believes that this is exactly what Steyn and Simberg meant to convey when they stated that the hockey -stick graph is “fraudulent” and
    based on “molested and tortured data.” In National Review’s view, the speakers were using those terms in their loose “polemical” sense, rather than in any narrow technical sense. Even if Dr. Mann “proves” that National Review is somehow wholly incorrect about the validity of the hockey stick, that would not come close to showing “actual malice” because it would not show that National Review “subjectively” believed the statements to be false.

  68. MikeN:

    Brandon, here is the judge's ruling:
    https://www.scribd.com/document/154815032/Superior-Ct-Denial-of-NR-Motion

    Says 'evidence is slight' for actual malice, but maybe more evidence can be discovered.
    Also uses 'preponderance of the evidence'.

    After a quick skim of that ruling, I'm not sure what difference you are asking about. You asked what would happen if we took "the first judge(Greene)'s findings combined with the appeals court's standard for evidence," but I'm not sure what difference in the standard of evidence you think there is. The ruling you link to says the standard it applies "is proof by a preponderance of the evidence." The latest ruling says:

    Dr. Mann has supplied sufficient evidence for a reasonable jury to find, by a preponderance of the evidence, that statements in the articles written by Mr. Simberg and Mr. Steyn were false, defamatory, and published by appellants to third parties, and, by clear and convincing evidence, that appellants did so with actual malice.

    To me, it seems they use the same standard - the preponderance of evidence.

    Brandon, what would be the minimum change needed for NR and CEI to have won their case?

    Do you mean to have won the motion to dismiss (either initially or on appeal)? The case hasn't been won or lost yet, so I'm going to assume that's what you meant. If so, the change you propose would not suffice. The defendants would also have to drop the sections claiming the published statements were non-factual and unverifiable. You can't really argue your statements are not factual and aren't verifiable at the same time you tell people your statements are verifiably true

    That said, if the defendants had argued their statements were true, as a defense, claiming the factual content in them was verifiably true, I think they would have won the motion easily. I mean, they would have had to make a coherent argument as to why what they said was correct. I'm not sure they would succeed. Given how badly they've mangled claims regarding the hockey stick so far, I wouldn't be surprised if they failed at this hypothetical approach as well. If they didn't mess it up though, and they were able to make a coherent case for the truth of what they had published, I think they'd have won their motion to have the case dismissed.

    As it stands, the only evidence the judges have cited of "actual malice" are the various "investigations." When you weigh that evidence against the fact the defendants offer basically no evidence they actually believed what they published, it is not unreasonable to think "actual malice" might have existed. That would change if the defendants could show real evidence they believed what they published. If the defendants had shown they spent time researching the topic and understood it well, I think the judges would have viewed that as compelling evidence the defendants believed what they published despite the "investigations."

  69. Brandon, the clear and convincing standard for actual malice vs 'evidence is slight' in the first ruling.
    I see it as the first judge decided all benefit of doubt goes to plaintiff, while appeals court applies a higher standard(and a different view of the evidence).

    "You can't really argue your statements are not factual and aren't verifiable at the same time you tell people your statements are verifiably true "
    You are allowed multiple lines of argument. I think I'm getting your argument now. If NR declared that they believe Mann has committed fraud, vs saying they believe Mann has performed certain actions that can be described as fraud with a different meaning.

  70. MikeN:

    Brandon, the clear and convincing standard for actual malice vs 'evidence is slight' in the first ruling.
    I see it as the first judge decided all benefit of doubt goes to plaintiff, while appeals court applies a higher standard(and a different view of the evidence).

    I don't see that. I think you've misunderstood what the new ruling said. The new ruling didn't say the plaintiff needs to present "clear and convincing" evidence right now. The new ruling said the plaintiff needs to demonstrate he could provide "clear and convincing" evidence to the jury.

    The judge's responsibility during this dismissal hearing (and appeal) is to determine if the plaintiff has provided sufficient evidence to establish he could present clear and convincing evidence to the jury. The standard the judge uses in determining if the plaintiff has done so is the "preponderance of evidence."

    In other words, the judge has to ask if the "preponderance of evidence" presented during the hearing indicates the plaintiff could establish his accusations with "clear and convincing evidence" As far as I can see, both rulings have said that. They just said it in different ways.

    "You can't really argue your statements are not factual and aren't verifiable at the same time you tell people your statements are verifiably true "
    You are allowed multiple lines of argument.

    You are, but they shouldn't be directly contradictory. That's not to say you can't offer positions which are directly contradictory (though in some situations, you are legally prohibited from such). It's just saying people will generally find you distrustful if you do it. Given the entire case hinges upon how much people trust the defendants' claim of genuinely believing what they published, acting in a manner that will cause distrust is unwise.

    I think I'm getting your argument now. If NR declared that they believe Mann has committed fraud, vs saying they believe Mann has performed certain actions that can be described as fraud with a different meaning.

    Something like that. The main thing is the defendants should be trying to convince the court they genuinely believed what they published. Legalistic, mealy-mouthed attempts at weaseling out of responsibility is a bad way to do that. A good way to do it is to be forthright and directly challenge any accusations. If you do that, people will have a hard time arguing you are not sincere even if they think you're wrong.

  71. I just made the first comment on the other blog Steyn pointed to. It's "pending approval."

    “...because Mann was the lead author of one of the first papers to strongly show it, it became “his” finding...” If Fleming’s penicillin caused diabetes instead of curing infections he would get the blame. That’s how it goes.

    “...National Science Foundation had also investigated Dr. Mann...” Actually it was the National Academy of Sciences. It was also turned into a white- wash as neither investigation ever contacted Mann’s main accusers, McIntyre and McKitrick, who published two peer reviewed journal papers exposing the Mann(98) and (99) papers to be based on a bogus script that would turn random numbers into a “hockey stick,” and thus was completely non-scientific, a sham, a fraud.

    If people want to know how the CRU emails implicated Mann and the top climate activists the best archive is on Climate Audit. Or, search Folland, “The Trick” “Hockey Stick” and look for the climate audit url. When bloggers like the one here write nonfactual content it does no great harm to any specific (suing) individual, yet it does a little bit of harm to the thousands who happen to read it.

  72. Ron, there was an NSF investigation. The results were posted on a government website without mentioning Mann by name.

  73. Rereading Greene's opinion, should it be interpreted as her evaluation of the evidence, or her description of the most favorable(towards Mann) view of the evidence?
    I say it because she says

    At this stage, the evidence is slight as to whether there was actual malice. There is however sufficient evidence to demonstrate some malice or the knowledge that the statements were false or made with reckless disregard as to whether the statements were false. Plaintiff has been investigated several times and his work has been found to be accurate. In fact, some of these investigations have been due to the accusations made by the NR Defendants. ... Thus, it is fair to say that the NR Defendants continue to criticize Plaintiff due to a reckless disregard for truth...Where, however the NR Defendants consistently claim that Plaintiff’s work is inaccurate (despite being proven as accurate) then there is a strong probability that the NR Defendants disregarded the falsity of their statements and did so with reckless disregard.

    The last part is definition of actual malice.

  74. Ron Graf,

    McIntyre actually took part in the NAS panel hearings and wrote a post about it:
    https://climateaudit.org/2006/03/16/mann-at-the-nas-panel/

    This comment he made at the blackboard is good:
    http://rankexploits.com/musings/2014/looks-like-steynnrceisimberg-dont-get-their-anti-slap-dismissal/#comment-123101

    Apparently, Mann did not include NAS in his list of exonerations:
    https://climateaudit.org/2014/02/25/mann-misrepresents-the-uk-department-of-energy-and-climate-change/#comment-486914

  75. The NAS panel you're talking about is a totally different matter Canman. It was years before Climategate happened. As such, it wasn't meant to investigate the issues raised in the Climategate e-mails. It was just intended to resolve questions regarding the hockey stick contorversy of the time. That's why not even Michael Mann has claimed it exonerated him.

  76. Brandon, I have been pointed to footnote 52 of the appeals court ruling:

    In this case, the trial court characterized the evidence of actual malice as
    “slight” and as not amounting to a showing by clear and convincing evidence, but
    stated that it was “sufficient to find that further discovery may uncover evidence of
    ‘actual malice.’” ... We note, however, that if the trial court considers that the evidence
    presented in opposition to a special motion to dismiss is not sufficient to go to a
    jury, the court must grant the motion to dismiss as the opponent has the burden to
    demonstrate a sufficient evidentiary basis for his claim. See D.C. Code § 16-5502
    (b). The court is not at liberty to dispense with this statutory burden. The AntiSLAPP
    Act authorizes the court to permit targeted discovery for the purpose of
    responding to a special motion to dismiss. Granting a request for such discovery
    was the proper way to proceed, if it “appear[ed] likely that targeted discovery
    [would] enable the plaintiff” to shoulder his evidentiary burden to overcome the
    special motion to dismiss and would not be “unduly burdensome” to the defendants

  77. MikeN, as always, I ask readers not to post quotations/links without an explanation of what meaning they want people to take from the material. Doing so leaves it up to the reader to guess what meaning they are supposed to come up with. There is no reason for that. It is not difficult to write a short explanation of what point you are trying to make. If you can't be bothered to do that, you're just spamming.

    As an example of why this is a problem, let's consider part of the quotation you provided (without using anything to set aside the quotation):

    We note, however, that if the trial court considers that the evidence presented in opposition to a special motion to dismiss is not sufficient to go to a
    jury

    When I read this, I see the word "if." I see no explanation as to why we should believe "if the trial court considers" means "the trial court considers." Perhaps there is such a reason. I don't know. You made no effort to provide one. Perhaps I could find one, but it shouldn't be up to me to try to guess what points you might wish to make.

  78. > why we should believe "if the trial court considers" means "the trial court considers."

    In the paragraph, I think we should take it to mean the opposite. The trial court does not consider...
    The point of the quote was a followup to whether the first court should have dismissed the case under their reading.
    I read this footnote as saying the lower court should have opened discovery before ruling, and without further discovery should have dismissed.

  79. The NY Post ran an article on the anti-SLAPP appeal decision:

    Simberg accuses Mann of having “molested and tortured” the data, much as disgraced Penn State coach Jerry Sandusky molested kids. Steyn quotes Simberg, calls the hockey stick “fraudulent” and likens Mann’s methodology to a “circus.”

    Harsh? Over the top? Maybe. But at bottom, these are statements of opinion — not fact. And, under the First Amendment, Americans can express their opinions, no matter how cutting they may be.

    From my understanding a judge can throw out any civil case via summary judgement, with or without prejudice (the right to return to court). What see the SLAPP law doing is explicitly underscoring the need for the judge to run an summary trial - pre-trail to ensure libel laws are not abused since. as everyone is aware, the process is a punishment. I understand from above that there needs the following evidence to proceed:

    1) The offending allegation has to be a claim of fact, not opinion. (It must be provable)

    2) The offending claim must be untrue.

    3) The more the defamed party is a newsworthy individual in the public eye the more the offending allegation must have been made recklessly, without effort in checking accuracy, or proceeding regardless.

    Since the SLAPP hearing is actually a mini trial, complete with some discovery, there should be a fourth requirement, the reasonably clear demonstration of damages, since with them there is no hope of successful recovery of actual damages or punitive damages.

    If the object is only to clear the public record that can be done outside the court with an op-ed or paid space in major publications.

  80. Ron Graf:

    The NY Post ran an article on the anti-SLAPP appeal decision:

    Yeah, but they selectively quote what was said in a way which misrepresents things. If you cherry-pick a couple hyperbolic statements, it's easy to say, "This is just opinion." That's wrong though. You have to look at what was said, as a whole. When you do that, you find repeated statements implying it is a fact Michael Mann has engaged in inappropriate behavior.

    From my understanding a judge can throw out any civil case via summary judgement, with or without prejudice (the right to return to court). What see the SLAPP law doing is explicitly underscoring the need for the judge to run an summary trial - pre-trail to ensure libel laws are not abused since. as everyone is aware, the process is a punishment.

    Er... this has nothing to do with summary judgment. Summary judgment is when a judge grants a verdict himself, declaring that, as a matter of law, there can be no dispute as to which party should win. It cannot include "the right to return to court" as it is, like any verdict, the conclusion of the trial (which can, of course, be appealed).

    You are thinking of dismissal. A case can be dismissed with or without prejudct (meaning it can or cannot be refiled).

    Since the SLAPP hearing is actually a mini trial, complete with some discovery, there should be a fourth requirement, the reasonably clear demonstration of damages, since with them there is no hope of successful recovery of actual damages or punitive damages.

    If the object is only to clear the public record that can be done outside the court with an op-ed or paid space in major publications.

    In libel law, accusing a person of a crime or other serious offenses is often "defamatory per se." That means the accusation is so serious damages are assumed and need not be proven. In this particular case, Michael Mann will likely not need to prove actual damages.

    That said, Mann will almost certainly not be able to be awarded any significant amount of money. The ruling would be more about appearances. It is, however, possible the defendants would be forced to pay Mann's legal fees. That would definitely be a huge matter. Mann isn't paying his fees directly so any such compensation likely wouldn't go to him, but it could cost the defendants millions of dollars even if Mann is only awarded a single dollar in the verdict itself.

  81. Brandon: `In libel law, accusing a person of a crime or other serious offenses is often "defamatory per se." '

    1) I am not sure Mann was accused of a crime or a reasonable person would think Mann should be locked up, joking aside whether Mann belongs at Penn State or in State penn.

    2) I am not sure if accusing Hillary Clinton of a felony just because an executive investigation, or even courtroom cleared her, would be liable, as long as there is some basis for the claim and that reasonable people do not see it changing her established reputation.

    3) A person needs to demonstrate they have a high reputation before they can prove defamation. This is likely one reason for Steyn's book on Mann, cataloging the huge line of people with bad statements about Mann and his work, calling his data Shlt, etc.

    Brandon, defamation law was designed to prevent people from intentionally making up false stories for the purpose of damaging someone's reputation or to sell newspapers without any regard for truth. The Steyn, CEI, NR case is about the lampooning of an already notorious person and incident and ridiculing the protective establishment white-wash as much as the alleged scoundrel. The court's argument in their ruling that a professional body or government executive cannot be question is ridiculous and bad even if Mann were innocent, which you and I don't believe he is.

  82. Let's all pretend nobody noticed those two changes to punctuation, okay? I think we can all agree nobody saw me add a closing parenthesis tag or remove an annoyingly superfluous comma.

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