Climate Change

Whatever Happened to Michael Mann's Defamation Suit (2018 edition)

It's been over a year since a petition for rehearing en banc was filed and the D.C. Court of Appeals has yet to act.


[Herewith is another post wondering what has happened with Mann v. NR, et al., repeating (with a few updates) what I posted last fall.]

In 2012, climate scientist Michael Mann filed a defamation suit against National Review, Mark Steyn, the Competitive Enterprise Institute and Rand Simberg over a hyperbolic blog post written by Simberg for the CEI and quoted approvingly by Steyn on National Review Online.

In December 2016, after sitting on the case for years, the D.C. Court of Appeals (not to be confused with the U.S. Court of Appeals for the D.C. Circuit) held that Mann's suit against the CEI, National Review and Simberg may proceed to trial (Steyn having gone his own way in the litigation).

National Review and CEI promptly filed petitions for rehearing or rehearing en banc in January. These petitions were supported by several amicus briefs, and the court sought a response from Mann in February 2017. (These and other filings in the case may be found here.)

Mann's response was filed over 10 months ago, and there is still no word from the court. What's going on? I have no inside knowledge, but I suspect the delay may indicate at least some of the judges are having difficulty with the potential breadth of the initial ruling. As I wrote in March 2017:

Mann was understandably upset by the offending blog post. Yet treating that post as actionable defamation poses a threat to robust political and scientific discourse, for reasons I've explained in prior posts. As Popehat's Ken White noted in an extensive post about the decision, the D.C. Court of Appeals' decision was "disturbingly deferential to Mann's defenders in a way that . . . undermines dissent." It's the sort of approach to defamation one expects from President Trump, not from a respected court in the nation's capital. I do not agree with the CEI, et al. on the threat posed by climate change, but I agree even less with the idea of penalizing robust political commentary such as was at issue here.

Climate policy activists have generally supported Mann's litigation, but they may come to regret this view. If the comments at issue in this case are potentially actionable defamation, then so too are all manner of hyperbolic charges hurled against climate skeptics by environmentalist activists, including accusations that skeptics are corporate shills or paid for their positions. Indeed, Mann himself has made comments over the years that might themselves be actionable.

Allowing all such claims to proceed to trial might be a boon for lawyers, but it would also chill policy debate. For this reason, I hope the D.C. Court of Appeals reconsiders its opinion. . . .

Why do I think the D.C. Court of Appeals decision is wrong? I addressed this in my December 2016 post on the case

While a direct accusation of scientific fraud may be actionable — particularly when made against a non-public figure — challenges to scientific conclusions and interpretations of scientific studies are clearly protected by the First Amendment. So are erroneous interpretations of scientific conclusions and — particularly relevant here — criticisms of the conclusions of investigatory bodies.

In refusing to dismiss claims against Steyn and Simberg, the D.C. Court of Appeals placed tremendous weight on the fact that Penn State and other institutions investigated Mann and did not find evidence of academic misconduct. Yet it is the alleged inadequacy of Penn State's investigation that was the focus of the very posts at issue. Indeed, this was the whole point of the Sandusky comparison. Both Simberg and Steyn believe that Penn State failed to conduct a thorough investigation of the allegations against Mann and that other investigations either did not focus on Mann's conduct or relied too heavily on Penn State. They were explicit on this point, and they cited the reasons for their conclusions. Further, a reader of their posts would be well aware that they were expressing their own opinions and not claiming that some independent investigatory body or tribunal had reached an equivalent judgment.

Because the university and other investigations failed to find evidence of scientific misconduct on Mann's part, the court declared that claims Mann engaged in such action were "definitively discredited." On that basis, it concluded, "a jury could find, by clear and convincing evidence, that appellants 'in fact entertained serious doubts' or had a 'high degree of awareness' that the accusations that Dr. Mann engaged in scientific misconduct, fraud, and deception, were false, and, as a result, acted 'with reckless disregard' for the statements' truth when they were published." This is a troubling conclusion.

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. The court's approach is particularly problematic here because both Simberg and Steyn offered reasoned (if also intemperate) explanations for why they did not credit the investigations and why they believed that these investigations failed to uncover the misconduct they believe occurred. Yet according to the court, the existence of these investigations could be sufficient for a jury to find, by "clear and convincing evidence," that they acted with actual malice.

I further addressed the initial (and highly problematic) trial court opinion in this post, in which I wrote:

Whether or not Mann's work shows all that he has claimed is not the question, for the First Amendment protects robust discussion and debate of scientific matters and the freedom to express wrong-headed opinions in inartful ways. The Defendants believe the ClimateGate e-mails showed that Mann and others are willing to misrepresent scientific claims and distort evidence. Whether or not this is the best interpretation of the various e-mails, they are hardly the only people to holdthis belief. At the very least, the ClimateGate e-mails revealed unethical and potentially illegal conduct, so it's not per se unreasonable for some to think the e-mails could signify something more, and not defamatory to say so. The Defendants further believe that the various investigations into Mann's work, including the Penn State investigation, were not particularly thorough. Again, they are notalone in this opinion. Even the National Science Foundation found Penn State's review of Mann's work to be lacking. The NSF review found no "direct evidence of research misconduct," but it did conclude there were "several concerns raised about the quality of the statistical analysis techniques that were used." That the defendants expressed these views in an particularly outrageous and inappropriate manner hardly seems the sort of thing of which a defamation claim should be made, particularly when involving a public figure. Again, at issue is not whether Mann's research is sound — or even whether anthropogenic climate change is real (and long-time readers know that I believe it is). The issue is whether this sort of commentary actually rises to defamation. Those who are rooting for Mann — but love to call climate skeptics "shills," "liars," and (yes) "frauds" — should be careful what they wish for.

Whether or not judges on the D.C. Court of Appeals agrees with me on these points, it seems they've had more than enough time to consider the issue.

DISCLOSURE: As I've noted in prior posts on this case, I am a contributing editor at National Review Online, which means I have a fancier byline when I submit articles to the publication and occasionally contribute to The Corner and Bench Memos. It is not a salaried position. I also worked at the Competitive Enterprise Institute from 1991 to 2000 — many years before the events at issue in this litigation. FWIW, I also have profound disagreements with the CEI on the threat posed by climate change and the appropriate policy response to this threat.

NEXT: Can Governments Ban Gun Stores? Amicus Brief in Supreme Court Case

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  1. Has there been any change in Mann’s prolonged non-response to Steyn’s discovery requests? Because that is what I believe Steyn (and plenty of skeptics) have been waiting for since Mann filed the case. Mann simply cannot make the case that his accusers are liars without showing enough details of how he created his climate model to prove that he didn’t simply design them to reach a poltically pre-determined conclusion. And the ClimateGate e-mails make a very strong case that he did exactly that.

    1. All discovery is still stayed pending resolution of this appeal.

      1. Even though Steyn isn’t part of it?

  2. While a direct accusation of scientific fraud may be actionable ? particularly when made against a non-public figure ? challenges to scientific conclusions and interpretations of scientific studies are clearly protected by the First Amendment.

    It’s possible to challenge scientific conclusions and interpretations without accusing the other party of deliberate criminal conduct, so this seems something of a false dilemma here.

    1. It is also, e.g., possible to disagree with Donald Trump without calling him a facist, traitor or Russian stooge, yet you have a constitutional right to do so.

    2. What criminal conduct did they claim?

    3. The false dilemma is to imply that there is only one appropriate avenue of criticism within the real of possible criticisms.

      c.f. Zimmerman and Wilson.

    4. Scientific misconduct (or “scientific fraud”) is not necessarily, and I suspect seldom, “deliberate criminal conduct”.

      1. Would it not be fraud against the government, and/or misappropriation of federal funds, if such fraud were found to have occurred in a tax-funded study?

        1. “Mike’s Nature Trick” as his friends call it was fraudulent, but not in any legal sense. Splicing in the actual temperature record to a graph in place of the last few decades of a Paleo reconstruction was deliberately misleading, but lots of things that are misleading aren’t illegal.

  3. The Zimmerman case is a little different because the prosecution failed miserably. So after the trial we learned that Zimmerman lied during his interview with Hannity and that his wife had left the martial home due to an argument the night before the incident. So why would an innocent person lie during a national interview. Oh, and did O’Mara know he was lying? Because that violates ethics rules.

    1. Forgive me, I must have missed your evidence that Zimmerman lied…. oh, and the naming of Sean Hannity as an officer of the court making Zimmerman’s testimony under oath.

      1. ZIMMERMAN: I was going to Target to do my weekly grocery shopping. Sunday nights was the only nights — well, Sunday after we mentored the kids, we would always go grocery shopping and do our cooking for the week. So I wanted to go to Target and I headed out. And that’s the last time I’ve been home.


        ZIMMERMAN: In August of 2011, there was a home invasion. A young lady was home with her nine-month-old baby, and they broke into her sliding glass door. She barricaded herself in the upstairs bedroom. And my wife was home by herself, and she saw the people that burglarized her run through our backyard with their belongings. And even though my wife wasn’t certain what happened, that was enough to scare her and shake her up. And I promised her I would do what I could to keep her safe.

        Zimmerman uses the terms “we” and “our” to place his wife at home to make it appear his behavior was based on a promise to protect his wife…she left the night before the incident because her and George got into a big argument. We only found out about that fact after the trial because the prosecution performed so awfully.

        1. What is your point? Zimmerman clearly said that home invasion happened months before his encounter with Trayvon Martin. You have failed to provide any reason we should connect Zimmerman’s argument with his wife to Martin being shot.

          1. Zimmerman clearly lied to Hannity about the whereabouts of his wife on the night of the incident in his interview to Hannity…why would an innocent man lie in a nationally televised interview??

            1. Clearly??? To be very generous with your interpretation, you might be able to argue that he implied it. But to claim that he clearly said she was at home is, well, bullshit.

              Plus, what relevance does that have as to wether he was defending himself form an attack by Martin?

              1. Zimmerman clearly used the term “we” and “our” with Hannity…that is somewhere on the spectrum of lie to misleading which is a distinction without a difference in this instance because Zimmerman was clearly creating a narrative to excuse his aggressive behavior leading up to the incident. So the lead detective recommended manslaughter because he believed Zimmerman behaved bizarrely in an attempt to become a “hero”. The motive is clear?Zimmerman wanted to be a hero in order to win BACK his wife who left him the night before the incident due to an argument.

                1. Your use of the word “clear” does not actually conform with the dictionary definition of the word.

                2. So, to translate your response into objective person English, he didn’t actually say she was there; you inferred it from his use of the word “we” when discussing his family’s usual practice; and that fact’s relevance to his self defense claim is nonexistent.

                  Thank you for clearing that up.

                  1. No, he clearly lied on national television about the whereabouts of his wife in order to create a false narrative about his aggressive behavior in order to appear more sympathetic…why would an innocent man lie on public television?

                    I reject his self defense claim because I am not a pussy and I am not a woman so I don’t find his force reasonable which is the standard.

                    1. What was reasonable force in a self-defense claim is not up to you. It was up to the jury. They decided Zimmerman was not guilty.

                      Luckily, YOU don’t get to decide a defendant’s fate when YOU don’t hear the evidence presented at a trial.

                    2. The trial was televised! Everyone heard the evidence and Zimmerman’s defense was that he was a big pussy and so his force was reasonable. A jury of 6 women bought his defense. As a man that is not a pussy I found his force excessive but I can understand how a pussy or a woman could find his force reasonable.

                    3. Does it hurt being that ignorant Seb?

                    4. Clearly it’s not as clear as you make out if this argument is ongoing. Clearly.

                    5. That has to do with Sharpton getting involved and people knee jerk reacting to the cancer Sharpton. Sharpton feeds on injustice so Zimmerman getting off suited his goals and grasp for relevance and power. Still, conservatives should be on the side of justice and not simply against Sharpton.

    2. ” because the prosecution failed miserably.”

      As opposed to the unquestionably thorough and rigorous investigation performed by Mann’s employer…

      1. We currently have a president that called a former president a rapist and stated another president lied about being a natural born citizen!?! Americans can apparently say pretty much anything but I am basing my opinion of Zimmerman being guilty of manslaughter on pretty solid evidence.

        1. So, Trump was 50/50 in his allegations. Your point being?

        2. And I’m basing my opinion of him being innocent, on the fact that your “pretty solid evidence” is actually legally irrelevant to the question of whether you can shoot somebody in self defense while they’re kneeling on your chest beating your head into the pavement.

          1. Wrong, manslaughter takes into account which party created the tense situation…which is why the lead detective recommended MANSLAUGHTER.

            1. Look, if I walk into an alleyway in Detroit, I’ve in some sense “created the tense situation”, but walking in your own neighborhood is never an excuse for somebody assaulting you.

              It’s impossible to get around the fact that Zimmerman, who’d fired one shot, had been beaten like a rug, while Martin, dying of a single gunshot wound, had only scuffed knuckles. The unavoidable conclusion is that Zimmerman shot Martin *after* Martin beat the crap out of him, since he couldn’t have delivered the beating after being shot.

              It’s possible to imagine fanciful scenarios where Zimmerman is the aggressor in a legally significant way, but there’s no evidence for them. Even if Zimmerman confronted Martin, (No evidence of this.) Martin was not thus entitled to beat him up.

              You just don’t want to admit it was a classic case of justified self defense.

              1. Zimmerman behaved bizarrely leading up to the incident and Zimmerman also knew he was dealing with a male teenager who are not known for measured behavior. So Zimmerman created a tense situation that led to a confrontation in which words were exchanged and then we don’t know what happened until Martin was on top of Zimmerman (Martin was in a very vulnerable position) and Zimmerman knowing the police were on their way and neighbors were around chose to use his free dominant hand to go for his gun instead of pushing the teenager off of himself and waiting for help.

                If you believe Zimmerman used “reasonable force” then I am sorry to say that makes you a pu$$y. Zimmerman’s defense was that he was a pu$$y and a jury of 6 women believed he used reasonable force in the context of an absurd murder case but I don’t think his force was reasonable because I am not a pu$$y.

              2. There’s no evidence that Martin started the fight either. The only thing we know about the fight is that Martin was probably winning, which in some scenarios gives Zimmerman a right to defend himself with lethal force.

                Now I don’t believe there was enough evidence to convict Zimmerman of murder, but I definitely think that it’s more likely than not that additional evidence would have resulted in a conviction of some kind.

                The only thing that’s certain is that for the majority of the time before the fight Martin was trying to get away from Zimmerman, Zimmerman was continuing the pursuit, and Zimmerman was convinced that Martin was a bad character of some kind.

                The question is how the fight started. In one scenario Martin eventually turns around and attacks his pursuer, in this one Zimmerman is probably innocent.

                In another scenario Zimmerman engages Martin in an attempt to prevent his escape, in this case Zimmerman is guilty.

                Given that Zimmerman was the pursuer, and he’s recorded complaining about suspects getting away just minutes before the fight, I think it’s very likely that he’s the one that started the fight.

                1. Great comment. And the thing that the lead detective noted was that the burglars Zimmerman was complaining about actually didn’t get away. He was complaining because they eventually got busted only he didn’t get the credit?he didn’t get to be the hero! So then his wife leaves him and he wants to win her back by being the hero. The lead detective noted that Zimmerman made many mistakes when profiling Martin because he wanted him to be a burglar. What barely 17 year old skips breaking into unlocked cars and goes straight to b&e during the time everyone is watching TV on a Sunday night??

                2. “The question is how the fight started. In one scenario Martin eventually turns around and attacks his pursuer, in this one Zimmerman is probably innocent.

                  In another scenario Zimmerman engages Martin in an attempt to prevent his escape, in this case Zimmerman is guilty.”

                  ==> And that amounts to reasonable doubt, whether Zimmerman had either less or more actual culpability.

                  1. No, the facts clearly show Zimmerman acted with a high degree of recklessness so it comes down to his use of force. So a high priced jury consultant won the case when he convinced O’Mara to get 6 women on the jury who would see his use of force as reasonable. The other big win for the defense was Zimmerman’s MMA instructor that testified Zimmerman was a pussy. The prosecution allowed him to be seen as an expert witness and they didn’t rebut him with their own expert who would have testified Martin was in an extremely vulnerable position and on the first day of instruction one would have learned to punch an attacker in the groin to easily incapacitate them until the cops arrive.

                    1. Sebastian: “No, the facts clearly show…”

                      The words of an advocate. I’m sure you would have been effective as the prosecutor. But it’s not how members of the jury saw it. Maybe he outlawyered the DA, as you say, but I followed the case pretty closely and it always struck me as murky. Reasonable doubt.

                    2. Just to be clear I think the prosecutor should be disbarred for overcharging the case which is unethical. The case was a solid manslaughter case and quite frankly Zimmerman was unlucky the case became a media circus because he would have been better off with a manslaughter plea deal and a short prison sentence and then he maybe could have had an actual life after the tragedy. So he didn’t serve any time but his life appears ruined.

                      And I give credit to the jury consultant not O’Mara who had a very easy job in light of the absurd murder charge and the case centered on murder. So the fact it was a murder charge essentially took “reasonable force” out of the equation because leading up to that point it was a murder case in which whether or not the force is reasonable is irrelevant.

                    3. “who would have testified Martin was in an extremely vulnerable position and on the first day of instruction one would have learned to punch an attacker in the groin to easily incapacitate them until the cops arrive.”

                      “Two fisted is he whose cause is just, but four fisted is he who gets his blow in first.” And, why is that so? Because if you get your blow in first, for the rest of the fight your opponent is too busy trying to shake it off to fight effectively. It takes a huge amount of training to react correctly during a fight when it starts with your nose being broken out of the blue.

                      You can’t get around the fact that Zimmerman had the crap beaten out of him, and all Martin had was a fatal gunshot wound and scuffed knuckles. Unless you think Martin beat Zimmerman like a pi?ata after being fatally shot, the sequence has to be that Martin beats up Zimmerman without taking any blows himself, and then finally gets shot.

                      You have to imagine that Zimmerman threatened Martin with the gun, and Martin successfully jumped the gun and administered a beating to Zimmerman before being shot, to get anywhere near not self defense. Without Zimmerman firing a shot when Martin jumps him. That’s a movie fight, not a real world fight.

                      Unavoidably, the evidence comports with Zimmerman’s version of events: Martin jumps Zimmerman, proceeds to beat the crap out of him, and Zimmerman finally pulls out his gun and shoots Martin in self defense.

                    4. The evidence clearly showed Zimmerman didn’t have the crap beaten out of him. The evidence also didn’t show who threw the first punch only that Martin landed the first punch. We know they exchanged words and both were interested in fighting and we know Zimmerman’s defense was that he was a pu$$y.

                      Obviously a jury of 6 women confused by a murder trial found him not guilty but my objective analysis of the evidence is Zimmerman behaved bizarrely and created a tense situation and in the end used force that was not reasonable?he is guilty of manslaughter.

                    5. The evidence clearly shows that you’re an ignorant idiotic lying sack of shit, slaver.

                    6. No, if you think Zimmerman’s use of force was reasonable then logic dictates you are a pussy.

              3. I’m totally with Brett on this one. Anyone who says Zimmerman did wrong is a racist.

                1. So you too admit to being a pu$$y like Zimmerman?

                  1. You too wussy to write pussy?

                    1. These commenters are admitting to being pussies just like Zimmerman’s defense argued…so Zimmerman’s force was reasonable because he was a pussy and a jury of 6 women bought the defense.

                    2. I didn’t think your arguments could possibly get worse. I apologize for underestimating you.

                    3. Perhaps someone should point out to Sebastian that being a pussy isn’t illegal.

                    4. I know it is not illegal but the fact these Deplorables are so willing to admit being pussies shows why they are so eager to follow a bully while popping Oxys.

              4. Brett Bellmore — not quite satisfied with the evidence when the black guy claims he was born in the United States, but amply satisfied with the evidence when it makes the dead black guy the bad guy.

                Carry on, clingers. Maybe a bit more “colorblindness,” please?

            2. Yeah, let’s retry the Zimmerman case cause that’s soo relevant to Michael Mann’s suit.

              from my notes:

              7:12:44: Dispatcher: What address are you parked in front of?
              7:12:53: Zimmerman: I don’t know, it’s a cut through so I don’t know the address.
              Zimmerman discusses meeting police, who were on the way.
              7:13:41 Zimmerman call to dispatcher ends (duration 4:05)

              Trayvon had been on the phone with Rachel Jeantel (reconnected 7:12:06) . She said Trayvon said he was “right outside” the house he was staying at. Trayvon also said he had not seen the man for over a minute. She testified Trayvon refered to the man following him as a “crazy ass cracker” and “n*****” . “He had told me he was in the back of his father’s fiancee’s house.” She reiterated this when Attorney West asked her on the stand.

              On the Piers Morgan interview, she said Trayvon did not go in because “I told you — I told Trayvon it might have been a rapist.” He and DeeDee were convinced that the man who had followed him was a homo rapist. At that point, Trayvon turned away from the Greene backdoor to go back, because in her words old school would go inside, call Dad, call 911, new school takes it on themselves to whoop-ass. Trayvon found Zimmerman. Rachel heard Trayvon ask ‘What are you following me for?’, the man ask ‘What are you doing here?’ , sounds of struggle. Call ended 7:15:43 (duration 3:37).

              1. The lead detective recommended manslaughter because Zimmerman behaved so bizarrely that evening.

                1. The lead detective recommended manslaughter because Zimmerman behaved so bizarrely that evening.


                  Do we normally decide guilt or innocence based on the legal recommendations of police officers?

                  1. His behavior leading up to the incident was bizarre…you reject that fact because you hate Al Sharpton (for good reason). I am stating the lead detective’s opinion because it is an objective opinion from an objective investigator.

                    1. What specifically does “bizarre” mean here? That’s a catchall, not a description of specific things that get one’s attention & perhaps make one suspicious of guilt. Aren’t people who have just been in a desperate struggle and killed a person shaken to a high degree? Are there “right” ways to act that they should practice beforehand? What did he do?

                    2. Zimmerman started glaring at a kid walking down the street. So instead of identifying himself as neighborhood watch and asking the kid what he is up to he glares at him and then calls the cops. While on the phone the kid looks at him and Zimmerman doesn’t say he is talking with the cops he just keeps quiet and makes the situation more tense. Keep in mind he is doing this while armed and he knows the person is a teenager. So of course the teenager runs because Zimmerman is acting like a nut and then Zimmerman gets out of his car and escalates the situation never saying he has called the cops or trying to deescalate the situation in which he knows the cops are on the way. If he really believed the kid was a dangerous thug in a gang (which was one of the reasons he called the cops) why would he get out of his car? Then the two exchange words and Zimmerman still fails to tell him what is going on or that the cops are on the way…and he is doing this while armed and he knows he is a teenager! So that is just leading up to the tragedy.

                      Needless to say I find Zimmerman’s behavior reckless and bizarre and of course the lead detective characterized his behavior as bizarre because it objectively is! Obviously I find Martin’s behavior strange but he had just turned 17 several weeks before so generally we expect adults to act like ADULTS!

                    3. Zimmerman started glaring at a kid walking down the street. So instead of identifying himself as neighborhood watch and asking the kid what he is up to he glares at him and then calls the cops

                      Calling this “bizarre” is itself bizarre. Neighborhood watch are not supposed to confront people they view as suspicious; they’re supposed to keep an eye out and then call the police. That’s why it’s called Neighborhood Watch rather than Neighborhood Security Service.

                      So of course the teenager runs because Zimmerman is acting like a nut

                      Zimmerman looked at him out his windshield while talking on the phone. This is “acting like a nut”?

                      and then Zimmerman gets out of his car

                      He got out of his car after Martin had run away.

                      why would he get out of his car?

                      Martin had run away behind some houses. Zimmerman had lost sight of him from his car, and got out to look for him. Maybe imprudent, but not wrongdoing.

                    4. Lol, you are an advocate of all police being plain clothes without badges and with concealed weapons and they don’t have to identify themselves as police when interacting with the public! Omg, you are a fucking idiot!

                    5. He is? tell us how you came to that conclusion.

                    6. He is either a fucking idiot or a creepy weirdo whose hobby is glaring at teenage boys…I gave him the benefit of the doubt.

                    7. you said that ” you are an advocate of all police being plain clothes without badges and with concealed weapons and they don’t have to identify themselves as police when interacting with the public! ” and you are justifying it by saying “He is either a fucking idiot or a creepy weirdo whose hobby is glaring at teenage boys”

                      That makes no sense at all. Even less than the rest of your terrible posts in this thread.

                    8. He can’t defend his comment and you can’t either?police are easily identifiable and go through training on how to deal with people they are confronting. Zimmerman was not trained as a police officer and as the lead detective noted Zimmerman behaved Zimmerman bizarrely that evening by not identifying himself as a concerned citizen that called the cops.

                      Zimmerman also escalated the encounter while carrying a concealed weapon which goes against the advice of every expert on how to properly behave while carrying a concealed weapon.

                  2. “Do we normally decide guilt or innocence based on the legal recommendations of police officers?”

                    We shouldn’t, but all too often, we actually do.

                    1. Actually in this case the Sanford PD is the only party that came out of this with their integrity intact. So the Sanford PD withstood an assault on the criminal justice system from Sharpton and Crump with the two lying to the media and undermining the investigation. In fact the first time I heard about the case was from a future Trump supporter who was outraged a little boy was shot in the back while carrying Skittles. So obviously when people discovered the truth there was a backlash and sympathy for Zimmerman who looked like he was being railroaded. Crump was then undermining the investigation by preventing the investigators from interviewing Jenteal who could make or break the case. You may dismiss these two but Sharpton has undermined NYPD investigations. This crowd also has morphed into Black Lives Matter which unfortunately is a “successful” subversive group in our society.

                      Also as much as Zimmerman seems as dumb as a box of rocks some of his behavior is highly sophisticated in an almost criminal mastermind way. So he knew to file a restraining order against a girlfriend to muddy the waters after she filed one against him. He convinced his wife that was about to leave him to stand by his side while taking a perjury rap to help him. He convinced her and her parents to not disclose that she had left the home the night he the incident because of a fight. Zimmerman knew to destroy the flash drive of an iPad to destroy evidence of a fight between him and wife.

                    2. Seriously? A flash drive is a storage device and has nothing to do with the data on a device like an i-Pad, PC, Laptop, Tablet. There is no such thing as “the flash drive of an i-Pad.

                    3. Omg, if that is your one nitpick then I have easily won this argument. An iPad doesn’t have a hard drive it has solid state memory and I forgot how to refer to its memory other than solid state memory storage drive?

                    4. Actually the iPad storage is flash memory so if you are familiar with this case and the aftermath you should know exactly what I am referring to.

        3. I assume you’re talking about a private citizen, because I can recall no sitting President making such claims.

          1. Trump’s method of oppo research is certainly more economical than other presidents?Trump just makes up oppo research for free!

            1. Trump is from the Harry Reid school, if you need some made up bogus charge, just make it up yourself and run with it.

              The Hillary-DNC method of laundering campaign funds through your lawyer to pay a foreign spy to pay other foreigners to make up crap for you to use is more expensive, leaves a money trail and leaves you open to legal jeopardy.

      2. Correct. Penn State basically said Mann was judged innocent because he brought so much grant money to the school. There were no interviews with critics and no honest investigation of the claims against Mann. The only “witness” was Mann, and the school said everything he said was the truth – even Mann’s lies about McIntyre demanding data in an Excel format. Sheesh.…..tegate.pdf

  4. I agree that this defamation lawsuit ought to fail. There is a serious First Amendment problem when political blog posts are turned into defamation lawsuits.

    Another point. It is pretty bad how long our courts take to process lawsuits in general. While I can see some due process and stability benefits to an extended litigation process, I think things have gone too far.

    1. David Welker, do you mean to imply, as you do, that political blog posts ought to be made proof against defamation suits? Taking “blog posts” as equivalent to “publications,” the contrary has been the rule for two-hundred years, or so, without notable First Amendment problems. Why suppose that would change now?

      Perhaps you are unaware that defamation was never meant to be protected by the 1A? In defense of the freedom to publish, and especially with regard to politics, courts have labored hard to stake out lines within which publishers are free vigorously to criticize political figures, and even to be mistaken while doing so, but courts have never said there should be no lines.

  5. I suspect part of it is the courts simply hoping that if they take long enough it will simply go away (even if due to heat-death of the universe).

  6. Six years? How is it possible that a court can just wait for six years? What happened to the right to a speedy trial?
    Is there no remedy to something like this?

    1. There is no right to a speedy civil trial.

      1. “(40) To no one will we sell, to no one deny or delay right or justice.” – Magna Carta

        “XVII. That every freeman, for any injury done him in his person or property, ought to have remedy, by the course of the law of the land, and ought to have justice and right freely without sale, fully without any denial, and speedily without delay, according to the law of the land.” – Maryland Constitution, 1776

        “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” – US Constitution, 9th Amendment

      2. It’s in the penumbras and emanations.

  7. Then there is Mann’s lawsuit of retired Canadian climate researcher Dr. Tim Ball.

  8. If the comments at issue in this case are potentially actionable defamation, then so too are all manner of hyperbolic charges hurled against climate skeptics by environmentalist activists, including accusations that skeptics are corporate shills or paid for their positions.

    Adler has offered that peculiar point before. I suggest he ought to talk to a libel expert on the subject of differences between libel per se and the much less defamatory (actually, probably not at all defamatory in most circumstances) kinds of assertions Adler examples. People rise to respected positions of honor and rich remuneration by openly shilling for corporations, and/or getting paid for their positions. Nobody rises to scientific honors by openly committing scientific fraud.

    Alternatively, maybe pretending those things are alike is just . . . I don’t know what to call it, can I call it “advocacy?”

    1. It would be an odd world in which falsely accusing an academic of being a corporate shill and a “fraud” would not be as actionable as the statements at issue in this case.

    2. Nobody rises to scientific honors by openly committing scientific fraud.


      Hwang Woo-suk (Korean: born January 29, 1953)[1] is a South Korean veterinarian and researcher. He was a professor of theriogenology and biotechnology at Seoul National University (dismissed on March 20, 2006) who became infamous for fabricating a series of experiments, which appeared in high-profile journals, in the field of stem cell research. Until November 2005, he was considered one of the pioneering experts in the field, best known for two articles published in the journal Science in 2004 and 2005 where he reported he had succeeded in creating human embryonic stem cells by cloning. He was called the “Pride of Korea” in South Korea.

      1. Perhaps when I wrote “openly,” you thought for some reason I meant to write, “covertly?”

        Oh yeah, also, since the fraud was discovered, how has his career in science been going. High honors? Big money?

        If not, let me remake my point. Openly shilling for corporations?tobacco companies for instance?can get you appointed to the Supreme Court, like Lewis Powell. There can be nothing remotely defamatory in accusing someone of conduct which has in fact prepared a person for honor and office on a scale such as that. Adler’s conflation is mistaken and peculiar.

        1. Not interested in your silly word games.

        2. The notion climate science is actual science is absurd. Actual science involves reducing variables and then discovering laws that form the basis of theories. Climate science is more akin to macroeconomics which is a respected field and many can become wealthy by studying it but Ben Bernanke is not a scientist. Is there a climate scientist as prominent as Ben Bernanke? Has Bernanke ever been wrong about anything? Am I free to ridicule Bernanke and take issue with his theories?

        3. Powell was an academic? Interesting claim.

          Conflating legal representation of a client with shilling is also an interesting conflation. I stand by my claim.

    3. With reproducibility at around 50% in many sciences along with a well stories history of know scientific fraud at many universities with falsified or made up data… What so you base your assertion on that it never happens?

      Steyn’s book about Mann clearly demonstrates Mann’s own colleagues have questions about his infamous hockey stick.

      1. Please show me my assertion that scientific fraud never happens.

        I thought I had been trying to make a more particular point?that if you publish an accusation that a particular scientist is guilty of scientific fraud, you had better be ready either to show that it is true, or to pay up. There is nothing at all in saying that to suggest scientific fraud never happens.

        Also, I’m mystified why anyone would suppose that if colleagues have “questions” about a scientist’s model, that makes it okay for you to call him a scientific fraud.

        1. Also, I’m mystified why anyone would suppose that if colleagues have “questions” about a scientist’s model, that makes it okay for you to call him a scientific fraud.

          It is quite apparent that you are completely ignorant of Mann’s history.

        2. Scientific Fraud –
          The legal definition or
          the academic definition, or
          The generic definition
          All different meanings

          My reading of Simberg’s post is the generic definition of scientific fraud –

          Take a look at the manner in which the MWP continues to be denied. –
          virtually zero weighting to high resolution proxies showing elevated mwp temps Mann Jones 2003
          ex post selection (deletion of high resolution proxies showing elevated mwp temps in the SH – gergis and pages 2k,

          I find that those actions are also scientific fraud, at least in the generic sense. ex-post data selection, ex-post data screening. Technically not academic fraud or legal fraud.

    4. What Mann did may not have been fraudulent but it was hardly science. He openly admitted when looking for data for his Paleo reconstruction that he picked tree ring data that had the signal he was looking for. If it showed warming it was obviously good data. If it showed cooling, then of course it was bad data. And if his tree ring data that showed warming all the way up to the last few decades, then stop the series there, and claim the last few decades are irrelevant because it doesn’t show what you want it to.

      That’s not how science is done, or at least not how it should be done.

    5. I suggest he ought to talk to a libel expert on the subject of differences between libel per se and the much less defamatory (actually, probably not at all defamatory in most circumstances) kinds of assertions Adler examples.

      Do you know what the difference between libel per se and ordinary libel is? Because I’m having trouble imagining how the actual meaning could be significant to the point you’re trying to make.

  9. Thanks for that interesting post , I don’t know too much about the facts here , yet , the respectable author of the post , doesn’t insist it seems , upon the simple tests , whether those statements subject matters , are defamatory or not . the District of Columbia Court of Appeals explained it clearly ( as merely question of law ) here I quote :

    A plaintiff may prove actual malice by showing that the defendant either (1) had “subjective knowledge of the statement’s falsity,” or (2) acted with “reckless disregard for whether or not the statement was false.” Burke I, 91 A.3d at 1044. The “subjective” measure of the actual malice test requires the plaintiff to prove that the defendant actually knew that the statement was false.

    End of quotation :

    So , if plaintiff proves actually , that the defendants new , had to know , about the falsity of the statements made by them , then it is defamatory simply. Example : a defendant had to suspect , that if somebody got payments for digging and finding dirty things on someone ( plaintiff ) and didn’t bother to connect dirty money with potential false statements , then , subjectively , at least , had to know , yet , recklessly disregarded it . Had nothing to do with first amendment paradoxically , but with something else obviously .


    1. Steyn’s wrote an entire book quoting scientists questioning Mann’s hockey stick. Hard to say he knowingly knew his statements regarding Mann were false.

      1. I was referring rather not to that specific case , but , general legal factors defining defamation , or , defamation , as differentiated from legitimate free speech. In this specific case , the court shall prevail finally . Thanks

    2. A couple of points

      1) I concur with the legal analysis of the court citations you provide
      2) Under SLAPP, the burden of proof shifts to the plaintiff at the summary judgment stage. There was no hearing to provide any evidence that the defendants knew or should have known their statements were false. The court accepted at face value, that the 8 Exonerations were proof that the they knew or should have known.
      3) the very blog post for which they were sued, demonstrates that they believed at least one of those exonerations was a whitewash.
      4) the court accepted the validity of the 8 exonerations as unchallenged proof. However as noted by Steve Mcintyre at Climate Audit dot org, only two of the eight investigations actually investigated Mann, of which one was the Penn investigation which was a whitewash, the second being the NSF investigations which had its own limitations.
      5) Pursuant to the NSF Research Misconduct Regulation, the NSF investigation did not even cover the period of the alleged misconduct since the alleged misconduct occurred prior to any NSF Funding. Note the alleged misconduct was related to MHB98 which predated NSF funding.

      In Summary – The two major errors by the appeals court is that A) They applied the evidentiary standard applicable to a regular summary judgement proceedings instead of the standard applicable to a slapp motion. and B) they accepted disputed facts without any adversarial proceedings and/or presentations .

      1. Is SLAPP relevant to this case?
        a) Does the jurisdiction in which this was filed even have an anti-SLAPP law?
        b) If so, did any of the defendants assert it as a defense?

        1. yes to all three –

          Is SLAPP relevant to this case? YES
          a) Does the jurisdiction in which this was filed even have an anti-SLAPP law? YES
          b) If so, did any of the defendants assert it as a defense? YES

  10. One may reach the ruling here :…..62251.html


  11. I practiced law in the District of Columbia from 1969 to 2016 (I’m now retired), and I appeared often before the DC Court of Appeals. Although I lost my fair share of cases (I tended to represent folks like rent-controlled landlords and real estate developers) I thought this was a fair and competent court. The last three Chief Judges of the Court came from my old law firm, and I knew all of them pretty well and have great respect for them. I am really surprised that this Court decided in Mann’s favor. It’s true that DC is a terribly liberal town, and it would not be popular to decide against the father of global warming and in favor of NR and the right-wing establishment, but the Court could easily have passed the buck to the trial court. The long delay in responding to the motion for reconsideration may mean that the Court is trying to find a way to get back on the right track without undue embarrassment to the Panel judges.

    1. Undue embarrassment that is well and truly due.

  12. No mention of a previously read news story that Mann refused to provide his raw climate data which would have been used to show unscientific alteration of data seen in hardback books that cannot be revised.

    How can a trial proceed if the raw data are not provided?

    1. Most if not all of the raw data has been released – See Steve McIntyre’s critique of MHB98 over at climate audit dot org.

      The claim of mann not releasing his data just gives the warmists/activists additional talking points. There are enough errors in MHB98, Mann Jones 2003 and Mann’s other reconstructions including Gergis, pages 2k etc that discredit the hockey sticks.

  13. A big part of climate “science” is silencing dissent because the “solutions” are extremely unpopular and political in nature. So even if the underlying movement uses facts and studies and models the goal is to further a political goal. I liken the climate “science” movement to the white supremacist movement that also has facts and figures they like to throw around but no one questions that the movement’s political bent.

    As Americans we place political speech as the most important speech to protect and so speech that is intended to shed light on political movement that is climate “science” should be protected as political speech.

    1. I thought that as Americans we only care about protecting political speech we agree with.

  14. In the meantime, back at the ranch (my sister’s ranch, in Montana) it was 2 degrees F. yesterday and they had to give up on using the little snow blade on the ATV to try to clear the driveway and get out the big tractor with the front end loader. Here near Seattle I was hacking at the thick frost on my windshield.

    The problem with climate “science” is that some folks assumed from the get-go that every factor other than humans governing climate was perfectly understood and could be ruled out as possible perturbers of the fictitious stable equilibrium some thought we were living in.

    The most interesting new development along that live is that Old Sol is not bathing us in a stable amount of solar radiation. We always knew that was variable due to celestial motions, which causes certain climate cycles, but it is a new thing to know that the nuclear furnace itself is in active flux (only slightly, but it doesn’t take much because the alleged rate of global warming of late isn’t much, especially compared to alarmist predictions.)

    1. The climate science folks cannot guarantee funding if they say “Actually, we don’t know”.

    2. Back in the era of IGY 1957, there was talk of putting up satellites to measure effect on the atmosphere of such things as radiation from space and dust and ice from comet debris. Every once in a while I wonder if that influence on weather and climate has been researched further.

      The Geological record is that climate has changed repeatedly in waves. But you can pick different markers — tree rings, ice core samples, and get diffferent results. I like to snark the blade that the blade of Mann’s hockey stick starts with 1816 the infamous “Year With No Summer”so, yes, it has been warmer since then. and his flat hockey stick shaft requires ignoring evidence of a medieval warming period followed by a little ice age, a up-and-down wave pattern in the past 1000 years, not a flat decline with a dramatic up-tick..

      The body of climate data is like the orbit data on the Martian moon Phobos collected from different observors in different locations using different instruments and evaluated with different methods which was synthesized by Iosif Shklovsky into his Hollow Phobos hypothesis, championed by Carl Sagan because it supported his Ancient Astronauts theory. If the orbit predicted by the data were true, Phobos had to be a hollow sphere, an artificial satellite. Since the 1960s better data and space probe fly-bys show that Phobos is an irregular conglomeration of rock.

  15. Most comments do not reflect opinions on the quality of Michael Mann’s research, but rather the political position of the opinionator.

    My opinion is that carbon tax and trade based on belief in climate change = Virginia 1924 Racial Integrity Act based on belief in evolution and eugenics (or maybe the Satanic Ritual Abuse moral panick based on child psychology).

    The mantle of science is used to support politics; the objection of many skepticks is to the politics.

  16. The NSF closeout memorandum exoneration of Mann is very deceptive –

    The NSF investigation of Mann was conducted under the NSF Research Misconduct Regulation. The NSF Misconduct Regulation only covers the period in which the NSF funded Mann’s research. MHB 98 predated any funding by the NSF which also predated Mann’s employment at Penn. Therefore, the primary complaint regarding the hockey stick and the related research was not even the subject of the investigation.


      Regulation of NSF-supported research can be broken down into 3 areas.

      Research Misconduct
      Research Involving Human Participants
      Animal Welfare

      The Warmists who defend the NSF investigation seem unaware the NSF investigation did not cover the period of MHB98.

  17. I am a lawyer who has followed climate change matters closely for about 10 years. I don’t believe any of the investigations/endeavors cited by the court exonerated Mann. I have written a blog post summarizing my views on the investigation/endeavors which others are welcome to criticize or comment on. See…..ent-167289

    If my posting this link is improper, I am more than fine with it being removed.


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