Mark Steyn makes motion to dismiss Mann's libel claim

From the “chilling effect” of sunlight department, Steyn writes:

Many “climate skeptics” wonder why the defendants would want to get the complaint dismissed rather than put Mann through a trial in which he would have to take the witness stand and discuss his work under oath. I can understand their enthusiasm for this but for me the priority has always been the broader cause of free speech:

Defendant Steyn stands by his words and is willing to defend them at trial and before a jury, should it come to that. However, as a noted human-rights activist in Canada and elsewhere, he believes that the cause of freedom of expression in the United States would best be served by dismissing the amended complaint, and that a trial would have a significant “chilling effect” in America of the kind the Anti-SLAPP laws are specifically designed to prevent.

The “chilling effect” is a bigger threat to civilized society than all Dr Mann’s warming. But the judge chose instead to put us on the road to a full-scale trial. So be it.

As readers may have deduced from my absence at National Review Online and my termination of our joint representation, there have been a few differences between me and the rest of the team. The lesson of the last year is that you win a free-speech case not by adopting a don’t-rock-the-boat, keep-mum, narrow procedural posture but by fighting it in the open, in the bracing air and cleansing sunlight of truth and justice.

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

Unfortunately, the motion was denied.

Read the whole thing here: http://www.steynonline.com/6025/trial-and-error

RoadCones-300x224[1]Mann would be a fool to pursue the case further, but then again, his ego is often so large that I surmise the state department of transportation must be forced to put out orange traffic cones ahead of him when he travels, so I doubt it will happen.

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Louis Hooffstetter

Please don’t move for dismissal until after the discovery process is finished!
This is a golden opportunity that should not be squandered.

There is also the issue of the money. While Steyn is no pauper, he is also not Warren Buffett. The rest of us with no money skin in the game may root for a trial where the dirt of Mann is exposed, but it is not our money being used to air the dirty laundry.

Janice Moore

Re: “Mann …, his ego is often so large that the department of transportation has to put out orange traffic cones ahead … .” LOL.
Waaatch out, everybody! GIANT MANN BLIMP headed your way!!!!
Aaaaaaaa! Here comes Climate Clown!!!! Run! “Hey, Carol…. HEEEELLLLP!”

john robertson

Steyn has a fair point, the Just-us system is not the friend of free citizens nor justice.
It is a bureaucracy apparently designed to crushing any who dare to rock the ship of state.
CYA, scratch the big boys back seeming to be the take away message of late.
The state does not fear the citizen.
This could be a serious mistake.
Fair comment and mockery will do more to expose the fools, delusional, those wanna be masters of the world than any institutional process.

rabbit

This isn’t a game of checkers, The biggest threat here is of Steyn going to court and losing. That would be a catastrophe. To avoid it, Steyn must take every opportunity he can to end the case as early as possible.

Bart

The best defense is a good offense. I would sure like to see a countersuit against Mann for the many potentially libelous comments he has made of others who disagree with him.

Paul

In other news our very own Anthony’s web site gets a mention. All is not what it seems if you only delve a little deeper:
http://www.eureferendum.com/blogview.aspx?blogno=84653

Admad

Humm Mann is suing – will he sue all that say his data set was gamed . . why did EA University provide the base research and the data so that a real peer review could be conducted by other scientists – well could it be that they knew the data was a false premise and could not provide a proof for the base hypothesis of AGW?
What complete ship of fools IMO – just look at the AGW research group that got stuck in ice that was not supposed to exist in their published consensus of Scientists. I have not seen one explain how the ice that was not there locked up three ships including ice breakers in the non ice?

M Courtney

Mann is to big to fail. He would be a martyr to the cause if he lost. And then celebrated like Peter Gleick. Cocktails all round.
Steyn would be impoverished with his reputation in tatters.
This is not an even fight – one side can’t lose.
It is better not to fight if you are the little guy.
But it’s more fun if you do…

John West

Will the original complaint be admissible as evidence in the trial? I can think of no better clear cut example of Mann’s tendancy to exaggerate (to put it lightly) than characterizing himself as sharing the Nobel prize with other IPCC authors.

Navy Bob

I’m a big Steyn fan, but I found his article confusing. He wanted the complaint dismissed because of the chilling effect the cost and effort of a trial would have on free speech. Yet now he’s glad the motion to dismiss was denied because it better serves the cause of free speech to fight in the open, bracing air, etc. I’m not accusing him of hypocrisy or contradiction, I just don’t get what he’s saying. I’d also like to know what happened between him and his co-defendants. Their law firm apparently dropped him from the team, but I’ve not seen anything that explains why.

Free speech is not only dear but also expensive.

Alan Watt, Climate Denialist Level 7

Bart says:
January 23, 2014 at 12:09 pm

The best defense is a good offense. I would sure like to see a countersuit against Mann for the many potentially libelous comments he has made of others who disagree with him.

That’s not how civil tort law works. Steyn has no standing to sue Mann for libel committed against others; he could only bring suit for damages he (Steyn) suffered as a result of wrongful acts committed by Mann. Others may have grounds to sue Mann, but they would have to bring the suits; Steyn can’t do it for them and unless he is willing to pay their legal fees, I doubt any such suits will be brought if they haven’t been already.
In any case, even if the plaintiff in one libel suit is himself a defendant in another libel suit, the outcome in the second case has no effect on the outcome in the first. Think about it: if I’m brought to trial for robbing your house, my defense is not bolstered if you are also prosecuted for robbing your neighbor’s house.

ttfn

Mann’s not a fool. Steyn will ultimately “win” because the suit is so stupid, but it’ll cost him a couple million for God knows what and cow any other critics of Mann from stepping up. Anti-SLAPP was supposed to prevent such nonsense, but obviously Bernstein has other ideas.

Gail Combs

I would not trust our ‘Justice’ system to give a fair trail to anyone.
This is a heads Mann wins tails Mann wins situation.

Janice Moore

Dear Mark Steyn,
That you chose to do what was best for Freedom of Speech (versus exposing the l1es of a known l1ar re: AGW) is your business, and not ours. We lovers of liberty will continue to back you 100%. You are one of our finest warriors on the front lines of the perennial battle for truth. You deserve nothing but our respect and our gratitude.
Life is short. You have better things to do with your time — like enjoying your family. Good people not only have the courage to fight against ev1l, they have the wisdom to discern when to walk away from a fool.
I know you don’t like rock music like I do, but, consider this one of my numerous letters to Mark’s Mailbox and take this as encouragement from your longtime unilateral friend. You’ve made a tough call. Now, ….
Don’t Look Back — (“there’s no game to play”) — Boston

Navy Bob, look at it this way. Steyn is glad that the cause of free speech is going to be supported by this going to trial, but he laments the fact that it is going to take a year of his life and probably a million dollars to do it, money of his and his supporters which could be spent more effectively elsewhere. No sane person would want to subject themselves to that kind of circus if there is any way it, but once you’re pulled into it, you might as well make the best of it.

Tom G(ologist)

Steyn is right to attempt to dismiss. There are so many unknowns going into a trial – it is the reason that only a small percentage of complaints are ever actually tried. I have been an expert witness for about 50 legal matters (suits, if you like), have been deposed about a dozen or so times and to trial twice. So, most matters settle early, some get serious and almost all settle after the two sides get to weigh each others’ cases.
That being said, I would not wish this issue to go to trial. Trials are VERY unpredictable. You can’t even predict what lines of evidence are going to be admitted, you can bet that Mann’s attorneys would be working to exclude a lot of evidence, and there is no way to predict whether the judge will indeed exclude some. I am in no way confident in the results of a trial on this one.
Sorry to be a downer, but I have had the rug pulled out from under me on most of those 50 or so occasions in which I was involved. I was certain of my part in the case, yet the case settled and I never got to get a ruling on how right I knew (thought) I was. That was because the attorneys, you know, those people whose careers are based on knowing the court system, find the courts too unpredictable to bet their cases on having them heard, and would rather settle than risk a bad judgment – and they were just as confident in their legal arguments as I was in my technical arguments. That ought to be enough of a warning to us non-attorneys that the judicial system is unpredictable at best, even for the most iron-clad of cases.
There is still a very good chance this will settle which is my hope.

Alex

I’m such a Steyn fan and this just reminds me why. But I’m fearful of reality, especially as I read “The Aquariums of Pyongyang” on the duped Koreans living in Japan returning to the North and ending up in the prison camps. I agree with him, the U.S. court system is no place for rubes. It’s a deliberate procedural mine field designed to protect the lawyer’s guild and the weasel-y.
God be with you Mr. Steyn. Send him money.

Janice Moore

{ooops! forgot to sign my letter}
Sincerely yours,
Janice Moore

cynical_scientist

The US civil court system is a place where two embattled sides pay out obscene amounts of money in legal fees until someone goes bankrupt and the person with the largest wallet wins. The role of the judge in all of this, especially in the first few years of trial, is to make bizarre rulings which prolong the agony as long as possible. Almost never will anything at all be decided in the first couple of years. Cases seldom make it all the way through to judgement (reaching a final judgement could take a decade and is mind bogglingly expensive for both sides). Most cases end in a settlement when the two sides agree that they’ve had enough and negotiate an end to it.
The legal system isn’t justice – it is a tarpit. Those who step into it voluntarily are idiots. If you ever find yourself dragged in there, get out as fast as you can by any means possible before your wallet bleeds out.

Bart

Alan Watt, Climate Denialist Level 7 says:
January 23, 2014 at 12:24 pm
“…he could only bring suit for damages he (Steyn) suffered as a result of wrongful acts committed by Mann.”
Has he not claimed Steyn and others are engaged in a massive conspiracy funded by Big Oil?
“…the outcome in the second case has no effect on the outcome in the first.”
Not the point. The point is the same one for which Mann instituted his suit: to chill the freedom to speak of the other side. To force them to back down on their assault against civilized society.
They’ve thrown away the rulebook, and intend to run roughshod over anyone who stands in their way. This is a streetfight – if you don’t adopt their tactics in return, you lose. A bully will continue to be a bully until he gets a punch in the nose. I would pay good money to see someone (metaphorically and in a legalistic sense) land a good haymaker upside Mann’s vicious little mug.

Alex

Tom G(ologist), so by “good chance this will settle,” you mean, “good chance Steyn, NR, etc. will pay Mann”? Or they’ll walk away from each other?
How settle?

Latitude

What is that old saying about tell a lie often enough…
…Mann that is

Alex

Yeah, cynical, even in small claims court, the judges are often intolerant jerks to those who represent themselves for $500 cases, not-so-subtly encouraging patronage of their private peers in the guild. Tarpit is great term.

pokerguy

“I can understand their enthusiasm for this but for me the priority has always been the broader cause of free speech:”
I can understand why MArk Steyn is not eager to go to court with al associated expenses and stress, but in my view “free speech” will not be endangered in any way if this does go to trial. The more important, more immediate issue is exposing these frauds for what they are.

James Ard

I don’t blame Steyn for filing for dismissal. Only a fool would risk a trial which will be one of the warmists’ last stands. They will throw everything they have at it, including any dirt our snoops have collected on the judge. The fact that his motion was denied alone shows how unpredictable the results are.

Tom G(ologist) says:
January 23, 2014 at 12:36 pm
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
I have also been to court a few times on engineering and contractual issues. Since judges have no technical expertise in engineering, the rationale for their decisions which they state in their judgements are sometimes completely baffling and devoid of sound logic (from an engineering/contractual perspective). A multi-million dollar case can turn on one phrase in weeks of a trial. It is pretty much a crap shoot so usually it is in everyone’s interest to settle but sometime clients think they are 100% right and so does the opposition. Then it gets messy.
Since no judge is going to have any concept of what is being talked about technically, they will pretty much have to deal with the legal issue which could go anywhere depending on who spins the best yarn. That might be a bit harsh but I have seen a few major whoppers told in court. The judge won’t know truth from fiction as the judge wasn’t there and has to judge on what is presented.
I wish Mr Steyn all the luck in the world.

aaron

Cool. I look forward to watching.

Joseph W.

Tom G – I greatly fear you may be right; but it may be in Steyn’s nature to fight this one to the bitter end on the principle of the thing. The trial court has failed to dismiss it; but the appellate courts haven’t reviewed it yet. I’m still hoping this order can be appealed right away (the last appeal was dismissed as moot; but it wouldn’t be moot now, I think). If the court says “wait ’til the end of the case” then Steyn has to either fight it all the way through or, if he settles, waive his right to appeal. And that would be a great shame…because if cases like Mann’s stay alive, that’s a serious curtailment of our First Amendment rights, and I hate to see that.

pokerguy

“This isn’t a game of checkers, The biggest threat here is of Steyn going to court and losing. That would be a catastrophe. To avoid it, Steyn must take every opportunity he can to end the case as early as possible.”
I really dislike this kind of scared rabbit approach to life. I admire Mr. Steyn and I completely understand who he’s not eager to expose himself to further jeopardy, and yet someone, some time has to stand up to these people. Yes, there’s always a danger of losing, but that’s not a good reason not to fight, if the fight is worthy enough. In my humble judgment it is.

Tom G(ologist)

Alex:
Unfortunately, in many cases, it is out of the hands of the actual defendant (in this case, Steyn) or their employer (NR). The people who call the shots as to whether settlement is reached or not might be the insurance company for NR. I have not heard that they are in it, but I would be surprised if they are not dragged in ultimately. And insurance companies HAAAATE to go to trial. They will settle for, yes, sadly, $$$$$ to a plaintiff if it means they are not at risk of a bad judgment which would establish a legal precedent.

more soylent green!

@cynical_scientist
Can I get an amen, brother!

Alex,
I thought you couldn’t bring your lawyer into small claims court.
But I do agree with you, and cynical_scientist, who wrote:
“The role of the judge in all of this, especially in the first few years of trial, is to make bizarre rulings which prolong the agony as long as possible.”
I’ve seen it first hand, where an organization I was in brought suit. Our lawyer said, “Given all the facts on our side, and the complete absence of any facts supporting [the other side], I don’t see how we can lose.”
Guess what happened?
Yes, the ruling went against us. I have no doubt we would have prevailed on appeal, but our board decided that the money wasn’t worth what was essentially just making an ethical point. So we threw in our hand.
As they say, the one with the experience gets the money, and the one with the money gets the experience. I suppose in the long run it’s a fair trade. Sort of.

Tom G(ologist)

Oh, and btw, if there is a $$$ settlement, don’t expect that you would ever know how much a cretin like Mann received. Just be certain in your little heart of hearts that it would be more than enough to spike your indignity meter.

Alan Robertson

Alex says:
January 23, 2014 at 12:43 pm
Tom G(ologist), so by “good chance this will settle,” you mean, “good chance Steyn, NR, etc. will pay Mann”? Or they’ll walk away from each other?
__________________________
Read Steyn’s last paragraph (above, beginning: “As readers may have deduced…”)) and answer your own question.

Tom G(ologist)

What I have found when dealing with a judge, and I have been before judges in most of those cases in which we settled, as the judge presides over settlement agreements, is that the side that wins is represented by the best story teller. And I don’t mean ‘story’ as in falsehood. I mean the person who comes across as the best presenter, most polished, best prepared, reasonable, creditable person. A good presentation vs a poor presentation, regardless of the facts, goes a long way with a judge who has no clue of the technical details and no way to tease out which spin story is the closest to reality.
There is also the issue of what is know as Departmental deference. Judges view the positions of the opponents in a case. If one of the sides represents a government agency or a public institution and the other side is from a commercial entrerprise, there is deference to the story from the public entity under the rationale that the commercial appellant has a monetary stake in the matter but the public institution is more impartial by its very nature, so its story receives deference (preference). This is not a covert occurrence. It is well known in the legal practices. I know it first hand because some of my cases were against state and/or federal agencies and our lawyers had to plan against it. So, we have a periodical which makes its money by selling stories people will be tempted to buy, vs a professor from the state university system……
You do the math.

john

I agree with Tom (G).
The procedural nature of the courts are littered with technical land mines everywhere. Seeing how administrations everywhere are pushing the carbon schemes, You can bet that Mann will have more than adequate funding from many well to do sources and have a dream team similar to that of OJ Simpson. My guess is that Mann will not even pay a single penny for this.
Mr. Steyn is playing the cards as best he can, but, I would imagine he will be out moneyed and out lawyered substantially due to the nature of the case. I hope that WUWT will keep us all posted in the event Mr. Steyn needs (and I am sure he will) significant outside assistance.

Start parody . . .
Is Mann a mythological hero in his own mind only when he is in mythic legal battles with imaginary evil konspirators?
He’s happy.
How happy?
He’s as happy as Lewandowsky and/or Cook are with their ideological support from Naomi Oreskes against evil konspirators.
. . . end parody.
John

Doug

Steyn and Rand Simberg, whose article Steyn apparently cribbed, made specific factual allegations of scientific fraud against Mann. They and their organizations have been sued by Mann for defamation. That means they have to prove fraud by a preponderance of the evidence. They filed for dismissal apparently based on their 1st Amendment right to free speech.
The problem for them, of course, is that they weren’t just expressing opinions, which they have every right to do, no matter how whacky, but they alleged fraud, a very specific fact based accusation.
Contrary to what Steyn is quoted as saying above, they filed for dismissal because they don’t want to go to the discovery stage of the case where they will be buried with actual evidence. IOW, they won’t get away with the brand of shoddy journalism these types live on. They have a lot to worry about, Mann doesn’t.
Doug

Grant A. Brown

1. The First Amendment is not relevant in the context of a defamation case. Defamation is a common-law tort (citizen vs. citizen), not a limit on speech imposed by government.
2. A motion to vacate is difficult to win, even in jurisdictions with anti-SLAPP laws. And it should be. The judge made the right ruling, for the right reasons, in this instance.
3. Precisely because a motion to vacate is so easy to defeat, the dismissal of the motion to vacate is not probative with respect to the ultimate outcome of the case. Nobody should be cheering yet. If the question of fact comes down to whether Mann “molested and tortured the data,” as the judge suggests, there will be ample evidence adduced from discovery to make the case.
4. The terms “molesting” and “torturing” – and even “fraudulent” – are not legal or scientific or precise in the context in which they were used, so some poetic licence should be allowed in their use. In my judgment, Mann clearly engaged in practices that can reasonably be characterized as “molesting” and “torturing” data. However, a judge with little scientific background or critical faculties – the majority of judges, after all – might well be bamboozled into thinking that Mann was “exonerated” of the charge by the various white-washing exercises he was put through. Thus it is understandable that the Defendants do not wish to take the case to trial – no matter how fun the discovery process might be to interested observers.
5. Cost penalties are available at the end of the day to dissuade unmeritorious claims. Mann’s own vituperative comments about those he disagrees with – such as calling Judith Curry “anti-science” – should weigh heavily in a judge’s assessment of costs against him should he lose. He is a hypocrite, and should be shown no mercy when it comes to awarding costs.
IMO.

Gary E

I agree with all those who warn to stay away from the legal system whenever possible. It is a self perpetuating money pit where the Lawyers on each side help maintain the other sides Lawyers income by continuing the case until one side is proven broke.

John Francis

I know Mark has said he doesn’t really believe in a legal defense fund, but this is so serious I sure hope someone with a popular blog will start one on his behalf. I contributed to the NRO fund, and I suspect tens of thousands of us would chip in for Mark.

Bart

Doug says:
January 23, 2014 at 1:55 pm
“That means they have to prove fraud by a preponderance of the evidence. “
No. It means they have to prove they themselves were persuaded by the evidence without reckless disregard for the truth. That is the standard in the US.
Grant A. Brown says:
January 23, 2014 at 2:02 pm
“Defamation is a common-law tort (citizen vs. citizen), not a limit on speech imposed by government.”
Mann is a public figure, and it is indeed a First Amendment case.

Richard Sharpe

I would be willing to pony up some money to help Steyn with his legal defense costs. $200 would be easy, more would be possible.
Steyn should explore that avenue …

jeanparisot

Doug, Steyn knows what he is doing. Mann should not have picked a fight with someone who “buys ink by the barrel”.
The motion to dismiss was pro forma and necessary, in Federal court you always want to preserve an honest position of reasonable accommodation. They are busy and at every opportunity you remind them that you are the one trying to make this go away without them having to do any more work.

john

Grant A. Brown says:
January 23, 2014 at 2:02 pm
“4. The terms “molesting” and “torturing” – and even “fraudulent” – are not legal or scientific or precise in the context in which they were used, so some poetic licence should be allowed in their use.”
Grant, In the U.S. there is a 5 year statute of limitations on FRAUD. This is why the administration kicked the can down the road on bank fraud for 5 YEARS stemming from the crisis in 2008.
So we can safely assume that Mann will skate on that one but in the PR (Public Relations) world, could prove handy. One thing needed would be the most recent fraud he may have perpetrated < 5 years ago.

Joseph W.

. The First Amendment is not relevant in the context of a defamation case.
Yes, it is.

Richard G

“his ego is often so large”…
How large is it?
In my state he would require a lead car and a tail car with flashing lights and signs that warn: “OVERSIZED LOAD”.