First Amendment

SCOTUS Takes a Pass on Michael Mann's Defamation Suit (at least for now)

Justice Alito dissents from the denial of certiorari in National Review v. Mann

|The Volokh Conspiracy |

On Monday, the Supreme Court denied certiorari in National Review v. Mann, seeking to put an end to climate scientist Michael Mann's defamation suit against National Review, the Competitive Enterprise Institute, and Rand Simberg. (Mann's related suit against Mark Steyn is now proceeding on a separate track.)

This litigation arose out of a hyperbolic blog post written by Simberg for CEI and quoted approvingly by Steyn on National Review Online. Mann objected to the post's sharp tone and, most significantly, to its suggestion that Penn State University had failed to adequately investigate Mann's alleged scientific misconduct. I've blogged extensively about this litigation, most recently here.

National Review, et al. sought certiorari on two issues. The first was whether the question of whether a state contains a "provably false" factual statement is a question to be resolved by a judge or a jury. Most federal courts seem to say the former, but many state courts (and the courts of D.C., where the case was filed, say the latter). The second was "whether the First Amendment permits defamation liability for expressing a subjective opinion about a matter of scientific or political controversy," such as the validity of Mann's research, which has been the subject of extensive criticism and multiple investigations.

The Court denied the petition for certiorari, likely because the of the posture of the case. SCOTUS rarely accepts petitions arising out of interlocutory appeals. The Court could have another chance to consider these questions once the case is complete. Nonetheless, at least one Justice—Justice Alito—dissented from the denial of certiorari.

As Justice Alito noted, the sort of defamation claim at issue in this suit poses a particular risk to robust commentary and debate on contentious policy questions.

The constitutional guarantee of freedom of expression serves many purposes, but its most important role is protection of robust and uninhibited debate on important political and social issues. . . . If citizens cannot speak freely and without fear about the most important issues of the day, real self government is not possible. . . . To ensure that our democracy is preserved and is permitted to flourish, this Court must closely scrutinize any restrictions on the statements that can be made on important public policy issues. Otherwise, such restrictions can easily be used to silence the expression of unpopular views.

At issue in this case is the line between, on the one hand, a pungently phrased expression of opinion regarding one of the most hotly debated issues of the day and, on the other, a statement that is worded as an expression of opinion but actually asserts a fact that can be proven in court to be false. Milkovich v. Lorain Journal Co., 497 U. S. 1 (1990). Under Milkovich, statements in the first category are protected by the First Amendment, but those in the latter are not. Id. . . .

When an allegedly defamatory statement is couched as an expression of opinion on the quality of a work of scholarship relating to an issue of public concern, on which side of the Milkovich line does it fall? This is a very important question that would greatly benefit from clarification by this Court. . . .

In recent years, the Court has made a point of vigilantly enforcing the Free Speech Clause even when the speech at issue made no great contribution to public debate. For example, last Term, in Iancu v. Brunetti, 588 U. S. ___ (2019), we upheld the right of a manufacturer of jeans to register the trademark "F-U-C-T." Two years before, in Matal v. Tam, 582 U. S. ___ (2017), we held that a rock group called "The Slants" had the right to register its name.

In earlier cases, the Court went even further. In United States v. Alvarez, 567 U. S. 709 (2012), the Court held that the First Amendment protected a man's false claim that he had won the Congressional Medal of Honor. In Snyder, the successful party had viciously denigrated a deceased soldier outside a church during his funeral. 562 U. S., at 448–449. In United States v. Stevens, 559 U. S. 460, 466 (2010), the First Amendment claimant had sold videos of dog fights.

If the speech in all these cases had been held to be unprotected, our Nation's system of self-government would not have been seriously threatened. But as I noted in Brunetti, 588 U. S., at ___ (slip op., at 1) (concurring opinion), the protection of even speech as trivial as a naughty trademark for jeans can serve an important purpose: It can demonstrate that this Court is deadly serious about protecting freedom of speech. Our decisions protecting the speech at issue in that case and the others just noted can serve as a promise that we will be vigilant when the freedom of speech and the press are most seriously implicated, that is, in cases involving disfavored speech on important political or social issues.

This is just such a case. Climate change has staked a place at the very center of this Nation's public discourse. Politicians, journalists, academics, and ordinary Americans
discuss and debate various aspects of climate change daily—its causes, extent, urgency, consequences, and the appropriate policies for addressing it. The core purpose of the constitutional protection of freedom of expression is to ensure that all opinions on such issues have a chance to be heard and considered.

I do not suggest that speech that touches on an important and controversial issue is always immune from challenge under state defamation law, and I express no opinion on whether the speech at issue in this case is or is not entitled to First Amendment protection. But the standard to be applied in a case like this is immensely important. Political debate frequently involves claims and counterclaims about the validity of academic studies, and today it is something of an understatement to say that our public discourse is often "uninhibited, robust, and wide-open." New York Times Co., 376 U. S., at 270. I recognize that the decision now before us is interlocutory and that the case may be reviewed later if the ultimate outcome below is adverse to petitioners. But requiring a free speech claimant to undergo a trial after a ruling that may be constitutionally flawed is no small burden. . . . A journalist who prevails after trial in a defamation case will still have been required to shoulder all the burdens of difficult litigation and may be faced with hefty attorney's fees. Those prospects may deter the uninhibited expression of views that would contribute to healthy public debate.

Unlike Justice Alito, I am quite confident the speech at issue in this case should be entitled to First Amendment protection. While my views of climate science are likely closer to Mann's than the defendants, I fear a First Amendment doctrine that exposes individuals to suit because they question the conclusions of expert review bodies. As I wrote in an earlier post:

It cannot be that once some official body has conducted an investigation of an individual's conduct, that further criticism of that individual, including criticism that expressly questions the thoroughness or accuracy of the investigatory body, is off limits. By this standard it would be defamatory to express the opinion that George Zimmerman or Darren Wilson is a murderer, even if one also argued that the reason either was exonerated was because of structural racism in the criminal-justice system. After all, each was investigated, tried and found not guilty. Nor is it consistent with existing First Amendment doctrine to suggest that hyperbolic accusations of bad faith or dishonesty against public figures involved in policy debates are actionable.

Stay tuned to see whether the trial court ultimately agrees. This case began in 2012, and is unlikely to conclude any time soon.

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. I agree with Adler. The very existence of this defamation case chills free speech. What if National Review didn’t have donors willing to pay for the costs that this case has imposed? If that were the case, the costs of the lawsuit itself could be enough to shut down the organization and therefore, its speech. In this case, National Review happens to have the resources to resist. But, in general, access to the public square should not be dependent on access to sufficient resources to litigate defamation claims.

    1. Mr. Welker wrote,

      What if National Review didn’t have donors willing to pay for the costs that this case has imposed?

      In fact National Review, like most publications, had and has insurance coverage for defamation claims, and its insurer is providing National Review with a defense (meaning, paying for NR’s lawyers and their expenses) and indemnifying them up to policy limits.

      National Review occasionally and always very briefly discloses that fact as part of their ceaseless — and in my opinion, in this instance — shameless fundraising, but never does it specify what supposed costs of the defense aren’t being covered by insurance, nor why such contributions are necessary specifically on account of this lawsuit (as opposed to helping cover NR’s regular business expenses).

      It’s very Trumplike, and makes me think badly of the NR folks.

      1. The existence of insurance is and ought to be completely irrelevant to a lawsuit on the merits.
        1. If a defendant loses his/her suit, it is possible that one or more of the exclusions in the insurance contract will apply and they will be required to reimburse the money.
        2. Whether or not the defendant wins the suit, the event goes on the insurance record as a “loss” (that is, something the insurer paid money for) which means the defendant’s insurance rates will go up.

        So, no, their insurance carrier is not paying the full costs of this suit. All they are doing is helping the defendant to spread the payments out over time.

    2. David Welker, I wish commenters would try to notice that this is a libel case, meaning it is not about speech freedom, but about press freedom. The difference matters. Even if there are exceptions, the difference between speaking and publishing remains key to thinking usefully about the issues.

      Defamatory speech (slander) is rarely more than trivially damaging. To make it so usually requires extraordinary efforts at repetition and dissemination of spoken falsehoods—efforts which in themselves tend to discredit the speaker. And always, the effects of slander tend to be limited in scope, and evanescent. A few people hear what has been said, and with the passage of time, most forget, while almost nobody else finds out about it. That makes slander not much of a threat to speech freedom. Verbal defamation rarely does enough lasting damage to anger society, and thus mobilize opposition against speech freedom.

      Libel is entirely different. Publishers considering whether to publish potentially defamatory material must know they are on a knife edge. If they judge wrong, and publish false, defamatory charges, the scope within which those charges may be heard and do damage is potentially world-wide. And the charges are not evanescent, but potentially perpetual. Compared to slander, that multiplies the damage potential of libel many-fold. The damage to a libel victim’s life and reputation can be comprehensive, geographically extensive, and will likely outlive the victim. A published libel can lie around for centuries, and corrupt even historical judgments related to the victim. That makes society far more energetically motivated against libel than against slander.

      Social push-back against a legal regime which treats libel as trivial will likely include politically potent demands for government censorship. Tacit approval of violence against publishers is also likely—without much fine distinction between those publishers who are actual libelers, and those who are not.

      That is why it is a mistake to assume that suppression of libel law is support for press (or speech) freedom. On the contrary, libel law has proved foundational to free expression. Folks who invoke the perfection of speech freedom as a cause against libel law should at least reflect that defamation is not protected speech, and has never been in this nation’s history. During the centuries things have been that way, both speech and press freedom have thrived in this nation as in no other land.

      1. Stephen,

        I would be more sympathetic to your view if it weren’t for the fact that plaintiffs can use the process as punishment, and also can take advantage of majority views on a subject to obtain favorable jury verdicts.

        We have seen Mann use the former by filing suit and then dropping it when it reached the discovery phase. The latter problem was addressed in NYT v. Sullivan where a racist majority was used to obtain judgments against publishers sympathetic to the civil rights movement.

        Similarly we might see such a condition with controversies over climate change. We may currently have a majority of the population that has been made to believe not just in climate change but in impending climate doom. In this environment guys like Mann become heroes trying to save the planet, and litigation could well be successful in silencing critics.

        1. donojack, libel litigation will silence no critics who are careful to avoid false and defamatory allegations of fact. Would-be critics who resort to false and defamatory allegations discredit the process you rightly want to protect.

          1. On the contrary, as Alito so clearly points out, the process is the punishment. Litigation, even when you are eventually exonerated, is sufficient to chill speech.

            1. Rossami, my experience as a small newspaper publisher was that too much is made of the chilling effect of the threat of litigation. What threat of litigation has power to chill is mostly what ought to be chilled—false, defamatory allegations, made in reckless disregard of the truth. As a practical matter, a little bit of un-reckless regard for the truth is all it takes to avoid the chill.

              By the way, nobody ever thought my newspaper was less than aggressive in its reporting. It made a name for investigative reporting. I got plenty of, “word to the wise,” cautions from other publishers along the way, for, as they saw it, taking too many chances. I also got more than a few libel suit threats from aggrieved targets of investigations. But what I never got was a libel suit.

              One day I was chatting over beers with a lawyer in our local saloon. He explained that to me, “Yeah, they come in to us and want us to sue you. We tell them we will look into it, but also explain we are familiar with what you guys do, and nothing is likely to come of it.” And nothing ever did. One thing NYT v. Sullivan did was assure that a publisher who does not commit actual malice will be a costly and futile target for opportunistic suits.

              Of course, little of what I said can assure that well-funded opportunists might decide it is worth a small fortune just to torture a publisher, and maybe use the costs of defense to silence them. The two answers to that are anti-SLAPP laws, and libel insurance.

              Taken all together, that is an excellent system, which surely does not need to make room for an open season on defamation committed with actual malice. Down that road lies the threat of government censorship, along with all kinds of violence and social disorder—not least of which will be loss of any ability to manage an orderly political process.

              1. As lathrop points out – “As a practical matter, a little bit of un-reckless regard for the truth is all it takes to avoid the chill.”

                Simberg’s comment that Mann tortured the data is for all practical purposes what the NSF noted in their closeout memorandum

                ” Much of the current debate focuses on the viability of the statistical procedures he employed, the statistics used to confirm the accuracy of the results, and the degree to which one specific set of data impacts the statistical results. These concerns are all appropriate for scientific debate…”

          2. Litigation silenced a number of newspapers in the South in the sixties by bankrupting them with huge judgments. Do you think that they were resorting to false and defamatory allegations?

            1. donojack, with NYT v. Sullivan in place, your comments make little sense. They apply instead to pre-1964, before that landmark decision freed publishers to make honest mistakes, including even honest defamatory mistakes.

              1. You are arguing for a pre NYT v. Sullivan take on libel law.

                1. donojack, no I am not. I am a great fan of NYT v. Sullivan. It is almost my favorite Supreme Court case ever. I relied on it during my days as a small newspaper publisher, when it gave me confidence to understand that I could do investigative reporting without need of libel insurance.

                  I am not certain of this, so correct me if I am wrong, but your commentary suggests to me that you believe that NYT v. Sullivan abolished ALL defamation claims against public figures. Or maybe, instead, that you think the bar for actual malice is so high that there should be no practical recourse for a public-figure defamation victim.

                  If so, I can’t agree with that. I would never have had the nerve to rely on any such assumption while running a newspaper. I think what NYT v. Sullivan did was to build in sufficient latitude that a conscientious publisher, who was acting with knowledge of the legal requirements, could confidently steer clear of liability fear—by killing (or editing, or re-researching) a few borderline stories. I did that from time to time, and it worked for me. I never felt the legal pressure to take care did anything but improve the reporting—never that it chilled any important speech.

                  Whatever I knew to be true, I could publish with confidence. Whatever I could not be certain was true—even after extra attempts to be sure—was no notable loss to my readers. I tried not to make the mistake of assuming my moral certainty that something was true was an adequate substitute for being able to prove it. And I found that it was neither a hard mistake to avoid, nor a costly rule, in terms of freedom to publish the truth. On balance, I am certain that both my newspaper’s own reporting, and my readers’ interests, were better served by those mild constraints than they would have been without them.

                  1. “Or maybe, instead, that you think the bar for actual malice is so high that there should be no practical recourse for a public-figure defamation victim.”

                    I think as a practical matter the bar is high enough that what we are seeing, as in Mann’s behavior, is using the process and then bailing out before trial. I haven’t studied public figure defamation cases since Sullivan but my sense is that there have been very few successful ones.

                    1. I am not up on the Mann details. Was that “bailing out before trial,” done under U.S. law, or elsewhere? Can you say more about it?

                    2. Also, on the subject of few cases since Sullivan. Few, but not none. That is largely because of two factors working together.

                      1. Under the traditional rule of libel, it takes an exceptionally stupid publisher to run afoul of the standards. Actual malice is not something many publishers can find any upside in trying. For most publishers, it serves no interest to do it.

                      2. Since the internet, Section 230 has protected internet publishers from that kind of liability—with the result that practical constraints against public figure defamation have largely disappeared, even while the laws against it ostensibly continue in force. Joe Keyboard is rarely a likely-looking target for a lawyer wondering where his payoff is going to come from.

                    3. Replying to lathrop below “I am not up on the Mann details. Was that “bailing out before trial,” done under U.S. law, or elsewhere? Can you say more about it?”

                      The case donojack is referring to is the Canadian Ball case where Mann sued Ball for defamation. Ball sought discovery of Mann’s R2 stats. The R2’s stats which Mann has not released, allegedly show the MHB98 results are not robust, even to the point of not even being remotely robust.

                      After several delays ( a few years 3-4) , Ball filed a motion to dismiss. The court granted the motion to dismiss for “want/lack” of prosecution by Mann. Mann has claimed that the granting of dismissal was due to Ball’s advanced age and health, which was not the case.

  2. “access to the public square should not be dependent on access to sufficient resources to litigate defamation claims”

    Good thing Mann has the resources.

    1. Mann’s speech isn’t threatened by the defamation case that he chose to bring.

      1. Mann’s defamation case could very well threaten his public credibility via a Streisand Effect; eg, calling attention to his hockey stick chart that ignores the medieval warming period and the little ice age.

  3. I wonder if Mann hadn’t been accused of misconduct and manipulation of data, his case wouldn’t have died. Robust critiques are one thing but one would think you have to be faithful to the facts with your critique.

    1. You can read the entire OP, Alito and Adler, without getting any inkling that substantive defamation is at issue in this case. These are folks looking to overturn the very notion of defamation, at least insofar as issues of public import are involved. Free speech will not be served under a legal regime which turns every substantive disagreement about science into a contest to see which side can afford the largest budget to falsely defame opponents.

      1. “These are folks looking to overturn the very notion of defamation, at least insofar as issues of public import are involved.”

        Hope you can back that claim up in court, bub.

      2. If Mann wants to prove he was falsely defamed, all he has to do is show his work.

        1. You know, the work at the heart of the case, and which he continues to fail to provide through discovery.

          Funny how this is a defamation case about torturing data (that might even be a direct quote), and Mann fights discovery to show his data, while losing a similar suit in Canada where defamation is easier to claim (because he defaulted).

          All of which says nothing about the merits of the underlying science, of course, but merely about scurrilous litigants.

          1. I wonder how all the people insisting that Mann should show his work or shut up also feel that Trump should show his in the Ukraine matter.

            1. That’s what was missing from this discussion, some more Trump.

            2. Apples and aardvarks.

          2. Replying to Beckman – “You know, the work at the heart of the case, and which he continues to fail to provide through discovery.”

            FWIW – Discovery has been stayed since the appeal to the DC appeals court and remains stayed pending the ruling on the motion for the en banc hearing.

        2. “If Mann wants to prove he was falsely defamed, all he has to do is show his work.”

          This is a common misconception on both sides of the debate.

          The alarmists ( and Mann) claim that all the data is posted and available. The Skeptics continue to claim that Mann hasnt shown his work.

          Mann has in fact posted and made most the data available. What hasnt been produced by Mann is the R2 verification stats which show (supposedly ) that the mhb98 & mhb 99 is not robust, not even remotely robust. See climate audit for discussion of this topic. See also the Ball case which was dismissed for lack of prosecution my Mann when he refused to submit the R2 stats in discovery.

          w

  4. You can read all of the above and have no idea that Mann’s work has properly been questioned, that skepticism is warranted about most of what passes for “climate science,” and that a robust debate is occurring among scientists such as Richard Spencer, the Pielkes, Judith Curry, Steve McIntyre, and Anthony Watts, to name only a few.

    Michael Mann is, perhaps not so strangely, not providing discovery. The opposing parties in this case would love to see him “show his work,” to quote more than one high school math teacher.

    Interestingly, Mann hasn’t picked a fight with those mentioned above—who have repeatedly called him out for his shenanigans. Perhaps he thinks he can bully NR—and knows he would be torn to shreds in a similar tussle with the likes of Anthony Watts.

    1. And yet the earth is still round.

      1. Which means? Are you channeling Galileo?

        “And yet it moves” would be properly stated by those whom “the consensus” would silence.

        A single larch tree in Siberia…has any other global hysteria hinged on so little?

    2. If that is the case, suing NR would seem to be a silly move, as they do have the pockets to defend, even insurance to cover such lawsuits, apparently as many publishers do.

      If fear of a scientific snap in the face from suing another climate scientist is real, NR would certainly happily call such as part of their defense.

      1. If the suit ever progressed to being heard, you mean. Which it won’t, because Mann is terrified of discovery.

    3. “Perhaps he thinks he can bully NR—and knows he would be torn to shreds in a similar tussle with the likes of Anthony Watts”

      Again, Mann has the resources. Watts, on the other hand, does not.

      1. OTOH, Watts’ greatest resource is the obvious fact that Mann dares not allow discovery.

        1. Birthers learned nothing from the manner in which former Pres. Obama toyed with them, it appears.

        2. This. Mann cannot allow any of these suits to get to the discovery phase.

      2. Watts’ lack of resources might actually be a positive. Lacking funds for endless motion practice, Watts (like Steyn) would probably push to get to the discovery phase quickly. And history has shown that Mann will fold like a busted straight as soon as he is pressed to turn over his data.

        1. You might be surprised how much a Go Fund Me account might raise for Watts in defense/offense against Mann.

          1. You might be surprised when GoFundMe shuts down the fund and refuses to disburse what was collected, as they sometimes do when they don’t like the cause the money is being raised for.

    4. replying to lady theo – “Michael Mann is, perhaps not so strangely, not providing discovery. ”

      as noted above, Discovery has been stayed starting with the appeal to the DC appeals court and continues to be stayed pending the ruling on the en banc hearing by the dc appeals court.

      1. LadyTheo
        November.29.2019 at 9:37 pm
        “You… have no idea that Mann’s work has properly been questioned, that skepticism is warranted about most of what passes for “climate science,” and that a robust debate is occurring among scientists such as Richard Spencer, the Pielkes, Judith Curry, Steve McIntyre, and Anthony Watts, to name only a few.”

        “Scientists such as Richard Spencer… Steve McIntyre, and Anthony Watts”

        Where would torchlight parade science, penny gold stock statistics , and TV weather map software be without them?

        This whole gonzo thead belongs in the next amicus curia brief for Mann v. Steyn.

        Michael Mann is, perhaps not so strangely, not providing discovery. The opposing parties in this case would love to see him “show his work,” to quote more than one high school math teacher.

        Interestingly, Mann hasn’t picked a fight with those mentioned above—who have repeatedly called him out for his shenanigans. Perhaps he thinks he can bully NR—and knows he would be torn to shreds in a similar tussle with the likes of Anthony Watts.

  5. “…whether a state contains a “provably false” factual statement is a question to be resolved by a judge or a jury….”

    ??? Was ‘state’ supposed to be “statement”??? (I think so. But not 100% sure about this.)

    1. Well, let this be the issues sub-thread. “Say the latter” should be outside the parens.

  6. This will end one of 2 ways, either it gets dismissed before along the lines of Alito’s dissent, or Mann will drop the suit when he has to yield up his underlying data which he has refused to do these last 20 years. Mann doesn’t have to prove he didn’t commit academic fraud, but he will have to surrender his data in order to give the defendants an opportunity to prove there was a basis for their claims.

    He already dropped a similar suit in Canada when he refused to provide his data in discovery and was hit up with attorneys fees.

    One good thing about Alito’s published dissent is the trial judge knows there is going to be a thorough review of his decision.

    1. Ezackery.

      How much fun would it be to have the world see that his model gives a hockey stick no matter what the input…that he got the sign reversed and claimed it didn’t matter….that his proxies can be reduced to one single tree in Siberia…

      Good scientists with nothing to hide share their data, methods and models. How interesting that Mann refuses to allow skeptical eyes to inspect his work.

    2. Mann doesn’t have to prove he didn’t commit academic fraud, but he will have to surrender his data in order to give the defendants an opportunity to prove there was a basis for their claims.

      Kazinski, is it your view that someone with no knowledge or support for a defamatory statement (libel per se, in this instance, isn’t it?), and then get away with it if something turns up on discovery which will muddy the waters?

      Maybe that is how the law works. I would have thought, however, that the notion of reckless disregard meant that the publisher of the alleged libel had to know in advance about some basis for the charge. Otherwise, why wouldn’t it become a tactic in environmental suits against corporations to just libel the hell out of them, and then rummage forever in their records?

      One good thing about Alito’s published dissent is the trial judge knows there is going to be a thorough review of his decision.

      I take Alito’s remarks to suggest he is opportunistically ready to join an attack on the law of libel. Once again, I wish folks who hate libel law would think it over. Libel law is not a hindrance to press freedom, but one of the principal pillars supporting press freedom.

      1. “can then get away with it,”

        not

        “and then get away with it”

        No edit function.

      2. “and then get away with it if something turns up on discovery which will muddy the waters?”

        How about if discovery turns up something that, rather than muddying the waters, clears them up in such a way as to demonstrate that the supposedly defamatory statement was the truth, and thus incapable of being actionable defamation?

        I mean, you seem to be just assuming that clarity will favor Mann. But it is Mann fighting against the clarity discovery should bring, and this should suggest to you that discovery would NOT be favorable to Mann.

        Indeed, there are other reasons to believe that greater clarity would not favor Mann; His choice of statistical techniques that would create a “hockey stick” if fed random data. And those damning leaked emails revealing an actual conspiracy to prevent contrary papers from being published.

        I wouldn’t be shocked if, at this point, complying with discovery was now impossible due to his having deleted the data.

        “Libel law is not a hindrance to press freedom, but one of the principal pillars supporting press freedom.”

        In the sense that, absent libel law, the press would presumably say more things that you dislike, causing people like you to attack press freedom?

      3. Mann is on record as calling his raw data his “dirty laundry” and he has fought tooth and nail to keep from releasing it. Also need the Wegman report which was commissioned by the house energy subcommittee, and is the basis for a lot of the criticism of Mann’s hockey stick. The fact that these criticisms have existed for two decades and Mann has steadfastly refused to release his data make discovery a reasonable tool for the defendants to justify their opinions on Mann’s work.

        1. “The fact that these criticisms have existed for two decades and Mann has steadfastly refused to release his data” are enough by themselves to justify presuming his work fraudulently.

      4. Kazinski, is it your view that someone with no knowledge or support for a defamatory statement (libel per se, in this instance, isn’t it?), and then get away with it if something turns up on discovery which will muddy the waters?

        Maybe that is how the law works. I would have thought, however, that the notion of reckless disregard meant that the publisher of the alleged libel had to know in advance about some basis for the charge.

        I would have thought that you would have been chastened by the fact that you have repeatedly been proved not to know the law, and would therefore stop opining on how it works. But apparently not. (Indeed, you don’t even seem to realize that your current stance contradicts your constant insistence that defamation is never protected speech.)

        Of course, if a statement is not false, then one never gets to the question of reckless disregard.

        Otherwise, why wouldn’t it become a tactic in environmental suits against corporations to just libel the hell out of them, and then rummage forever in their records?

        Because rummaging forever in their records alone will bankrupt one on legal fees, even if one is right, and if one is wrong, there will eventually be a judgment one can’t pay.

        Libel law is not a hindrance to press freedom, but one of the principal pillars supporting press freedom.

        No. Punishing speech does not protect speech.

  7. Alito, quoted above: The core purpose of the constitutional protection of freedom of expression is to ensure that all opinions on such issues have a chance to be heard and considered.

    That, at least, gets it right. When he refers to, “opinions,” Alito echoes the almost invariable usage of the founders when they spoke on the subject of expressive freedom. Opinion is indeed what the founders prized, and sought to protect. And if legal perspective is not knocked askew in this case, that is the way it will stay. The case will be decided on the basis not of opinions—which are always protected speech—but on the basis of whether charges made against Mann were false and defamatory allegations of fact.

    That will likely prove frustrating to the many advocates against climate science, who hope to see their own opinions transformed by judicial process into alleged facts. The judicial system cannot deliver such alchemy, and should not try.

    1. I’m pretty sure your last paragraph has the implied subject and object reversed.

      Since is merely a methodological process for proving opinions wrong, so when a proponent of an opinion is found to have had wide ranging discussions with others who hold their opinion to jointly suppress any dissenters from publishing their work, they at least are not practicing science. And are these nefarious conspirators your 9advocates against climate science?” Not at all, they are the self proclaimed proponents of climate science, who are explicitly not using science.

      Is it possible that a sorcerer can uncover a truth about the universe? Yes.

      Should we suspect any such finding when the proponents collectively try to quash any refutation of their “research,” especially those trying to determine if it was a repeatable process rather than entrail reading?
      Also, yes.

      Should we be even more suspicious when these proponents are themselves both financially and socially dependent no one disproving their claims?
      You tell me, Stephen, what do you think?

      1. Robert, I think you join the many commenters against Mann who wistfully (but foolishly) suppose the legal system can somehow be transformed into a scientific institute. Nothing which happens in the Mann case will have any bearing at all on the truth or falsehood of climate science, or even on Mann’s own climate science—because nothing the legal system undertakes even attempts to settle such questions. Supposing otherwise is like supposing the legal system ought to settle questions of religious doctrine.

        Also? Given a court tasked with hearing a case about an alleged charge of scientific fraud against one scientist, do you really think that court will entertain your vision of climate science as a massive conspiracy? I doubt that will happen.

  8. “hyperbolic accusations of bad faith or dishonesty against public figures involved in policy debates”

    What did they claim or imply that Mann did? If they said he did something which violated his calling as a scientist, it would be like accusing an accountant of embezzling. If he can show the accusation to be false, then it would be automatically defamatory, I would think.

    Or was the accusation vague enough to leave some wiggle room?

    1. Briefly, the article said that the Univ of Penn was as sloppy in their investigation of Mann’s science as they were in their investigation of Sandusky’s sexual escapades. The “money quote” is:

      “I’m referring to another cover up and whitewash that occurred there two years ago, before we learned how rotten and corrupt the culture at the university was. … Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data…”

      Mann’s complaint tries to spin that comparison of the investigations into an alleged accusation that he (Mann) was involved in the sexual misdeeds.

      1. Well, I don’t know about sexual misdeeds, but accusing a scientist of doing to data what Sandusky did to boys sounds like a serious enough accusation, if the claim is that Mann did it deliberately.

        Now, hasn’t this case been going on for some time? I seem to recall hearing about it before…

        1. It is rude but effective rhetoric, and it clarifies the similie for the important underlying issue (as the speaker sees it.)

          I can’t see anyone thinking it is an implication of actually molesting anyone. It straight away clearly describes the difference.

        2. There is incontrovertible evidence that Mann did it deliberately, in his emails – see “climategate” – and “hide the decline.” He incriminates himself, admits it. I’m frankly aghast that Mann hasn’t been pursued with the same vigor that the varsity blues fraudsters have been.

          1. Have you seen this explanation:
            “[H]iding the decline” referred to the fact that indirect proxy temperature estimates from tree rings were known to be unreliable after about 1960. From about 1960 to 1990 they showed temperatures falling, whereas we know temperatures actually rose during that time.
            Tree ring data matched other temperature records accurately prior to 1960 before diverging from the reliable instrumental record thereafter. Climate science research has linked this so-called “divergence problem” to increases in human-caused pollution in recent decades. The email in question was merely suggesting adding reliable instrumental temperature measurement data so that the chart being discussed didn’t end with a segment of data showing a “decline” that was known to be inaccurate. So, in fact, the “trick” was an effort to give as accurate information as possible (rather than the opposite, as was repeatedly alleged).”
            https://skepticalscience.com/3-climategate-myths-not-aged-well.html
            What’s the refutation? Maybe read the briefs from both sides before reaching a decision.

            1. They selectively removed the tree-ring proxy data when it didn’t support their claim. Leaving in the good data while removing the bad data had the effect of making the proxies appear to be more reliable than they were, and it removed evidence that temperatures were lower than the measured temps.

            2. Stash – you should not rely on Skeptical Science for any climate science. It is an alarmists/activist web site that is anything but science based.

              There explanation for “hide the decline” is quite superficial and grossly misleading. Hide the decline is much more that than the post 1960’s divergence in temps v proxies. first – it was an attempt to hide adverse results. Second, the proxies failed to match the temps for more than 40% of the calibration period which begs the question as to how well the proxies matched the real temps during the reconstruction period. Third, it demonstrates that the proxies have a very low resolution.

              Quite frankly – Skeptical Science ‘s explanation for the post 1960 divergence is just a little too cute to be believable. ( This is true of many of SkS’s claims and excuses)

              Climate audit has numerous articles on the hide the decline subject.
              https://climateaudit.org/?s=hide+the+decline

              1. I dunno. How many of us the scientific background to evaluate this stuff? Seems to me when you have actual data, you don’t rely on proxy data, which is, er, a proxy for actual data. Sounds like you gotta go with that, rather than a proxy. With respect to undermining the reliability of the proxy data used, the notion that increasing pollutants could cause the tree-ring data to be less useful sounds at least plausible. What do tree-ring experts say? I went to your link and there is no article on the issue after 2012, but I suspect there’s been an awful lot of research since then.

                At the end of the day, I tend to agree with Adler on the big picture, but as a litigator, I’d have to know a lot more about the ins and outs of the particular facts before making a judgment on this case, and, apparently like the majority of the Supreme Court, think it could be premature to make a pronouncement on this case, and therefore the better part of valor etc. It is certainly a close case. The danger, I think, is that I’m not sure that the Court should license anyone who does not like the political implications of an ostensibly scientific study to charge that the author committed fraud. Would make it too easy on folks like tobacco companies. Here there seems to be a predicate for the charge, sans examination of the “exoneration” and maybe that should be enough; but the standard is reckless disregard, and, as such, generally should depend on the particular facts of the case.

                1. Stash –
                  Simberg stated :
                  “he has molested and tortured data in service of politicized science that …”

                  The NSF closeout memo stated the following “Much of the current debate focuses on the viability of the statistical procedures he eniployed, the statistics used to confirm the accuracy of the results, and the degree to which one specific set of data impacts the statistical results.

                  For all practical purposes, Simberg said the same thing the NSF closeout memo said – just a little more colorfully.

                  1. These two statements are nothing alike.

                    The NSF closeout memo is saying that there are arguably reasonable criticisms of his methods but by saying that it’s a “debate” suggesting that there are also reasonable defenses for his methods.

                    Simberg is accusing both Mann and the university of deliberate dishonesty. In fact, I believe he later uses the word fraud.

                    The NSF closeout memo is not suggesting that Mann falsified anything.

                    1. “The NSF closeout memo is not suggesting that Mann falsified anything.”

                      neither does Simberg state that Mann falsified anything

              2. “you should not rely on Skeptical Science for any climate science. It is an alarmists/activist web site that is anything but science based.”

                But we should consider the statements on climateaudit.org, which is a denialist site, as unquestionably credible?

                1. “But we should consider the statements on climateaudit.org, which is a denialist site, as unquestionably credible?”

                  your comment indicates that your are not even remotely aware if the issues affecting the quality of climate science.

                  Are you even aware of the multiple climate studies that hat been withdrawn due to the work or S McIntyre?
                  His work has done more to keep the climate scientists honest, with the exception of Mann, Gergis and a few others.

  9. Seeing how the new fascist left has abandoned free speech as a universal principle this doesn’t surprise me. They will only argue “free speech” when it fits into their narrow world view. Anything outside of that is fair game for censorship (by Antifa violence if necessary).

    They must silence any dissent to the coming ice age, errr….global warming…., err…whatever it is called now because it has become so transparent it doesn’t even exist and serves merely a political justification for their extreme agenda.

  10. So grateful my side drew the Reason, Science, and Modernity cards in the Culture War — and that our opponents drew the Ignorance (with Belligerent curse), Superstition (with Intolerance multiplier), and Backwardness cards.

  11. replying to lady theo – “Michael Mann is, perhaps not so strangely, not providing discovery. ”

    as noted above, Discovery has been stayed starting with the appeal to the DC appeals court and continues to be stayed pending the ruling on the en banc hearing by the dc appeals court.

  12. Procedural question for Adler (or anyone else knowledgable in procedures –

    In January of 2017, CEI/NR/Simberg filed a motion for rehearing en banc which the Court has not ruled on as of Nov 3oth.

    Did the filing of the USSC Cert petition and the subsequent non granting of the cert petition moot and/or void the motion for rehearing en banc or is the the motion for rehearing still in play with the DC court of appeals still need to rule on that motion?

    Also – Does Alito’s dissent help the DC court of Appeals with a roadmap to correct error?

  13. “whether the First Amendment permits defamation liability for expressing a subjective opinion about a matter of scientific or political controversy,” such as the validity of Mann’s research, which has been the subject of extensive criticism and multiple investigations.”

    I take exception to the common misconception that there were multiple investigations – of the 8 investigations resulting from climategate – only one actually investigated Mann. No objective person could conclude that the Penn State investigation actually investigated Mann.
    The NSF investigation which was the closest investigation of Mann. However, the NSF investigation was limited to studies funded by the NSF and the MHB 98 & MHB 99 was pre NSF funding.

    The other 6 investigations did not investigate any of Mann’s actions. See Climate audit.org for discussions regarding the investigations and see judith curry at climate etc. https://judithcurry.com/2019/11/12/legacy-of-climategate-10-years-later/#more-25412

  14. Your statements appears to be based on a report by Ross McKitrick that Judith Curry links to in the link you provide. I do not find him credible.

    First, he admits at the outset that his own work was discussed in the emails and thus “I take considerable interest in the outcome of these inquiries” The emails showed that the other scientists sought to exclude his work from the IPCC report because they considered it bad science. And that, by the way, would be appropriate if his work was, in fact, bad science from a methodological viewpoint.

    In fact, it’s very clear from McKitrick’s report that he has a long-running feud with these scientists.

    Much of the rest of his report is filled with statements that show a failure to understand the arguments being made in the scientists’ defense. For instance, there’s this on page 9 of his report:

    “They heard from Jones that he was not trying to hide anything because he had discussed the divergence
    between proxies and observations in journal articles. On this basis the Committee strongly rejected any
    allegation of dishonesty:
    ‘That he has published papers—including a paper in Nature—dealing with this aspect of the
    science clearly refutes this allegation. In our view, it was shorthand for the practice of discarding
    data known to be erroneous. (Report, 21)’
    However the evidence in the email itself and as submitted to the Committee (Ev 147-148) makes clear
    that the purpose of the “trick” was not to manipulate data in a journal article, but in WMO and IPCC
    reports for policy makers.”

    What’s clear is that whether the “trick” was applied to an article in a journal or an IPCC report is irrelevant to Jones’ defense. He wasn’t hiding anything because his methodology for manipulating the data to eliminate errors was published for anyone to see in several different publications. It doesn’t matter if those publications were journals or the IPCC report. That they exist is proof the the practice is normal and not something he’s trying to hide from anyone in any publication.

    Later McKitrick quotes a statement from the investigators that the data manipulation techniques were well known statistical techniques for merging two datasets and then says that it is obviously false because you can’t merge datasets this different. But the people conducting the investigation obviously thought it was possible. So what makes it obvious that they don’t know what they’re talking about and McKitrick does?

    The report does raise some valid criticisms of the investigations, but it also seems largely based on assuming guilt until innocence is proven beyond any doubt and various forms of circular logic.

    And I find it ironic that people like McKitrick and other deniers scream that they’re being censored while simultaneously they engage in efforts to destroy the careers of people like Mann and Jones. Who’s really trying to silence who?

  15. Oh no, that is not my premise. There are several statisticians that based on the publicly available data have stated that Mann’s use of Principle Components Analysis (PCA) is inappropriate for the datasets being analyzed and will result in misleading results. That plus Mann’s admission that they screened the proxy datasets that were included to insure they provided the right signal. And the documented fact he turned the Tiljander Lake series proxy data “upside down” where he reversed the sign of the data showing a cooling climate in Finland lake sediments to show warming.

    The raw data of these proxies are available allowing enough of a reconstruction to show the data would not produce his hockey stick with a fair analysis. What is missing is his formulas used in his PCA analysis to prove he “errored” in synthesizing the data to his graph. We already know he cut the tree ring data short in the 20th century because it showed cooling, but they justified that by claiming higher co2 levels changed the growth rate of trees making the tree rings no longer a legitimate climate proxy. Maybe it just indicates that tree rings were never a legitimate climate proxy, since rainfall, cloud cover, and other local conditions could effect growth as much as tempurature.

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