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.
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Unfortunately, the motion was denied.
Read the whole thing here: http://www.steynonline.com/6025/trial-and-error
![RoadCones-300x224[1]](http://wattsupwiththat.files.wordpress.com/2014/01/roadcones-300x2241.jpg?quality=83)
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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D. B.!! Thank you!
That made my day! (I highly value your opinion — can you tell?)
#(:))
Hmm . . . perhaps THAT’S why Mann has recently been pushing the idea that he was dragged into the public arena by outside forces!
@roger Knights – of course it is! But that does not change the fact that he is indeed a public figure. The courts do not differentiate.
@Steve from Rockwood at 4:09 pm
I’m always amazed at how long legal issues take to be resolved. Sure the truth doesn’t have a deadline but I’ve also noticed that lawyers are incredibly patient in all things legal.
When both sides bill by the hour….
I can’t get past the original supposed slight this case is based upon.
Michael Mann does better belong in the State Pen than at Penn State, despite the former’s penchant for covering up pedophilia under past regimes.
It’s materially relevant that the former School President who covered up for a baby raper also covered up for Mann during the climategate whitewash.
We should put M. Mann on trial here, (meaning out in the bracing air and sunshine of public scrutininy, rather than WUWT).
Let’s start with indictment.
What has he done that in a sane state before a jury of his peers he could be put behind bars for?
Grant — It is relevant, and it is something British and Canadian citizens find alien, because defamation suits are a lot more restricted in this country (at least when a public figure is the plaintiff). So, First Amendment analysis happens in cases like Gertz v. Robert Welch, Inc. — the suit was between the John Birch Society and a lawyer, neither of whom was a public official — the state couldn’t allow juries, even in common law defamation actions, to award punitive damages on less than actual malice, because otherwise defamation cases could be used to suppress unpopular opinions. (Technically this was the Fourteenth Amendment rather than the First; the Supreme Court has held that the prohibition against depriving citizens of life, liberty, or property “without due process of law” incorporates large sections of the Bill of Rights, so that the states can’t establish state religions, suppress freedom of the press, etc. But the analysis is still the same; and in practice the Supreme Court holds the District of Columbia to the same standards as the states by using the Due Process clause of the Fifth Amendment.)
The important distinction has to do with “public figures,” not public officials – see this for a good quick explanation. D.C. defamation law lines up with this, requiring public figures — whether or not they are public officials — to prove actual malice. But if the D.C. trial and appellate courts don’t enforce this standard against Mann – it would certainly be the business of the Supreme Court to correct them on a First Amendment basis…and if they fail to do so, then we really have lost part of our freedom of speech.
This is especially important here because, as I have sometimes argued before, Mann’s main argument for “actual malice” is that a public university (Penn State) and several governmental bodies (including the U.S. Department of Commerce) “investigated” and “cleared” him of any wrongdoing. (Implication: Steyn and Simberg just have to believe the government when it clears Mann.) Thus, in his theory, whereas most public figures get their cases dismissed because they have no evidence of actual malice, the Government can anoint its favorite sons with the Oil of Exculpation, so that they can soak their critics for millions…especially if they can bring suits in places where their views are popular and their critics are not.
(I see my response is in moderation, probably because it has four links and must be distinguished from spam.)
[Posted now. ~ mod.]
P.S. – I should add that in the Gertz case, Gertz was held not to be a public figure, so that he could recover “actual” though not punitive damages without actual malice — Mann, as we have discussed here before, is at least a “limited purpose public figure.” My point was that First Amendment analysis does apply in defamation cases, as it also did in Hustler Magazine v. Falwell (that case didn’t turn on actual malice, but on whether the statements were constitutionally protected as parody).
err, I mean, “defamation cases between non-public officials, who may nonetheless be public figures.”
If anyone is under the illusion that the judge is going to decide the merits of this case on the basis of some scientific argument ( and maybe rule that the Greenhouse Effect doesn’t exist ) then think again. He is not capable of doing that and he won’t do that. In so far as any science is discussed at all, it will be done via ’expert witnesses’. On Michael Mann’s side his work has been peer-reviewed. It has been widely accepted by the scientific establishment and endorsed by an international body (the IPCC) which, we are told, has the support of 1000s of scientists, the UN and governments around the world. A wealth of internationally respected scientific opinion. What can Mark Steyn produce that has a similar standing, because that is all that counts.
Mann’s work was described as fraudulent. That is serious allegation. It doesn’t just mean the work is flawed or mistaken but that its INTENT was to deceive. The chance of the defendant proving that intent with no evidence whatsoever is, quite frankly, zero.
The only credible defence, as far as I can see, would be to argue that the use of the word ‘fraudulent’ was flippant, not to be taken seriously in the context it was used. Sorry – but reality beckons.
Joseph W. says: January 24, 2014 at 12:14 am
“The important distinction has to do with “public figures,” not public officials”
The judge, Weisberg, in his ruling against dismissal, said:
Viewing the alleged facts in the light most favorable to plaintiff, as the court must on a motion to dismiss, a reasonable jury is likely to find the statement that Dr. Mann “molested and tortured data” was false, was published with knowledge of its falsity or reckless disregard of whether it was false or not, and is actionable as a matter of law irrespective of special harm.”
That seems to say that he is a public figure (“reckless disregard”) but that Mann has made a prima facie case of “actual malice”.
I hope that Mark Stein will enlist Steve McIntyre to testify in his behalf, and call Biffra as a witness. Perhaps Biffra can explain to the court why it is that so few trees were used as temperature proxies, and why the evidence from trees as substitutes for thermometers was truncated when tree data diverged from other methodologies. I can only suppose that Mann will argue that when you have seen one tree, you have seen Yamal.
Steyn needs a lawyer and funding for his defense. Remember, “truth” is a defense in defamation cases. All of Mann’s research, data, and communications regarding said are now subject to discovery.
Scientific fraud is a scourge to our freedom. Climate fraud has to be stopped. It’s time for us to put up or shut up. If you agree with this, you need to help.
Anthony, please set up (or point us to) a tip jar where we can donate to help Mark Steyn in his efforts to fight this and expose Michael Mann for what he is.
Thanks, Janice and Joseph W. My DPhil thesis was a defense of libertarianism, so I’m quite aware of the value of liberty in general, and of freedom of speech in particular. I have been a fan of Milton and Mill since high school.
My issue is not with the principles of free speech per se, but with the legal reasoning that starts with the first amendment and ends with the doctrine that mere “public figures” should have a harder time proving that they were defamed. In my opinion, a plain reading of the actual text of the first amendment cannot support the doctrines that have developed around free speech in America, as welcome as those doctrines may be. (Compare: in Roe v. Wade, the Supreme Court found abortion to be a constitutionally protected right. I’m not persuaded that a plain reading of the constitution logically entails a right to abortion; but that doesn’t mean I’m anti-abortion. It just means that I believe abortion rights should derive from some other source. I prefer legislation to illogical, results-driven legal fictions disguised as judgments.)
The legal establishment might indeed see themselves as developing constitutional principles of free speech in the series of cases referred to, and it might be comforting for free-speech advocates to go along with that characterization. But I think it is a mischaracterization; I would characterize the free speech doctrines surrounding “public figures” as developments of the common law unique to America, without any genuine constitutional pedigree.
In addition to being a libertarian, I am also a type of egalitarian. Indeed, because I’m a libertarian, I think that everyone is entitled to the benefit of equal rights. I see no principled reason to give special protections to those who would criticize “public figures.” Equivalently, I see no reason not to give the same protections to those who would criticize non-public figures. The legally constructed status of being “public” has no bearing on the value of one’s reputation, or the harm that can come from slandering it. Slander is a REAL harm to the property interest we all have in our good names, no matter who is the victim.
The better case for Steyn to make is that he did not defame Mann. I think the judge was right to force Steyn to make that case, and I hope Mann is hit very hard with costs when the case is made out after suitable discovery.
Like Tom G. I have also been an expert witness in technical suits. Based upon this experience, if I am ever accused of a crime I will plea bargain whether I am guilty or not. Let me assure you that the jury will be incapable of understanding any of the technical jargon no matter how simply it is presented. Secondly, the judge will more than likely be a leftist and not be impartial. I have observed more than once that a judge willfully directed the decision by not allowing testimony or allowing non-expert testimony to control the verdict. This is particularly the case with disputes with government, which I think Mann will qualify.
One must also be aware of the golden rule of the US justice system. He who has the most gold will win. Since Mann’s backers will provide an infinite amount of funding to defend his fraudulent science then Mark better have deep pockets or get the legal defense fund started quickly.
I agree strongly with Steyn’s willingness to fight on, but understand completely the wisdom of trying for dismissal. Mr. Mann was successful at winning a suite based on the fact that he had a right of privacy over his emails at work, emails that he wrote and received after agreeing that he had no right of privacy. It is, after all, the king’s justice.
Janice Moore says:
January 23, 2014 at 9:37 pm
Second DB. Good comments.
MikeB says:
January 24, 2014 at 2:38 am
“The chance of the defendant proving that intent with no evidence whatsoever is, quite frankly, zero.”
It does not matter if “everyone” believes Mann. In fact, that makes his case weaker, because then there can be no actual damage. Steyn is then just some lonely voice crying in the wilderness, and there is no reason to bring the full might and majesty of the law down upon him.
Far more actionable, IMO, is Mann’s criticism of Judith Curry. These are both people with standing in the community, for whom the words of the one can inflict actual harm to the other’s livelihood.
The only thing that really matters is if Steyn believes his words to have been true. Try proving that he doesn’t.
pokerguy says:
January 23, 2014 at 1:01 pm
“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.”
But then it is not you, your wife, your kids and their future being exposed. It’s an easy call when you are not involved. (Involved as in pig, not chicken!)
William Jackson says:
January 24, 2014 at 8:02 am
Like Tom G. I have also been an expert witness in technical suits. Based upon this experience, if I am ever accused of a crime I will plea bargain whether I am guilty or not. Let me assure you that the jury will be incapable of understanding any of the technical jargon no matter how simply it is presented. Secondly, the judge will more than likely be a leftist and not be impartial.
That is not always the case. I speak from personal experience. It is possible to fight and win when you are accused and not guilty. It takes time and an attorney who actually takes your case to heart. I feel that it is the duty of citizens, whether in civil or criminal court, to fight the system when injustice occurs. Any other response is shirking your responsibility as a citizen. I respect Mark Steyn for standing on the front lines for everyone else.
In Canada, information that comes out in discovery is made a matter of court record but is only introduced, and made public, if the case get in front of a judge.
Is this the case in the USA? Are the rules a function of state jurisdiction?
Glenn Reynolds over at Instapundit worries that Mark Steyn is representing himself in this action.
I had no idea he was doing that. Mark is plenty smart, but he is not a lawyer and as Prof. Reynolds points out, even a lawyer knows to hire another lawyer in a case like this.
Mark can’t read books and catch up with experienced lawyers who have apprenticed in the courts. He probably has a good case and honest cause, but he is entering the lists without shield, armor or lance.
Nick Stokes : That seems to say that he is a public figure (“reckless disregard”) but that Mann has made a prima facie case of “actual malice”.
Mann made no case that there was actual malice. Actual malice means the person made the defamatory statement knowing that it was false or knowing it was likely false. There’s no evidence that Steyn didn’t believe what he said. Mann argues that because several investigations found Mann hadn’t committed fraud, Steyn couldn’t reasonably believe he had. The legal requirement, though, is based on what Steyn believed when he made the statement, not on what Mann or the judge think he should have believed.
Also, contrary to what Doug said, the legal standard for evidence proving defamation of a public figure is “clear and convincing” not “preponderance.”
I still think this is a game of chicken. Mann’s lawyers have to know that it would be a disaster if he is deposed. It would be an even bigger disaster if he has to take the stand. The public record of his remarks, not to mention emails going back a decade, as well as climate-gate are all fair game. There is no taking the 5th.
Steyn is a political satirist, and what he wrote doesn’t even come close to libel. Mann, on the other hand, has painted himself as a disinterested scientist whose only vocation is finding the “Truth”. Reality is much different. And this trial will not only put Mann on trial, but his entire career as the inventor and defender of the Hockey Stick.
It all comes down to money. Mann’s lawyers are bluffing. Their hope is for a settlement. NRO might just do that. But not Steyn. It is too bad the federal judge didn’t dismiss this case on SLAP grounds.
@William Howard Jackson
“I am guilty or not. Let me assure you that the jury will be incapable of understanding any of the technical jargon no matter how simply it is presented.”
Whoever Steyn gets to represent him will not try to put Mann’s PCAs or eigenvectors on the stand. Mann has painted himself into an impossible corner. No need to re-fight the statistical math of the use of Principal Components. Mann for the last half decade or more has been a rapid Partisan for the Team. His public utterances as well as the online content he put forth paint a picture of a man consumed by politics and his own reputation. The Climate-gate emails themselves are very damning. And his own penchant for spewing forth curses and charges of being a “denier” can fill a book. Therefore, it will be the job of Steyn’s defense team to paint a portrait of Mann using Mann’s own words. The result will not be pretty.
MJW says: January 24, 2014 at 1:35 pm
“Mann made no case that there was actual malice.”
Yes he did, and the judge said so in his ruling on dismissal. He said that a reasonable jury, taking a favorable view of the facts alleged by Mann, is likely find in his favor. Now there is plenty of scope for arguing about the facts, but the judge is saying that a prima facie case has been made. He listed the elements.