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Climate scientist wins an early victory against a long-running smear campaign

Judges rules that attacks on Michael Mann are not mere opinion, and may amount to defamation.
Michael Mann

Climate scientist Michael Mann has won a preliminary but potentially key courtroom victory over some of the deniers who have kept up a ceaseless campaign of vilification against his work on global warming.

In a ruling that has received  little notice outside the legal press — and none in the mainstream media as of this writing — a District of Columbia judge has ordered that Mann’s defamation suit against National Review Online and the Competitive Enterprise Institute can go forward.

And in rejecting the defendants’ request for dismissal, on First Amendment and other grounds, the order states that Mann has at least a reasonable chance of winning on the defamation claims — something that is much more difficult than most people think, for reasons I’ll discuss below. But first to the facts of this case:

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Mann is best known for the “hockey stick graph,” first published in 1998, which drew on data from tree rings, ice cores, lake-sediment samples and similar sources to plot the course of change in global temperatures over six centuries: flat for a long time, then spiking.

The image became an indelible icon of global warming forced by industrialization and its consumption of fossil fuels. It also became, therefore, a prime bull’s-eye for the denier crowd, especially as later research validated and expanded the original findings.

Mann is perhaps second-best known because of his prominence in the so-called “Climategate” fracas, a smear campaign in which the deniers construed some casual phrasing in the body of pilfered emails as evidence that Mann and other climate scientists were manipulating data.

Smears and vindications

The smears worked for a while, and prompted at least eight official investigations — three in Britain and five in the United States, including one by Virginia’s attorney general and two by Mann’s employers at Penn State, where he heads the Earth System Science Center.

No scientific misconduct was found; indeed in January Mann was honored with a  distinguished professor designation at Penn State. (Of course every email user in the world got a timely reminder about being more careful about what you write in cyberspace.)

This vindication notwithstanding, the deniers remain invested in trying to show that prevailing scientific conclusions are not only wrong but deliberately so, and Mann has remained a prime and perennial target.

Last October the Competitive Enterprise Institute, a so-called “think tank” that has been instrumental in shifting the U.S. political landscape against serious responses to global warming, took the vilification campaign against Mann to a new low.

Likening research to sex abuse

A post on its OpenMarket blog likened Penn State’s investigations of Mann to its history of ignoring sexual abuse of young men in its football program. It referred casually, perhaps reflexively, to Mann’s “academic and scientific misconduct” including “data manipulation,” “deceptions” “and behaving in a most unscientific manner.”

And then:

Mann could be said to be the Jerry Sandusky of climate science, except that 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.

The post remains in place on the CEI  blog, minus that sentence and another the editors found to be “inappropriate.” (You think?)

Shortly after its publication, the gist of CEI’s blog was picked up approvingly by National Review Online, where the Sandusky sentence remains in print to this day. NRO added the helpful explanation that

Michael Mann was the man behind the fraudulent climate-change ‘hockey-stick’ graph, the very ringmaster of the tree-ring circus.

Mann demanded retractions and apologies from both publications; he got neither from either. Editors at NRO posted a statement that they hadn’t really meant to accuse him of fraud in, you know, the criminal sense but otherwise stood by their view that his work was “intellectually bogus.”

So Mann sued for defamation.          

Not a matter of opining

It is important to note that while the child-molester comparison may have moved Mann to sue CEI and NRO, these are not the passages on which his defamation claim will be won or lost.

This kind of slime may be offensive, mean-spirited and ugly, but it’s an expression of opinion and opinions are almost wholly protected by the First Amendment. Defamation, by contrast, is a matter of facts — false and defamatory facts used in a deliberate effort to damage reputation.

Proving the three elements of falsity, intent and harm is difficult, and because Mann is a public figure, engaged in a public debate, special rules apply that make the task still harder.

First of all, Mann will have to show that in accusing him of misconduct, deception, manipulation and, especially, fraudulent actions, CEI and NRO were not merely opining but attacking him with assertions of fact.

Then he will have to prove that his disparagers engaged in “actual malice”  by stating facts they either knew to be untrue or treated with “reckless disregard” as to whether they were true or false.

The defendants, of course, are arguing that everything they wrote about Mann was sheer opinion, not meant to be taken as factual at all, and even “witty.” That’s actually a pretty strong case, given the strong opinion flavor of the publications — probably a slam-dunk, I thought, when I first read about Mann’s lawsuit.

How judge views the case

But here are some key excerpts from Judge Natalia M. Combs Greene’s order of July 19 [PDF] concerning NRO’s motion for dismissal, my emphasis added (a separate, very similar order [PDF] was issued on CEI’s motion):

Considering the numerous articles that characterize Plaintiff’s work as fraudulent, combined with the assertions of fraud and data manipulation, the NR Defendants have essentially made conclusions based on facts. Further, the asserts of fraud “rely upon facts that are provably false” particularly in light of the fact that Plaintiff has been investigated by several bodies (including the EPA) and determined that Plaintiff’s research and conclusions are sound and not based on misleading information.

In Plaintiff’s line of work, such an accusation is serious. To call his work a sham or to question his intellect and reasoning is tantamount to an accusation of fraud. … The Court must, at this stage, find the evidence indicates that the NR Defendants’ statements are not pure opinion but statements based on provably false facts.

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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. It follows that if anyone should be aware of the accuracy (or findings that the work of Plaintiff is sound), it would be the NR Defendants. …

Criticism of Plaintiff’s work may be fair and he and his work may be put to the test. 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.

Claiming underdog privilege

It’s worth noting that the judge also rejected the defendants’ contention that Mann’s claims be dismissed on the ground that they constituted a SLAPP — that is, a Strategic Lawsuit Against Public Participation.

SLAPPs are typically filed by large corporations or other powerful players against annoying critics who can be intimidated into silence by the threat of having to defend themselves against an unfounded but nevertheless expensive lawsuit.

But in this case, CEI and NRO asked the court, apparently with straight  faces, to view Michael Mann as the bullying Goliath and themselves as the put-upon Davids.

I don’t know what Michael Mann’s salary is, and I don’t care, but I looked up CEI’s nonprofit tax return for fiscal 2011 [PDF], the latest available at Guidestar, and found that it lists total revenues of $5,349,662 and net assets of $2,389,911, both up appreciably from the previous year.

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Michael Mann’s lawsuit can be read here [PDF].  Besides the Courthouse News Service account noted above, other good coverage has appeared in Legal TimesMother Jones and Slate.