The National Review is a political magazine, and Mark Steyn, I think, writes for them (I really don’t keep track). A while back Steyn and/or the National Review made some seemingly very defamatory statements about Michael Mann, the climate scientist. Career-damaging really icky accusations of fraud and such. They were bogus accusations, but they were also not just trollish yammering of the type we see all the time from the science denialist gaggle. So, Mann sued them.

NationalReviewHyperboleMemeI prefer the Law and Order version of law. Something happens on Monday, on Tuesday everything is confusing, on Wednesday there is a car chase or something, on Thursday everyone is in court and on Friday the whole maneno is done with and everyone is back to eating donuts. Real legal stuff drags on forever. If you want to catch up, here are a few blog posts and other items that might help. (That was a search using the Climate Science Search Engine, which is on the right side bar of my blog!)

Anyway, there is a new development. National Review has filed a long and boring legal document that appears to be some kind of whinging about how the case against them should go away. Eli Rabbit has made two comments about it that I agree with. First, he notes that the document states that the prior yammering by National Review is not officially “malice” because they really believe the things they say. But, in the same document, they claim that “Read in context, Steyn’s commentary was protected rhetorical hyperbole, not a literal accusation of fraud or data falsification.” See meme.

The second point also stuck out as a sore thumb when I looked at it, and it is so obvious that I assumed I was reading the legal document incorrectly. But Eli confirms. From the legal document:

…critics have argued that the hockey stick is misleading because it splices together two different types of data without highlighting the change: For roughly the first nine centuries after the year 1000 A.D., the graph shows temperature levels that have been inferred solely from tree-ring samples and other “proxy” data. But from about 1900 onward, the graph relies on readings from modern instruments such as thermometers.

I’m pretty sure the technical legal term for this is taurus craps puris*. The hockey stick graph in its original form and most early incarnations has color coding or other appropriate line style differences to distinguish between the records. Some people have taken both the hockey stick graph and other similar graphics and merged the data into a single squiggle for presentation purposes, an acceptable if not always wise method. The National Review legal document also makes mention of shifting between proxies and instrumental data. They suggest that a broken instrumental record should have been used instead of simple temperature measurements with thermometers and stuff. This harks back to the time the climate science denialists stole a bunch of scientists’ email and made stuff up about it (a complicated story but one you can read about in detail in Mann’s book).

This filing by the National Review is a lame defense against a very well argued and appropriate law suit. I’m sure this won’t last until Wednesday in court. (Law and Order time.) Not only are their claims wrong, but they have been known to be long for a very long time.

_______________
*Translates roughly as Complete and Utter Bullshit.

Comments

  1. #1 antiprogressives
    August 5, 2014

    Everybody knows that Mann is a fraud.

  2. #2 Richard Chapman
    August 5, 2014

    I’m part of everybody and I know he speaks scientific truth. You’re wrong.

  3. #3 Andrew Skolnick
    August 6, 2014

    Very well stated, Greg. I would like to add that National Review’s claim that a defamatory statement cannot be actionable if it was believed to be true is utter clap trap. Libel law in the U.S. has been quite clear about this for half a century. In the 1964 Supreme Court decision Sullivan vs. New York Times, the court ruled that in order for “public figures” to win a defamation suit, they must prove the defendants published or broadcast defamation and had done so with “actual malice.” But this legal phrase has a different meaning from general usage. It doesn’t mean “acted with malicious intent.” It means the defendant published or broadcast a defamatory statement either with knowledge that the statement is false or with a “reckless disregard whether or not it is true.” As it was clear to the first judge who ruled against National Review, Mark Steyn, and CEI’s motion to dismiss Dr. Mann’s libel suit, the defendants acted with a disregard for the truth of their accusation. Whether they “believed” it or not, is not a relevant question. The question is whether they ignored all the evidence to the contrary. Two different judges have already ruled against the defendants’ motions to dismiss Mann’s suit. In their rulings, they said there is “sufficient evidence in the record to demonstrate that” the defendants acted with malice or with a reckless disregard for whether their accusation of fraud against the plaintiff was true or not.

  4. #4 John Mashey
    http://www.desmogblog.com/user/john-mashey
    August 6, 2014

    Good post Dr. Laden!
    I was especially amused by the silliness of NR’s
    “critics have argued that the hockey stick is misleading because it splices together two different types of data without highlighting the change:”

    MBH99 Fig 3(a) and
    IPCC TAR (2001) SPM Fig 1,(b), TC Fig 5, main report Fig.2.20
    all have clear legends embedded in the graphs, and further explanation, so apparently “critics” lacked the ability to read English.

    MBH99 as published used grayscale, as either GRL didn’t do color then, or there were extra fees not worth it. Nobody outside paleoclimate cared much until the TAR, and it used color in all 3 graphs. Also, MBH99 and most others showed a downsloping regression line that clearly had an MWP and LIA, but not the huge MWP from the Lamb(1965) schematic of Central England (which is not the Northern Hemisphere). That later got propagated everywhere … and clung to, like a flat-Earth ma by some people, albeit not paleoclimatologists. See Adoration of the Lamb (Stoat)

    “Critics” didn’t seem to be able to read MBH99, the TAR, Legends on the graphs, or see colors … or see a sloping line, but many swore eternal allegiance to images they falsely claimed to have come from IPCC(1995) or IPCC(1990), obviously without reading the relevant text or having any idea where the images they used actually came from. For explanation, see comments at Rabett Run today.

    Rejection of well-labeled graph whose confidence interval includes most points of most other reconstructions, combined with blind acceptance of a long-obsolete, poorly-provenanced sketch is a dandy example of the strong Morton’s Demons within pseudoskepticism :-)

  5. #5 MikeMa
    August 6, 2014

    Assuming Dr Mann wins, there should be (at least) 2 results.
    1.) Scientifically literate folk will have another positive result to argue their case for climate change.
    2.) Those who cannot accept the science will be screaming that their free speech is under attack. Or persecution. Or freedumb of religion.
    Science vs stupid. American politics.

  6. #6 ppnl
    August 6, 2014

    In the end Mann will probably lose this case. That does not mean that The National Review did not disgrace itself. It just means that the courts are rightfully very reluctant to get involved in matters of public controversy even if there is no actual scientific controversy.

    Still, Mann can win a tactical victory if he gets person after person to say that they did not intend to say he committed scientific fraud.

  7. […] e link alle puntate precedenti da Greg Laden e dal delizioso lagomorfo. Ogni riferimento alle iperboli di Camillo vs. i fisici è del tutto […]

  8. #8 Eric Lund
    August 6, 2014

    MBH99 as published used grayscale, as either GRL didn’t do color then, or there were extra fees not worth it.

    The latter explanation is correct. At the time, the cost of including a single color figure in GRL was more than the page charges for publishing a complete article in black and white, and in those days the page charges included reprints (GRL was not yet available online). So while you could print a color figure in GRL, you only did that if you thought it was essential for interpreting your results, or you thought your result was important enough to justify the extra cost (and you had the publication budget to pay for it). If this was a follow-on to the 1998 Nature paper by the same authors, I can see why they wouldn’t feel the expense of color printing was justified.

  9. #9 Andrew Skolnick
    August 6, 2014

    ppnl does not provide any reason for saying Mann will likely lose his suit against NR, Steyn, et al. While public figures do have an extra and difficult hurdle to clear in order to prevail in a libel suit, there are many examples of public figures who have won large damages against their libelers. For example, Carol Burnett successfully sued The National Enquirer” in 1981 over a story it published accusing her of public drunkenness in a restaurant. In 1998, Tom Cruise sued a British tabloid for publishing alleging his marriage was a sham designed to cover up cover up his homosexuality, his impotence, and his sterility — and won. The fact is defamation has NEVER been protected speech under U.S. law. While U.S. courts allow reporters, editors, and broadcasters to make “honest” mistakes that might damage a public figure’s reputation, they do not give them impunity to publish or broadcast harmful lies without making a reasonable effort to determine whether their allegations are true. It’s clear the defendants Mann is suing knew or should have know the integrity of his climate research has been well established by multiple leading scientific institutions around the world. Indeed, as one judge already commented, one of those investigations, which found Mann’s work sound, was begun upon the request of the defendant CEI!

  10. #10 Greg Laden
    August 6, 2014

    Ppnl, so far it looks like Mann has prevailed at every stage of this case. I would not assume he will lose.

  11. #11 daedalus2u
    August 6, 2014

    When does discovery start? I would like to see the Mann legal team trawl through the email records of the National Review.

  12. #12 Terry O'
    August 6, 2014

    Discovery is going to be the most delicious part of this case. We’re definitely going to see a conspiracy to libel Dr. Mann come to the fore, and in seeing this we will also see evidence of the cynical conspiracy overall to ad hom slime the messengers of climate disruption rather than address the science. This is going to be popcorn at the movies time very soon.

  13. #13 ppnl
    August 6, 2014

    Greg,

    I am not assuming that Mann will lose. I’m only pointing out as a point of law that he has a very hard case. He has won so far but that was the easy part. Anti-SLAPP laws are only intended to stop the most meritless cases. Even so many lawyers I have listened to say he probably should not have won even this.

    I think the accusation of scientific fraud is the one most likely to get The National Review in trouble. That can normally be discounted as just rhetorical hyperbole and that is not inconsistent with honestly believing that Mann is wrong and did bad science. But in a world where many people actually believe that Mann committed scientific fraud there may be more of a duty to make it clear that your statement is hyperbole.

    But in any case The National Review does have a PR problem. They will have to stand up and court and say “No, we do not believe that Mann committed scientific fraud, yes we understand that the scientific community believes he did good science and no he did not try to disguise the source of his data”.

    That’s going to hurt. Mann’s lawyers should focus on making it hurt worse.

  14. #14 Greg Laden
    August 6, 2014

    That is not what my legal team is saying.

    Also the decisions so far have implied confirmation that the accusation of fraud part is not frivolous, right? My thinking is that else are heading to the point where in a typical case the defendant looks to settle.

    But I hasten to add that I’m out of my depth in this area.

  15. #15 ppnl
    August 6, 2014

    Greg,

    Yes, winning the anti-SLAPP part means Mann’s complaint is not frivolous. But that is a very low bar. Defending against a defamation suit can be very expensive even if the claim has no merit. As a practical matter this means that a rich person can force a poor person to just shut up because they just don’t have the money to defend. Anti-SLAPP laws were put in place to fix this. It just means a case must have some minimal merit before a person can be required to put up a huge amount of money to defend themselves.

    Losing the anti-SLAPP motion means NR will have to pay the cost of arguing their case in court. They could afford that anyway. The worse thing for them is now they will have to stand up in court and say “We didn’t mean for anyone to take us seriously!”.

  16. #16 John Mashey
    August 6, 2014

    Discovery:
    Recall that it isn’t just NR, but also Competitive Enterprise Institute, which has a long history.
    See Strange Scholarship in the Wegman Report, pp.27-32 and look for Ebell and Horner. CEI was one of the 2 thinktanks that orchestrated the attack on the hockey stick from the beginning…
    See activities 01, 02, 04, 05, 06, 07, 08, 09.
    Myron Ebell had the letters that Joe Barton sent to harass scientists … before some of them even got it.

  17. #17 Greg Laden
    August 6, 2014

    Didn’t they change their name again?

  18. #18 daedalus2u
    August 6, 2014

    I think that the problem the National Review is going to have is that they don’t have any resources to “settle” with, and their funders are unwilling to give them any resources to “settle” with.

    What that means is that the case will drag forward until the funders get brought in following discovery. That will completely change the entire case. Then the Mann team can use a RICO argument against the funders.

  19. #19 Greg Laden
    August 6, 2014

    There is such a thing as liability insurance that responsible major publications normally have. They keep saying they don’t have the resources but that is probably BS.

  20. #20 Eric Lund
    August 6, 2014

    responsible major publications

    Assumes facts not in evidence.

  21. #21 Brainstorms
    August 6, 2014

    How about as part of Mann’s settlement (when he wins) is that he acquires the trademark and all rights to “National Review”, etc. as part of his compensation package?

    If the poor dears have no other resources, they certainly have that, and it has value. (Just think how the tone of their publication would, um, change after such an award….)

  22. #22 Tom Hunt
    August 6, 2014

    I can see why you prefer the ‘Law and Order’ version of law since it doesn’t contain an overly large share of ‘law’. It’s possible that if you spoke to a lawyer BEFORE you shot off your mouth, you might have realized/been informed that the statements by National Review were opinions rather than facts and as such they are NOT defamation. So Mann can sue and have his day in court but it’s likely that he will lose and under the anti SLAPP statute, be liable for a large sum in fees and costs. There’s a good article on this by an actual lawyer here:

    Mann might have quit while he was ahead but nooooo…

    So you blather on.

    Might be a good idea to stick to things you know.

    Respectfully, T. Hunt

  23. #23 Brainstorms
    August 6, 2014

    Dear National Review,

    “Might be a good idea to stick to things you know.”

    Respectfully, Sensible Citizens of Earth

  24. #24 ppnl
    August 6, 2014

    Tom Hunt,

    Mann has already won the anti-SLAPP issue and so it is unlikely that he will have to pay legal cost.

  25. #25 Greg Laden
    August 6, 2014

    Tom, you keep using that word, ‘respectfully’ .. I don’t think it means what you think it means.

  26. #26 Tom Hunt
    August 6, 2014

    Sorry, don’t know why the link didn’t show up.

  27. #27 Tom Hunt
    August 6, 2014

    No, Greg, I know exactly what it means.

    Is there a procedure for posting links?

  28. #28 Greg Laden
    August 6, 2014

    Yes, there are two steps to posting links.

    A) they can’t be to denialist, a to anti science, or other sites I do not want to promote on my blog.

    B) don’t be a dickhead.

    Most links are held in moderation. I will check the comment shortly.

  29. #29 cosmicomics
    Denmark
    August 6, 2014

    “Didn’t they change their name again?”

    I think you’re confusing the CEI with the American Tradition Institute, which recently changed its name to the Energy & Environment Legal Institute, and which recently lost its case against Mann. You wrote about this yourself.

    “The American Tradition Institute a.k.a. ATI a.k.a. Energy & Environmental Legal Institute is a “think” tank that supports or engages in climate science denialism…
    From Southern Studies:

    ‘Virginia’s highest court has ruled that the American Tradition Institute (ATI), a free-market think tank that promotes climate science denial, must pay damages to the University of Virginia and … Michael Mann for filing a frivolous lawsuit against them. The decision comes in a case that has sparked controversy about the abuse of public records laws to harass climate scientists.’ ”
    http://scienceblogs.com/gregladen/2014/07/11/mann-uva-win-lawsuit-ati-will-pay/

    In the current case it looks as though the defense is reverting to the much feared combination of the my client is dyslexic and colorblind and the ha ha it was just a joke defense. I don’t see how Mann can beat that.

  30. #30 cosmicomics
    Denmark
    August 6, 2014

    Correction –
    it looks as though the defense is resorting to…

  31. #31 SmarterThanYourAverafeBear
    August 6, 2014

    Is NR hoping they can get this pushed to SCOTUS – count on the 5 conservative activists to side with them. I don’t see how they could do it but I really don’t know much about your legal system.

  32. #33 Andrew Skolnick
    August 7, 2014

    Well so far neither National Review, Steyn, or CEI have raised a single challenge to any law relevant to this case. So I seriously doubt the US Supreme Court would even want to get involved in the global warming denial business by further rewriting the First Amendment.

    And concerning a previous comment claiming the defendants’ defamatory attack on Dr. Mann is protected speech because it was their “opinion” — accusing a public school teacher of being a child molester because you think he or she is a child molester could cost you big time — unless of course you can prove he or she is a child molester.

    In its 1990 Milkovich v. Lorain Journal Co. ruling, the U.S. Supreme Court said that couching speech as opinion does not protect its author from liability. Instead, liability can and should be imposed if the purported opinion implies defamatory facts.

    On top of all that! Steyn, National Review, and CEI did NOT publish their defamatory statements as opinion — they were clearly asserted as provable fact.

  33. #34 cosmicomics
    Denmark
    August 7, 2014

    Some weeks ago Barry Bickmore had another fine piece on the Mann vs. Steyn, CEI lawsuit. Among other things it showed how one can make false claims without being held legally responsible for them. The advice is elementary, and should be known by anyone involved in public communication. Instead of expressing categorical certainty, you guard yourself with uncertainty.

    My impression is that Steyn was playing to a septic audience for whom the hockey stick represents a political, ideological, and economic threat, and also a threat against their way of life. Encouraged by readers who didn’t need to understand the hockey stick, who viscerally knew it had to be a fraud, and supported by powerful conservative interests, Steyn evidently felt that he could take established septic libels for granted. Bickmore makes it clear that Steyn made his accusation without even bothering to understand what the hockey stick depicted:

    “The other day I posted another commentary on the case, in which I brought up the fact that Steyn had explained Mann’s Hockey Stick graph to his readers as a “climate model” whose “predictions” had failed to pan out. In fact, I think I mention that gaffe in every post I do about this case, because it’s MADE OF AWESOME! When the standard of proof Mann has to meet is to show that the defendants acted with reckless disregard for the truth or falsity of their accusations against Mann, it’s like manna from heaven when one of the defendants demonstrates that he didn’t have a clue what the Hockey Stick even was before deciding to accuse Mann of producing it via fraudulent data manipulation for political ends.”
    http://bbickmore.wordpress.com/2014/06/03/take-notes-mr-steyn/

    So Steyn can’t prove his accusations and he’s left with a humiliating defense. The only thing he can do is continue to squirm in the hope that his supporters are stupid enough to continue their contributions. As in the ATI case, Michael Mann has stood up to the bullies.

  34. #35 John Mashey
    August 7, 2014

    cosmicomics #29
    ‘I think you’re confusing the CEI with the American Tradition Institute, which recently changed its name to the Energy & Environment Legal Institute, and which recently lost its case against Mann. You wrote about this yourself.

    “The American Tradition Institute a.k.a. ATI a.k.a. Energy & Environmental Legal Institute is a “think” tank that supports or engages in climate science denialism.’

    That’s correct, but as usual, behind the scences is more complex and intertangled. Key players at ATI were David Schnare and Chris Horner, the latter a long-time Competitive Enterprise Institute / Cooler Heads Coalition guy.

    Meanwhile, Schnare started the George Mason Environmental Law Clinic, which later changed its name to Free Market Environmental Law Clinic,

    For history and some details, see pp.63-67 in
    this PDF.
    Schnare has taught a course at GMU, apparently in how to run such lawsuits.

    Anyway, organization names change, but the same people do the same things.

  35. #36 John Mashey
    August 7, 2014

    Oops, one more: FMELC is now a 501(c)(3), so that donations to it are tax-exempt. It takes a while for IRS Form 990s to get filed, so there is no visibi8lity so far nor any idea who’s funding it.

  36. #37 cosmicomics
    Denmark
    August 8, 2014

    John Mashey –

    Thanks for the link. Harassing and training others to harass is what they do and what they’re paid to do.

    One brief comment. Re. the Mann/UVA case the ATI writes:

    “We expect this matter will end up in the Supreme Court of Virginia and if successful its discovery and production will prove invaluable to energy policymaking [282] at the state and federal levels domestically, as well as internationally.”

    Your response is this:

    “[282]
    Really? Exactly how would paleoclimate research from then affect energy policy?”

    The ATI/Energy & Environment Legal Institute and similar organizations exist to support the interests behind a fossil fuel based status quo. That’s why they oppose climate science and renewable energy. The hockey stick is the easy to understand graphic incarnation of the consequences of burning fossil fuels, so it has to be delegitimized. One way of doing this is by postulating that the MWA has the same status as the current warming, thus demonstrating the insignificance of CO2 emissions and the natural variability of the climate. (The climate is always changing.) Another is to invalidate the research by impugning the integrity of the researchers: Michael Mann is guilty of fraudulent manipulation, climate scientists reach the results they reach because it’s to their economic advantage, there’s a conspiracy of unimaginable proportions. The hockey stick affects energy policy by showing the difference between then – pre fossil fuels – and now. If you remove or create significant doubt about that difference, you remove the climate argument for phasing out fossil fuels.

  37. #38 Joe E
    August 12, 2014

    Seems like he will lose as the NR story and Mark Steyn expressed opinions like everyone here does. In fact, you enviros should hope he loses because that will open the door to suits against one of you every time you say that certain people do things because they are beholden to the Koch Bros or big oil or something along those lines. You’ll have to come up with proof and if not- defamation! The courts really need to stay out of it and let it play out in the world of public opinion.

  38. #39 Greg Laden
    August 12, 2014

    Joe E, that’s not actually what is going on here. This was not expressing opinions or the usual banter. There’s plenty of that. This was a case of a specific accusation by a major (respected by some) media outlet of specific criminal acts, not couched in any sort of qualifying terms. This is not a subtle difference.

  39. #40 John Mashey
    August 15, 2014

    cosmicomics: sorry for delay, house guests and Hot Chips.

    “Really? Exactly how would paleoclimate research from then affect energy policy?”
    recall I also wrote:
    “Later papers have confirmed the general findings, while refining them, as is normal in real science. This is all part of the never-ending attack on the 1999 hockey stick paper..”

    The point is that if MBH99 were retroactively vanished from history, the reality would still be there in science. If you follow the sequence of IPCC(1992, 1995, 2001, 2007) there is a steady progression of more and better reconstructions of last millennium or two. For more discussion, see Strange Scholarship in the Wegman Report, p.5, 13-17, 136-142.

  40. #41 Pierce R. Butler
    August 15, 2014

    The final line of the OP is too “long” – it needs two “wrongs” to make it right.