Last week there was lots of jubilation in the Mann-world PR headquarters because a judge had ruled that his defamation lawsuit could proceed. Except, there’s this inconvenient glitch. It seems that the judge got the actions of the two defendants mixed up in the ruling, kinda like that upside down Tiljander proxy thing.
From Andrew Lawtons “Landmark Report“:
Dazed and Confused: Steyn files motion for reconsideration on Mann lawsuit based on Clinton judge’s error in fact
Below are the public court documents submitted by Mark Steyn’s attorney moving for reconsideration by Clinton-appointed D.C. Judge Natalia M. Combs Greene as a result of her decision to allow the lawsuit by climate scientist Michael Mann against Mark Steyn and National Review to proceed.
Interestingly, it appears that Judge Combs Greene has mixed-up the defendants in the court’s ruling, attributing actions taken by the Consumer Enterprise Institution [sic] to Mark Steyn and National Review.
Mann v. National Review – Reconsideration Motion (fr0m Scribd)
Defendants National Review, Inc. (“National Review”) and Mark Steyn respectfully request that the Court reconsider its July 19, 2013 Order denying their prior motions to dismiss(the “Order”). A proposed order is attached.First, and as set forth in the accompanying Memorandum of Points and Authorities, theOrder appears to be based in part on material mistakes of fact. Specifically, the Order conflates the conduct of co-defendant Competitive Enterprise Institute (“CEI”) with that of National Review and Steyn, who never petitioned the Environmental Protection Agency to investigate Plaintiff or otherwise pressured the agency concerning Plaintiff’s research. Similarly, National Review and Steyndid not criticize Plaintiff’s scientific research for years, as CEI did. Nevertheless, the Order relies on these points to bolster its conclusion that National Review’s brief criticism of Plaintiff’s research was defamatory speech, not protected rhetorical hyperbole. See Order, at 17. (“On the other hand, when one takes into account all of the statements and accusations made over the years, the constant requests for investigations of Plaintiff’s work, the alleged defamatory statements appear less akin to ‘rhetorical hyperbole’ and more as factual assertions.”). In addition, the Order relies on these erroneous facts in concluding Plaintiff met his burden under the Anti-SLAPP Act of demonstrating that National Review published the statements at issue with actual malice. Indeed, the Order asserts that several investigations of Plaintiff’s work were prompted by allegations leveled by National Review and Steyn. See Order, at 21 (“It follows that if anyone should be aware of the accuracy (or findings that the work of Plaintiff is sound), it would be the NR Defendants.”). Yet there are no facts –in the record or otherwise –that suggest National Review and Steyn ever called for or prompted any investigation of Plaintiff’s research. Consequently, the Order should be reconsidered in light of the apparent confusion of facts pertaining to each set of Defendants.
Given that sort of quality judicial work, I suppose it is no surprise that Judge Natalia M. Combs Greene is rated in the bottom ten judges of the Washington D.C. area by the Robing Report.
The comments left about her professionalism are quite something.
No discussion of judicial failings is complete without reference to at least one Gilbert & Sullivan song (“The Judge’s Song, from Trial by Jury):
<a href="[youtube http://www.youtube.com/watch?v=rzFf1kpio_E?feature=player_detailpage&w=640&h=360%5D“
Hmm, it looks like I botched the Youtube player link. …
Theo Goodwin says: July 30, 2013 at 11:50 am
“So, what is the argument, Nick? Are you saying that if CEI had not published its criticisms of Mann that statements by Steyn and Lowry would not be interpreted as factual claims?”
I’m not saying it. The judge is (with more context than just the criticisms). But it’s not quite like that. NRO and Steyn said things that do sound fairly libellous. The judge is dealing with a defence that they are just rhetoric, and no-one would expect they are literally meant. She prefaces her statements quoted in this thread by:
“In determining whether the statement is an opinion, the context of the statement should be considered.”
johanna says: July 30, 2013 at 5:07 am
“Nick, the judge claimed that Steyn and his publishers did things that they did not do as a basis for her decision to let the trial go ahead.”
You keep saying that. But where is that claim? Could you quote?
@Theo Goodwin
“Are you saying that if CEI had not published its criticisms of Mann that statements by Steyn and Lowry would not be interpreted as factual claims? You do realize that the argument is ridiculous?”
Steyn did make a factual claim, he accused Mann of fraud. That is a falsifiable fact. The judge was actually looking at if it could be considered rhetorical hyperbole within the context of the climate change debate. I think many of the commenters here are too critical of the judge if you read the dismissal she actually talks about how this type of harsh language is common in the climate change debate and considers if it could be rhetorical hyperbole.
Also this isn’t a judgement she is just saying that there is enough doubt that it need to be decided in a court case.
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I think that often the “fine print” in legal and financial documents isn’t in the small print but the “big words” and twisted verbiage that are peculiar to those professions. Science can seem the same to us layman.
One great thing about WUWT is that there is usually someone willing to put the discussion in “plain English” for people like me.
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When a judge rules based on party politics (left or right) rather than the Constitution (Dang! I’m back on the “the list” again.) and the law, then who appointed them is relevant.
Gail Combs says:
July 30, 2013 at 7:38 am
…..and our rights to a fair trial BY JURY has been compromised by the US Supreme Court.
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Maybe I’m mistaken but doesn’t “trial by jury” mean a jury of their peers?
I wonder what the state of health care and health care cost would be in the US if malpractice suits allowed MDs on the jury?
Nick,
What is it you are having so much difficulty understanding about the simple incontrovertible fact that there were TWO motions to dismiss?
The judge took her “arguments” pertaining to the motion from ONE defendant (to which they may or may not have been relevant) and applied them to her decision on the motion from a SECOND defendant (to which they were definitely NOT relevant)
Bottom line: There is no … wait for it, Nick … EVIDENCE …that the SECOND defendants had uttered that which she had WRONGLY attributed to them. And (unlike “climate science”) application of the law is supposed to be based on EVIDENCE.
I fully appreciate that Mann’s decision to sue two separate and distinct entities simultaneously as part of the same lawsuit
mightwould besomewhatvery confusing to you. If I have learned nothing else in the last three years, I have definitely learned that it takes very little to confuse Nick Stokes (or for him to confuse himself, for that matter)!But just because Mann has confused you, does not mean that your wild unfounded floundering guesses – and stretches of your over-active imagination (not to mention common meanings of the English language) have any bearing on reality.
So, for Gaia’s sake, Nick … if you are not open to listening to reason, why don’t you start doing your own homework, instead of playing this silly – and intellectually dishonest – game of “my claim, prove me wrong”.
The documents in the case are all publicly available. If you cast your lazy eyes back through this thread – and previous posts on Mann’s latest attempt to silence the speech of those who don’t agree with his high and mighty opinion of himself and his “creations” – you and your mouse can even find some useful starting points.
So get cracking on that homework, eh?! Surprise us all and build your own case, just for once.
Show me the damages. Hurt feelings are not grounds to sue or be compensated. This reflects more on Penn State’s flawed hearings and HR decisions than anything Mark Stein could be blamed for.
@ur momisugly Nick Stokes
From Steyn’s lawyers’ brief:
“See Order, at 17. (“On the other hand, when one takes into account all of the statements and accusations made over the years, the constant requests for investigations of Plaintiff’s work, the alleged defamatory statements appear less akin to ‘rhetorical hyperbole’ and more as factual assertions.”). In addition, the Order relies on these erroneous facts in concluding Plaintiff met his burden under the Anti-SLAPP Act of demonstrating that National Review published the statements at issue with actual malice. Indeed, the Order asserts that several investigations of Plaintiff’s work were prompted by allegations leveled by National Review and Steyn. See Order, at 21 (“It follows that if anyone should be aware of the accuracy (or findings that the work of Plaintiff is sound), it would be the NR Defendants.”).
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The judge is saying that because CEI – and perhaps others (her prose is appallingly opaque, and it’s not lawyerese, just semi-literate) – had questioned Mann’s work over a long period, and Mann had been “investigated” and found to be squeaky clean, another party entirely – Steyn and NRO – ought to have known and accepted that Mann was indeed squeaky clean.
This is wrong in fact and completely irrelevant in law. It wouldn’t matter if Mann had been awarded the Nobel Prize, the Mother Teresa Award and the top Scout badge all on the same day. The only thing that matters with regard to Steyn is what Steyn actually said, not what others have said or done.
Just further validation of my personal voting strategy in retaining judges: any judge with a hyphenated last name gets an automatic “do not retain” vote.
Nick Stokes says:
July 30, 2013 at 1:09 pm
‘Theo Goodwin says: July 30, 2013 at 11:50 am
“So, what is the argument, Nick? Are you saying that if CEI had not published its criticisms of Mann that statements by Steyn and Lowry would not be interpreted as factual claims?”
I’m not saying it. The judge is (with more context than just the criticisms). But it’s not quite like that. NRO and Steyn said things that do sound fairly libellous. The judge is dealing with a defence that they are just rhetoric, and no-one would expect they are literally meant.’
OK, Nick (and John), because you cannot focus on detail I will do it for you – but this is the absolute last time. The object of contention between Mann and Steyn/Lowry is the comparison that the latter drew between Mann and Sandusky. It is not and has never been something else.
The comparison between Mann and Sandusky is clearly hyperbole. It is no different than Tony the Tiger’s claim that Kellog’s Frosted Flakes are Greeeaaat. Such claims have been recognized in US law since at least 1930 as acceptable exaggeration because no one in his right mind would take them as factual claims. This practice of hyperbole is known in legal circles as “puffery.” Every professor of business ethics teaches this fundamental doctrine.
There is nothing in anything that CEI or anyone else might have published that could have given the claim factual weight, just as nothing could make Tony the Tiger factual.
The judge is grasping at illlusory straws. You should have recognized that.
Hilary Ostrov (aka hro001) says:
July 30, 2013 at 12:41 am
If one didn’t know better, reading between the lines, one might be inclined to wonder if the Mann himself … had written the rejection ruling for her!
I’ve only been involved in one litigation, but, in fact, when it came to the final ruling, the judge actually had our lawyer write it. He in turn had us draft it and he then edited it to proper legalish.
Incoming instalink…
” John says:
July 30, 2013 at 1:32 pm
Steyn did make a factual claim, he accused Mann of fraud. That is a falsifiable fact. The judge was actually looking at if it could be considered rhetorical hyperbole within the context of the climate change debate. I think many of the commenters here are too critical of the judge if you read the dismissal she actually talks about how this type of harsh language is common in the climate change debate and considers if it could be rhetorical hyperbole.”
This shows a lack of understanding of the suit. Steyn is being sued in basic for comparing mann to a kid toucher NOT for calling him a fraud. If mann was suing because he was being called a fraud then not only would he have to prove in court he’s not…(good luck with that btw).
This is why they argue that it should be dismissed because its call they were in fact not calling mann a kid toucher but a data molester.
Everyone needs to set aside politics and emotion so that the central point of the lawsuit can be considered. The point is about the following:
“Mann could be said to be the Jerry Sandusky of climate science, except for instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.”
Does anyone believe that this statement was not created as hyperbole for the purposes of hyperbole? Does anyone believe that Steyn/Lowry made a factual claim to the effect that Mann causes unwilling underage data to engage in sexual acts with him? If not, then why would you claim that the statement can be interpreted (by you) as making a factual claim?
Theo, just to muddy the waters further, telling children that “we” are destroying their future and the planet is burning up IS a form of child abuse.
When I was a kid I had sleepless panicked nights worrying about nuclear war. Kids today are doing the same, only the cause is different. When I turned 18 and was eligible to vote I did what I was programmed to, and looked for someone who was against nuclear arms.
Just once I’d like a see a generation able to grow up without the constant threat of global devastation and no significant life ahead hanging over their heads.
@Nick Stokes: Do your own research, you lazy sloth. All the answers to your questions are in the pleadings. Read them.
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A few comments…
From Judge Combs Green’s ORDER [http://www.climatesciencewatch.org/wp-content/uploads/2013/07/Mann_v_Natl_Review_Order_7-19-13.pdf] (of 7/19/13) in her own words….
[Annotations mine]
1. “Background… in 2010… (“the EPA”) investigated Plaintiff [Mann] as a result of constant pressure from Defendant The National Review, Defendant Steyn [Note: Combs omits Mann’s name, but specifically (and mistakenly) names N.R. and Steyn] … .” [Order at 1] ***
COMMENT: Combs Green is mistaken. N.R. and Steyn never asked anyone to investigate Mann. [Defendants N.R. and Steyn’s Memorandum in Support of Special Motion to Dismiss at 1, 15-17]
2. “Actual Malice … At this stage, the evidence is slight as to whether there was actual malice. There is however sufficient evidence to demonstrate some malice … . Plaintiff has been investigated several times … . In fact, some of these investigations have been due to the accusations made by the NR Defendants. [wrong] It follows [judge thus makes an erroneous conclusion of serious legal consequence based on her mistake of fact] that if anyone should be aware of the … (… findings that the work of the Plaintiff is sound), it would be the NR Defendants. Thus, [legal conclusion not warranted by facts] it is fair to say that the NR Defendants continue to criticize Plaintiff due to [legal conclusion] a reckless disregard for truth.” [Order at 21]
3. On page 24 of the Order, Judge Combs Green denies the Defendants’ Federal Rule of Civil Procedure 12(b)(6) Motion to Dismiss (the Defamation charge) based on her flawed reasoning (due to her egregious mistake of fact) [emphasis mine] by simply citing her discussion supra of the Anti-SLAPP (a law designed to protect people who speak out against public officials on matters of public interest) grounds to dismiss.
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COMMENT re: Intentional Infliction of Emotional Distress — On page 5 of her 7/19/13 Order, Judge Combs Green mentions Mann’s claim for damages for the common law tort of Intentional Infliction of Emotional Distress, but never addresses it in her analysis, thus, sub silentio denies NR and Steyn’s motion to dismiss this cause (which Mann on the face of his complaint can never prove for he does not allege any actual damage nor does the possible emotional distress come close to satisfying the very high level of “distress” required by that tort (it is RARELY granted; the distress would have to amount to something as horrible as watching a J-ih-ad-ist cut off your spouse’s head before your eyes, yes, THAT bad).
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COMMENT re: Backseat Litigating — NR’s and Mark Steyn’s attorney, Shannen Coffin is one of the most competent litigators at one of the most highly competent firms in the U.S.. Criticizing his legal arguments or strategy should only be done by one who is well-versed in both U. S. rules of civil procedure and the substantive law. As far as I can see from what I’ve read of this case and its pleadings, Mr. Coffin and his associates are doing EXCELLENT work.
COMMENT re: Crooked Judges Sabotaging Justice — They can, but, in this case, NR and Steyn will appeal any adverse judgments all the way to the U. S. Supreme Court if they have to. There, the corruption is possible, but far less likely. Of course, given the tortured legal reasoning and uncharacteristic stance of Chief Justice John Roberts on the D’oh!bamacare issue, shockingly poor legal reasoning can be the basis for decisions, even there. It APPEARS (I have no evidence for either of these possibilities — just a hunch) that Roberts either: 1) was unduly influenced to decide against his better judgment; or 2) he is not stable mentally. Yes, that decision was THAT wrongly decided. The votes of the liberal justices along the party line are not suspicious per se, but Mr. Roberts’ strange behavior does logically raise the question of “Why?” Given the goal of the current administration to ram carbon taxation down the nation’s throat, whatever (if anything, of course) they did to get Roberts to go along on Government Medicine, they will try again.
HOWEVER, God is, even now, in control. God, not Obama, will decide if the U.S. is destroyed from within. This is not to predict what God will do — who could?! — just to remind you (who believe in God) that NO MATTER HOW CORRUPT the judges are, TRUTH CAN YET WIN.
And, in the long run, Truth will win. Always.
“OK, Nick (and John), because you cannot focus on detail I will do it for you – but this is the absolute last time. The object of contention between Mann and Steyn/Lowry is the comparison that the latter drew between Mann and Sandusky. It is not and has never been something else.”
That is wrong I’m afraid, if you follow the links above you can find the dismissal here:
http://www.climatesciencewatch.org/wp-content/uploads/2013/07/Mann_v_Natl_Review_Order_7-19-13.pdf
Under the section about the deformation it is clear that it is about the claim Mann committed fraud. This is a factual claim.
CodeTech says:
July 30, 2013 at 3:09 pm
I agree totally. I do not see how you muddy the waters. Lots of lies around today.
Theo Goodwin, it is worth pointing out that the words you quoted were not Steyn’s, but those of another journalist, Rand Simberg (quoted by Steyn). Indeed, Steyn goes on to say:
“Not sure I’d have extended that metaphor all the way into the locker-room showers with quite the zeal Mr Simberg does, but he has a point. Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph, the very ringmaster of the tree-ring circus. And, when the East Anglia emails came out, Penn State felt obliged to “investigate” Professor Mann. Graham Spanier, the Penn State president forced to resign over Sandusky, was the same cove who investigated Mann. And, as with Sandusky and Paterno, the college declined to find one of its star names guilty of any wrongdoing.
If an institution is prepared to cover up systemic statutory rape of minors, what won’t it cover up? Whether or not he’s “the Jerry Sandusky of climate change”, he remains the Michael Mann of climate change, in part because his “investigation” by a deeply corrupt administration was a joke.”
The full column in dispute is here:
http://www.nationalreview.com/corner/309442/football-and-hockey-mark-steyn
WOW!
Way — to — go! WUWT bloggers, above! NICE refuting of the ignorant arguments against Steyn and NR.
And, bear in mind, Steyn explicitly stated that his analogizing Mann-the-data-molester to Sandufsky was “a metaphor.”
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Given that Mann really IS a data twister, I hope CEI will end up forcing him to prove the falsity of their alleged “defamation.” At that point, Mann’s bloated ego will send him flouncing into the arena of facts where he will be proven before the world to be the L-I-A-R that he is.
The more I read about this the more I think Mann is going to win and win big. When you read the full transcript of what the judge has said, you realise she clearly thinks Steyn has a case to answer to. I’d be saving if I was him.
Judge: “I find you guilty!”
DA: “Your Honor, I’m the prosecuting attorney.”
Judge: “In that case, I find you not guilty!”
[snip – all snips final -mod]