From the Manhattan Contrarian.
March 29, 2021 / Francis Menton
In my last post a few days ago, I cited Michael Mann’s libel lawsuit against Mark Steyn as an example of an abusive litigation attempting to use the cost of legal proceedings to suppress public debate on an important issue. The lawsuit was originally filed in October 2012. Other defendants in the case include National Review (where Steyn published the blog post that is the subject of the lawsuit), Competitive Enterprise Insititute (who published another blog post that Steyn used as the basis for his own post), and Rand Simberg (Author of the CEI blog post).
The tortured story of this case shows very well how difficult it is to strike a good balance between, on the one hand, the law of defamation as a mechanism for people to defend themselves against false statements that could ruin their reputation, and, on the other hand, an extremely expensive process that can be used as a weapon by those in power to threaten bankrupt political opponents and thereby silence the debate on important issues of public interest.
To refresh your memory, here is the key quote from the Steyn 2012 blog post that the man claims is defamatory:
Michael Mann was the man behind the fraudulent “hockey stick” diagram of climate change, the ringmaster of the tree ring circus. And when the East Anglia emails came out, Penn State felt it was necessary to “investigate” Professor Mann. Graham Spanier, the president of Penn State who was forced to resign over Sandusky, was the same bay that Mann was investigating. And as with Sandusky and Paterno, the college declined to find any of its stars guilty. If an institution is willing to cover up systematic rape of minors, what will it not cover up? Regardless of whether he is “Jerry Sandusky of Climate Change” or not, he remains the Michael Man of Climate Change, partly because his “investigation” by a deeply corrupt government was a joke.
Mann’s central claim in his case against Steyn is that this passage is defamatory because the graphic “hockey stick” is not “fraudulent”; and therefore Steyn’s statement that the graph is “fraudulent” is wrong.
Notably, it is not until eight and a half years after this case that the truth or falsity of the claim that the “hockey stick” graphic is fraudulent is addressed. The issue was finally addressed in a motion filed by Steyn on January 22 for a summary of the judgment – albeit almost incidentally, in a motion that dealt with many other issues; and then the problem was addressed in much greater detail in a response from Steyn to a motion for a summary judgment by Mann filed by Steyn on March 3rd. I received a copy of the March 3rd submission but couldn’t find a link to do it online.
The Steyn Motion Papers show three ways the hockey stick diagram is fraudulent. Most convincing is Mann’s deletion of certain adverse data that would have destroyed the clean shape of the “hockey stick” of the chart. The graph shows a reconstruction of world atmospheric temperatures from around 1050 to 2000, with temperatures being flat or slightly declining over the first 900 years, followed by a strong upward movement over the past 50 years. The 900 year flat period was derived from several tree ring data collections, one of which was provided by a fellow Mann named Keith Briffa. However, in recent years (after 1960) the Briffa series has shown a drop in temperature – an uncomfortable fact that would have severely undermined the intended visual impact of the graphic. Mann then simply decided to delete the portion of the Briffa data after 1960 while the rest was still in use. From the Steyn filing of March 3rd:
The [Hockey Stick graph as published in the IPCC’s Third Assessment Report in 2001, in a portion written by lead author Mann] Omitted Baumring proxy data by climate researcher Keith Briffa showing a drop in temperature after 1960, a message inconsistent with the hockey stick’s cherished shape. . . . The IPCC TAR has not announced the deletion of this data. . . . As the lead author, Mann decided to leave out the Briffa data without input from his other lead authors. . Mann’s own staff warned him about the deletion. Chris Folland, co-coordinator of the IPCC TAR coordination, wrote to Mann that Briffa’s data “contradicts the multiproxy curve and dilutes the message quite severely”. . . Briffa herself urged Mann not to “succumb to the” pressure to present a nice, tidy story “through” ignorance “[ing]Its results after 1960.. . . Mann agreed with them on the matter, but complained about the political implications of the data: “[I]f we show Keith’s series. . . Skeptics [will] I wish you a nice day. “. . . To prevent a “skeptic field day”, he decided to delete the data.
You’d think this is as clear a demonstration of scientific fraud as it gets. And as already mentioned, this is only one of three cases of fraud in the hockey stick graphic detailed in Steyn’s filing on March 3rd. The other two relate to: (1) “cherry picking” data in choosing proxy data series to indicate a flat to decreasing temperature trend from 1050 to 1950 simply by not using any of the many available series that indicate the existence of a ” Medieval Warm Period “which is warmer than the present; and (2) a misinterpretation of a series to use the results upside down and then, when the error has been pointed out, continue to use the series in this way for the sake of the desired supports visual presentation.
Anyway, you can throw at least one more letter into this mix and then we’ll wait for the court’s decision. As clearly as this emerges from the extract I have provided, the court’s decision could only become known at the end of the year. If the summary judgment is rejected, a trial takes place. Another possibility is for the court to give a summary judgment to Mann as the plaintiff. I find this possibility almost too ridiculous to consider, but the fact is that the human mind loses almost all rational faculties when things become politicized like “climate change”.
And then there is another question: where has this case been in the past eight years? The answer is that the National Review and CEI (but not Steyn) tried to sack it under the District of Columbia “anti-SLAPP” statute. (“SLAPP” stands for Strategic Lawsuit Against Public Participation.) Readers may be interested to know what this is and how it could distract such a case for so long without ever resolving anything.
Anti-SLAPP statutes are a state-level response to the perceived abuse of libel disputes by those in power to suppress public debate. 28 states have them, including all major states; and of course the District of Columbia. The DC statute wasn’t enacted until 2012, just months before Mann made his claim. Although the anti-SLAPP statutes vary widely from state to state, the DC statute is fairly typical of protecting the “right to advocate on matters of public interest”. Here is the relevant text:
A party may make a specific motion to dismiss a claim arising out of an act to promote the right to legal counsel on matters of public interest. . . . If a party filing a specific dismissal motion under this section proves, at first glance, that the claim in question resulted from an act to promote the right to advocacy in matters of public interest, the motion will be granted, provided that the responding party this does not demonstrate that the claim is likely to be successful on the merits; in this case the application will be rejected.
It is clear from the text that this statute should block exactly what Mann is trying to achieve in this case. And yet the applications from NR and CEI were unsuccessful. The court denied the motions and the DC appeals court upheld it. There was then an attempt by NR and CEI to get the Supreme Court to hear the case, but this was also denied because Justice Alito disagreed. When that motion was denied it was in 2019. The explanation – if you want to put it that way – why the SLAPP filings were lost is in the 2016 DC Court of Appeal ruling. The Opinion goes on and on (and on and on) but mostly gets tangled in knots trying to differentiate between expressions of opinion (which are unworkable) and statements of fact (which may be workable) and mixed expressions of opinion and fact, and trying to figure out with which category we are dealing with here. It’s all extremely inexplicable. If your hypothesis was that this was just the DC Court of Appeals providing cover for a really full political decision, I couldn’t prove you wrong.
Read the full article here.
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