POSTED BY HANK REICHMAN
Late last year I posted a piece about climate scientist and AAUP Committee A member Michael Mann’s important victory in his ongoing libel suit. The District of Columbia Court of Appeals ruled in a 111-page opinion that 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.”
In the comments to my post and elsewhere some have argued that in fact it is Mann’s suit that threatens free expression, in particular the freedom of the press. That position was taken by National Review’s attorneys Michael A. Carvin and Anthony Dick in “A Libel Suit Threatens Catastrophe for the Climate of Public Debate,” an op-ed piece published in the Wall Street Journal on February 6. The following letter to the editor, written by Mann’s attorney, appeared in the Journal on February 9, under the above headline:
The First Amendment sky is not falling as a result of the recent decision of the District of Columbia Court of Appeals permitting climatologist Michael Mann’s case to proceed against the National Review Online, despite the claims of NRO’s attorneys Michael A. Carvin and Anthony Dick in “A Libel Suit Threatens Catastrophe for the Climate of Public Debate” (op-ed, Feb. 6). In this litigation, Dr. Mann is challenging NRO’s accusations that he engaged in scientific fraud when he published his “hockey stick” graph demonstrating the considerable rise in the earth’s temperatures. Messrs. Carvin and Dick assert that this decision is catastrophic for public debate because their client was simply “questioning” Dr. Mann’s work and “voicing one’s opinion.”
To the contrary, NRO’s efforts to characterize its false accusations of fraud as some sort of contribution to public debate ignores the fundamental difference between genuine opinion and knowing or reckless falsehoods. Protected opinion has its limits; fake news doesn’t qualify. This has been the law for decades, and in a delightfully ironic twist the court repeatedly cited a 1976 defamation case successfully pursued on this very ground by none other than William F. Buckley—the founder of National Review. The Buckley decision drew the sharp distinction between protected opinion and knowing falsehoods. The Mann v. NRO decision does nothing different; the First Amendment remains alive and well and undisturbed.
Among the comments to my original post was one made some two weeks after that post went up by an individual identifying only as “Locus.” Responding to my answer to another comment that in this case Mann’s status as a “public figure” was not at issue, “Locus” quoted court records as follows: “The parties agree, as do we, that Dr. Mann is a limited public figure with respect to statements about global warming because he has assumed a role in “the
forefront of particular public controversies in order to influence the resolution of the issues involved.” Gertz, 418 U.S. at 345.” (http://www.dccourts.gov/internet/documents/14-CV-101_14-CV-126.pdf). He then added: “In other words the courts have put Mann in the same legal category as politicians and the Kardashians and his lawsuit has nothing to do with protecting academics. I look forward to you actually reading and understanding something before posting commentary on this case.”
I didn’t bother to respond at the time, since by that point hardly anyone was still viewing the post. But now let me simply point out that “Locus” actually confirms my point, which was never to claim that Mann is not a public figure but to argue that Mann’s status as a public figure was not at issue in the appeal, since as Locus points out, both sides had already stipulated to this. As for that stipulation placing Mann in the same category as the Kardashians, let me simply promise Locus that the next time Kim Kardashian is compared to Jerry Sandusky because of her peer-reviewed scientific research, I will be likely to come to her defense as well. Not holding my breath, however.