A year ago, Penn State was reeling in the wake of revelations that its athletic program had covered up serial abuse by one of its football coaches. A blogger at the pro-free-market Competitive Enterprise Institute used that situation as an opportunity to suggest that the university was covering up malfeasance by one of its faculty members, climate scientist Michael Mann. The accusations of research fraud were then reiterated by a blogger at the conservative publication National Review. After a bit of back-and-forth between Mann and the two organizations, Mann filed a defamation suit.

Both National Review and the CEI attempted to have the case thrown out. They argued that it met the SLAPP definition of an attempt to silence critics and that Mann's case fell far short of the standards of defamation of a public figure. Now, a judge has denied both of these attempts, allowing the defamation trial to move forward.

Fighting with hockey sticks

Mann first attracted the ire of those who question the scientific community's conclusions about climate change due to his publication of what's become known as the hockey stick graph. The graph showed that temperatures have swung up dramatically over the last century after centuries of relative stability. That graph is nearly 20 years old now and has been superseded by further studies (some done by Mann himself), all of which have produced substantially similar results. But many of the people who doubt the conclusions of climate scientists remain fixated on Mann's graph as well as Mann himself. Opponents regularly accuse him of scientific misconduct.

Because of the attention focused on the hockey stick—and because some of Mann's e-mail exchanges with fellow scientists were taken during a hack of the servers at the University of East Anglia—his work and conduct have been the subject of numerous inquiries. These have been performed by organizations including US and UK government agencies, a number of universities, and the National Academies of Science. All of these have concluded that Mann's work and conduct have been solid, and that fact may play a key role in this case.

One of these inquiries, by Penn State (where Mann is currently faculty), sparked the columns at issue. If Penn State failed to make a sufficient inquiry into its football program, a writer at the CEI reasoned that it's likely the institution is incapable of investigating its scientists carefully. That argument was couched with phrases that indicated Mann was clearly guilty of scientific fraud and comparisons between the scientist and a convicted child molester (two of these sentences have since been edited out). Similar accusations were echoed by the National Review.

Mann's suit isn't based on the analogy with child molestation; instead, it goes after the accusations of fraud. These include phrases such as "data manipulation," "scientific misconduct," and "intellectually bogus." Mann was called "the man behind the fraudulent climate-change 'hockey-stick' graph" and a "poster boy of the corrupt and disgraced climate science echo chamber."

The suit lives

After attempts to get the articles pulled and an apology issued, Mann sued for defamation. The parties involved tried to have the suit thrown out on two grounds. One is the District of Columbia's anti-SLAPP (strategic lawsuit against public participation) statute, which seeks to block harassing lawsuits meant to silence critics. The second is that Mann is now a public figure, and the suit doesn't meet the high standards that public figures have for establishing defamation. The former issue was handled by a look at the history of the legislation, which indicated that the anti-SLAPP legislation was not intended to set an exceptionally high barrier to cases like this one.

The second is more complex and perhaps more interesting. The court did find that Mann is now a public figure, which makes sense. He's been involved in other lawsuits and targeted by multiple inquiries. Mann even wrote a book (The Hockey Stick and the Climate Wars) about the whole experience. He makes regular speaking appearances at universities and in support of his book.

Given that he's a public figure, a defamation suit requires that the defendants have made their statement with "actual malice," which is defined as acting either "with knowledge that it was false or with reckless disregard of whether it was false or not." This is meant to protect vigorous arguments, including those made in public using flamboyant or exaggerated language. The defendants at National Review and CEI argued that they were simply using exaggerated language and that there's no way to establish a reckless disregard for the truth. (In fact, the National Review suggested that "issues of science are opinion because 'scientific truth is elusive.'") Thus, they argued that Mann's suit is baseless.

The court did not agree, concluding that "the evidence before the Court, at this stage, demonstrates something more and different than honest or even brutally honest commentary." Elsewhere, it noted that, as phrased, the columns' argument "questions facts—it does not simply invite the reader to ask questions." All told, the columns "are not pure opinion but statements based on provably false facts" (a footnote notes that "the court does view this as a very close case").

In general, the decision suggests that there is a reasonable chance that Mann can show the "Defendants disregarded the falsity of their statements and did so with reckless disregard." The ruling notes that the organizations have called for Mann's investigation multiple times; "if anyone should have been aware of the accuracy (or findings that the work of Plaintiff is sound), it would be the [National Review] Defendants." Thus, continued attacks on Mann may be construed as a reckless disregard for the truth.

This finding does not mean that the Court concluded there was actual malice. Instead, it views that as a job for the discovery process, in which each side can request relevant documents. The court is simply concluding that there are grounds for a defamation suit, so the case can go forward.

The discovery process in this suit, should it eventually proceed to that point, could be interesting. It's not clear what records, if any, individuals in these organizations kept regarding their climate advocacy. And the National Review has threatened to go after Mann's e-mail and turn this into a repeat of the experience that made him a target of multiple inquiries in the first place. For his part, Mann seems indifferent to this threat. He told Ars, "I'm pleased that the judge threw out National Review and CEI's motion to dismiss the case." (None of the other parties have yet to respond to our request for comments.)

In any case, it will take a while to resolve. The next hearing isn't scheduled until September, and there will undoubtedly be further legal wrangling before anything gets decided.

Changes were made to correct an error in transcription and a sentence that was poorly worded.