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

www.meteo.psu.edu
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:

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.

 * * *

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.

 * * *

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.

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Comments (16)

Projections and Prospects

'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."'

The phrase "intellectually bogus" applies very well to the smear campaign that the Competitive Enterprise Institute and the National Review Online have led against Michael Mann. In fact, some of the other, more colorful phrases that the CEI and the NRO used against Mann would aptly describe their own behavior. This will remain true regardless of whether either propaganda monger is actually punished for its vicious slander of a decent scientist.

The real resolution of this case, however, will come when the truth about global warming is as widely known as the lies. It will be a real challenge to make this happen, as a lie can jog several times around the block in the time it takes the truth to tie on its sneakers. But this article is part of the solution.

A reverse-SLAPP

or an honest attempt to salvage a reputation that's been savaged by those who disagree with his position? I'm inclined to believe the latter. I'll be interested in seeing whether the defendants are willing to take this to trial and how a jury will view it.

(SLAPP: strategic lawsuit against public participation)

Tortured long enough

data will confess to anything.

That's the denialist credo

They're really good at torturing data in the service of their political agenda. And when that's not enough, there is always character assassination.

To deny empirical evidence is a baseless platitude

If someone measures a person's height to be 6 feet tall, other people can also measure and either confirm or deny the original measurement. In the world of actual measuring by trained scientists, there will be a very small band of variation of measurement, and then eventually a number can be produced with a very high degree of certainty confirming the measurement.

No amount of "torturing" of height data is going to make a 6 foot person 3 feet tall. Same goes for measuring land and ocean temperatures from thousands of locations over extended periods of time. The numbers, statistically, end up being very accurate with very small margins of error - that's the effect of having so many measurements from so many places over so much time.

Understanding how things are measured and how statistics work disabuses a person of the oft-repeated notion that "numbers are meaningless".

Torture!

Water board the data! Oh wait--that's not torture, it's the equivalent to college hazing.

A real mystery

Let's see: a left-wing judge, appointed by Bill Clinton in 1998, stunningly makes a minor favorable ruling for a left-wing "climate scientist," which is reported as being significant by a left-wing website, MinnPost. I can't fathom, either, why the liberal New York Times, liberal CNN, liberal CBS, etc. are not tripping over themselves covering the story.

Mystery Indeed

I guess hard data and the truth is all a librul conspiracy perpetuated by the gub'mint and pinko commie subversives. What was it that the Republicans said during the recent presidential campaign? Something to the effect of "we don't believe in fact checking."

So, it's all a conspiracy then?

There's a vast global conspiracy including thousands of scientists, writers, journalists, academics, activists, governments, the Pentagon, insurance companies, the World Bank, etc. --Is this your view?

The odds

So, 97% of engineers say that the bridge ahead of you will collapse, sending you plummeting to your death in a 500-foot ravine, if you try to drive over it. However, the remaining 3% say "Naahh! It's perfectly safe! Go ahead!"

Who you gonna listen to?

Global Warming

CEI and NRO are employing various tactics on several fronts to try to discredit scientists.

1. Attack the scientist directly. He's like a child molester!

2. Attack the methodology used to reach the conclusion.

3. Claim the data itself is wrong.

4. When the data is reviewed and proved to be correct, continue on the previous course as if the review never happened or start the process all over again with the reviewer.

What they're doing is cynically exploiting the intellectual laziness of low information voters, people who simply scan a headline and think that's the whole story. These people will continue to deny there's a problem and will instead sit at the bar with their cocktails, complaining loudly about the poor engineering that allows the bar to tilt at such a ridiculous angle. All the while the Titanic slips farther beneath the waves.

It's about time

I'm glad Mann is fighting back, and I wish him well in his defamation suit. It's long past time for a bright light to be focused on the scurrilous lies of the denialists, who seemingly lack both respect for the truth and a conscience. God knows, most media have completely dropped the ball on this, under the intellectually lazy cover of presenting both sides "equally". I hope the courts will do better.

first amendment abuse

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.

So what is the reason that is was not said directly in the text that it was opinion ?

Put up or shut up

is what this judge is saying. If you're going to accuse a scientist of fraud and "torturing the data" in his life's work as a research scientist, then you'd better be able to prove it. I'm glad the judge is not letting the "think tank" and NRO off the hook so easily with their lame "just an opinion" defense. Truth is a defense to defamation and libel. Let them prove it. Good luck finding a qualified expert.

Thanks for bringing this

Thanks for bringing this important lawsuit, and the recent judge's ruling in it, to Minnesota attention!

I saw the other day that the Star Tribune had printed yet another climate-change denier's letter to the editor, full of "opinion" that was simply inaccurate assertion of counter-factual material. Of course, that paper is not going to pay attention to Michael Mann's self-defense against these outrageous deniers' attempts to defame him.

Lawsuit

All we can do is keeping using truth against power, whether it's a defamation lawsuit or letters to the editor. Someone has to get the word out there so we can move ahead on getting this problem fixed rather than sticking our heads in the sand. In the meantime reality doesn't care whether or not we "believe" in global warming: it is what it is. Nature simply doesn't care about your flawed perceptions.