BY HANK REICHMAN
In a victory for both academic freedom and science an appeals court ruled today that climate change scientist and AAUP Committee A member Michael Mann can sue two conservative writers over allegations that they defamed him. The case centers on posts written by Rand Simberg in a Competitive Enterprise Institute (CEI) blog and Mark Steyn on National Review. Among other comments, Simberg called Mann the “Jerry Sandusky of climate science.”
The District of Columbia Court of Appeals ruled in a 111-page opinion that a “reasonable jury” could find that the pieces by Simberg and Steyn meet the standard necessary to prove that they illegally defamed Mann. Mann filed suit in 2012. The trial court dismissed the respondents motion to dismiss, which was then appealed to the higher court.
“Tarnishing the personal integrity and reputation of a scientist important to one side may be a tactic to gain advantage in a no-holds-barred debate over global warming,” Judge Vanessa Ruiz wrote for a three-judge panel. “That the challenged statements were made as part of such debate provides important context and requires careful parsing in light of constitutional standards. But if the statements assert or imply false facts that defame the individual, they do not find shelter under the First Amendment simply because they are embedded in a larger policy debate.”
In a statement, Mann said, “We are particularly pleased that the court, after performing an independent review of the evidence, found that the allegations against me have been ‘definitively discredited’. I am pleased by this unanimous decision of the court and we now look forward to presenting our claims of defamation to a jury.”
In his blog post, Simberg wrote:
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 service of politicized science that could have dire consequences for the nation and planet. . . .
Mann has become the posterboy of the corrupt and disgraced climate science echo chamber. No university whitewash investigation will change that simple reality. . . .
Michael Mann, like Joe Paterno, was a rock star in the context of Penn State University, bringing in millions in research funding. The same university president who resigned in the wake of the Sandusky scandal was also the president when Mann was being whitewashed investigated. We saw what the university administration was willing to do to cover up heinous crimes, and even let them continue, rather than expose them. Should we suppose, in light of what we now know, they would do any less to hide academic and scientific misconduct, with so much at stake?
Steyn authored an article titled “Football and Hockey,” which appeared on National Review’s online blog “The Corner.” In his article, Steyn quoted Simberg’s Sandusky reference, adding, “Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph, the very ringmaster of the tree-ring circus. . . . If an institution is prepared to cover up systematic statutory rape of minors, what won’t it cover up? Whether or not he’s “the Jerry Sandusky of climate change”, [sic] he remains the Michael Mann of climate change, in part because his “investigation” by a deeply corrupt administration was a joke.”
The legal issues raised on appeal were complex (hence the lengthy opinion), but here are some key excerpts from the ruling:
The important societal interest in vigorous debate over matters of public concern protected by the First Amendment has led to the development of constitutional standards for evaluating statements before liability may be imposed under state defamation laws. Because the First Amendment protects speech as an expression of the fundamental right to freedom of thought, constitutionally speaking, “there is no such thing as a false idea.” . . . Therefore, under the First Amendment a statement is not actionable “if it is plain that a speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts.” . . .
Although ideas and opinions are constitutionally protected, the First Amendment does not, however, “create a wholesale defamation exemption for anything that might be labeled ‘opinion.’” “[S]tatements of opinion can be actionable if they imply a provably false fact, or rely upon stated facts that are provably false.” . . .
Appellants contend that all the statements on which Dr. Mann bases his defamation claims are protected under the First Amendment because they expressed appellant’s opinions about climate change, a matter of widespread public concern that “must be resolved through the process of free and open debate, not through costly litigation.” There is no dispute that the statements that Dr. Mann claims defamed him were made in the context of a broad disagreement between the parties about the existence and cause of global warming, a disagreement that reached a high level of intensity and rhetoric. Public discussion about whether there is a warming climate and, if so, its cause, involves scientific questions and policy prescriptions of general public interest. The First Amendment protects those engaged in a debate of such public concern in the expression of their ideas on the subject, even with pointed language, free of the chilling effect of potential civil liability. As a matter of constitutional principle, when the issue is whether liability may be imposed for speech expressing scientific or policy views, the question is not who is right; the First Amendment protects the expression of all ideas, good and bad.
But not all the statements cited in the complaint are necessarily cloaked by the First Amendment simply because the articles in which they appeared related to a matter of public concern. As we have discussed, the law distinguishes between statements expressing ideas and false statements of fact. To the extent statements in appellants’ articles take issue with the soundness of Dr. Mann’s methodology and conclusions — i.e., with ideas in a scientific or political debate — they are protected by the First Amendment. But defamatory statements that are personal attacks on an individual’s honesty and integrity and assert or imply as fact that Dr. Mann engaged in professional misconduct and deceit to manufacture the results he desired, if false, do not enjoy constitutional protection and may be actionable. The Second Circuit’s observation in Buckley v. Littell with respect to defamatory statements about a journalist made in the course of political debate is equally apt to defamatory statements about a scientist made in the course of scientific and policy debate. . . .
Tarnishing the personal integrity and reputation of a scientist important to one side may be a tactic to gain advantage in a no-holds-barred debate over global warming. That the challenged statements were made as part of such debate provides important context and requires careful parsing in light of constitutional standards. But if the statements assert or imply false facts that defame the individual, they do not find shelter under the First Amendment simply because they are embedded in a larger policy debate.
Appellants contend that Mr. Simberg’s article is more reasonably understood as a criticism of the hockey stick graph and the research that underlies it. This seems to be a forced interpretation — and one that a jury could easily reject — because the article does not comment on the specifics of Dr. Mann’s methodology at all. Nor does the article purport to reveal previously unknown facts about Dr. Mann’s methodology, which was apparent from his published work and numerous articles commenting on the hockey stick graph and its findings. In a different context, the article’s use of the phrase “corrupt and disgraced climate science,” could, as appellants argue, be interpreted as criticism of flawed scientific methodology. But when the phrase is used in conjunction with assertions that Dr. Mann engaged in “deception,” “misconduct,” and “data manipulation,” and the article concludes that he should be further investigated, the cumulative import is that there are sinister, hidden misdeeds he has committed. These are pointed accusations of personal wrongdoing by Dr. Mann, not simply critiques of methodology of his well-known published scientific research. . . .
Even allowing for the use of hyperbole in the public discussion about global warming, we conclude that the statements in Mr. Simberg’s article that Dr. Mann acted dishonestly, engaged in misconduct, and compared him to notorious persons, are capable of conveying a defamatory meaning with the requisite constitutional certainty and included statements of fact that can be proven to be true or false.
The court then turned to the question of whether the charges made by Simberg and Steyn were made with “actual malice.” In doing so the justices considered the many independent scientific investigations that have repeatedly refuted charges that Mann and other scientists had engaged in fraud, deception or misconduct. “The issue for the court at this juncture,” the opinion notes,
is to determine whether the conclusions reached by these various investigations, when considered in view of all the evidence before the court, permit a jury to find, by clear and convincing evidence, that appellants either knew their accusations of misconduct were false or made those accusations with reckless disregard for their truth.
We are struck by the number, extent, and specificity of the investigations, and by the composition of the investigatory bodies. We believe that a jury would conclude that they may not be dismissed out of hand. Although we do not comment on the weight to be given to the various investigations and reports, which is a question for the jury, what is evident from our review is that they were conducted by credentialed academics and professionals. . . .
The investigations posed their questions in slightly different ways and conducted their analyses in accordance with their own procedures and standards, a mark of the cumulative strength of the conclusion each reached unanimously and without equivocation: that the CRU emails did not support the conclusion that the scientists engaged in fabricating or deceptively manipulating data, or in scientific misconduct, fraud or dishonesty in their reporting and presentation of research results. . . .
Appellants argue that the investigatory reports could not be relied upon by a jury because the investigations Dr. Mann claims exonerate him of misconduct “take no ultimate position,” but only indicate that there was “no evidence” of fraud. This is a quibble about wording that does not call into question the import of the investigations’ conclusions. An investigatory body can report only on what it has found; a determination that there is “no evidence” of fraud is an ultimate conclusion that investigation has not turned up any evidence of misconduct. . . .
On the current record, where the notion that the emails support that Dr. Mann has engaged in misconduct has been so definitively discredited, a reasonable jury could, if it so chooses, doubt the veracity of appellants’ claimed honest belief in that very notion. A jury could find, by clear and convincing evidence, that appellants “in fact entertained serious doubts” or had a “high degree of awareness” that the accusations that Dr. Mann engaged in scientific misconduct, fraud, and deception, were false, and, as a result, acted “with reckless disregard” for the statements’ truth when they were published.
The decision is a welcome victory, especially given the renewed danger to climate science and academic freedom posed by the incoming Trump administration, as Professor Mann has so eloquently argued in a widely-read recent op-ed, warning that he and his colleagues are “bracing for a renewed onslaught of intimidation, from inside and outside government.” Employees from CEI are on Trump’s transition team for the EPA, raising concerns that harassment of climate scientists could become official government policy. One CEI employee, Chris Horner, has spent years filing lawsuits against climate scientists, seeking email records and other information to prove allegations of research misconduct.