Elements of the Mann-Steyn case: Climate Science, Free Speech and Legal Liability – Part 1

Lies and Legal Liability

Guest essay by Roger Sowell

The field of climate science, with controversial issues such as whether the planet is warming due to man’s burning of fossil fuels, or the world is blissfully ignoring additional carbon dioxide in the atmosphere, or perhaps the globe is cooling down into the next ice age, has created and still creates vigorous expressions of opinion, and some name-calling, defamatory statements, and calls for deliberate lies and deceit.  There appears to have also been outright lies, false statements, and fabrication of data, among other deceitful practices.   This article explores some of the legal ramifications, criminal cases and Defamation in Part One.  Part Two will continue the discussion on more of the civil causes of action.

We begin with what is Freedom of Speech?  United States law is the basis here, with the understanding that other countries have different laws respecting Free Speech.   Free Speech is a fundamental right guaranteed by the First Amendment to the US Constitution, “Congress shall make no law… abridging the freedom of speech . . . ”   From that simple phrase, many thousands of pages have been written over many decades.   Free Speech means, in general, that a person can say or write whatever he or she pleases, however, there are quite a number of restrictions that legally limit this.  In effect, a person may still say or write whatever he or she pleases, but there can be legal consequences.  Those consequences can range from a nominal award of $1, to millions of dollars in damages, up to the ultimate penalty of death after trial and conviction.  The death penalty sounds harsh, for simply speaking some words, but that is the case and will be examined shortly.   The Free Speech clause in the Constitution limits the government from passing laws regulating speech.  The courts have allowed quite a number of exceptions to Congress’ power regarding Free Speech, so that we have a more orderly society.  There are both Federal and State laws regulating speech.  Also, Free Speech has been recognized to include oral and written communication, plus expressive conduct.

It is convenient to categorize Free Speech laws by the type of court in which the case will be heard, either criminal or civil.  Crimes are examined first.

 

Speech as a Crime

In the criminal courts, speech can be a crime; for example perjury, sedition, treason, death threats, child pornography, unlawful campaign contributions, false statement to a government official, false statements as an element of fraud, impersonation of another, hate speech, and conspiracy to commit other crimes.   Punishments range from a monetary fine and jail, to prison, to the death penalty.

Perjury is the willful utterance of false statements while under oath.  The penalty can be prison of a few years, however if the false statements under oath result in the conviction and execution of an innocent person, the perjurer is also liable for execution after trial and conviction.   In the climate science context, it is conceivable that a person could be charged and convicted of perjury.  One must merely give false statements while under oath, as a general statement of the rule.  There are numerous caveats, however.

Sedition is “an agreement, communication, or other preliminary activity aimed at inciting treason or some lower commotion against public authority.” (Black’s Law Dictionary; the Federal law has similar language but more detail.)

Treason is “attempting to overthrow the government of the state to which one owes allegiance, either by making war against the state or by materially supporting its enemies.” (Black’s Law Dictionary; as with Sedition above, the Federal law has similar language but much more detail.)

A death threat is a “threat to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal,  unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety. . .” (California Penal Code Section 422)  Within the climate science context, it is unfortunate to observe some of the participants escalating the verbal wars to this level.

Child pornography is “material depicting a child under 18 in sexual activity.” (Black’s Law Dictionary; various state laws have similar definitions; see e.g. California Penal Code Section 311.2(b)).  One hopes that the various players in the climate change arena do not commit this crime.

Campaign contributions can be considered speech by expressive conduct.  Such campaign contributions are limited by the Federal Election Commission regulations found in 11 CFR 110 and following.

False statement to a government official is a crime, for example, a false statement to a police officer that a crime has been committed. (California Penal Code Section 148.5)

False statements are an element of fraud where it is a crime to deprive another of money or property by a false statement or misrepresentation.  (California Penal Code Section 484).   This can apply to anyone who obtains money, as in a research grant, based upon false statements in the grant proposal.

Impersonation of another is a crime where a “person . . .knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person. . .”  Punishment is up to $1,000 and one year in county jail.  (California Penal Code 528.5)  It is also a crime to impersonate a police officer.   In the climate science context, a famous case is that of Dr. Peter Gleick, who allegedly impersonated another in order to gain access to confidential information at the Heartland Institute, a known skeptic organization active in the climate science arena.  See link.

Hate speech is the crime where a “person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States in whole or in part because of one or more of the actual or perceived characteristics of the victim listed: (1) Disability, (2) Gender, (3) Nationality, (4) Race or ethnicity, (5) Religion, (6) Sexual orientation, (7) Association with a person or group with one or more of these actual or perceived characteristics.” (California Penal Code Section 422.55 and 422.6)

Conspiracy to commit other crimes is “an agreement by two or more persons to commit an unlawful act.” (Black’s Law Dictionary)  Where the agreement is made by discussions, or speech, such speech is unlawful.  This brings a great number of crimes within the realm of illegal speech, literally hundreds.  Any crime without a speech requirement, such as but not limited to burglary, theft, arson, robbery, rape, mayhem, murder, manslaughter, assault, battery, trespass, etc. that have an associated crime of conspiracy to commit X, makes the speech illegal.

 

Speech as Civil Causes of Action – Defamation

In the civil courts, speech can give rise to causes of action in defamation, false light, copyright violation, false claim of inventor, fraud (contract context), deceit, fraudulent statements (intentional, negligent, concealment, opinion as fact), appropriation of likeness, false claim against the government, infliction of severe emotional distress (intentional and negligent) and others.  The remedy for the prevailing party in such actions generally is money damages, but can also include restitution, an injunction, a public apology, public retraction, payment of attorneys’ fees, and punitive damages.  Defamation is discussed briefly below.  The climate science context is emphasized, where the cause of action may involve climate science.   The remaining dozen or so categories will be discussed in Part Two.

Defamation is “the act of harming the reputation of another by making a false statement to a third person.”  (Black’s Law Dictionary)   Where the false statement is made verbally, the tort is slander.  Where the publication is made in writing, the tort is libel.  There are several important distinctions in the tort of defamation, including whether the defendant is a public figure or private figure, whether the matter is one of public concern or private concern, whether the false statements were made with malice or not, and whether the false statements were one of a category for which no damages need be proven, or per se.  Given the number of distinctions, libel/slander, plaintiff is a public/private figure, public/private concern, malice or not, and per se or not, there are many possible combinations of the tort and detailed laws for each.  Here, an example is given only with the combination of libel, plaintiff is a private figure, the matter is one of public concern, no malice need be shown, and the statements needed no damages to be proven.   These distinctions are chosen to best match the issue in climate science.

The elements that must be proven are a false statement, made about another, that injured the other’s reputation, and the statement was made to one or more third parties.  In addition, plaintiff must prove that the third party reasonably understood that the statement was about plaintiff; that because of the facts and circumstances known to the reader of the statement, it tended to injure plaintiff in his occupation, or expose him to hatred, contempt, ridicule, or shame, or to discourage others from associating or dealing with him.  Also, plaintiff must prove that defendant failed to use reasonable care to determine the truth or falsity of the statement; that plaintiff suffered harm to his property, business, profession, or occupation including money spent as a result of the statement; and that the statement was a substantial factor in causing plaintiff’s harm.

Regarding the issue of what is a public concern, courts have observed: “if the issue was being debated publicly and if it had foreseeable and substantial ramifications for nonparticipants, it was a public controversy.” ( Copp v Paxton (1996) 45 Cal.App.4th 829, 845) Climate science, and especially global warming or climate change as it is now known, would certainly qualify as a public controversy.   Governments and non-governmental bodies have produced lengthy volumes of climate science documents, held highly publicized meetings all over the world for decades, and have had the topic front and center in many publications and internet websites, all on climate change.

The next major point is, what is a false statement in climate science?  A false statement can be intentional, negligent, or by concealment.  An intentional false statement is one which the defendant did not believe to be true.  A negligent false statement is one which the defendant had no reasonable ground for believing to be true.  A false statement by concealment is one in which defendant suppressed a fact when he was bound to disclose it, or when defendant gives information of other facts which are likely to mislead for want of communication of that fact. (California Civil Code 1710).

This is the heart of the matter, the falsity of the statement.  One can imagine numerous scenarios of defendants making false statements about another that qualify for one or more of the above three definitions: intentional, negligent, or concealment.  Examples of intentionally false would be “he has no training”, “he is incompetent,”  “he makes things up,”  “he takes money from oil companies,” and such.   Negligent falsehoods would be those for which no data exists, or the scientist simply makes up data.  Concealment would be the case where scientists deliberately decline to state the facts that clarify or even provide the true state of affairs.   One of the finest arts of telling a lie, it is said, is to tell only that part of the truth that misleads the other.

If the statement or statements can be shown to be false, they must next be published to a third party.  In effect, if anyone other than plaintiff reads the libelous statement, that is sufficient.  With the internet, there can be millions of third parties who read the libelous statement.

Next, the false statement must have injured the plaintiff’s reputation.  Injury to reputation is shown that because of the facts and circumstances known to the reader of the statement (the third party), the false statement tended to injure plaintiff in his occupation, or expose him to hatred, contempt, ridicule, or shame, or to discourage others from associating or dealing with him.   This can be shown by testimony, by business records showing a decline, by statements showing hatred or contempt or ridicule, by plaintiff testifying to feelings of shame, or that others were discouraged or actually stopped associating or dealing with plaintiff.

Also, plaintiff must prove that defendant failed to use reasonable care to determine the truth or falsity of the statement; that plaintiff suffered harm to his property, business, profession, or occupation including money spent as a result of the statement; and that the statement was a substantial factor in causing plaintiff’s harm.

In the climate science context, it appears that defamation by libel occurs regularly on the various internet blogs (weblogs).  An actual lawsuit for libel is currently in process between plaintiff Michael E. Mann, PhD, and defendants Mark Steyn, National Review, and Competitive Enterprise Institute.  Professor Mann filed the lawsuit alleging libel.  See link

Note: a related article discussed legal liability for criminal negligence in terms of climate science, see link

===============================================================

 

Roger E. Sowell, Esq.

Marina del Rey, California

The above is written to provide an overview of a general area of the law, and is not intended, nor is it to be relied on, as legal advice for a particular set of facts.  Specific legal advice is available from Mr. Sowell and anyone who seeks such advice is encouraged to contact Mr. Sowell.

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110 Responses to Elements of the Mann-Steyn case: Climate Science, Free Speech and Legal Liability – Part 1

  1. j ferguson says:

    Thanks much Roger. This is one of the more useful posts to appear here recently. I had not realized that conspiracy to commit a crime was a free speech issue. If no physical step is taken to advance the conspiracy do the words alone continue to be proscribed?

    I’ve always worried that pub discussions of what would be involved to do something criminal where there was no intention to actually do the thing could involve one in a criminal conspiracy. Or worse, having participated in the discussion, one of the discussers unknown to any of the others does proceed to act and by so doing involves his unwitting comrade in real problems with the state.

  2. Eric ah says:

    Excellent article. I hardly dare to make any other comment for fear of libelling somebody! :)

  3. Neal says:

    Seems to me Mann may have a case. However it is pretty weak, and shows a thin skin and a bit of a whiny attitude.

    This looks like yet another case of just because one has the ability to type something, doesn’t mean one should.

    Overall this is a giant time and money waste.

  4. AndyL says:

    In the Mann case, there was a ruling stating he is a public figure, not a private one.

  5. Crispin in Waterloo says:

    This has been very useful and informative and it has emboldened me.

    I was recently the target of a US government employee who sought to have me banned from contractual work with a non-governmental organization and later from contractual work with another government including an inducement of money to secure the prevention of such work. The cause of this action was to prevent the continued exposure of falsified science and its substitution with validated and sound methods which by their correctness, tend to undermine numerous claims by that employee and several public and private organizations which to date have benefited materially from the promotion of the falsified methods.

    The parallels with climate science are eerie. People seem confident they can cast all science into the mould of their agendas and harass the uncompliant. This goes way beyond the errors of confirmation bias. There is in it an element of criminal behaviour.

  6. cedarhill says:

    Interesting. Will there be a companion seriers regarding fraud re all the manipulation, concealment, etc., of climate data. Be sure to cover both criminal as well as civil. And would class action suits be possible if the manipulated data causes real damages via increased prices, for example – electricity, food?

  7. GreggB says:

    Thank you, Mr Sowell – very informative. I note that the title of your article gives the Mann-Steyn case as the context for what follows, but you frequently quote Californian law and cases. Is the Mann-Steyn case being heard in D.C.? I realize that providing an audience with international information on libel law would be an impossible task, but perhaps you could please clarify the applicability and/or parallels between the Californian law you quote and the jurisdiction in which the Mann-Steyn case is being heard.

    Thanks in advance.

  8. j ferguson says:

    I look forward to learning which of my words threw my comment into moderation.

    [Reply: sometimes we never know, and WordPress won't tell. ~ mod]

  9. John West says:

    “A false statement by concealment is one in which defendant suppressed a fact when he was bound to disclose it, or when defendant gives information of other facts which are likely to mislead for want of communication of that fact. (California Civil Code 1710).”

    Such as using tricks to hide a decline?

  10. philjourdan says:

    “Hate speech ” laws are unconstitutional. “Hate speech” is also not the same as threats or intimidation. “Hate Speech” is merely an opinion. The cliche’ about free speech not being free if you do not defend that which you DO NOT LIKE comes into play. We may not like the speech of the KKK, but unless they are free to express it, then all we have is conformity speech, not free speech.

    As for the rest of the “exceptions”. most are not about “free speech”. Free Speech is the right to speak your mind. That is your opinion. Your opinion does not extend to conspiracy (you have gone beyond speech to action), it does not include ID Theft (same reason). Indeed most of the exceptions listed are not about speech, but planning for action, or even taking action (e.g. in the case of ID theft).

    You correctly note that non-verbal means of expression are “speech”. Campaign contributions, etc. But, perhaps to clarify for some, you seem to want to link any verbal utterance as speech. Just as money can be a form of speech, money is not ALWAYS a form of speech. And so, as speaking is the most common form of speech, all speaking is not speech.

  11. philjourdan says:

    Mods: My comment seemed to have tripped some spam filters. Can you check to see if it is in the spam box? I am not sure what the trigger was, but if the comment is objectionable, I will attempt to rephrase.

    Thanks

  12. wws says:

    Crispin, in what you describe there is not just an “element” of criminal behavior, what you describe is nothing BUT criminal behavior.

    What you have described is a criminal conspiracy to defraud the government (ie, the taxpayers) for the purposes of private gain. (Ie, directing contracts to politically favored recipients) Just because it goes on every day, doesn’t mean its any less criminal.

  13. durango12 says:

    Very useful. At the end of the day “Truth is a defense.”

  14. Joe says:

    Can someone explain how a false statement or a true statement could hurt or enhance Manns’ reputation.

  15. Charles Giles says:

    Mann’s a public figure involved in lobbying public policy. End of story. He’s on a fork and just is too stupid to keep gnawing at the ankles of science to get even with it for not making up fake gas mechanics to satisfy Al Gore’s ego.

    Like so many liberals he’s utterly devoid of the slime trail he so obviously has leading to and from everything he touches.

  16. Charles Giles says:

    The only field of “science” I ever saw where people routinely hid who they were because of the unethical treatment of people who actually spoke about scientific evidence were the ones who were involved in the belief in James Hansen and his Global Warming Model.

    The one involving the Green House Gas claims. They’re the only scientists, I ever even heard of, who were such low class character assassins and livelihood wreckers, people were cleared out of entire fields of peer review because they planned to ram their scam down the whole world’s throat.

    A hockey stick generator is real science? Please, that’s nothing but outright, politically sanctioned crime. James Hansen did it too. His fellow employees denounced him repeatedly for his faked computer programming ”research.”

  17. Roger Sowell says:

    Thank you to all for the responses, and to you, Anthony, for the posting on WUWT.

    One note: the post’s title is a joint effort by Anthony and me. On my blog, it is titled simply “Climate Science, Free Speech and Legal Liability – Part 1.” see http://sowellslawblog.blogspot.com The part about Mann v Steyn was added by Anthony for the WUWT audience. I don’t mind. However, the piece is primarily about legal ramifications for various types of speech in climate science , with Mann v Steyn as but one example.

    A similar topic exists in a recent post on Climate Etc., “In Defense of Free Speech.” That post is primarily about the Mann v Steyn libel case. One of the great misconceptions, as shown in my comments on the Climate Etc. post, is that the Free Speech right in the US gives people the right to say (or write) anything they choose, without any repercussions. That is simply not true, and I tried to give dozens of examples of both criminal and civil causes of action. It is a shock to some people to realize they can receive the death penalty for what they say (after a trial and conviction).

    I will try to respond to comments, as best I can considering this is a legal topic and attorneys are heavily constrained in what we can say or write in a public forum such as this. Please understand that no attorney can give legal advice on a blog. I would love to write much more than I am allowed under the law. This is one of the legal limits on speaking freely that attorneys accept in return for being allowed to practice law.

    I can answer a couple of comments or questions from above, this one from GreggB:

    perhaps you could please clarify the applicability and/or parallels between the Californian law you quote and the jurisdiction in which the Mann-Steyn case is being heard.”

    I am a California attorney, so I am most familiar with California law. However, the elements of a libel case are not much different in various US jurisdictions. There are actually more ways to tell a lie in California than the three I gave above. Yet, there is a need to be brief, and not to write dozens of pages on the various intricacies of the law.

    And, from Neal,

    This looks like yet another case of just because one has the ability to type something, doesn’t mean one should.”

    Yes, there are many occasions when one has the ability, but not the legal right, to say, write, or do something.

    To cedarhill, about a future fraud discussion. Yes, Part 2 of the series will go into some detail on what you refer to as fraud. Fraud, in California and some other jurisdictions, refers strictly to contract matters. Deceit is the legal term for tortious conduct such as misrepresentation, concealment, and a few other forms of lying.

    And to all, I hope this article serves as a bit of a thought provoker, and a caution. I read a few blogs, as do many of you, and I see hundreds of instances of libel in the blog posts and especially in comments. I have seen libelous comments on WUWT many times.

    As “Eric ah” said above, “Excellent article. I hardly dare to make any other comment for fear of libelling somebody! :)” First, thank you, Eric ah. (clever handle). Making comments is fine, but everyone should keep in mind the aspects of statements that could cause injury to a person’s reputation: “the false statement tended to injure plaintiff in his occupation, or expose him to hatred, contempt, ridicule, or shame, or to discourage others from associating or dealing with him.”

    Like most of you, my day is full so l will try to respond again after about 5:30 pm Pacific.

    Roger

  18. Steve Keohane says:

    Thank you Roger.

  19. sadbutmadlad says:

    It doesn’t look like you are talking about free speech. Plain speech can be a crime, no doubt about it, if it is slander or fraud or some other criminal act. However free speech is the right to voice opinions. Having an opinion can never be a crime.

  20. Adam Gallon says:

    IIRC correctly, sticking in speech marks seems to trip the spam filter. I will test this is my next post.

    [Reply: There is a "Test" page just for that. ~mod.]

  21. rogerknights says:

    j ferguson says:
    April 21, 2014 at 4:59 am

    I look forward to learning which of my words threw my comment into moderation.

    My guess is “conspiracy.”

  22. Adam Gallon says:

    April 21, 2014 at 6:03 am
    Entered fine, stick in “speech marks” and “we’ll see what happens”

  23. JohnWho says:

    AndyL says:

    April 21, 2014 at 4:08 am

    In the Mann case, there was a ruling stating he is a public figure, not a private one.

    Yes, I believe Mann should be considered a public figure in this discussion.

    Wonder what the legal description of “private/public” figure is.

  24. harkin says:

    “Can someone explain how a false statement or a true statement could hurt or enhance Manns’ reputation.”

    Mann declaring himself a “nobel laureate” (false statement) on legal papers submitted in his suit against Steyn for defamation definitely hurt his reputation.

    Mann declaring he was “cleared” of any wrongdoing by an investigation that actually looked into actions of people other than himself definitely hurt his reputation.

    I think Steyn just hurt his feelings and Mann is seeking to take advantage of a borderline incompetent legal system to exact revenge/prevent more truth from getting out.

  25. Eliza says:

    The utter BS that is AGW and its proponents have now caused this to happen
    http://www.theguardian.com/environment/2014/apr/20/corn-biofuels-gasoline-global-warming They will never admit that they were wrong…
    That is why these people are so dangerous. If allowed to do their silly experimeents aka pump C02 into the ground the are risking destroying ALL life on earth

  26. Joe says:

    harkin says:
    April 21, 2014 at 6:23 am
    “Mann declaring himself a “nobel laureate” (false statement) on legal papers submitted in his suit against Steyn for defamation definitely hurt his reputation.
    Mann declaring he was “cleared” of any wrongdoing by an investigation that actually looked into actions of people other than himself definitely hurt his reputation.”

    My point in questioning how any statement regarding Mann could hurt or enhance his reputation is due to the entrenchment of the two camps, Any Statement whether factually accurate or false will not hurt his reputation among the AGW / worshipers of mann groupies. Likewise any true or false statement about Mann will have near zero effect on those who question the consensus.

    Fwiw – While not opining on whether the MWP was warmer or Cooler than today, the hockey stick study and those subsequent studies “validating” the hockey stick provide virtually zero scientific insight in the global temps prior to 1400ad. The proxies used are just too few and too imprecise. The “scientific” explanation for the 300 year regional nature of the northern europe/greenland mwp is just too scientifically implausible.

  27. GreggB says:

    @Roger Sowell says:
    April 21, 2014 at 5:55 am:

    Aah, that makes sense. thank you for the clarification.

  28. tomwys says:

    In the “…famous case … of Dr. Peter Gleick, who allegedly impersonated another in order to gain access to confidential information at the Heartland Institute…”, the claimed pieces of evidence were documented and acknowledged forgeries. Heartland’s managers were asked repeatedly why they didn’t pursue legal action against the (known) perpetrator of the forgeries, and the reply was essentially that in a Civil action they had to prove damages, i.e. measurable in lost contributions. As a result of, and traceable to, the sympathy they received, the contributions to Heartland actually increased!!! Thus no “damages” and no lawsuit.

    I’m aware of neither investigation for criminal impersonation nor a Grand Jury being called to investigate such. If the decision to do so is political, then the Chicago locale for the crime was unfortunate for Justice!

  29. Bob Mount says:

    Why are IPCC AR’s not cross-referenced in the WUWT “Reference Pages”?

    [Reply: this comment should be in Tips & Notes. ~mod]

  30. Cold in Wisconsin says:

    Mr. Sowell, Crispin, and wws:

    In the general realm of speech being a part of the commission of a fraud:

    Another area of United States law that might be interesting to explore is that of the QuiTam, Whistleblower Law or Lincoln’s Law which provides that ordinary citizens who are aware of fraud against the government can sue on behalf of the government and receive a reward for assisting the government in prosecuting the case. The tale told by Crispin reminds me of just such a possible case. Those who have firsthand knowledge of fraudulent claims could do a significant service to the citizens by reporting fraud. Making a false claim to the government by signing a Grant Document or requesting payment for a service for example could be such a case. Failing to disclose contrary evidence or provide full disclosure if it is required could qualify as long as they are in the pay of the government as a contractor, etc. The law has been a powerful deterrent against fraud, providing for treble damages as well as punitive fines. It has been used extensively in medical/pharmaceutical and military contracting among other areas.

    I could see this becoming applicable if the ethical grad student in the good doctor’s lab became aware of omissions or false statements in the research that is funded by the government. Any government contractor is potentially liable under the QuiTam law, although I am not sure if other government bodies, such as a state university would be liable. If a University could be sued, since they are recipients of federal funds under many programs, they could be financially at risk of rogue scientists’ activities. Thus ‘Academic Freedom’ would not be completely unfettered but would be bounded by truth (imagine that!)

    What is different is that a whistleblower needs to file their case with evidence “under seal” and have it investigated. That way the government can subpoena documents in secret, without the target of the investigation being aware that they are being investigated. Those willing to lie because they are operating under the “Noble Cause Corruption” would be particularly vulnerable, especially since those who think they are acting nobly have a tendency to brag about it just a little bit, so there would be people who would know about it. They would need to either collect the evidence (best) or be able to direct the government prosecutors to exactly where it can be found.

    Disclaimer: I am not an attorney but acted as a whistleblower in a case where scientific fraud was used by a commercial company to defraud Medicare. Anyone wishing to file a QuiTam case would be well advised to secure legal advise from a law firm specializing in QuiTam law. If it is a federal case, the lawyer does not need to be from your own state. Many of the best firms file cases in every state. Telling the truth can be a very liberating experience.

  31. Dr C says:

    @ Philjourdan

    “Hate speech ” laws are unconstitutional. “Hate speech” is also not the same as threats or intimidation. “Hate Speech” is merely an opinion. The cliche’ about free speech not being free if you do not defend that which you DO NOT LIKE comes into play. We may not like the speech of the KKK, but unless they are free to express it, then all we have is conformity speech, not free speech.

    Legally, there is a distinction to be made between statements which are general and those that are specific . Using your KKK example, the statement “All Jewish scum are bloodsucking parasites” is a general statement and is protected speech. This is the basis for allowing the KKK to march in Skokie, IL. However, the same statement made specifically to an individual person takes on the aspect of “Hate speech.” E.g., “Mr. Goldstein, you Jewish scum, you are a bloodsucking parasite.” There is no actual specific threat contained in the statement, but because the statement is made TO or AT a specific person, it is deemed oppressive, and is indeed criminal and constitutional.

    NB: the examples I used only came to mind because of last week’s horrific events in Kansas City. I certainly intend no offence to any WUWT reader.

  32. Joe says:

    tomwys says:
    April 21, 2014 at 7:04 am
    In the “…famous case … of Dr. Peter Gleick, who allegedly impersonated another in order to gain access to confidential information at the Heartland Institute…

    One has to wonder how those who lacked the intellectual capacity to recognize the fraudulent documents put forth by Peter Gleick, somehow have the superior intellectual capacity to ascertain the validity of the climate science.

  33. Geoff Sherrington says:

    If you are tha same Roger who has posted silly stuff about nuclear power, then I shall give you a conditional exclusion and read with interest of your specialty in Law.
    I’ve actually conceived and managed, as a scientist, a case against a past Australian Minister for Environment, through to the Full Bench of our highest Court, so I have a special interest in what you write. It will be hard because there are so many exceptions created to nibble away at the central free speech concept, that it be free and unencumbered for all. I’m with Mark Steyne. It.s not free speech until you take the exceptions away, but I note the need to discourage !Fire! In movie theatre.

  34. Magma says:

    Roger Sowell says:
    April 21, 2014 at 5:55 am
    And to all, I hope this article serves as a bit of a thought provoker, and a caution. I read a few blogs, as do many of you, and I see hundreds of instances of libel in the blog posts and especially in comments. I have seen libelous comments on WUWT many times.

    I suspect this will fall for the most part on deaf ears.

  35. pottereaton says:

    Given that Mann’s entire complaint is riddled with false statements which he knows to be false, e.g. “I am a Noble Prize winner” and “I have been exonerated in nine investigations,” and given that the intent is clearly to injure Steyn et al, can we say that he is misusing the legal system to defame Steyn et al?

    Steyn obviously thinks so. Hence, the countersuit.

  36. Nullius in Verba says:

    I’d be interested to know if some of the epithets directed at sceptics might constitute slander/libel? Presumably one would have to show actual damages – loss of employment or contracts, the last-minute cancellation of paid speaking engagements, and so on are perhaps clear cases. But how far does it go? Does being shunned by polite society constitute ‘damage’? And how do you value it?

  37. more soylent green! says:

    Roger,

    I noticed there was nothing in your post regarding academic freedom, which is a specious argument, IMHO. Is that topic relevant to this discussion?

  38. Coach Springer says:

    I believe the many blog comments that Sowell chooses to take as statements of fact are easily understood as expressions of opinion and belief. For example, the word “fraud” is a label, not a physical, empirical fact that can be proven directly. Even if you want a jury finding to serve as verification of fraud, you can only have an assignment of “authoritative” opinion that something is a fraud. And no party to this particular civil action by Mann ever claimed that he had been “officially labeled” as a fraud. They also stated and cited reasons for their own deductions.

    Based on the manipulations of data and peer opinion, based on the distortions and omissions, based upon the unwillingness to share data, based on the disregard of the all of the above, and based on the attacks to cover it up and end the debate, you could well conclude that the hockey stick is fraudulent and that is right and a good thing to say so in public. To me, it’s also fraudulent to knowingly claim you’re something you’re not in order to harm an enemy and enhance your reputation/ Especially if you’re a Nobel Prize fraud exonerated by millions.

    Mann is the one yelling “fire” in a crowded world.

  39. Sherry Moore says:

    I guess I see the issue a little differently that the author as this is a SLAPP / libel case. To the best of my knowledge, the Steyn matter is in the Superior Court of D.C. IMO, these courts are not as “high brow” as federal court. Quite frankly, most state courts I have appeared in have pretty much a “you stab it, we slab it” mentality. Its a lot more spaghetti and meatball surgery than elegant prancing and flowery prose over constitutional rights, while beating ones’ chest. Therein lies Mr. Steyn’s quandary: he refuses to face the reality of the forum he is in.

    So let us turn to what Steyn allegedly said and what the Superior Court of the District of Columbia has suggested so far. (First, let us put aside our emotions for a minute). I will not post the actual statement at issue in this lawsuit. Suffice to say, it allegedly compared Mann to someone pretty awful, then went on to allegedly accuse a scientist of committing a detestable act on data. (last time I checked, that alleged accusation looks like defamation per se, but lets skip that for the time being). The alleged defamatory statement was based on the plaintiff Doing or Acting, in a manner, which could be construed into a statement capable of defamatory meaning. Hence, the question of whether the statement was a) false and b) made with actual malice (to a “limited purpose” public figure), are questions for a jury.

    Thus, while opinion and hyperbole are generally protected under the First Amendment, comments pertaining to actual alleged actions such as what was penned by Steyn well, maybe not so much. That being said, I have seen these cases go both ways. A lot depends on the personality of the judge, IMO. Some kick them out as “roll-of-the-eyes bullcrap”, while others take them more seriously depending on the comment made and the individual involved. (To digress, saying dumb things about a judge is unwise and counterproductive–I’m talking to you, litigants).
    Nonetheless, this is more of a grey area where the person caught up in this web will likely see a plaintiff survive pre trial motions to dismiss. (As was the case here).

    What this comes down to, assuming Steyn’s defense as Truth is not borne out, and defamation per se doesnt bit him in the butt, (and Steyn doesnt add another cause of action based on discovery) is damages. Quite frankly, jurors are a fickle lot. They take their civic duty seriously, but they are also inconvenienced and missing a day of work to put up with an angry white professor who has basically been called names (albeit pretty nasty ones). There is no way a lawyer is going to be able to pick a “perfect liberal” jury in DC for Mr. Mann. Moreover, even if one could, IMO, it will be interesting to see what Mann produces to prove his damages and intentional infliction of emotional distress issues. I have found that men have a real problem talking about emotional distress damages, and professional reputation damages. Talking about damages can be even more uncomfortable than the purported act at issue.They usually look pretty lame and it comes off badly if its not sincere.

    The whole debacle is a sad reflection on the lack of civility and professionalism. It might be wise for both sides to call it a day and be done with it.

  40. LearDog says:

    I wonder where lying in filings to the Court falls….?

  41. mpainter says:

    Sherry Moore:
    You seem to miss the implications and all the subsidery issues. It is far more than two individuals whacking away at each other. There are very big stakes in this of which you seem unaware.

  42. AndyL says:

    Sherry Moore,
    I think you have a lot of details incorrect.
    The judges have said that the comparison is hyperbole so not relevant to the case. The allegation of fraud, they have said shoudl be judged as a matter of fact. However Mann also has to prove malice, and his case rests having been exonerated in nine investigations. It turns out that only one of the nine cases investigated Mann at all, so the barrier to proof of malice seems high.

  43. Jaakko Kateenkorva says:

    JohnWho says: April 21, 2014 at 6:16 am
    “Wonder what the legal description of “private/public” figure is.”

    Don’t know, but guess it can be objectively measured by the person’s own decisions to seek/avoid limelight.

  44. strike says:

    Thanks to Roger. As a foreign reader I had greater difficulties in understanding all the post regarding case Steyn vs. Mann. They have been eased quite a bit.
    Now, by the way, I feel defamed by the POTUS, as being called a part of the flat-earth-society.

    Could You please drop a few words, on chances to (theoretically) sueing him.

  45. Bob says:

    Thanks, Mr Sowell, for the illuminating article. Now, I cannot burn up the keyboard with terms like lie, fraud, etc. I must contain my opinion to words like, “his science is not relevant”, or “his study was trashed so badly garbage workers won’t touch it”. Gee, this makes it tough to bad mouth somebody. I want my freedom to insult back.

  46. Richard Ilfeld says:

    @Sherry Moore I submit respectfully that your analysis is correct, but….
    I think it possible that the whole point of the action is the Discovery Process.
    If we get all get to see the data, good and well. If we do not, then in this laypersons opinion full discovery has been avoided through great effort and expense, which action allows us to draw or reinforce our opinions about Dr. Mann based on this fact.

  47. MikeB says:

    Coach Springer says:
    April 21, 2014 at 8:43 am

    Fraud is not simply a label. Calling someone a fool is an opinion, but calling Mann’s work fraudulent is accusing him of intending to deceive. That is to say, he is not just incompetent or wrong or mistaken or stupid but that he INTENDED to deceive. That’s a very hard thing to prove.

    The judgement from the DC Superior Court on this matter is worrying

    There is sufficient evidence presented that is indicative of “actual malice. The CEI Defendants have consistently accused Plaintiff of fraud and inaccurate theories, despite Plaintiff’s work having been investigated several times and found to be proper.The CEI Defendants’ persistence despite the EPA and other investigative bodies’ conclusion that Plaintiff’s work is accurate (or that there is no evidence of data manipulation) is equal to a blatant disregard for the falsity of their statements. Thus, given the evidence presented the Court finds that Plaintiff could prove “actual malice.”
    …….
    Having been investigated by almost one dozen bodies due to accusations of fraud, and none of those investigations having found Plaintiff’s work to be fraudulent, it must be concluded that the accusations are provably false. Reference to Plaintiff, as a fraud is a misstatement of fact

  48. Jay Currie says:

    Sherry, you might want to check what Steyn actually wrote. You seem to be under the impression Mark compared Mann to the pervy football coach. He did not; rather he made a remark comparing the quality of the university’s investigation into the pedophile practices of the coach and the university’s investigation of Dr. Mann’s alledged perversions in data analysis.

    The university “exonerated” both the coach and the professor. A fact Mark cited as an indication of the quality of the university’s investigative prowess.

  49. dbstealey says:

    Very informative, Roger. Thanks.

    You write:

    Examples of intentionally false would be “he has no training”, “he is incompetent,” “he makes things up,” “he takes money from oil companies,” and such.

    That brings to mind all the really vicious attacks that Anthony Watts has endured, for nothing more than having a point of view. I’ve seen most of those things written about Anthony and others, and based on your article, some of the nasty, outrageous cartoons that people have published on blogs seem actionable.

    On damages, one thing Mann will have a hard time showing is a loss of income. A while back I totaled up only a few years of his grants, and they were many millions. Mann has never been unemployed, and as the rainmaker, I suspect that his compensation has increased.

  50. jsuther2013 says:

    One of the cleverest examples of the absolute truth which is nonetheless a lie, goes as follows;

    The first mate of a ship was on duty. He had a few drinks on duty. The Captain unexpectedly appeared on the bridge, and relieved him.
    When the mate next appeared, he noticed that the Captain had made an entry into the log: ‘Mate drunk, today.’ His career was over.

    The mate stewed over it. When he was next allowed to take command. He made his own entry in the log. ‘Captain sober today.’

    Revenge was sweet, and he had told only the truth.

  51. Jaakko Kateenkorva says:

    strike says: April 21, 2014 at 9:08 am
    No worries. The Flat Earth Society president Daniel Shenton turned out to have a great sense of humor http://wattsupwiththat.com/2013/06/26/proud-moment-for-warmists-president-of-real-flat-earth-society-believes-in-the-global-warming-hoax/

  52. Ursa Felidae says:

    Regarding hate crimes….
    Nothing is more despicable, and in my opinion, unconstitutional, than the idea of a “hate crime”. What is the difference between saying something threatening or physically hurting a person of the protected class versus an ordinary citizen?

  53. D.J. Hawkins says:

    Ursa Felidae says:
    April 21, 2014 at 10:04 am
    Regarding hate crimes….
    Nothing is more despicable, and in my opinion, unconstitutional, than the idea of a “hate crime”. What is the difference between saying something threatening or physically hurting a person of the protected class versus an ordinary citizen?

    Very true. If someone shatters my collarbone and fractures my orbital ridge during a beating, is there any measurable difference in my pain and suffering based on whether or not they make disparaging remarks regarding my ethnicity during the process? I’d like to see the study that makes that case.

  54. wobble says:

    Thanks for providing background for those that didn’t already understand libel cases.

    I hope Part 2 will examine the specifics in the Mann-Steyn case.

    In my opinion, Mann’s assertion that he was “cleared” by investigations doesn’t have any bearing on the truthfulness of Steyn’s claim that Penn State’s investigation was as flawed as their investigation of Jerry” Sandusky. I would think that discovery and arguments should focus on the thoroughness of Penn State’s investigation. The transcript of Richard Lindzen’s testimony during the investigation should prove helpful to Steyn. Lindzen said something like, “That’s it? You aren’t going to ask me about the real issues that you should be investigating?”

    That being said, the actual facts and arguments don’t matter if a judge makes up his mind to rule in favor of Mann.

  55. wobble says:

    Sherry Moore says:
    April 21, 2014 at 8:45 am

    So let us turn to what Steyn allegedly said and what the Superior Court of the District of Columbia has suggested so far. (First, let us put aside our emotions for a minute). I will not post the actual statement at issue in this lawsuit. Suffice to say, it allegedly compared Mann to someone pretty awful, then went on to allegedly accuse a scientist of committing a detestable act on data.

    1. It’s strange that you use the word “allegedly” in this paragraph. You can read what Steyn wrote for yourself. Steyn has never claimed that he didn’t write the article at issue.

    2. Steyn’s comparison quite clearly implied that both had been the subjects of flawed investigations by Penn State.

  56. john robertson says:

    Thanks Rodger, helps clarify the machinations of the Just-Us system.
    Hate speak being one of those pernicious categories.
    Thought crimes really.
    The ability to doubt, ask for evidence and the freedom to express ones doubt of authority, are hard won rights.
    Politicians and the kleptocrats are always trying to circumvent these rights, as they threaten the ability to take ,unchecked from the public purse.
    After all, if the details of government contracts are open to the taxpayer scrutiny, it is more difficult to favour your special friends.
    It is my opinion that CAGW will spell the end of government funding for science, as we know it.

  57. Sherry Moore says:

    Jay et al:

    Actually you should read Count VII of the plaintiff’s Complaint. See also Judge Weisberg’s Order at http://www.washingtonpost.com/news/volokh-conspiracy/wp-content/uploads/sites/14/2014/01/MannvNR-1-22.pdf

    I read directly from the Judge Weisberg’s opinion about what the Judge thought Steyn said: “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”.

    Hence with respect to Mann, if the alleged statements are false, they are defamatory, if made with actual malice, they are “actionable”.

    This isn’t a “beauty” or popularity contest, (We know Steyn would win that). I’m just looking at the statements, what the judge found, and what my experience has been seeing these sort of things play out in Court. To most people not personally involved, they are an annoyance. Will discovery be useful? We will see what is permitted.

  58. Joe says:

    As with most commentators here, I am of the opinion that Steyns column with is the subject of the lawsuit doesnt come remotely close to being defamation for numerous reasons including, but not limited to 1) public figure, 2) no damage to reputation 3) no damages, 4) substantial quality and quantity of contrary science to support the opposite opinion, 5 ) the lack of actual exonerations,

    That being said, Sherry Moore has a much better take on the case is likely to progress. Juries are very fickle, the likely jury pool will tilt to be liberal to very liberal and have a predisposition to believing in the science. The jury is likely to be less versed in the science (both supporting AGW and contrary to AGW) than the typical poster to this site. The judge (the second judge) has already shown a slight predisposition to holding for the plaintiff.

    What Steyn stated was that mann tortured and molested the data, which has been adequately documented via McIntyre, and which was acknowledged in the NSF memorandum. It should be noted that believers in the science continue to recognize the NSF caveat in the “NSF memorandum continuing to believe the NSF exonerated mann.

    To paraphrase Sherri’s comment, Steyns better hope is that the jury sees and angry white professor throwing a temper tamptrum and being a big baby.

  59. Alex says:

    Sadly, I have every confidence that a judge or jury could find for Mann — people are just stupid and tribal. The U.S. “justice” system is a risky business.

  60. FreedomFan says:

    Perhaps Mr. Steyn could prevail upon renown climate scientist Richard Muller to describe whether he believes Mann’s trick of hiding-the-decline was fraudulent…

  61. Jay Currie says:

    Joe, I think your points are exactly right, including, unfortunately, your view of the jury and, perhaps, the judge.

    However, if your initial point as to Mann being a public figure is accepted at trial, the burden shifts very heavily to Mann to demonstrate that Steyn wrote in knowing disregard of the truth about Mann otherwise the “proof of malice” will be absent and Mann cannot win. Proving that someone wrote something while knowing its opposite to be true is incredibly difficult. All the more so when the truth is deeply contested as it is here.

    Did Mann torture his data? Maybe. Is there lots of credible evidence that he did? Yes. Did Steyn have access to the evidence that Mann manipulated and distorted data? Yes. Simply having a glancing familiarity with Steve MacIntyre’s work or Momford’s Hockey Stick Illusion would establish that Mann’s work was strongly contested.

    If Mann is a public figure, and it appears objectively he is and, as I recall, he has admitted as much, then his burden of proof is nearly impossible.

    (And I note that Steyn has indicated he is perfectly willing to proceed with discovery – which suggests that he and his distinguished 1st Amendment lawyers are confident that a) Steyn has nothing to hide, and, perhaps, b) that Steyn may very well have a stack of evidence of his reading and research which will, upon disclosure, put paid to any assertion that he wrote recklessly of the truth.

  62. Reg Nelson says:

    I hope this ends up going to trial. This could turn out to be the Scopes trial for the Climate Science religion.

    Questions for the legal gurus:

    To date, Mann has refused to turn over any of the discovery items requested by Steyn. What legal ground does Mann have on this? How does the fact that Steyn counter-sued affect this?

    If the case ends up not going to trial, does the information gathered during the discovery phase remain confidential?

  63. Cold in Wisconsin says:

    I think this one might be a squeeker–all you have to have is one juror believe that Steyn has a right to free speech, and US public opinion is usually fairly strong on the rights of a free press. It will be Academic Freedom and Intellectual Property Rights versus Free Speech and Freedom of the Press. Even if the jury tilts left, there could be one juror on the side of Freedom of the Press. Or you could have a Solomon decision where they find Steyn guilty but find Mann guilty on the counterclaim and the damages cancel each other out.

    Forget the Freedom of Information Act. You need a real subpoena to get the information that Mann is hiding or has destroyed. The NSA probably has all of it in Foggy Bottom or somewhere if they can just find it. Russian Mafia might be helpful.

    Privacy rights are generally held to be against public policy when there is a crime involved. Did anyone ever get punished for stealing the Climategate emails?

  64. jdgalt says:

    The key question for me is, how long can Mann delay complying with discovery before the judge finds him in contempt and/or enters a summary judgment for Steyn? If I were the judge, that answer would have to be before now, even if Steyn’s discovery request extends to every piece of evidence cited in The Hockey Stick Illusion.

  65. wobble says:

    Sherry Moore says:
    April 21, 2014 at 11:24 am

    I read directly from the Judge Weisberg’s opinion about what the Judge thought Steyn said:

    Again, I don’t understand the implied uncertainty with respect to exactly what Steyn wrote. The judge knows exactly what was written.

    Maybe you meant to write that you’re analyzing the judge’s thoughts about what Steyn wrote.

    “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.”

    One can certainly argue that scientific fraud and data manipulation can be an opinion instead of fact, but I can understand allowing the case to proceed when viewing in “light most favorable to the plaintiff…” I think many believe that the real battle is going to be fought during discovery hearings and the actual integrity of Mann’s hockey stick.

  66. TimC says:

    Willis said “PS—Curiously, in Britain it is much, much easier to sue someone for libel, for a bizarre reason—under British law, you can be sued for libel just for telling the truth about someone.”

    Sorry but that’s incorrect: “justification” (that an alleged defamatory statement is true) is an absolute defence to defamation proceedings in England and Wales (though Scots law may be different – I wouldn’t know). However the sting is in the tail – the onus of proof of justification (that an alleged defamatory statement was true) is always on the defendant. So, anyone who alleges he/she has been defamed may issue proceedings (simply taking a writ of summons to the High Court in the Strand for issue and paying the issue fee – a 10-minute job – then serving the writ) when the onus falls on the defendant to prove the statement was true else face potentially huge damages and costs.

    This has enabled wealthy English plaintiffs to serve “gagging writs”, causing defendants immense difficulty and expense in proving that the complained-of statement was justified – exactly the mischief that the anti-slapp laws were designed to counter in the US. But, that apart, under the laws of England and Wales justification (truth of the alleged defamatory statement) is an absolute defence to defamation proceedings.

    But why are we having all these recent threads about legal issues – I had rather hoped myself that “puzzling things in life, nature, science, weather, climate change and technology” would miss lawyerly issues by a country mile..?

  67. Toto says:

    Little detail #1 – most accept that something is either true or false; I would not go that far, and in particular, we may not be able to determine whether a particular statement is true or false for a very long time.

    Little detail #2 – demonize the enemy. works like a charm. related to hate speech but not quite the same. very popular. “Who will rid me of this meddlesome priest?”

    Little detail #3 – The guys who put the free speech thing into the constitution had something particular in mind, I suspect, I don’t know, along the Voltaire line, not the modern anything goes line. I think that they meant political speech which the king would have called treason or sedition. I think they had in mind that the only defense against a government becoming totalitarian is free speech. Smart guys.

  68. wobble says:

    FreedomFan says:
    April 21, 2014 at 12:55 pm

    Perhaps Mr. Steyn could prevail upon renown climate scientist Richard Muller to describe whether he believes Mann’s trick of hiding-the-decline was fraudulent…

    That really provides a very simple explanation. Having Muller be a witness for Steyn would be huge. That hockey stick graph was deliberately given very WIDE press and labeled definitively as Tree Ring Data. No data was provided that indicated that it was anything other than Tree Ring data – which turned out to be a lie.

  69. D.J. Hawkins says:

    Cold in Wisconsin says:
    April 21, 2014 at 1:08 pm

    I looked into this. From what I have heard, civil cases do not require a unanimous verdict. However, Rule 48 of the DC Superior Court requires the verdict to be unanimous. The jury is also to consist of not fewer than 6 and no more that 12 jurors. Learn something new every day.

    http://www.dccourts.gov/internet/documents/Civil-Rules-Jan-2012.pdf

  70. D.J. Hawkins says:

    @TimC says:
    April 21, 2014 at 1:30 pm

    If there is anything more puzzling in “life” than The Law, I have yet to run into it. With the possible exception of the Theory of Relativity, to which understanding I am closer to by the very faintest margin. ;-)

  71. more soylent green! says:

    more soylent green! says:
    April 21, 2014 at 8:33 am
    Roger,

    I noticed there was nothing in your post regarding academic freedom, which is a specious argument, IMHO. Is that topic relevant to this discussion?

    Oops! Yes there is. My mistake.

  72. Lars P. says:

    j ferguson says:
    April 21, 2014 at 4:59 am
    I look forward to learning which of my words threw my comment into moderation.
    [Reply: sometimes we never know, and WordPress won't tell. ~ mod]

    Hm. Let me guess:
    2 times “conspiracy”? ” conspiracy to commit a crime” ” involved to do something criminal ”
    Lol, I guess you have a bunch of words to place that comment into moderation – bet the same will happen to mine.
    Remember this is not a human and does not read into context, it is just a machine…

  73. j ferguson says:

    Roger,
    Is it California Bar which inhibits your sharing of the wisdom of the law? I remember that there was something in the Architectural Registration Code (or whatever they called it) that made it a violation to do free sketches, or for that matter any work without a contract.

  74. biff33 says:

    “Principals” with arbitrary exceptions are not principals at all. If free speech means you can say whatever you want, with exceptions, and there is no principal articulating why they are exceptions, then free speech is an illusion.

    Philosophically, “freedom of speech” means the government may not control your thinking by penalizing communications; it protects against government attempts at mind control.

    Lies are not protected — because they are also attempts at mind control, by individuals; the “freedom to lie” is a contradiction.

    Campaign contributions are speech because they pay for speech; if you limit the money, you limit the speech it pays for.

    Laws against “hate speech” are tools of mind control; the government is trying to stamp out “hate” by penalizing its expression; this is despicable, as other commenters have noted, and very dangerous.

    Child pornography is prohibited, not for what it expresses, but for how it’s made: by injuring children.

    Thus the principal in all cases is that people have a right to form their own judgements, without government coercion.

    Unfortunately, the law as described by Mr. Sowell does not consistently recognize that principal.

  75. biff33 says:

    Make that “principles.” Sorry.

  76. Roger Sowell says:

    To more soylent green! on April 21, 2014 at 8:33 am

    I noticed there was nothing in your post regarding academic freedom, which is a specious argument, IMHO. Is that topic relevant to this discussion?”

    Academic freedom is not a defense against defamation, nor is it a defense against any criminal charge. Academic freedom primarily allows a teacher or professor the right to teach materials in his or her own way.

  77. Roger Sowell says:

    To JohnWho, asking about public vs private figure: this question is sufficiently general that I can provide an answer.

    There are actually three categories of “figure” in defamation law: an all-purpose public figure, a private figure, and one in between, the limited purpose public figure.

    Case law provides this definition:
    “. . . the Gertz decision defined two classes of public figures. The first is the “all purpose” public figure who has “achiev[ed] such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.” The second category is that of the “limited purpose” or “vortex” public figure, an individual who “voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” ” (Reader’s Digest Ass’n v Superior Court, (1984) a California Supreme Court case, quoting Gertz v Robert Welch, Inc, (1974), a US Supreme Court case on defamation.)

    Also,
    “To qualify as a limited purpose public figure, a plaintiff ‘must have
    undertaken some voluntary [affirmative] act[ion] through which he seeks
    to influence the resolution of the public issues involved.’ ” (Rudnick v.
    McMillan (1994) 25 Cal.App.4th 1183, 1190

    Based on these definitions, it would appear that in the matter of Mann v Steyn et al, Dr. Mann is a limited purpose public figure, who undertook voluntary action to influence the resolution of public issues involved (global warming). I would not think he, Dr. Mann, has achieved such pervasive fame or notoriety that he is a public figure for all purposes and all contexts. In fact, the vast majority of people I ask have never heard of him.

  78. Roger Sowell says:

    @ Willis Eschenbach, on April 21, 2014 at 5:22 pm re truth is a defense.

    So in fact I’m following Roger Sowell’s advice, he confirmed that truth is an absolute defense against libel.”

    Actually, Mr. Eschenbach, after carefully reviewing my article and my comments thus far, I have made no statement about truth as a defense, absolute or otherwise, against libel.

    The legal distinctions on truth as a defense to libel are rather complex. It is not quite as clear-cut as one might think. As I outlined above, there are several ways to make a false statement, similarly there are multiple ways of determining what is truth in a libel context. It involves issues such as testimony, written documents, authentication of such documents, dates of documents and a timeline to establish who knew what and when, credibility of witnesses, internet as sources of information used or offered as evidence, interpretation of words and phrases, to name just a few.

    I would never presume to give Mr. Eschenbach legal advice on a blog. However, I will say that I would never, ever, post such a comment as he did just above on April 21, 2014 at 11:53 am.

  79. Roger Sowell says:

    @ Geoff Sherrington on April 21, 2014 at 8:02 am

    If you are tha same Roger who has posted silly stuff about nuclear power, then I shall give you a conditional exclusion and read with interest of your specialty in Law.”

    I am indeed proud to say that I am the same Roger Sowell, whose views on nuclear power you disparaged just now. For my part, that is all I will say on nuclear power on this post. This is about speech, crimes, and defamation.

  80. Roger Sowell says:

    @ Nullius in Verba on April 21, 2014 at 8:32 am

    I’d be interested to know if some of the epithets directed at sceptics might constitute slander/libel?”

    They most certainly can be, however one should consult a knowledgeable attorney to determine the likely outcome and any damages that could be awarded. Depending on the facts, what was said, and how many third parties heard or read the false defamatory statement, damage awards can be quite large.

  81. Roger Sowell says:

    @ Coach Springer on April 21, 2014 at 8:43 am

    I believe the many blog comments that Sowell chooses to take as statements of fact are easily understood as expressions of opinion and belief.

    In defamation law, there is a distinction between a statement of fact, a true opinion, and facts disguised as opinion. Unless one is aware of the legal distinctions, great care should be taken in this area. More than one defendant has been rudely surprised when what he thought was a protected opinion turned out to be actionable libel.

  82. Roger Sowell says:

    @ strike on April 21, 2014 at 9:08 am

    “,i>Thanks to Roger. As a foreign reader I had greater difficulties in understanding all the post regarding case Steyn vs. Mann. They have been eased quite a bit.”

    You are very welcome.

  83. Roger Sowell says:

    @ Strike,

    “Could You please drop a few words, on chances to (theoretically) sueing him.” meaning the US President, Barack H. Obama.

    Presidents are the ultimate in “all-purpose public figures” as I described in a comment above. Under that standard, a defamation plaintiff must prevail on the actual malice standard. That is made even more difficult by the laws (US laws) that make it almost impossible to file a lawsuit against a sitting President. He has almost perfect immunity. There are a few exceptions, very few, but calling other people Flat-Earthers is not one of them.

    In addition, as others noted in comments above, being one of a large group does not bring the right to sue in defamation.

  84. Roger Sowell says:

    @ Bob on April 21, 2014 at 9:11 am

    “Thanks, Mr Sowell, for the illuminating article. Now, I cannot burn up the keyboard with terms like lie, fraud, etc. I must contain my opinion to words like, “his science is not relevant”, or “his study was trashed so badly garbage workers won’t touch it”. Gee, this makes it tough to bad mouth somebody. I want my freedom to insult back.”

    You are welcome. I feel your pain. For guidance on how to express displeasure without being sued for slander, or libel, it is useful to observe two attorneys who insult each other. One of my favorites is, “did you write this brief, or did a group of trained monkeys pound it out on a few typewriters?”

    Another favorite insult is reputed to have been said by Sir Winston Churchill, when a lady who disliked him immensely said to him, “Winston, if you were my husband, I would poison your tea.” ‘

    Sir Winston never missed a beat. He is reported to have replied, “Madame, if I were your husband, I would drink it.”

  85. dbstealey says:

    Roger Sowell says:

    I would not think he, Dr. Mann, has achieved such pervasive fame or notoriety that he is a public figure for all purposes and all contexts. In fact, the vast majority of people I ask have never heard of him.

    Then how can he claim to be defamed, if people don’t know who he is? Does he get to have it both ways?

    In the context of the global warming debate, Mann is well known by just about everyone. That makes him a very public figure to people who could affect his income. Ask anyone up to speed on the subject who Michael Mann is. They will tell you.

    But if Steyn’s readers don’t know who he is, it would hardly impact his earnings. I doubt that Mann has gone to one less tropical excursion as a carbon scare celebrity as a result of Mr Steyn, or that his income has taken any kind of a hit. Has he been demoted? Has he lost his employment?

    About the only negative result I could see is that some of the public have been introduced to a crybaby, name-calling scientist who makes outlandish and untrue claims. I would be embarrassed, too, if I was like that. But is being embarrassed a tort?

    I know, I am wasting my time, because there is no such thing as justice. It is an illusion. The important things are who you know, and how useful you are to certain folks and institutions.

    Cynical? Yes. But that is how I see it. My views have changed a lot over the past
    6 – 7 decades. As ‘wobble’ said:

    “…the actual facts and arguments don’t matter if a judge makes up his mind to rule in favor of Mann.”

    Exactly.

  86. Roger Sowell says:

    @ dbstealey on April 21, 2014 at 9:35 am

    Very informative, Roger. Thanks.”

    Thank you!

    You write:

    Examples of intentionally false would be “he has no training”, “he is incompetent,” “he makes things up,” “he takes money from oil companies,” and such.

    That brings to mind all the really vicious attacks that Anthony Watts has endured, for nothing more than having a point of view. I’ve seen most of those things written about Anthony and others, and based on your article, some of the nasty, outrageous cartoons that people have published on blogs seem actionable.”

    I believe you are correct about Anthony, but I cannot really comment since he is a former client. I cannot and will not say much of anything about my clients, present or past. I wrote those words not with Anthony in mind, but others actually. I have many times seen blog writings on the lack of qualifications of one person or another (e.g. “He is not a climate scientist”), occasionally the incompetent label, several scientists have been accused of making things up, and many skeptics are accused of taking Big Oil money.

    Regarding outrageous cartoons, those enjoy a special status. Humor, satire, and biting wit are all protected to some extent. Especially in the area of public controversies, or political arena, cartoons have some strong protections. Jerry Falwell v Hustler Magazine showed this.

  87. Roger Sowell says:

    @ dbstealey, on April 21, 2014 at 7:57 pm

    Dr. Mann is most likely a limited-purpose public figure, for the reasons I outlined above. If the judge has ruled he is an all-purpose public figure, then so be it. I would not think that enough people in the US have heard his name to be an all-purpose public figure. Certainly, in climate circles he is famous, but that is the definition of a limited-purpose public figure. Only in a limited context is he known.

  88. dbstealey says:

    Thanks, Roger. There is always a lot to learn from your articles.

  89. This is a very useful article. One thing I’m not clear about is the hate crimes provision in the California Penal Code. It says it’s a crime to restrict a person’s constitutional rights by ‘force or threat of force’, if they belong to one of six categories or associate with someone in those categories. Surely using force or threat thereof to restrict anyone’s rights, or to do anything at all except enforce the law or act in self-defense, is a crime anyway. What’s does the category ‘hate crime’ add to the existing law, except a vague threat to free speech?

  90. bushbunny says:

    Leave it to the lawyers, but about moderation, sometimes my posts have ‘awaiting moderation’ on them, but they usually get published eventually. I think our moderators have snipped only two of my comments in the years I have been on this blog.

  91. Roger Sowell says:

    @ dbstealey, you bring up an excellent point with

    About the only negative result I could see is that some of the public have been introduced to a crybaby, name-calling scientist who makes outlandish and untrue claims. I would be embarrassed, too, if I was like that. But is being embarrassed a tort?”

    The short answer is no, embarrassment is not a sufficient degree of harm for a claim in libel. The categories of reputational harm, as above, are: “expose him to hatred, contempt, ridicule, or shame, or to discourage others from associating or dealing with him.”

    However, there is a different but related tort, known as false light. In that tort, embarrassment is the key. In general, a truthful statement or statements, made about another and published to a third person, that shows plaintiff in an unfavorable or false light. The classic example is a newspaper article that states only “John Doe was seen entering a hotel room at midnight with a beautiful blonde woman.” The implication being, he was unfaithful to his wife. In unstated fact was the beauty was his wife. That would give rise to an action in false light.

    Another related tort, again with truthful statements, is public disclosure of private facts. Embarrassment is a factor in each of those. In contrast to defamation, not only is truth not a defense, truth is a requirement.

  92. bushbunny says:

    I liked the Winston Churchill quote, it is famous. How about this ladies, I used to be quite an attractive brunette in my youth until I had 4 boy babies and my figure of 36 22 36 spread, and hair went grey, and some joker who was trying to seduce me but didn’t said, “I suppose you were a stunner in your youth, but not now..” (As if I should be grateful for his unwanted attention) So I repeated what the Kray twins said when being led to jail….”Well better a ‘has been’ than a ‘never was!’.

    Unfortunately being famous does get some unwarranted criticism and negative comments. But Mann has defended his data that obviously is in the public domain, that he was happy to release for the purpose of publicizing himself to support Gore and the IPCC. And paid for it? Now he has been ridiculed for a non event in the world of science and is questioned about his honesty. He won’t admit he was wrong and exaggerated global warming for reasons to gain the world’s attentionand subscribe to AGW. The thing I would say is crucial is that he knowingly did this and provided falsified scientific records to support his hypothesis. Corrupting the data to fit the hypothesis, not the reverse.

    Isn’t that the crucial part of what this case is all about? By hiding his data seems to suggest that he deserves everything he gets and more.

  93. Simon says:

    I think Mann will win and I am glad he will. There is no place for the sort of journalism that stoops to an attack of this kind, irrespective of which side you think is right.
    Given the high regard Mann has in the scientific community he will have no trouble finding highly respected people who work in the field, who will endorse his honesty and skill. Add to the fact his work has endured being scrutinised time and time again (maybe more than any other scientist on the planet), each time coming up clean, it is hard to see any judge agreeing his work is fraudulent or should be allowed to be called so.
    Steyn on the other hand will be lucky to find a single respected scientist who will support his comments. I think he will pay both financially and with his reputation. Given the low level he stooped to… he deserves all he gets.
    I know I am going to be attacked here for saying this, feel free, it will just make it all the sweeter when Mann wins. When he does I will be back to remind you all Steyn stuffed up and got what he deserved.

  94. Toto says:

    Regarding truth as a defense, from
    http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-spring-2001/criminal-defamation-laws-ar

    Modern criminal defamation laws sprung up centuries ago as a way to combat the problem of breaches of the peace, such as the “chivalrous satisfaction” men got from duels. The history of criminal libel also is notoriously intertwined with government attempts to suppress criticism.

    This history, which one federal district court has called “ignominious,” demonstrates how slowly laws change. The law governing criminal prosecutions for libel in England today was enacted in 1792. Many of the U.S. state laws were initially enacted in the early to mid-1800s.

    Modern criminal libel law is the product of 16th century innovations in the English Star Chamber, the secretive court that sat in closed session on cases involving state security. The Star Chamber needed a more effective method than civil defamation laws to control statements about the crown. Such control, one legal scholar said, was “an effect of overwhelming importance in an age when the peace and security of the state was manifestly precarious and when printing and the great intellectual movement of which it was one symptom had made political writings take on a new and vital importance.”

    The Star Chamber also premised its law on the notion that defamations breached the peace. The common belief that true statements were at least as likely to cause breaches of the peace as false ones led to the criminal punishment of both true and false statements.

    In a case of libel against the deceased Archbishop of Canterbury and a living bishop in 1609, the Star Chamber used the ancient Roman code that punished certain defamations because of their anonymous character and scandalous nature. Of the case, Sir Edward Coke wrote that the Star Chamber ruled that “although libel be made against one, yet it incites all those of the same family, kindred or society to revenge, and so tends (as a consequence) to quarrels and breach of the peace, and may be the cause of the shedding of blood and great inconvenience.”

    So went the saying, “the greater the truth, the greater the libel.”

    Libels against a magistrate or other public person, the Star Chamber reasoned, should be subject to an even greater penalty because “it concerns not only the breach of the peace, but also the scandal of the Government.”

    I’ve seen elsewhere that duels did not simply fade away, they transformed into defamation suits. That seems like an improvement to modern minds until you realize that there is much less risk to the challenger, leading people like Mann to abuse the justice system. At least libel is no longer criminal speech — except in some states, see:
    http://www.firstamendmentcenter.org/criminal-libel-a-bad-idea-in-a-free-society

    Finally, for more legal history of defamation, search for
    “The Medium is not the Message: Reconciling Reputation and Free Expression in Cases of Internet Defamation” by Robert Danay. (Canadian emphasis)

  95. Willis Eschenbach says:

    Roger Sowell says:
    April 21, 2014 at 7:23 pm

    @ Willis Eschenbach, on April 21, 2014 at 5:22 pm re truth is a defense.

    “So in fact I’m following Roger Sowell’s advice, he confirmed that truth is an absolute defense against libel.”

    Actually, Mr. Eschenbach, after carefully reviewing my article and my comments thus far, I have made no statement about truth as a defense, absolute or otherwise, against libel.

    Thanks, Roger. My misunderstanding. You had said:

    Defamation is “the act of harming the reputation of another by making a false statement to a third person.”

    I interpreted this to mean that if a statement is not false (true) it cannot be defamatory, and thus a true statement cannot be libelous … what am I missing? Is my logic wrong?

    Yes, I have to assume that it is more complex than that … but isn’t that the logical conclusion from the quote from Blacks Law Dictionary above?

    I would never presume to give Mr. Eschenbach legal advice on a blog. However, I will say that I would never, ever, post such a comment as he did just above on April 21, 2014 at 11:53 am.

    Thanks for that, Roger. I would not make that statement in any situation but this one. This is because of what I know of the case, and because Mann has convicted himself with his own words.

    It is also because truly, I hope he sues me. That would be a gift … yeah, I’d have to go on Kickstarter to pay the bills, but it would be worth it. I greatly doubt that he’ll sue, though, he likely considers me beneath his notice …

    In any case, Roger, thank you for your clear interpretation of the legal issues, and your willingness to answer questions and comments.

    w.

  96. Greg Cavanagh says:

    “expose him to hatred, contempt, ridicule, or shame, or to discourage others from associating or dealing with him.”

    But that is exactly what Obama, and many others who insult those who disagree with the Catastrophe of Global Warming, or of the Anthropomorphic content of Global Warming, or even that the world is warming; have done and continue to do.

    I for one am insulted by Obama’s statement. While Obama may be protected, it sounds as though others are not.

    And such words, comming from such a person; there will be people who are materialy impacted.

  97. John Archer says:

    I’d like to echo Willis’s thanks to Roger, especially again for his willingness to answer a lot of questions here.

    I found it all very enlightening. Thank you very much, Roger.

    It seems to me that the legal outcome, depending apparently so much as it does on the fickleness ob da judge, has roughly the same order of certainty as that of the outcome of a coin toss. In which case I have a suggestion for reducing the cost of litigation — for a nominal fee of say $500,000 I’d be quite happy to flick a penny.

    Nevertheless I fervently hope Mark Steyn gets to light Mann’s funeral pyre. Of course, the great faker’s many bum-chum co-conspirators across the globe should be encouraged to commit mass suttee at the same time as their beloved spouse while the rest of us dance around and then piss on the ashes when it’s all done.

    Talking of happy terminations, anyone care to estimate how many of 7,800 deaths per annum (in the UK alone) due to those celebrating fuel poverty in their hovels are attributable to the lies promulgated by Mann and his supporters? Remember now, these latter are all very moral personages who “really care” about humanity:
    http://www.independent.co.uk/news/uk/home-news/fuel-poverty-deaths-three-times-higher-than-government-estimates-7462426.html

  98. philjourdan says:

    @JohnWho

    Wonder what the legal description of “private/public” figure is.

    That is how lawyers get rich. They never define it so they can always argue it.

  99. philjourdan says:

    @Dr C

    I think you had a typo in your response to me. Specifically:

    is indeed criminal and constitutional.

    I think you meant criminal and unconstitutional.

    But for now I will merely concentrate on the criminal part. And it is not. It can be civil (if Mr. Goldstein wants to pursue the option), but saying that Mr. Goldstein (or anyone) is a [bleep] is still merely an opinion. But it could be slanderous, and hence the subject of a civil case.

  100. Joe says:

    Simon says:
    April 21, 2014 at 11:08 pm
    I think Mann will win and I am glad he will. There is no place for the sort of journalism that stoops to an attack of this kind, irrespective of which side you think is right.
    A) Aside from which side of the fence you are on, Mann has been behaving in similar fashion with regard to anyone who critiques his work. So at least we are in agreement that Mann’s behavior has been unacceptable. However, Steyn commenting in similar fashion as Mann does not justify Steyns behavior.

    Given the high regard Mann has in the scientific community he will have no trouble finding highly respected people who work in the field, who will endorse his honesty and skill. Add to the fact his work has endured being scrutinised time and time again (maybe more than any other scientist on the planet), each time coming up clean

    ,

    It has been an act of faith by the believers to claim that Mann has been exonerated. and has come clean ever time. Nothing is further from the truth. Only two “investigations” actually attempted the investigate mann. 1) the Penn state investigation which the NSF using more polite terms basically called that investigation a farce and 2) the NSF investigation which was also superficial. The one salient point in the NSF report is that they acknowledged that selection of data used, the weighting of the data and the statistical methods employed remained subject to scientific debate. Not exactly a ringing endorsement of the quality of the science. None of the other investigation concerned Mann.

    Only someone disregarding science would believe that the Hockey Stick (and the subsequent studies using similar methodologies, the same proxies, by essentially the same basic group of scientists, jones, mann, bradley, etc) provides any scientific insight into global temps 500 – 1000 years ago..

  101. pdxrod says:

    Simon says: “I know I am going to be attacked here for saying this”. As you can see, Simon, you haven’t been attacked. All you’ve got are polite responses from Joe and me. I think Mann is probably wrong about global warming, but I don’t like what Steyn says either. His aim seems to be to refute the stereotype of Canadians as rational, moderate people, like McIntyre, McKittrick and Framboise.

  102. John Archer says:

    “[Steyn's] aim seems to be to refute the stereotype of Canadians as rational, moderate people, like McIntyre, McKittrick and Framboise.” — pdxrod

    Never mind the silly ‘moderate’ label, how has Steyn acted irrationally, as you imply?

  103. Ed, Mr. Jones says:

    Willis,

    I would back you (modestly).

  104. beng says:

    Just glad I’m trained as an engineer & haven’t been thoroughly bollixed by a “legal” mindset. But then many of our “leaders” are lawyers…..

  105. philjourdan says:

    @bushbunny – having the 4 boys may have played havoc on your measurements, but raising them through their teens is where you gray hair came from! ;-)

  106. Roger Sowell says:

    @ jsuther2013 on April 21, 2013 at 9:36 am

    “Captain sober today”.

    That’s very clever and funny, but is actionable at law. The captain would have a case in False Light.

    The statement was true but the statement led the reader to an erroneous conclusion (assuming the Captain was usually sober).

  107. bushbunny says:

    Phil, One of the worst things I have found in life, was living with two husbands, that’s what gave me gray hair. They wanted a submissive wife with no mind of her own, just to cook, wash and be bare foot, pregnant and in the kitchen.

    One of the worst times in my life was taking a husband to court for child maintenance. It took 13 months, and he eventually settled out of court, on the day we were to report. But he had to pay costs.

    This must be getting to Mann waiting and waiting, although he has stalled cases.

  108. bushbunny says:

    Milo loved the cartoon of MM, I wonder if he will sue them for misrepresentation of his physical appearance. LOL>

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