Friday, December 23, 2016

Another court victory for Michael Mann and climate science

Sou | 10:21 AM Go to the first of 22 comments. Add a comment
There's been another victory for science and climate scientists everywhere. In case you missed it, Michael Mann is suing for defamation, and the District of Columbia Court of Appeals has just now removed yet another obstacle some of the alleged defamers put in his way.

Acting with reckless disregard

The decision is worth reading. One of the key paragraphs is, as Professor Mann wrote on his Facebook page:
" [The defendants' statement that] Dr. Mann has engaged in misconduct has been so definitively discredited, a reasonable jury could, if it so chooses, doubt the veracity of appellants’ claimed honest belief in that very notion. A jury could find, by clear and convincing evidence, that appellants “in fact entertained serious doubts” or had a “high degree of awareness” that the accusations that Dr. Mann engaged in scientific misconduct, fraud, and deception, were false, and, as a result, acted “with reckless disregard” for the statements’ truth when they were published." (p. 101)
Michael Mann is suing the following for defamation based on articles appearing on websites: Mark Steyn, The Competitive Enterprise Institute, Rand Simberg, and The National Review, Inc. All but Mark Steyn tried to get the case tossed under Anti-SLAPP Act. They tried this in a trial court and lost, so took it to the Appeals Court, where Michael Mann prevailed again.

The way is now cleared for Professor Mann to pursue his case for defamation.

Zoe Tillman at Buzzfeed was the first to break the story, and has since been followed by lots of others (see below). The only denier/disinformer I found who has picked up the story so far is Mark Steyn himself. Despite all his "bring it on" posturing of the past, and despite the fact that he didn't take part in the Anti-SLAPP appeal, Mark Steyn clearly wasn't overjoyed with the finding. He wrote how "Santa has come early and left a lump of coal in my stocking".

Michael Mann: Six to nil

Professor Mann has been targeted and harassed by unscrupulous people for around twenty years, and is standing tall. A recent article at the Washington Post gives some clues to what he has endured, simply for doing scientific research to expand our understanding of climate. This is now the sixth case that Professor Mann has won, including some that have been brought by others, attacking him:
  1. Cuccinelli v. UVA/Mann, 
  2. Cuccinelli v. UVA/Mann supreme Court Appeal, 
  3. ATI v. UVA/Mann, 
  4. ATI v. UVA/Mann Supreme Court Appeal, 
  5. Mann v. CEI/NRO/etc DC District Court, 
  6. Mann v. CEI/NRO DC Appeals Court

Maybe that's the reason there's nothing (yet) on the blogs of the usual suspects (like WUWT and ClimateDepot. Even several hours later, there's not even been a tip to Anthony Watts from a WUWT reader.). It might be that climate disinformation bloggers are realising they can no longer post their defamatory articles without consequence.

The court decision is much longer than a blog article and is definitely worth reading, particularly for denier bloggers who used to think they could get away with blatant defamation and misrepresentation. At the end, the decision has the defamatory articles. (I've noticed the blatant defamation has become much less in the last couple of years, since scientists started winning cases against the worst offenders. The misrepresentation of scientific findings continues.)

Eli Rabett has picked out some of the best bits, if you don't have time to read through the whole judgement.

The most important part is toward the end (page 105):
Dr. Mann has supplied sufficient evidence for a reasonable jury to find, by a preponderance of the evidence, that statements in the articles written by Mr. Simberg and Mr. Steyn were false, defamatory, and published by appellants to third parties, and, by clear and convincing evidence, that appellants did so with actual malice. We, therefore, affirm the trial court’s denial of the special motions to dismiss the defamation claims based on those articles and remand the case for additional proceedings in the trial court with respect to these claims. 
The only part that the court did not find in favour of Michael Mann, was in regard to intentional infliction of emotional distress caused by Lowry's editorial, however that was considered a only minor part of the claim:
We reverse the trial court’s denial of the special motions to dismiss with respect to Dr. Mann’s defamation claims based on Mr. Lowry’s editorial and the claim for intentional infliction of emotional distress. 
The bar was very high when it came to the level of emotional distress required to pursue this, after Rich Lowry compared Dr Mann to a paedophile. The judgement stated:
Dr. Mann has presented no evidence, however, that his understandable consternation met the high bar of “severe emotional distress,” which requires a showing beyond mere “mental anguish and stress” and must be “of so acute a nature that harmful physical consequences are likely to result.” 
Congratulations to Michael Mann for winning this appeal, though it's appalling that the occasion calls for it. I would much rather this article was about his many scientific achievements, and that he didn't have to spend time prevailing against people who are telling lies about him.

Help climate scientists stand up for science

A reminder that the Climate Science Legal Defense Fund can make good use of your donation. (I just discovered that if you shop at Amazon, you can make it your preferred charity for them to support, at no additional cost to you.)

References and further reading


  1. Censorship in action on the Jo Nova blog. The mods are very touchy about the subject of Mark Steyn. I made comment to another comment on this subject, and this is what the moderator said:

    "Harry Twinotter
    Your comment is awaiting moderation.
    December 23, 2016 at 11:17 am · Reply
    Mark Steyn is spinning away. I better stock up on the popcorn.

    As I understand it, the appeal was dismissed so Michael Mann can now proceed with suing Mark Steyn for defamation.
    [I have temporarily moved this away from public view. (1) It is off topic for this thread, and (2) Harry offers no supporting evidence, other that "as he understands it"] Fly

  2. This headline is incorrect, isn't it? It is from JunkScience dot com.

    "Court dismisses Michael Mann defamation lawsuit against National Review"

    1. Yes. It's the opposite of what happened. What else would you expect from a fake news blog? (Most of the people commenting there are lapping it up without question.)

    2. The only thing I could see is the appeals court upheld that Dr Mann could not sue for emotional distress.

      I read legal stuff sometimes, and it does not always parse. In this sentence they appear to say Dr Mann cannot sue for emotional distress AND defamation - this appears to contradict the first sentence:

      "The trial court’s denial of the special motions to dismiss with respect to Appellee’s claims for defamation and intentional infliction of emotional distress are reversed; on remand, the court shall dismiss these claims with prejudice."

    3. Yes, that's right - covered in the article above. It's better covered in Eli Rabett's article (see link in the references above), where he explains:

      "The DCCoA on the one side holds that Mann's case against Steyn, Simberg, CEI and National Review can go forward but remanding for dismissal the claims based on Rich Lowry's editorial (essentially saying bring it on to MM) and demanding to see the blood in order to allow Mann's claim of deep emotional distress for being compared to Jerry Sandusky."

      The legal test for "severe emotional distress" is extremely high.

    4. I did not see that bit, I had only read the first couple of pages. I guess the Judgement on the first page is just a (somewhat clumsy) summary. So Rich Lowry gets off the hook.

  3. No-one posting facts can get past the moderator at JunkScience

    1. Can't have facts bursting their little science-denying bubble.

    2. It does appear to be deliberate censorship.

  4. The appeal court decided that the case against the Lowry editorial was not strong enough to overcome the SLAPP tests, but that the cases against the Simberg article and the Steyn article were strong enough to overcome the SLAPP tests and so those cases should proceed.

    The claims for emotional distress didn't include enough evidence of severe enough distress, though they met the requirements of showing intent.

    Both the Steyn article and the Lowry editorial were both on National Review. Defamation claim based on the Steyn article continues. Action against National Review continues.

    Presumably JunkScience would defend its headline as a reference only to the Lowry editorial and not the Steyn article. That would be disingenuous.

    I wonder if Mann will appeal? The proposition that the Lowry editorial, blustering its defence of the Steyn article, was not repeating its claims of fact seems an odd one - after all, the article was being referred to and approved, even if groundwork was being laid for an attempt to deflect attention from how far the claims of fact in the article really went. And the Lowry editorial itself included referring to Mann's 'infamy' and to any claim by him as 'a cause that will expose more of his methods and maneuverings': surely these were, in their context, repetitions of the defamations made in the articles.

    But I am not a practitioner under any of the US State of Federal legal systems.

    1. Agree that the exclusion of the Lowry editorial might have some inconsistencies, however I don't believe Mann will appeal. He got almost all that he wanted. The "severe emotional distress" was probably a long shot. The main issue is defamation, which is now able to proceed.

  5. Had the action against the National Review been allowed by the DC Court of Appeal it could well have sunk the publication. It employs real journalists and sometimes excellent ones such as the brilliant Robert Costa (and at one stage that stinking liar Mark Steyn), and is highly dependant on readership donations to pay them.

    It is in no way as bad as Breitbart or the Daily Caller and AFAIK it does not indulge in alt right crap.

    Its climate column is called Planet Gore and it's as pathetic as it's name.

    It ran a Never Trump campaign ever since the GOP Primaries but now kinda likes him since.. you know...he won.

    To stay afloat it advertises Survival Seeds and runs right wing ocean cruises with guest speakers such as Mark Steyn, Ramesh Ponnuru and Tom Coburn. In fairness it often includes distinguished authors as well. AFAIK the cruises do well but probably not well enough to cover damages and costs on a five year action in defamation.

  6. PG, the National Review is still being sued in the defamation case going forward, because of the article it published by Mark Steyn. As I understand it, it's just the "severe emotional distress" bit in the editorial by Lowry that's not been allowed. (I don't think Mark Steyn writes for the National Review any longer, so I guess it's possible they'll try to settle now.)

    1. Thanks Sou. I have not been following the case and I took from Steyn's post on WUWT that NR was off the hook but as publisher, NR is probably in a much worse position than Steyn.

      If I were Rich Lowry I would do anything possible to settle and if I were Mann I'd tell him to f---k off.

      Before a cent is awarded to Mann this action and its defence would have cost many millions. If costs are awarded against NR and then damages on top it could well sink the joint.

    2. If Dr Mann really wants to rub salt into the wound, he could title the article "Get Lost!" :-)

  7. It is a pity only Mann is allowed to sue. A large part of the damage is to society and the lawsuit distracts Mann from his science.

    1. There are other cases, like the 21 children taking the government to court: https://www.ourchildrenstrust.org/us/federal-lawsuit/

      I expect there will be more like that over time.

      As I see it, Prof Mann and Andrew Weaver have made sacrifices that will benefit climate scientists all over the world, not just in the USA. I've noticed that while they haven't stopped altogether, there have been much fewer defamatory articles at WUWT in the last couple of years, compared to when I began this blog four years ago. I agree it's a diversion from research. There are other costs too, like the general strain that living with a court case brings, the toll on the family, the hate mail and threats etc.

      In the sick political environment in the USA in particular, scientists who speak out in public, and particularly those who stand up for science in the courts, are heroes.

  8. People might read this short tweet thread for calibration of long-time NR & CEI behavior. Hint: they've been quite happy to take $ from Big Tobacco, decades after the Surgeon General report in 1964.
    As a little more explanation:
    for most people, it is essentially impossible to get addicted to nicotine except during adolescent brain development (~ages 12-24, with the peak period ~13-19), because it needs the plasticity of the right part of the brain to rewire.

    Both NR and CEI were happy to help.

  9. As I've been saying over at Greg Laden's blog (at far too great a length, I'm afraid), the Court did another good things in the Mann decision. There were two unanswered questions about the DC AntI-SLAPP statute: what standard of evidence must the plaintiff meet to defeat an anti-SLAPP motion to dismiss? And if the defendant's motion to dismiss is denied, does defendant have a right to an immediate appeal (as opposed to waging until the end of the litigation)? The court resolved both of these questions in a way that will help the little guy defendant defend against the malicious well-funded plaintiff, which is the principle behind the anti-SLAPP legislation in the first place. Too bad for Steyn et al (/snark), Mann easily satisfied the new standard of evidence.

  10. Remember how the deniers made a big deal out of the amicus briefs filed on this appeal by a bunch of media groups and others? Deniers said "oh, media are horrified that Steyn's motion to dismiss was denied and they're all filing briefs in support of him." That was raised again today, so I looked at the briefs. I couldn't access the one from the ACLU but the others (including the media brief) were all about the right of immediate appeal of a motion to dismiss. They couldn't care less about whether Steyn and National Review won or not. In fact, they are all probably quite happy about this decision because they for the result (immediate appeal) that they wanted.

    1. Yep Mark Steyn is spinning away as usual with his arrogant and self-interested interpretation of everything. Too bad Mr Steyn a court is not going to be impressed by your bully-pulpit theatrics.


Instead of commenting as "Anonymous", please comment using "Name/URL" and your name, initials or pseudonym or whatever. You can leave the "URL" box blank. This isn't mandatory. You can also sign in using your Google ID, Wordpress ID etc as indicated. NOTE: Some Wordpress users are having trouble signing in. If that's you, try signing in using Name/URL. Details here.

Click here to read the HotWhopper comment policy.