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Wednesday, January 29, 2014

Barry Bickmore: What Precedent? Why National Review et al. Are Running Scared

by Barry Bickmore, Climate Asylum, January 28, 2014

Whenever there is a big, public legal battle, it seems like the principals spend a lot of time talking about “setting precedents.”  Sometimes this is legitimate, because if you can help it, you don’t want the bad guys to get away with any heinous miscarriages of justice.  But in other cases, all the talk about “setting precedents” is just so much public posturing.  Of course, both sides will accuse the other of posturing, but if you pay attention, sometimes it becomes apparent which is which.  I believe this is now true for the Mann v. National Review et al. case, for instance.  (The defendants are theNational Review, the Competitive Enterprise Institute, Mark Steyn, and Rand Simberg.)
Climate scientist Michael Mann has been hounded for years by ultra-right-wingers who JUST KNOW, based on a single, innocuous phrase taken out of context from a stolen e-mail, that he must have done something fraudulent when preparing his famous “Hockey Stick” paleotemperature reconstructions… even though a number of subsequent studies by other groups, using different data types and different statistical techniques, have essentially confirmed that the “Hockey Stick” was about right.  Some of the crusaders trying to stick it to Mann, such as Virginia AG Ken Cuccinelli and the American Tradition Institute, have tried (without anything approaching “probable cause”) to legally gain access to Mann’s e-mails and other documents, so they can go on a fishing expedition to find anything incriminating (or at least embarrassing), but Mann and the University of Virginia chose to fight this.  Why?  Because it sets a bad precedent to let people (especially those who have demonstrated themselves to be zealots) to go invading your privacy with no cause.  Scientists shouldn’t have to worry about being slapped with some onerous demand for all communications and documents about whatever they have been up to, unless someone has some reasonable cause to think something’s wrong.  Otherwise, it would be too easy to abuse the system to persecute or slow down researchers producing results that are politically unpopular in some quarters.
Naturally, Mann’s enemies have labeled this as posturing.  If he REALLY had nothing to hide, he wouldn’t mind letting barely educated zealots comb through all his documents trying to find anything they can use against him, right?
But then something interesting happened. Writers for a couple of Mann’s most persistent critics, the National Review and the Competitive Enterprise Institutecame right out and called Mann’s work fraudulent, and said that he had manipulated his data for political purposes.  Mann threatened to sue, and they told him to buzz off.  The way Rich Lowry of the National Review did so was interesting, because it brought up the old specter of being able to comb through Mann’s documents, which they KNEW he didn’t want!
Usually, you don’t welcome a nuisance lawsuit, because it’s a nuisance. It consumes time. It costs money. But this is a different matter in light of one word: discovery.
If Mann sues us, the materials we will need to mount a full defense will be extremely wide-ranging. So if he files a complaint, we will be doing more than fighting a nuisance lawsuit; we will be embarking on a journalistic project of great interest to us and our readers.
And this is where you come in. If Mann goes through with it, we’re probably going to call on you to help fund our legal fight and our investigation of Mann through discovery. If it gets that far, we may eventually even want to hire a dedicated reporter to comb through the materials and regularly post stories on Mann.
My advice to poor Michael is to go away and bother someone else. If he doesn’t have the good sense to do that, we look forward to teaching him a thing or two about the law and about how free debate works in a free country.
He’s going to go to great trouble and expense to embark on a losing cause that will expose more of his methods and maneuverings to the world. In short, he risks making an ass of himself. But that hasn’t stopped him before.
The climate change contrarians rejoiced!  Go for it Mike, we all look forward to the enlightenment of discovery!…” chortled Anthony Watts, in a post charmingly entitled, “Yay!  Mike Mann took the bait, intends to file suit against Steyn and NRO.”  ”I think Steyn just went to COSTCO with the NRO credit card to get the industrial strength size can of whupass he’ll be opening.”
But Mann did proceed with the case.  Oh sure, Lowry allowed that Mike Mann might do so, but if Mann were too full of hubris and stupidity to understand the ramifications of a discovery process, why would he have have fought so hard against the Cuccinelli and ATI fishing expeditions, if he really had something to hide?  No, he knows exactly what the discovery process entails, and he doesn’t care.  In other words, all that talk about setting a bad precedent by letting the fishing expeditions proceed was not mere posturing.  Mann meant it, and he really is not afraid of them finding anything too damning.
But wait!  The other side was SURE they would find all kinds of damning material during discovery, and Mann was falling into their carefully crafted trap, right?  Wouldn’t they want to head right into discovery, so they could open that big ‘ol can a’ you-know-what?
The defendants immediately began filing motions to dismiss the case as a frivolous attempt to stifle their free speech.  (The acronym is SLAPP–Strategic Lawsuit Against Public Participation.)
Well, you know, because it would set a bad precedent.   Defendant Mark Steyn explained, with respect to one of those motions:
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.
Well, that makes sense, I guess.  We wouldn’t want to threaten civilized society by letting this thing go all the way to trial.  Right now,  I understand that most of the defendants are filing an appeal to the judge’s current ruling, in which he refused to throw out the case.  Mark Steyn, acting as his own counsel, has now petitioned the court to remove his name from the appeal, however.
I certainly don’t know all their motivations, but one thing is clear.  All that tough talk about rejoicing at the possibility of sifting through Mann’s documents was just so much public posturing.
Here’s what I think is going on.  (Feel free to attack the following points in the comments.) 

In general, defendants in a slander or libel case have five possible defenses, four of which are summarized in an online legal dictionary like so:
In general, there are four defenses to libel or slander: truth, consent, accident, and privilege. The fact that the allegedly defamatory communication is essentially true is usually an absolute defense; the defendant need not verify every detail of the communication, as long as its substance can be established. If the plaintiff consented to publication of the defamatory material, recovery is barred. Accidental publication of a defamatory statement does not constitute publication. Privilege confers Immunity on a small number of defendants who are directly involved in the furtherance of the public’s business—for example, attorneys, judges, jurors, and witnesses whose statements are protected on public policy grounds.
The fifth defense is to argue that the statements in question were not, by definition, defamatory.
Since Mann didn’t consent, the publication wasn’t an accident, and the defendants are not in categories that receive automatic immunity, only the defense of truth and denial that the statements qualify as defamatory are available to the defendants.  They have at least implied both possibilities, depending on the situation.
When trying to get the case dismissed, the defendants’ arguments have been about how their accusations do not pass the test for being considered defamatory.  As CEI’s attorney put it,
And regardless of how one views Mann’s work, his threatened lawsuit is directly contrary to First Amendment law regarding public debate over controversial issues.  Michael Mann may believe we face a global warming threat, but his actions represent an unfounded attempt to freeze discussion of his views.
The problem with this defense is that the statements in question weren’t just criticizing Mann’s views, or his work.  Rather, they were specifically accusing him of criminal acts, performed using government funds.  That online legal dictionary I mentioned notes that such accusations, if they are false, automatically constitute libel.
libel per se n. broadcast or written publication of a false statement about another which accuses him/her of a crime, immoral acts, inability to perform his/her profession, having a loathsome disease (like syphilis), or dishonesty in business. Such claims are considered so obviously harmful that malice need not be proved to obtain a judgment for “general damages,” and not just specific losses. (See: defamationlibelslander)
Even supposing that Mann’s lawyers can’t get the accusations treated as “libel per se,” and need to prove “actual malice,” that only entails proving that the false statement was made “with knowledge that it was false or with reckless disregard to whether it was false or not.”  (This is exactly what the  judge in the case recently ruled, so it’s not just me and the online legal dictionary making this up.)
I’ll get back to the “actual malice” issue in a moment, but first let’s talk about the defendants’ prospects using the “defense of truth.”  During the initial saber-rattling stage, Myron Ebell (Director of the CEI’s Center for Energy and Environment) said this:
The fact that Professor Mann’s hockey stick research is still taken seriously in the public debate is an indication that people haven’t read the Wegman Report to the House Energy and Commerce Committee, the National Research Council’s report, or the analysis of Stephen McIntyre and Ross McKitrick.
So does this mean they will use the “defense of truth” if the case goes to trial?  One problem with that would be that none of the documents Ebell mentioned accuse Mann of deliberately manipulating his data for political ends.  Oh, you can find a few things to argue that Mann made some minor mistakes that didn’t end up making much difference for his results, or made some data-handling choices that other scientists might not have, but deliberate data tampering is another matter.
But the main problem with the “defense of truth” is that the accusation of deliberate fraud is just stupid.  The basic conclusions of Mann’s Hockey Stick work have been confirmed over and over by other researchers using different kinds of data and statistical techniques, and the data-handling choices some question were openly discussed in the literature.  Mike Mann discusses all this in his book, The Hockey Stick and the Climate Wars, and Myron Ebell mentioned that he was aware of the contents of this book when he made the statement quoted above.
Professor Mann’s political advocacy is no more reliable than his scientific research.  His recent book, The Hockey Stick and the Climate Wars: Dispatches from the Front Lines, repeats numerous factual errors, some of them about CEI.
So if the accusations are stupid on their face, and this had been pointed out to the defendants, it seems to me that it will be hard for the defendants to argue either that the accusation was true, or that they made the accusation against Mann without “reckless disregard to whether it was false or not,” i.e., without “actual malice”.   Maybe they will turn up something in discovery to make the accusation seem less stupid, but Mike Mann doesn’t seem too worried about that possibility.
The above analysis provides at least some of the reasons why I  believe the defendants are feeling little warm trickles down their legs right now.  The judge has already refused to throw out the case, because the defendants’ accusation obviously does qualify as defamation under the law (proving “actual malice” is a matter to be brought to the jury).  They never had anything other than unsubstantiated rumors to base their accusation on, and it had previously been pointed out to them that the accusation was ridiculous on its face.  What’s more, it would be very difficult for any of the defendants to just apologize and settle the case, because their constituency (from which they derive their livelihoods) consists of extreme Libertarian wingnuts, who might abandon the defendants if they appear to compromise with New-World-Order-mandated science.  For instance, yesterday Mark Steyn was busy throwing the ravening wolves a bone, thusly:
On that note, I promise my many kind supporters I will not let you down, I won’t be settling, and the denouement will be way better than “The Good Wife.” It’s time for Michael Mann and the sclerotic DC courts to bring it on or bugger off.
As I see it, the defendants only have four options if (when) their attempts to get the case thrown out fail.  1) They can hope against hope to find any evidence of foul play on Mann’s part during discovery.  2) They can hope against hope that they get a really, really stupid AND Libertarian-leaning jury… in Washington DC.  3) They can hope their wingnut army keeps buying their lines about defending Freedom of Speech long enough to finance all the legal bills and the eventual judgement.  4) In Mark Steyn’s case, he might try what might be a hitherto unknown defense in a libel case.  That is, he could claim that he’s too stupid to even understand anything that has been said about Mann’s work.
No, really.  Mark Steyn recently wrote that he thinks the Hockey Stick is a “climate model” whose predictions have failed to be realized.
In a post at NATIONAL REVIEW’s website, I mocked Dr. Michael Mann, the celebrated global warm-monger, and his ‘hockey stick,’ the most famous of all the late-Nineties global-warming climate models to which dull, uncooperative 21st-century reality has failed to live up. So he sued.
This obviously guts any defense claiming he made the accusation against Mann without “reckless disregard to whether it was false or not,” so what can he do if the flow of wingnut money dries up? So I’m asking you lawyers out there, has this defense ever been tried?  I mean, I sort of doubt Steyn will resort to this, but you know… hypothetically… could he?  That’s a precedent I wouldn’t mind seeing set.
[UPDATE:  Mark Steyn linked to this page with the following comment.  "BONUS! Ever anxious to help, Barry Bickmore (apparently auditioning to be my Javert) suggests that yours truly plead not guilty on grounds of insanity."  No, I suggested he plead not guilty on grounds of… sigh… he's making this way too easy.  It's not even fun, anymore.]

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