Michael Mann – never fully investigated, thus never exonerated

Guest post by Christopher Horner

Michael Mann has made what will, I expect, prove to be his greatest misjudgment yet. He has filed suit against the Competitive Enterprise Institute (with which I am affiliated), a CEI adjunct, National Review Online and Mark Steyn for libel.

The gist of his claim that negative characterizations of him and his activities are actionable is that he has been “exonerated”. No, he hasn’t.

The truth is he has never even been investigated, and has furiously warded off scrutiny of what he and his allies insisted was the missing “context” explaining away Climategate. This suit, if he continues with it, should put an end to that.

I and my co-counsel encountered this talking point after Mann intervened in litigation against the University of Virginia, seeking to block release of certain public records relating to his tenure there (our judge rightly waived that away as irrelevant to applying the law).

Like so much else in the “climate” realm this claim suffers badly under scrutiny. As I detail, in discussing publicly funded academia’s refusal to self-police, in my new book The Liberal War on Transparency: Confessions of a Freedom of Information “Criminal”.

Exoneration requires investigation; investigation requires pursuit aimed at discovering material facts. Two bodies are actually positioned to pursue and produce such facts. Mann’s employer since 2005 and where he worked when the Climategate leaks occurred, Penn State University, has done no such thing. Neither has the University of Virginia where he worked when first organizing against researchers who were undermining his claims.

Panels in the United Kingdom which Mann often cites, the Muir Russell and Oxburgh inquiries into UK taxpayer-funded operations at the University of East Anglia’s Climatic Research Unit (CRU), did not even purport to address U.S. citizen Mann, or validate his work. They respectively inquired into “aspects of the behaviour of the CRU scientists” [sic, emphasis in original], “allegations about CRU‘s impact on climate science” and “to understand the significance of the roles played by those involved from CRU” (see, “The Independent Climate Change E-mails Review”); and “to assess the integrity of the research published by the Climatic Research Unit in the light of various external assertions” (see, “Report of the International Panel set up by the University of East Anglia to examine the research of the Climatic Research Unit”).

Mann is not and was not with CRU, and was not party to or the subject of those investigations. His role in Muir Russell was limited to submitting comments, like 110 other individuals seeking to influence matters, despite, according to Muir Russell, authoring the second-greatest number of relevant emails. Mann’s name does not even appear in the Oxburgh report purportedly “exonerating” him.

It is worth noting that a UK FOI request helped uncover how the Oxburgh panel operated to cover over dissenting opinion in the ranks. See, e.g., “How Lord Oxburgh of Persil washed the Climategate team whiter than white (pt 2)”.

As regards the PSU fiasco, otherwise-sympathetic Clive Crook in The Atlantic styles the Muir Russell effort as being “equally probing” as Penn State’s, whose contortions he elegantly devastated, piquantly summarizing them as “difficult to parody”.

Further as I discuss in The Liberal War on Transparency, I have documents in which a principal in that effort indicates it was orchestrated from behind the scenes to avoid certain people being asked certain things, presumably because that would make the desired outcome impossible. See also Steve McIntyre, “New Information on the Penn State Inquiry Committee”.

Also, subsequent to Penn State’s report a U.S. Department of Commerce Inspector General managed to interview Eugene Wahl in the context of federal government involvement in Climategate, which PSU incredibly did not. (“Examination of issues related to internet posting of emails from Climatic Research Unit,”, p. 5). Wahl was someone to whom Mann did forward Phil Jones’s (UEA) request that Wahl hide or destroy records. About this, PSU was remarkably incurious, its unexplained decision to not interview Wahl further making a mockery of its supposed inquiry into whether Mann “engage[d] in, or participate[d] in, directly or indirectly, any actions with the intent to delete, conceal or otherwise destroy emails, information and/or data, related to [IPCC] AR4, as suggested by Phil Jones”.

We were not given the opportunity to depose Mann in the UVa case and so are unaware what if any knowledge of this he had at the time or since. We do know that PSU’s effort oddly did not meet the same uproar organized against other efforts to scrutinize the record, for example our various FOI requests. Unlike PSU’s proclaimed instigative tribunal, a simple FOIA request presents no ability to sanction Mann, but only threatens the transparency Mann agreed to as a condition of his employment at UVa. Yet announcement of what proved to be a risibly inept PSU effort, if one nominally with teeth, was greeted with no protest and, we are told, complete cooperation including turning over all requested records. That this behavior is inconsistent is something of an understatement.

The National Science Foundation purported to inquire, as well, but worked (almost entirely) from what PSU provided it. So much for that.

[Update Oct 25, by Chris Horner with thanks to Brian Angliss for inviting this elaboration: It equally failed to conduct a credibly rigorous examination of the evidence and/or key relevant factors. For example, the NSF OIG totally disregarded the findings of the NOAA OIG that Eugene Wahl had destroyed documents immediately upon receiving Mann’s email; Penn State apparently, and incredibly, never asked. Nor did NSF examine or report on whether, despite a conflict of interest, William Easterling had interfered with the Inquiry Committee even after supposedly “recusing” himself, interference which I understand stopped the Inquiry Committee from carrying out its obligation to interview critics, including Stephen McIntyre. Nor did the NSF OIG report directly address any of the contentious issues.]

The special silence, the dog not barking about supposed exoneration is the University of Virginia. Not once has UVA argued that it looked into Mann’s activities occurring on UVA’s watch. In fact, the University apparently was deliberate in its failure to conduct an inquiry. We have been reliably informed that UVA’s Board of Visitors suggested the administration get to the bottom of what transpired on Grounds, only to be rebuffed. The argument they received, we were told, is that the school could not guarantee that the findings would not be made public and as such it could not risk an investigation.

We also wished to depose the University on this matter but were denied the opportunity to confirm this. At our most recent hearing, the University stood and, oddly, denied any claim that the board stopped the administration from inquiring. No one has alleged this.

Regardless, as Mann now seeks to again use the courts to push this claim, the reality is plainly otherwise. Mann has never been credibly investigated. By definition he has therefore not been exonerated. In fact, he and his allies furiously oppose all possible independent inquiries — scrutiny of public, yet still-hidden records providing what they all swear is the missing context that would explain everything away as a big misinterpretation. Only release of UVa and other Climategate-related emails has the potential to actually exonerate the Hockey Team.

Read whatever you wish into their fiercely opposing release of precisely that which supposedly would clear their names. With this latest lawsuit, they may find they have no choice.

Christopher Horner is author of The Liberal War on Transparency: Confessions of a Freedom of Information “Criminal” (Threshold, October 2012).

From: <chornerlaw@aol.com>

To: <awatts@itworks.com>

Subject: Anthony, per this counsel from Steve, would you please update the Mann/investigated post?

Date: Thursday, October 25, 2012 10:12 AM

My thoughts for a response were below, but I am going to go with his “update or ignore”.

Would you mind updating, and it’s obviously fine to note this was updated to resolve a correct statement being read ambiguously, re-characterizing it so as to dismiss the analysis, or something? thx cch

—–Original Message—–

From: Steve McIntyre <smcintyre25@yahoo.ca>

To: chornerlaw <chornerlaw@aol.com>

Sent: Thu, Oct 25, 2012 1:01 pm

Subject: RE: I’ve got a speech I’ve only sketched out, for which I leave in hour and a half…can you look at/comment on this reply?

I’d be inclined to make a slight update to your post, but otherwise not engage. Perhaps something like this:

The National Science Foundation purported to inquire, as well, but worked almost entirely from what PSU provided it. [Update Oct 25, with thanks to Brian Angliss for inviting this elaboration: It equally failed to conduct a credibly rigorous examination of the evidence and/or key relevant factors. For example, the NSF OIG totally disregarded the findings of the NOAA OIG that Eugene Wahl had destroyed documents immediately upon receiving Mann’s email; Penn State apparently, and incredibly, never asked. Nor did NSF examine or report on whether, despite a conflict of interest, William Easterling had interfered with the Inquiry Committee even after supposedly “recusing” himself, interference which I understand stopped the Inquiry Committee from carrying out its obligation to interview critics, including Stephen McIntyre. Nor did the NSF OIG report directly address any of the contentious issues.]   So much for that.

From: chornerlaw@aol.com [mailto:chornerlaw@aol.com]

Sent: October-25-12 12:26 PM

To: smcintyre25@yahoo.ca

Subject: I’ve got a speech I’ve only sketched out, for which I leave in hour and a half…can you look at/comment on this reply?

And add to/improve as you see appropriate, thx:

A Brian Angliss at ScholarsandRogues takes umbrage at my guest post on WUWT detailing the spectacularly overblown nature of claims that Michael Mann has been exonerated, which requires being properly investigated. Specifically, he objects to this statement:

The National Science Foundation purported to inquire, as well, but worked from what PSU provided it. So much for that.

This statement is true, as the NSF document we both reference notes. I suppose NSF “purporting to inquire” is opinion, dependent upon one’s assessment of the effort’s scope and rigor. That they worked from what PSU provided them is disputed by no one. Angliss says “This is demonstrably false”.

To support this Angliss restates what I wrote, by implication, to charge at a strawman and declare it false: I apparently deny “that the OIG’s investigation went beyond the information provided to the OIG by Penn State.” I do not and did not deny it, but linked to the document saying as much.

For example, information I possess indicates that PSU panelists were instructed from behind the scenes to not interview Steve McIntyre, who was in fact interviewed by NSF (although neither report draws attention to its respective ignorance of or consultation McIntyre).

Angliss slays this allegation never made with aplomb. Allow me to rephrase for him and see which turn his umbrage takes: NSF began with (“worked from”) what PSU provided them. It was facially deficient, as Clive Crook among others noted to devastating effect. For example, on its face it was incredible that PSU did not interview McIntyre. Which NSF apparently agreed. They should have written about that interview. It would help support concerns about its rigorousness.

Regardless, mischaracterizing what I wrote to then say that mischaracterization is knowingly false or spreading false rumors is advocacy, not analysis. In fact, in his effort Angliss becomes what he deplores.

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tckev

Get the beer and popcorn ready, this one is going to be an interesting one to watch.

Nerd

The Popcorn Song

Rich Lambert

Dr. Mann will soon loath discovery requests and depositions.

Juan Slayton

PSU’s proclaimed instigative tribunal….
Hmm. : > )

Is there a defense fund?

JC

“The gist of his claim that negative characterizations of him and his activities are actionable is that he has been “exonerated”.”
No. His claim has nothing to do with any “exoneration”. If someone calls him a paedophile, they are libelling him. End of.

Nick

Tell me,Chris,what’s not defamatory and injurious about Simberg’s and Steyn’s words?
Tell me how publishing “Mann could be described as the Jerry Sandusky of climate science” is not intended to defame?
Tell me how the fact that Mann has “not been fully investigated” relevant to the findings of investigations that have exonerated him? Mann is not claiming to have been exonerated by hypothetical investigations that have not been made,has he?
How is your personal opinion of the credibility of any investigations that did directly or indirectly concern Mann relevant in court to the matters in the complaint?

@JC
No. His claim has nothing to do with any “exoneration”. If someone calls him a paedophile, they are libelling him. End of.
If purposely pedaling pompous propaganda to adults and children alike is not pedophilia, what is?
If it is, how is the Mann different from Big Bird?

RockyRoad

Nick says:
October 23, 2012 at 9:05 pm

Tell me how publishing “Mann could be described as the Jerry Sandusky of climate science” is not intended to defame?

Easy. You first have to show Mann’s reputation rises above that of Jerry Sandusky. (Jerry’s name will forever give a negative impression, as will Mann’s–and Mann may wish his reputation RISES to that of Jerry’s when his global impact is calculated.)
Same with your other points, Nick.

Clive Cook’s claim the “Penn States contortions are….difficult to parody” has been refutted. Please visit the Canada Free Press archives, or my website for….
“Hockey Stickery Doc”….and….”Penn Panel Limbos Under the Hockey Stick”
A refreshing look at of those whitewash players and events….and not surprising….
the post-Sandusky Penn has fewer contortions.

William McClenney

Shades of Piltdown Mann

temp

JC says:
October 23, 2012 at 8:41 pm
No. His claim has nothing to do with any “exoneration”. If someone calls him a paedophile, they are libelling him. End of.
Nick says:
October 23, 2012 at 9:05 pm
Tell me how publishing “Mann could be described as the Jerry Sandusky of climate science” is not intended to defame?
To JC and Nick. In the US speaking the truth can never be considered libel, defamatory or injurious.
Since Mann went PSU and was investgated just as sandusty was(and cleared) its going to be a pretty huge huddle for them too show libel or anything else. They will have to pretty much prove that global warming is real in court. Then prove that Mann’s research is legit. Its pretty much impossible for them to do either in any reasonable court. The fact that Mann’s work has already had a great amount of doubt case on it through a number of sources. On top of that should the lawyers get really indepth with the PSU review this could in fact cause huge problems at PSU. If its shown that not only to PSU cover up for sandusty but used similar processes when dealing with Mann and pattern of misconduct. This pattern of misconduct would effect not only Mann and PSU but people suing over sandusty and possibly many other cases.
This trial may well bring PSU to court in a host of ways possibly even taking the college down. Cases like this can have such a wide effect and depending on how the lawyers in this case work with others such as the people suing sandusty you may well see the end of PSU.

Dr Burns

Wonderful Christopher. Great to see people standing up for integrity.

Mike McMillan

JC says: October 23, 2012 at 8:41 pm
“The gist of his claim that negative characterizations of him and his activities are actionable is that he has been “exonerated”.”
No. His claim has nothing to do with any “exoneration”. If someone calls him a paedophile, they are libelling him. End of.

No, As I recall, he was compared to fellow Penn Stater Jerry Sandusky, I’m sure Dr Mann compares favorably to Jerry Sandusky, so no case.

Doug Proctor

Mann may be safe yet. If a very narrow view is taken of his dispute, you may not be able to bring up anything other than he created something with which you/we disagree. The NIWA vs Coalition in New Zealand should be reviewed carefully. That case strikes me as proving that the court does not need to address the essence of the case but only the narrowest of points.
If Mann is to be guilty of fraud, misrepresentation or other types of malfeance wrt the Hockey Stick, I suggest he has to be found to have:
1. used an inadequate data selection, culling and modification technique that is,
2. generally recognized as not just preferred but required,
3. known about this technique and been able to use it,
4. chose not to use it because
5. he knew that the results of using it would give a result different from and antagonistic to
6. a conclusion he decided should be obtained because
7. that conclusion would support an agenda that
8. he had irrespective of the results of the temperature profile now known as the Hockey Stick.
The only point at which misrepresentation or its worse variety becomes real is one at which Mann, with knowledge aforethought brings forth a profile to support a conclusion that he knows is not tenable. As long as he had a reasonable, even if subjective, choice in techniques, even with a concurrent agenda or other set of beliefs wrt CAGW, then he had the legitimate, scientific right to conduct his analysis the way he did. This does not make the Hockety Stick “correct”, but, without an understanding that he acted contrary to what he knew to be a “better” way, Mann would be guilty of only a bad scientific process, not criminality.
The Hockey Stick was accepted by the IPCC which was, at the time at least, considered to be a highly reputable organization. What he created was not only accepted by the IPCC but by many other leading scientists as well, Phil Jones included. I cannot see any way that he could be said to be a rogue scientist; again, guilty of bad scientific technique, or even having an ego that refuses to recognize that his work has been “superceded” by the work of others, but not of illegitimately or fraudulently perverting data for conscious, private gain.
A fiercely held opinion of a subjectively determined, small-scale study of a large-scale phenomenon is not illegal nor reprehensible – and certainly not unprecedented (or even abnormal). The Climategate e-mails suggest Mann is, at least within e-mail trains, not one tolerant of others or prone to generosity of spirit. Neither are our Prime Ministers and Presidents, however. But to say that someone is a “bad” guy, in that you dislike his behavioural characteristics, is not the same as saying he did a bad thing, and certainly not that he was aware of doing a bad thing before he did it.
The example of Oscar Wilde has been raised, in that OW brought about his own destruction by bringing his detractors to court. The difference is that OW was “guilty” of what he was accused of, and it was easy to prove. What Mann is being accused of was conscious trickery; unless you already have e-mails in which he says, like some mafia wiseguy, that he bumped off the data on purpose to push an anti-carbon philosophy to net him money, fame or girlfriends, you may have trouble making that clear.
Everyone who ever listened to his mother gives the benefit of the doubt to the powerholders if the choice is avaliable. Only a self-destructive contrarian would do otherwise. All Mann has to do is show that, if options were available, he went with the one that the “consensus” would have supported.
Showing that Mann is “lame” is going to be easier than to show that he is accountable for a wrong against the State.

JohnC

Doug,
While it may be difficult to prove the Dr Mann is a fraud, this is not what the lawsuit is about. Dr. Mann is the plaintiff, it is his burden to prove that he has been (with malice, as he is a public figure) defamed and suffered damage. If he cannot show that the defendants knew his research was correct, or that the various investigations were thorough and did exonerate him, he should not prevail at trial.
As for JC, may I suggest a remedial course in reading for comprehension? The analogy as originally drawn was that Penn State’s investigation of Mann was like their investigation of Sandusky. Since the same guy ran both, this was an obvious comparison. Mr Steyn’s column declines to put the investigations in the same strata of malfeasance (one coverup is of a much, much, much worse offence) but argues that if you are willing to cover for a pedophile to “protect” the institution, you’re probably willing to ignore a few deleted emails.

Bart

JC says:
October 23, 2012 at 8:41 pm
“If someone calls him a paedophile, they are libelling him. End of.”
But, nobody did that. The exact quote described Mann as “the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science. Where do you read in that any accusation whatsoever that Mann is a pedophile?
Nick says:
October 23, 2012 at 9:05 pm
“Mann is not claiming to have been exonerated by hypothetical investigations that have not been made,has he?”
Actually, yes, that is precisely what he is doing. Now, maybe you understand our being nonplussed at such a brazen display of chutzpah.

JamesS

Mark Steyn never compared Mann to Sandusky; he quoted another writer, Rand Simberg, who did. I’m pretty sure one can’t be convicted of libel for quoting someone else.
Regarding the New Zealand case, US law does not consider foreign cases to be precedent.

Bart

Doug Proctor says:
October 23, 2012 at 10:00 pm
“If Mann is to be guilty of fraud, misrepresentation or other types of malfeance wrt the Hockey Stick…”
That is not the question in this court case. The question is quite simply whether people can be allowed to express their disagreement with Dr. Mann in print, even in terms which some may consider strident. The Constitution of the United States of America is very clear on the matter: yes, they can.

AleaJactaEst

As they say in Yorkshire – He’s buggered.

JohnC

Note: this may be a duplicate post, My last went away when I hit Post Comment.
Doug,
While proving that Dr. Mann is a fraud might be difficult, it is not required. As the plaintiff, Dr. Mann must prove that (with malice as he is a public figure) the defendants knew that his research was correct and correctly presented, and that they knew the investigations were thorough and exonerated him. Failing that, his suit should fail. (As most here will admit, the defendants have good reason to believe that the hockey stick is not an accurate representation of either the temperature record or the proxy data ensemble Mann abused in deriving it. Also, of the various investigations, none appear to have been thorough and few considered Dr. Mann as a principle. (Perhaps just the one?)
Perhaps JC should take a remedial course in reading for comprehension. No one in these articles accuses Dr. Mann of a sex crime. The original Sandusky/Mann analogy is an obvious one, given that the same guy ran both Penn State investigations. Mr Steyn declined to put the two in the same strata of malfeasance. (Sandusky was accused of something much.much, much worse.) He argues that one who is willing to cover for a pedophile to “protect” the institution is likely willing to ignore a few deleted emails.

Doug Proctor says:
October 23, 2012 at 10:00 pm
Mann may be safe yet. If a very narrow view is taken of his dispute, you may not be able to bring up anything other than he created something with which you/we disagree.

I think you’re right that that could happen. But Mann is running a big risk in betting that it will.

Australis

Doug,
You say it will be necessary for Chris Horner et al to prove that Mann used his unprecedented and untested techniques for the purpose of producing controversial conclusions (eg elimination of MWP). That shouldn’t be too difficult.
But then you contend the necessity to also prove that Mann had an agenda “irrespective” of his Hockey Stick results. Why must that be a component of the defence?

Joseph W.

What’s interesting about the complaint is that the only facts it alleges to establish “actual malice” are these supposed exonerations, mostly from government bodies. Yet the articles attached to the complaint show that the authors of these articles don’t agree with those “exonerations,” and said why, with links…
So Mann’s position is – you have to believe the government. If you disbelieve them, and believe other people instead, why, then, you’re not telling the truth or you don’t care about the truth.
A sad place indeed for an American liberal to be.

Nick

That’s pretty arch,Bart.
Mann has been exonerated of wrongdoings by properly constituted investigations that handed down formal findings. Whether you,I or Chris Horner thinks they were inadequate,insufficient,failed to carry out all the requirements of an investigation, or are wrong or right is irrelevant. The inquiries had status and did not find fraud or misconduct.
The ‘hypothetical investigation’ is part of Chris Horner’s posturing here. Mann can’t be found in breach of Horner’s wishful thinking.
The weight that Mann’s claim of exoneration has for his on the defamation complaint cannot be rejected. A defamation court is not going to instigate the ‘inquiry that shoulda/woulda/coulda been made’ into Mann in order to test or dismiss his right to rely on those investigations already done.
I fail to see the claimed parallel in the claim that Sandusky and Mann were investigated by PSU, and that that is the simple intention of Simberg’s construct.
Sandusky was not formally investigated by a PSU commitee. Mann was.
Sandusky was investigated by the state and found guilty. Mann was neither.
So much for a parallel beyond it involves PSU.
Rhetorically equating Mann’s supposed handling of data with Sandusky’s ajudged handling of children is clearly intended to defame,as it has no other ‘practical’ purpose I can see. It cannot be found to be ‘truth speaking’.

Kev-in-Uk

Bart says:
October 23, 2012 at 10:36 pm
Exactly – the actual words do not indicate Mann as a paedophile. The only thing I see as ‘the case’ is the part of the statement
‘he has molested and tortured data in the service of politicized science’ – which, let’s face it, is essentially fact (he has heavily manipulated and worked data, has he not?) and the only negative aspect is the actual word use.
If Mann wants to argue this phrase he will have to show he hasn’t molested and tortured data which would equate to having to demonstrate as such via full disclosure?

Don

temp says:
October 23, 2012 at 9:43 pm
“In the US speaking the truth can never be considered libel, defamatory or injurious…..They will have to pretty much prove that global warming is real in court.”
If truth is the issue, it isn’t going to be quite that easy to make Mann prove in court the truth of his Hockey Schtick. Unless the law in the applicable jurisdiciton is different, truth is a matter of DEFENSE in a defamation case,
A greater difficulty for Mann is that he is probably a “public figure” and it is much harder for public figures to bring successful defamation actions.
Also, the court may or may not allow the full scope of discovery that the defendants may want. Since Mann has apparently been resistant to discovery in the past, this is likely to be another battle in this case.
Time will tell which side had the most misjudgment — Mann for bringing suit and potentially opening up discovery — or the defendants for provocative statements stimulating an action that might not turn out quite as well as they want. Which is why I asked before if there is going to be a defense fund. This could get expensive and the defendants may need some help.

There’s an old military adage that the job of the army is to find, pin down and destroy the enemy. Mann seems adept at launching these suits and quietly abandoning them after they’ve got him the requisite headlines. Perhaps on this occasion, he could be pinned down by launching a counter suit, which won’t be abandoned
Pointman

temp

Nick says:
October 23, 2012 at 11:33 pm
“The inquiries had status and did not find fraud or misconduct.”
Really? Exactly what court/legal body confered this status? I know of none. You seem to confuse “reputation” with “legal status”.
These inquiries and so forth my have status at say PSU or at CRU but none in the legal system. The “reputation” they have is very bad. Sandusty will atest to the fact that it was easy to have these inquiries cover for him. The courts decided differently however.
If what you say mattered then sandusty would be a free man right now becaue he was “exonerated” by these very same inquiries.
“Sandusky was not formally investigated by a PSU commitee.”
Really could have swore the guy that led Mann’s investigation was also the same that led the sandusty investigation. I guess this is probably more a definintion problem with the word “formal” however.
“Sandusky was investigated by the state and found guilty. Mann was neither.”
Sandusty was free until he went to court… Mann is free… until he goes to court.
Don says:
October 23, 2012 at 11:37 pm
“A greater difficulty for Mann is that he is probably a “public figure” and it is much harder for public figures to bring successful defamation actions. ”
That really is the crazy part… realistically no sane lawyer would go near this case because the chance of it being labeled wrongful lawsuit is pretty high. NRO is going to have to carefully craft the way they respond to have any chance of getting discovery without this getting thrown out before it even starts.

Bart

Nick says:
October 23, 2012 at 11:33 pm
It’s very simple. Mann is claiming the hockey stick has been exonerated by investigations which did not examine its validity.
Even were that not the case, there would be no weight to Mann’s claim of exoneration if it could be shown that other studies reasonably contradict the claim, and that the defendants had cause to believe them. A public figure alleging libel in the US must surpass an almost impossibly high standard in order to prevail in a lawsuit due to the 1964 Supreme Court decision in New York Times vs. Sullivan.

The actual malice standard requires that the plaintiff in a defamation or libel case prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity. Because of the extremely high burden of proof on the plaintiff, and the difficulty in proving essentially what is inside a person’s head, such cases—when they involve public figures—rarely prevail.

“Rhetorically equating Mann’s supposed handling of data with Sandusky’s ajudged handling of children is clearly intended to defame,as it has no other ‘practical’ purpose I can see.”
Au contraire. It highlights the fact that PSU has a history of whitewashing investigations in even the most egregious cases of misconduct by its faculty. If the PSU officials would cover for Sandusky, why would anyone expect them to pause, or experience even the least pang of guilt or regret, in letting Michael Mann skate free without so much as even a minor slap on the wrist? It completely deflates any claim that PSU’s “exoneration” of him has any weight or validity at all.

Bart

Kev-in-Uk says:
October 23, 2012 at 11:37 pm
“If Mann wants to argue this phrase he will have to show he hasn’t molested and tortured data which would equate to having to demonstrate as such via full disclosure?”
According to US case law as I understand it (caveat: I am not an attorney, and the US Court system, like any other human creation, is not perfect), yes. But, he has to go even further than that, and show actual malicious disregard for the truth as I described above. I don’t personally know of any case in which a public figure has prevailed in such an action since the Sullivan precedent was established.
I don’t see any way Mann can ultimately prevail on the merits. I think he is hoping to pressure the defendants into an out-of-court settlement, which he can then use to claim additiional faux “exoneration”. The fellow does not lack what we here in the states colloquially refer to as “balls”, you have to give him that. I do hope NRO’s and CEI’s backers have staying power, and do not attempt to force a settlement.

JohnC

Nick,
I think you fail to understand the legal issue here. Dr. Mann is suing, he must prove that 1) the defendants knowingly purveyed un-truths, and 2) he has been harmed (in a financially compensable way) by said malicious acts. Since both his iconic graph and the “investigations” have been demonstrated to have, at best, severe flaws the first condition fails. Even if you accept his claims of good science and exoneration as true, you cannot show that the defendants did, so the first condition fails again. As for the second, aside from hurt feelings, what material harm has been done the Mann? Those who are inclined to support the good Dr. still do, those who despised him despise him not one whit more.
Regarding the parallels between Sandusky and Mann:
Sandusky is investigated by PSU police (reporting to the PSU president) and they find nothing.
Mann is investigated by PSU faculty (reporting to the PSU president) and they find nothing.
In the latter case, we know that PSU violated its own procedures, ignored the main issues, and did not interview knowledgeable persons. In the former, later reports alleged that the PSU police investigation went nowhere because they failed to interview potentially knowledgeable persons.
The fact that one investigation was by the PSU police and one was by the PSU faculty is because the allegations were different. The similarity is in the result and the appearance of a whitewash.
Don,
Mann would need to prove his Hockey Stick is correct because otherwise he cannot prove willful disregard and malice on the part of the defendants. If the stick is not proven true, then the defendants’ opinions are protected speech.
(Even if the stick is true, if the defendants are sincerely mistaken, their opinions are protected.)

Nick

Again, Bart, PSU did not investigate Sandusky formally with a constituted inquiry. They did with Mann. So a parallel is not apparent. And a ‘history of whitewashing’ is not established by your opining on one official inquiry.
Mann is not defending the hockey stick. He is not the defendant. He’s sueing for defamation and damage to his reputation.
To temp: who what conferred status on the Mann inquiry? The universities constitution. On the CRU inquiries? British law. And again,show me the PSU official inquiry into Sandusky, Show me where they announced it,who sat on it and the findings. It must be published somewhere. Sandusky went before a jury in the court system.

Bart

Nick says:
October 24, 2012 at 1:53 am
Whether you agree with the Sandusky parallel or not is immaterial. That is the connection the writers were making, and thus there was no malicious disregard for the truth. You may not like it, but your disapproval does not make it legally actionable.
“Mann is not defending the hockey stick.”
Your assertion was that the purported exonerations would add weight to his case. I explained that they would not. We take Freedom of Speech and Freedom of the Press very seriously in the US. They are the fundamental underpinnings of the free society which we cherish.

jeanparisot

Will this be the first time the Climategate emails get submitted in an American court as evidence, with their provenance and validity established?

richardscourtney

Nick:
At October 24, 2012 at 1:53 am you say

Mann is not defending the hockey stick. He is not the defendant. He’s sueing for defamation and damage to his reputation.

OK. But that would require evidence that Steyn’s article did – or was intended to – “damage to his reputation”.
The assertion that Steyn suggested Mann is a pedophile is a straw man: no such suggestion was made and, therefore, it is not relevant. Steyn said the same organisation (i.e. PSU) exonerated a pedophile (i.e Sandusky) as Mann, and that true statement indicates the validity of PSU’s exoneration of Mann. That seems an eminently reasonable opinion concerning the validity of Mann’s exoneration by PSU.
And Steyn said, “Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph …”. The issue is scientific fraud and not financial fraud. And the graph is “fraudulent” in that it uses “Mike’s Nature trick” to “hide the decline”: this is demonstrable from the ‘climategate’ emails. The fact that others (e.g. IPCC) may have been taken-in by the fraud is not relevant to the fact of the fraud.
So, please explain how it is possible to damage Mann’s reputation when it is simple to demonstrate in a Court or anywhere else
1.
The climategate emails show he is despised by his colleagues.
2.
His major work has been disproved as being valid science by the Wegman and North investigations .
3.
WUWT and other blogs demonstrate that people who know of his work either
(a) despise him and revile his work
or
(b) support him as their cult leader and support his work regardless of all comment and/or evidence.
Richard

cedarhill

Nick @ October 23, 2012 at 9:05 pm
Ah, gee.
Others have provided the complete statement. Courts use those instead of snippets. Legal stuff, you know. Couple of points:
(1) The statement, in context, t seems to be fair comment however unartfully stated. For example, the same statement could be said about the MSM and and Obama by changing “science” to “his Presidential campaign explanation with Candy at the debate.”
(2) Steyn, if I recall, pointed out something along how the language is used in sentences – something along the lines of allegory, metaphore, etc. I’d bet the farm that Steyn knows a great deal about using the King’s English. Even the Greeks. Read Plato sometime. Or even earlier, in the Bible. For example, it may be actionable to say “You’re a blathering jackass” but it is not actionable to say “I believe he’s behaving just like a jackass in his stubborness.”
Regardless, here we have Mann filing suit in the US alledging all sorts of things while, at the same time in Canada, he’s about to be sanctioned for not producing documents which will surely be sought in the US case. As a reminder, either party can cave in at any time if they’re willing to accept the consequences.
Oh, and it’s highly likely they’ll seek a gag order and might get it. That would be a smart more especially since the folks sued are media and special interest groups that have been in pursuit of the data from Mann for years.
If Mann loses, it’ll only be a few drops from the river of money flowing into the climate industry. It’s a win-win-win for them.

Nick, I think you should read the Penn state investigation again. Three of the four allegations were dismissed out of hand for “lack of creditable evidence”– therefore, not investigated. Think about that for a minute: the committee didn’t search for evidence because they felt there was no evidence to justify the search. That’s like someone reporting a robbery to the police and having them decline to come out because they didn’t have any evidence of a crime.
The committee then moved to the fourth allegation, which they then dismissed because Mann was such an upstanding figure in the science community, and therefore could not have done such a thing:

This level of success in proposing research, and obtaining funding to conduct it, clearly places Dr. Mann among the most respected scientists in his field. Such success would not have been possible had he not met or exceeded the highest standards of his profession for proposing research…
Had Dr. Mann’s conduct of his research been outside the range of accepted practices, it would have been impossible for him to receive so many awards and recognitions, which typically involve intense scrutiny from scientists who may or may not agree with his scientific conclusions…
Clearly, Dr. Mann’s reporting of his research has been successful and judged to be outstanding by his peers. This would have been impossible had his activities in reporting his work been outside of accepted practices in his field.

If one can hold back the laughter from reading about the “intense scrutiny” of Mann’s work by “scientists who may or may not agree with his scientific conclusions” as regards his publications, one might note that Penn State is saying “this is an upstanding guy and therefore could not have done the things he’s accused of.” This is an investigation in name only. When three of four charges aren’t investigated at all, and the fourth is handwaved away in this fashion, how can one possibly claim otherwise?

Slabadang

Funny tactics!
So Mann i trying to borrow trustworthiness from a corrupt investigation that didnt include him?
Well thats creative isnt it?

John A

Nick,
It’s difficult to believe that the PSU inquiry was credible just because it existed. It refused to ask whether a crime had been committed. is that as bad as not investigating at all or worse?
As far as the CEI is concerned, with Mann claiming defamation, CEI’s legal team has carte blanche to examine all of Mann’s scientific output for evidence of fakery.
The nearest legal parallel would be David Irving v Penguin Books and Deborah Lipstadt, where Irving tried to silence his opponents on the description of him as someone who twists the history of the Third Reich in the face of enormous evidence. That allowed the defence two courses: to defend them as fair comment or to seek to defame the appellant by close examination of all of Irving’s works showing that his “mistakes” were all in one direction and that he was indeed a Holocaust denier. in the judges learned opinion Irving was found to be also “a racist, an anti-Semite and a pro-Nazi polemicist”.
In the case of Mann, the fact that he has tried so hard to hide what he was doing at the UVa means that he fears disclosure of the contents, and not his academic freedom at PSU. Unfortunately for Mann, we have clear evidence that Mann knew that some of his results were scientifically indefensible.

pokerguy

I suspect that when Mann realizes the extent of his vulnerability, he’ll withdraw the suit. At that point I wonder if CEI can turn around and bring action against him. Now that would be a thing to behold. The Greeks understood the tragedy of hubris. Time for Mr. Mann to pay up.

pokerguy

@JC
“No. His claim has nothing to do with any “exoneration”. If someone calls him a paedophile, they are libelling him. End of.”
This is a misreading of what was written. They explicity wrote that he “molests data’ rather than children. Take a remedial reading course.

philjourdan

Actually, while we laugh at and ridicule Mann for his latest escapades, we should be applauding him for his latest efforts. His suit against Ball will not accomplish what his suit against NRO will due to simple economics. Ball does not have the money to force full disclosure from Mann, but NRO does. Full disclosure is exactly what Mann has been trying so hard to avoid, yet with his suit, he has ensured that is exactly what is going to happen should it make it to court (I suspect it will be dropped long before then as the discovery motions commence).
What no one could accomplish (the Climategate leaker came close) with numerous FOIA requests, Mann will have to provide for the world to see.

Nick

Richard Courtney, I agree that a comment ‘Steyn [and Simberg] suggested that Mann is a paedophile’ is a strawman. I didn’t make such a comment. No need to mention it to me.
Again, I say that putting the name of the exonerated Mann into a sentence with convicted paedophile Sandusky,whose case revealed his years of manipulative evil, is simply designed to be derogatory association exploiting the slender commonality of the two men having worked at PSU….and a chance to suggest that both men are ‘molesters’,one metaphorically ,the other literally.
PSU did not ‘exonerate’ Sandusky, officially or unofficially. Some PSU officials took negligently minimal action on hearing of allegations,but did not exonerate him because they had no power to. So where is the parallel with Mann? Again,Mann took part in an officially constituted PSU inquiry,with process and public findings. So what is the parallel with Sandusky? It’s not difficult: there is none. No informative reason to associate the two names. Instead, an opportunity to smear by association. It may end up free speech,but it’s certainly not its finest hour.
Your quote of Steyn shows that Steyn doesn’t even know the real context of ‘Mike’s Nature trick’.
‘Climategate emails show Mann is despised by his colleagues’…so therefore he can be defamed in good conscience? Really,do the emails show that? ‘His colleagues’? All of them? Some?…and what has this to do with the case?
Manns ‘major work’ [your opinion] has been ‘disproved as valid science’ [your opinion] by Wegman? Wegman has had a few misfortunes of his own,I believe. But again,what has this to do with the specifics of this defamation case? Is this court really going to revisit the results of a partisan ‘investigation’ years old. Whatever Wegman’s findings and whatever their credibility they do not of themselves give license to defame. Meanwhile North gave Mann’s paper qualified support. Not a ringing endorsement,but in no way a disproof. So your view is…. colorful.
Your third point? So he’s a polarising figure to a small number of people who have nothing to do with this case. What is your point?

MarkW

JC says:
October 23, 2012 at 8:41 pm
No. His claim has nothing to do with any “exoneration”. If someone calls him a paedophile, they are libelling him. End of.

Interesting the lengths of deception those who engage in warming propaganda are willing to do. Nobody called Mann a paedophile.

MarkW

Nick says:
October 23, 2012 at 9:05 pm
Tell me how the fact that Mann has “not been fully investigated” relevant to the findings of investigations that have exonerated him?
—-
Some statements are so far beyond stupid, they defy the imagination.

HankHenry

He who goes to the law has a wolf by the tail.

MarkW

If I understand Nick’s position correctly, he is claiming that since there was formal inquiry by Penn State in the Mann case, no matter how bad or poorly run that investigation was, the results of that investigation must stand and may not be questioned.

MarkW

“This level of success in proposing research, and obtaining funding to conduct it, clearly places Dr. Mann among the most respected scientists in his field.”
Bernie Maddoff was likewise, highly respected in his field. Right up till the time he was busted for running a Ponzie scheme.
(How long till Mann’s defenders accuse me of declaring that Mann is running a Ponzi scheme?)

[sorry, that’s one article I won’t link to – Anthony]