Electronic Frontier Foundation Messes Up

I just realized that the Electronic Frontier Foundation has filed a brief with the court in relation to Mann vs. the Competitive Enterprise Institute, the National Review, Mark Steyn, and Rand Simberg (variously). This is disappointing and will probably color my opinion of EFF going forward on whatever else they do. Their brief isn't just ethically wrong, or something I disagree with. It is unintelligent and poorly considered. They simply got it wrong, as though they did not know anything about the law suit. It is embarrassing.

I wonder how they got talked/roped into this? I would really like to know that.

Anyway, I wrote them a letter and here it is:

To whom it may concern,

I'm generally a supporter of the things Electronic Frontier Foundation (EFF) stands for, but I object strenuously to your amicus brief and it's meaning in relation to the suit brought by Michael Mann against the Competitive Enterprise Institute, the National Review, Mark Steyn, and Rand Simberg.

Your brief makes the argument that open discussion of important public issues should not be fettered by law suits of this type. You are correct in principle but you have erred in this case. Mann's suit is not about open public debate, and he has as a scientist been involved in open public debate in far more ways than most individuals have ever been. I'll add that Mann's research is all open source or open access with respect to data, methods, software, and results.

The suit is not about debate. It is about defamation. This is not a matter of interpretation. While one might (incorrectly) feel defamed when someone disagrees, Mann's suit is not about that sort of reaction. It is about actual defamation.

Perhaps Mann is wrong. Perhaps the Competitive Enterprise Institute, the National Review, Mark Steyn, and Rand Simberg have not engaged in defamation with specific statements they have made. But that can be determined in court. Mann has the right to sue for this. The Competitive Enterprise Institute, the National Review, Mark Steyn, and Rand Simberg have engaged in plenty of other forms of debate and public discourse regarding climate change and Mann's research, but that is not at issue in this suit. You have failed to make that important distinction.

And please don't make the mistake, or should I say, perpetuate the mistake you have already made (collectively with others), that opposition to Mann's science is part of that defamation. It is not. Nor is science denialism or the seemingly nefarious distribution of false information about climate change by science skeptics or supporters of the fossil fuel industry part of this defamation. The National Review and other parties in this suit have lied, misrepresented, and also, simply gotten the science wrong. That is not what this is about, that is not the subject of Mann's suit. This suit is about specific defamatory statements made as a much smaller subset of the communication and rhetoric among these parties.

It is a little embarrassing that EFF, usually much more thoughtful and intelligent about its decisions and activism, has somehow been roped into signing on to essentially support this defamatory practice. Shame on you.

I urge you do withdraw your support of the appeal as soon as possible.

Sincerely,

Greg Laden

More information here.

This is also relevant, from here:

"The Court finds that there is sufficient evidence in the record to demonstrate that Plaintiff is likely to succeed on the merits," said a DC Superior Court judge in her latest procedural ruling in the defamation case of Michael Mann v. National Review, et al. "The evidence before the Court indicates the likelihood that 'actual malice' is present in the [National Review's] conduct."

...

The Court clearly recognizes that some members involved in the climate-change discussions and debates employ harsh words. The NR Defendants are reputed to use this manner of speech; however there is a line between rhetorical hyperbole and defamation. In this case, the evidence before the Court demonstrates that something more than mere rhetorical hyperbole is, at least at this stage present. Accusations of fraud, especially where such accusations are made frequently through the continuous usage of words such as “whitewashed,” “intellectually bogus,” “ringmaster of the tree-ring circus” and “cover-up” amount to more than rhetorical hyperbole. ...

The evidence before the Court indicates the likelihood that “actual malice” is present in the NR Defendants’ conduct. ...

The court clearly understands the difference between people whinging about science details, science denialism, etc. on one hand and what may be categorized as defamation.