DC judge confirms refusal to dismiss climatologist Mann's libel lawsuit

A District of Columbia judge said Friday that she would not dismiss a libel lawsuit filed by an acclaimed scientist in the aftermath of articles comparing him to a child molester and accusing him of committing fraud by publishing his research on climate change.

The order by Judge Natalia M. Combs-Greene means that Professor Michael E. Mann of The Pennsylvania State University is one step closer to a chance for a jury to decide whether the National Review, the Competitive Enterprise Institute, and two bloggers for those organizations will be liable for the statements published in 2012.

The National Review had published this blog entry by Mark Steyn on July 15, 2012:

Not sure I’d have extended that metaphor all the way into the locker-room showers with quite the zeal Mr Simberg does, but he has a point. Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph, the very ringmaster of the tree-ring circus. And, when the East Anglia emails came out, Penn State felt obliged to “investigate” Professor Mann. Graham Spanier, the Penn State president forced to resign over Sandusky, was the same cove who investigated Mann. And, as with Sandusky and Paterno, the college declined to find one of its star names guilty of any wrongdoing.

Earlier, Competitive Enterprise Institute had published on its OpenMarket.org blog this post by Rand Simberg:

Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.

Mann had earlier been exonerated by two universities and five government agencies of accusations that, in his work on the famous "hockey stick" graph that shows how atmospheric temperatures on Earth have changed over time, he committed scientific fraud.
 
Combs-Greene discussed both the Steyn and Simberg comments in her order.

"[T]here is a line between rhetorical hyperbole and defamation," Combs-Green wrote. "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."

Combs-Greene also held that the defendants' awareness that at least one investigation had verified that Mann's work had been done in a manner consistent with generally accepted scientific norms indicated that, when they published claims that implied falsification or exaggeration, they had acted with "actual malice."

Actual malice is a hard-to-prove mental state required by U.S. Supreme Court precedents that interpret the First Amendment of the U.S. Constitution.

"[I]t is is obvious that allegations of fraud could lead to the demise of his profession and tarnish his character and standing in the community," Combs-Greene explained.

The judge also agreed with an argument that a comparison of a scientist to a convicted child molester is not simply "caustic" or "colorful" language of the type that is protected by the First Amendment.

"To place plaintiff's name in the same sentence with Sandusky (a convicted pedophile) is clearly outrageous," Combs-Greene wrote, and is therefore subject to liability for the tort of intentional infliction of emotional distress.

 Combs-Greene had first decided not to dismiss Mann's lawsuit last month.

Mann is a member of the Intergovernmental Panel on Climate Change, a team of scientists that shared the Nobel Peace Prize in 2007. He is a fellow of the American Geophysical Union, a form of recognition granted by colleagues as a "special tribute for those who have made exceptional scientific contributions." 

Targets of climate scientist Mann's libel case seek dismissal

The legal arguments have begun in a court fight that pits renowned climatologist Michael Mann, whose work has been instrumental in establishing a historic basis for the scientific consensus that humanity is altering Earth's climate, against two conservative institutions.

Some of the defendants sued for libel by Mann in October have asked a District of Columbia local court to dismiss his lawsuit.

In papers filed Dec. 14, lawyers for the Competitive Enterprise Institute and one of its writers, Rand Simberg, argued that Mann cannot prove his claims.

They also asked the District of Columbia Superior Court to throw out Mann's case on the basis of a local ordinance that forbids the use of litigation as a tool to discourage political attacks.

Mann, the director of the Earth System Science Center at The Pennsylvania State University, alleges that CEI and Simberg libeled him by publishing a blog post that compared Mann to convicted child molester Jerry Sandusky. The blog post was later edited.

Libel is the doctrine of law that allows individuals to obtain financial compensation from the publisher of false statements that damage the individual's reputation. The First Amendment to the U.S. Constitution places limits on the circumstances under which such lawsuits can proceed and the conditions that have to be proven for the plaintiff to prevail.

Mann also sued National Review, a conservative magazine that re-published Simberg's blog post and added some additional commentary of its own. National Review columnist Mark Steyn wrote that Mann's work on the so-called "hockey stick" graph is a deceptive and accused his employer, The Pennsylvania State University, of hiding that behavior.

Mann's research leading to a conclusion that Earth's average atmospheric temperatures have risen dramatically over the past 50 or so years has been determined by at least eight separate investigations to be scientifically valid.

Despite the acknowledged scientific credibility of his work studying the history of Earth's climate, Robert Nagel, a law professor at the University of Colorado at Boulder, believes Mann will have a hard time winning his libel case.

"The way the [U.S. Supreme] Court has divided up constitutional protections for defamatory statements, that means the plaintiff would probably have to prove knowing or reckless disregard for the truth," Nagel said. "That’s very hard to do. Even if he convinces the court that he is private figure, that he didn’t interject himself into the debate, he would have to show negligence. Those are difficult burdens to meet. Some of what he’s claiming about may be viewed by a court as either not statements of fact or not literal statements, something akin to a parody or an exaggeration."

The lawyers for CEI and Simberg argued that very point in the motions filed last week.

Nagel, who has written for National Review in the past, said that he is sympathetic to concerns that attacks like those published on OpenMarket.org and The Corner might have the effect of undermining public understanding of scientific knowledge.

"I doubt that those concerns are overblown," he said. "In fact, I think that scientists complaints in that regard are not a whole lot different from wider concerns that exist in terms of, say, political dialogue."

However, Nagel explained, that outcome may not be avoidable given a high bar to libel lawsuits constructed by the U.S. Supreme Court nearly 50 years ago in a case called New York Times v. Sullivan.

"The concern that we’re getting more false information out there, more sloppy reporting, just sort of worse information, I think it’s probably true that the modern changes in defamation law has had that effect in lots of areas," he said.

Nagel pointed out that he was not, in making that observation, referring specifically to the truth or falsity of the specific comments published by CEI and National Review.

Mann will have an opportunity to respond to the defendants' motion for an order dismissing the climatologist's lawsuit before the court rules.

His lawyer declined a request for an interview.

This graph, which resembles a hockey stick, shows a dramatic rise in Earth's average temperature since the middle of the 20th century. Courtesy Wikimedia.

NOTE: A slightly different version of this story appears on the Examiner.com website.