by Judith Curry

Some interesting developments and rhetoric in the Mann versus Steyn lawsuit.

A number of articles have been written on the Mann vs (Steyn, The National Review, Competitive Enterprise Institute) lawsuits. I have mostly followed the postings by Climate Science Watch and the Volokh Conspiracy:

Volokh provides the following summary of the most recent development:

On Wednesday, Judge Frederick Weisberg handed climate scientist Michael Mann a potentially significant victory in his defamation suit against Mark Steyn, National Review, Rand Simberg, and the Competitive Enterprise Institute. In a relatively brief order, Judge Weisberg denied the defendants’ motions to dismiss and lifted the stay on discovery in the suit. He explained:

Opinions and rhetorical hyperbole are protected speech under the First Amendment. Arguably, several of defendants’ statements fall into these protected categories. Some of defendants’ statements, however, contain what could reasonably be understood as assertions of fact. Accusing a scientist of conducting his research fraudulently, manipulating his data to achieve a predetermined or political outcome, or purposefully distorting the scientific truth are factual allegations. They go to the heart of scientific integrity. They can be proven true or false. If false, they are defamatory. If made with actual malice, they are actionable. Viewing the allegations of the amended complaint in the light most favorable to the plaintiff, a reasonable finder of fact is likely to find in favor of the plaintiff

Mark Steyn’s perspective

In an article Trial and Error, Mark Steyn writes:

I’m not the first to discover too late that the American court system is no place for wee unsuspecting foreigners. Although I was the only one on the NR side who’s actually won a free-speech battle (and so decisively that the law was eventually repealed), I was prevailed upon through the course of last year to leave it to the experts. The result is that we blew through half a million bucks, and have nothing to show for it – other than what even Judge Weisberg calls a “convoluted procedural history” that utterly buried the real issues at the heart of the case.

Many “climate skeptics” wonder why the defendants would want to get the complaint dismissed rather than put Mann through a trial in which he would have to take the witness stand and discuss his work under oath. I can understand their enthusiasm for this but for me the priority has always been the broader cause of free speech:

However, as a noted human-rights activist in Canada and elsewhere, he believes that the cause of freedom of expression in the United States would best be served by dismissing the amended complaint, and that a trial would have a significant “chilling effect” in America of the kind the Anti-SLAPP laws are specifically designed to prevent.

The “chilling effect” is a bigger threat to civilized society than all Dr Mann’s warming. But the judge chose instead to put us on the road to a full-scale trial. So be it.

As readers may have deduced from my absence at National Review Online and my termination of our joint representation, there have been a few differences between me and the rest of the team. The lesson of the last year is that you win a free-speech case not by adopting a don’t-rock-the-boat, keep-mum, narrow procedural posture but by fighting it in the open, in the bracing air and cleansing sunlight of truth and justice.

In an article Slappstick farce, Steyn writes:

NATIONAL REVIEW is in the midst of a big free-speech battle on one of the critical public-policy issues of our time. There have been no cover stories, no investigative journalism, no eviscerating editorials. NR runs specialized blogs on both legal matters and climate change, yet they too have been all but entirely silent. I assume, from this lonely outpost on NR’s wilder shores, that back at head office they take the view that it’s best not to say anything while this matter works its way through the courts. In other words, a law explicitly intended to prevent litigious bullies from forcing their victims to withdraw from “public participation” has resulted in the defendants themselves voluntarily withdrawing from “public participation.” That’s nuts.

Meanwhile, in the same period, Dr. Mann has been brandishing his hockey stick out on the campaign trail against Republican candidates. But it’s not much of a First Amendment that requires a bazillion dollars in legal fees and a half-decade vow of silence to enjoy the security thereof — all while the plaintiff’s using his freedom of speech to knock off your political allies.

As a practical matter, it’s simply not feasible in a global media market to tailor one’s freedom of expression to the varying local bylaws. So I take the view that I’m entitled to say the same thing in Seattle as I would in Sydney or Stockholm, Sofia or Suva. But, were Dr. Mann to prevail, it would nevertheless be the case that his peculiarly thin skin and insecurities would enjoy greater protection under U.S. law than they do in Britain, Canada, Australia, and other jurisdictions. It would thus be a major setback for the First Amendment.

Free speech is about the right to thrash out ideas — on climate change, gay marriage, or anything else — in the public square, in bright sunlight. And you win a free-speech case by shining that sunlight on it, relentlessly. As we embark on our second year in the hell of the D.C. court system, that’s what I intend to do.

Steyn sums it up in this post:

My old boss Conrad Black, who spent the last decade on the receiving end of the US justice system, wraps it up this way:

The US has 5 percent of the world’s population, 25 percent of the world’s incarcerated people, and 50 percent of the world’s lawyers, who invoice almost 10 percent of US GDP (around $1.4 trillion annually).

I regret having been put in the position of having to add to that ten per cent of GDP. But I promise that the financial support of readers will not be wasted, and that Dr Mann’s Big Tobacco lawyers will rue the day they dragged me into a DC courtroom, and allowed their highly problematic client to take the witness stand.

Pot versus kettle

In addition to suing Mark Steyn for libel, Mann is also suing, or has threatened to sue, The National Review, Competitive Enterprise Institute, Tim Ball, Minnesotans for Global Warming, the Attorney General of Virginia (I’m not sure who is suing whom on that one), and there may be others that I don’t know about.

You would think that someone who is so sensitive about people criticizing or defaming himself, that he would be very careful about defaming and insulting others. Sometimes it seems like Mann spends half his day suing people for defaming him, and then the other half of his day defaming others on twitter.

I’ve written previously about Mann’s defaming me as a ‘serial climate misinformer‘ and ‘anti-science.’ In recent weeks he has gone after Anthony Watts, Patrick Moore (founder of Greenpeace) and Bill Gates:

Michael E. Mann ‏@MichaelEMann Jan 23 So Patrick Moore (aka “EcoSenseNow”) is no more than a garden variety troll w/ nothing serious to offer. Who knew! So Patrick Moore (aka “EcoSenseNow”) is no more than a garden variety troll w/ nothing serious to offer. Who knew! #JokersPosingAsThinkers

.

Michael E. Mann‏@MichaelEMannJan 22 @BillGates Gates made an indefensible blanket statement that obscures real challenges. To dismiss lacks class.

All of these insults are mud slinging without being accompanied by any substantive argument. Mann’s defamation of me (a climate scientist) is of particular relevance in context of Mann’s case against Steyn, in light of the recent ruling:

Accusing a scientist of conducting his research fraudulently, manipulating his data to achieve a predetermined or political outcome, or purposefully distorting the scientific truth are factual allegations. They go to the heart of scientific integrity. They can be proven true or false. If false, they are defamatory. If made with actual malice, they are actionable.

Seems to me that ‘serial climate misinformer’ and ‘anti-science’ qualify as defamatory, and its difficult to imagine that the statements were not made with malice.

If you see something, say something

Mann’s recent op-ed If you see something, say something argued for scientists to speak up and speak out. Someone tweeted (can’t find the original tweet): Does this mean that Pat Michaels, Judith Curry, Anthony Watts etc. should speak out more? Hmm . . .

But Mann’s apparent interpretation of speaking out = slinging mud at other people sends us down the following rabbit hole, as per this piece in the American Thinker:

McKitrick, an econometrician at Guelph University in Canada, has a pungent comment on Mann’s op-ed, which was titled “If you see something, say something.”

“OK, I see a second-rate scientist carrying on like a jackass and making a public nuisance of himself.”

Not to be outdone, Fred Singer says: “OK, I want to say something too: I see an ideologue, desperately trying to support a hypothesis that’s been falsified by observations. While the majority of climate alarmists are trying to discover a physical reason that might just save the AGW hypothesis, Mann simply ignores the ‘inconvenient truth’ that the global climate has not warmed significantly for at least the past 15 years — while emissions of greenhouse gases have surged globally.”

Can lawsuits against McKitrick and Singer be far behind?

We really don’t want to go down that particular rabbit hole.

The point for a scientist speaking out is this: If you say something, DEFEND it. Attack the argument, not the person.

Criticizing arguments versus smearing scientists

I have tried to understand Michael Mann’s perspective in suing so so many people, while at the same time so freely throwing insults at others and even defaming other scientists. My understanding is this. Michael Mann does not seem to understand the difference between criticizing a scientific argument versus smearing a scientist.

I landed on Mann’s ‘hit list’ after publishing a post at Climate Etc. entitled Hiding the Decline. This post took a careful look at the hiding the decline issue, citing arguments/defense from both sides of the question Is hiding the decline dishonest and/or bad science? I decided to speak up on this issue after this statement was made by Sir John Beddington and highlighted by Bishop Hill:

It is time the scientific community became proactive in challenging misuse of scientific evidence.

Sort of the same rationale as ‘if you see something, say something.’

My summary statement was this:

McIntyre’s analysis is sufficiently well documented that it is difficult to imagine that his analysis is incorrect in any significant way. If his analysis is incorrect, it should be refuted. I would like to know what the heck Mann, Briffa, Jones et al. were thinking when they did this [hide the decline] and why they did this, and how they can defend this, although the emails provide pretty strong clues. Does the IPCC regard this as acceptable? I sure don’t. Can anyone defend “hide the decline”? I would much prefer to be wrong in my interpretation, but I fear that I am not.

As a result of this and other criticisms of scientific arguments, I have been accused by Mann of ‘smearing climate scientists.’

And then if someone disagrees with Mann or criticizes his work, they are called ‘anti-science’, ‘serial climate misinformer’, ‘denier’, etc. Mann referred to me in context of my recent Senate testimony as anti-science; I challenged him in this post and on twitter:

JC challenge to MM: Since you have publicly accused my Congressional testimony of being ‘anti-science,’ I expect you to (publicly) document and rebut any statement in my testimony that is factually inaccurate or where my conclusions are not supported by the evidence that I provide.

He has not responded to my challenge, other than to retweet some rather dubious blog posts.

Ironically, this kind of behavior typifies ‘anti-science’ – insult the scientist, not their argument.

JC conclusions

What to make of all this? I side with Mark Steyn regarding concern for the rather frightening implications of this case for free speech, and the attempted intimidation reflected by this and Mann’s other lawsuits. It is difficult for me to imagine how throw away one-liners such as used by Mark Steyn and Tim Ball have done harm to Mann’s reputation, which is a legal requirement for defamation (the more prolonged attention to Mann provided by the CEI may be in a different category). By the same token, Mann’s tweets arguably do not damage my reputation (or the reputation of others that he insults on twitter). If such one-liners are judged to damage the reputation of a scientist, then I have at least as good a case against Michael Mann for defamation as he has against Steyn; a scientist saying such things about another scientist is arguably more damaging to a scientist’s reputation than a journalist saying such things.

Many people have urged me to sue Mann; I can’t be bothered and I don’t have money to throw away on such stuff (The National Review has spent a half million already on this case?). Further, I would like to stand up for Michael Mann’s right to make insulting and defamatory tweets, statements in op-eds, etc. As an American, I am pretty attached to the right to free speech.

On a complex political and scientific subject like climate change that is hotly debated, of course the rhetoric will get heated. But if climate scientists participate in insulting scientists and other public persons in the climate debate, then this drags climate science into the mud. If mud must be slung, leave the mud slinging to journalists and advocacy groups. Michael Mann is the chief climate science practitioner of insulting and making personal attacks on other scientists that disagree with him. As such he has polluted the atmosphere of climate science and brought notoriety and dishonor to climate science.

Does the world really need another spectacle of climate scientists behaving badly? Wasn’t Climategate enough? It appears that some climate scientists (notably Mann) did not learn anything from Climategate.

Imagine a court trial on the issue of whether Mann’s hockey stick research was fraudulent. Picture the witnesses on both sides, and also Michael Mann under oath. Well this will be entertaining for some (popcorn futures explode at WUWT), but we do not need another national and international spectacle of climate scientists behaving badly. Maybe we need to lance this boil once and for all, but the path that has led us here reflects a very sad state of affairs for climate science.