Several years back, some conservative columnists wrote pieces that accused a prominent climate researcher of having fraudulently manipulated data, phrasing it in a way that made comparisons with a convicted child molester. The researcher demanded the columns be removed; when the publishers refused, he turned to the courts. His suit, filed in the District of Columbia's Superior Court, has been kicking around ever since, as motions to get it dismissed have ended up languishing amidst more filings and an appeal.

In the mean time, events seem to have overtaken the case. With no facts to back them up and plenty of evidence to the contrary, the columns at issue now seem to fit the definition of what we're now calling "fake news." And, just in time to be relevant, the appeals court has weighed in, ruling that the case should go to trial and indicating that the climate scientist has a good chance of prevailing there.

Climate fight

At issue is the research of Penn State's Mike Mann, who specializes in reconstructing global temperature records from periods before thermometers were available. His initial work showed a long period of relatively mild variations, followed by a sudden, sharp rise in temperature over the last century. The resulting graph picked up the nickname the "hockey stick," and has been the subject of contention since it was released. Mann has become a prominent advocate of action on climate change, writing a regular stream of books and columns meant for popular audiences.

He was also swept up in the controversy when an archive of e-mails was stolen during a hack of a research institution in the UK. Although not employed there, Mann was involved in exchanges with a number of researchers who did. As a result of his research and these e-mails, Mann has been the subject of multiple investigations over the years, none of which found any evidence of wrongdoing. Follow-on research has also validated the results of the hockey stick work.

For a couple of columnists at the Competitive Enterprise Institute and the National Review, Mann had to be wrong. Thus, if an investigation cleared him, it couldn't have been a thorough investigation. This sets the backdrop for their columns, which made comparisons between the investigations of Mann and those of another employee of Penn State—Jerry Sandusky, a former coach who was convicted of molesting children in a charity program. In colorful language, they called the investigation of Mann a whitewash, and accused him of "molesting" data. Mann demanded the columns be removed or he'd sue, and followed through on this threat.

The defendants—CEI's Rand Simberg, the NR's Mark Steyn, and his editor, Rich Lowry—tried to get the suit dismissed under the District of Columbia's SLAPP statute. Anti-SLAPP legislation (for "strategic lawsuit against public participation"), adopted by a number of states, is meant to provide people with an easy legal recourse if anyone attempts to silence them through frivolous lawsuits. If the suit is unlikely to succeed at trial, the judge can simply dismiss it. Often, the statutes require a losing SLAPP plaintiff to pay a defendant's legal fees. The initial judge declined to throw out Mann's case, but there has since been a change of judges, a revised filing of the suit by Mann, and two attempts to appeal the decision by the defendants.

All of which brings us to the recent appeals court decision, which was released just before the holiday break.

Large portions of the decision are dedicated to legal issues, such as whether the trial court's decision in favor of Mann even could be appealed. Deciding that it could, the three-judge panel sorted out various details of the District of Columbia's SLAPP statue. And then it turned to the issue of whether the case should be dismissed.

A matter of fact

That hinges on whether or not Mann is likely to prevail at trial. When it comes to Lowry, who wrote an editorial encouraging Mann to sue, the judges decided he was not. The editorial simply describes the claims of scientific fraud found in the previous columns, rather than making new, defamatory claims. All of the defendants are off the hook when it comes to infliction of emotional distress, as Mann presented no evidence that he experienced any.

This leaves the claims of defamation against Simberg and Steyn. Here, the authors' tendency to treat their own views as facts caused them problems. "[The] argument is that the statements are not verifiably false because they are simply Mr. Simberg’s opinion," the court says, before going on to 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 e-mails."

And it's not just Simberg that gets in trouble here. "As with Mr. Simberg’s article," the court writes, "Mr. Steyn’s is not about the merits of the science of global warming, but about Dr. Mann’s 'deceptions' and 'wrongdoing.'” The decision also notes that there are no detailed criticisms of Mann's work that would allow any reader to reach an independent conclusion regarding its validity.

So, the court concludes, claims of Mann's misconduct in these columns are statements of fact. In this case, they'd be protected if they were right. But the court's concluded it's likely they're not. While Simberg and Steyn felt that the Penn State investigation of Mann was a sham, they again failed to provide any reason to believe that. In contrast, the court was impressed by the investigative body there, going so far as to name all of its members and their credentials.

"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," the court goes on, "that leaves three other reports, from separate investigatory bodies in academia and government, on both sides of the Atlantic, that also found no wrongdoing." It also notes that there have been seven investigations in total that haven't found wrongdoing, that Mann's scientific conclusions were accepted by a National Academies of Science panel that looked into matters, and that the results have been validated by additional research since.

"We are struck by the number, extent, and specificity of the investigations, and by the composition of the investigatory bodies," the decision concludes. "We believe that a jury would conclude that they may not be dismissed out of hand."

Thus, the court recommends that the case go to trial, so documents and testimony can help reveal whether the columns were matters of fact or opinion and, if the former, whether the defendants acted with reckless disregard for the truth.

Fake facts

Revisiting the case after several years, it's hard not to be struck by the parallels between these columns and the outbreak of fake news that occurred during the Presidential campaign. Many news organizations got together with the ACLU to file an amicus brief in favor of Simberg and Steyn earlier in the legal proceedings. Those organizations argued in part that the statements in these columns were clearly opinions, and suggests the writers are in danger being punished for suggesting Mann's work is scientifically invalid.

While those interpretations of the pieces can be debated, that presentation avoids all the problems that the columns share with fake news: the columnists' desired conclusions were stated as facts, even though no evidence was provided to back them up, and all the available evidence indicates that the statements were false. It's likely that may of the organizations involved in the brief would agree that the surge in fake news is a significant issue. But what isn't clear at this point is whether they wish to have the courts as allies in their fight against it.

Correction: the victims of Mr. Sandusky were misidentified in the original piece.