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.


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.

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Andrew Weaver is a Canadian climate scientist with numerous publications. The National Post is a Canadian newspaper generally recognized as having a conservative and Libertarian leaning. Between 2009 and 2010, the Post published four articles that seemed defamatory of Dr. Weaver’s reputation as a…
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Well said.

I'd like to know how they got roped into it as well. It may be nothing more than what it seems; a knee jerk tendency to see everything related to climate science as just more debate. In other words the brief would simply be an arrogant and prejudiced act denigrating what climate scientists do, how they pay for speaking up professionally, and their ability to even understand the nature of free speech.

By Obstreperous A… (not verified) on 18 Aug 2014 #permalink

"Mann’s research is all open source or open access with respect to data, methods, software, and results."

Yeah, right.. :-)

Yes, right. Do you think there are private sekret inaccessible batches of climate data controlled by the Illuminati or something?

This is not an insult, but you are NOT a lawyer. This is not about one side being all right, and one side being all wrong. Mann has made a mistake in his complaint, and it most certainly should be appealed. Honestly, he should have found lawyers that know better.

In thinking Mann can do no wrong(his science is right, but that is not a golden seal that all of his legal arguments will also be right), you have missed the point of what the EFF is doing.

"By allowing Count V of the Amended Complaint to go forward, which alleges libel per se against Competitive Enterprise Institute(“CEI”) merely for hyperlinking to a purportedly defamatory statement (J.A.79-81), the Superior Court took a substantial portion from the field of free speech rights."

There are a lot of other procedural things going on here, and Mann quite frankly is making a poor legal case.

Spend some time reading over here;

By The Invisible Man (not verified) on 25 Aug 2014 #permalink

Invisible, you have totally misunderstood the argument. In fact I'm pretty sure you never even read this post or my other posts on this matter. You also included a link to a denialist site, which is against the rules here. But I'll address your comment anyay.

This is not about being right or wrong on the science Mann may well be wrong on some or even all of the science (except he isn't wrong on most of it, for sure). You suggest there should be an appeal but that is not what happens at this stage. At this stage there could be motions to dismiss the case. There was a motion to dismiss the case roughly on the grounds you are vaguely referring to but the court did not see fit to do so. In other words, the judge disagreed with you.

Mann's case, quite frankly, is a good one and it has stood initial tests. So, no.

They're getting worried. The useful-idjit and bot armies will be out in force hyping the PR from the denial side.

By Hank Roberts (not verified) on 22 Dec 2016 #permalink

You know, i can't actually find anything at EFF that ties the brief to the EFF, and the only things I find are on the CEI website.

Because it would be interesting to find out WHO put their name to the brief. If anyone at the EFF did so at all, as their personal action, rather than under the aegis of the EFF, officially.

Remember, the Oregon Petition got some valid scientists to sign up because what they were signing up to was misrepresented. So it's not like this method is never used by deniers.