The Volokh Conspiracy
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Climate Scientist Michael Mann Wins Defamation Suit Against Mark Steyn and Rand Simberg
The jury found no real damages, but gave a sizeable punitive award that could be challenged on appeal.
Yesterday, a jury in the District of Columbia ruled for climate scientist Michael Mann in his long-running defamation suit against writers Mark Steyn and Rand Simberg, for blog posts the two had written challenging the validity of his research and comparing Penn State's investigation into Mann's alleged misconduct with the University's whitewash of Jerry Sandusky. The suit was initially filed in 2012, and initially included National Review and the Competitive Enterprise Institute as defendants.
The jury awarded Mann nominal compensatory damages of $1 against each defendant, but then added punitive damage awards of $1 million against Steyn and $1,000 against Simberg. I would think that these damages--if not the verdict itself--are likely to be appealed.
The punitive damages would seem to be the most vulnerable part of the judgment. Under existing Supreme Court precedent, excessive punitive damages violate Due Process. So, for example, in BMW of North America v. Gore, the Court held that a punitive damage award of $2 million was excessive given that the plaintiff had only been awarded $2,000 in compensatory damages. This 1000-to-1 ratio, the Court held, could not be justified even considering the extent to which the defendant had engaged in egregious conduct.
There is some question whether BMW would continue to attract a majority of the Court today. That decision was 5-4. Justice Stevens wrote the majority, joined by Justices O'Connor, Kennedy, Souter, and Breyer. Justices Scalia, Thomas, Ginsburg and Rehnquist dissented. Nonetheless, the BMW holding is binding on lower courts.
While Mann prevailed at trial, the proceedings also unearthed some slimy conduct on his part, including his disparagement of scientists with whom he disagrees and behind-the-scenes efforts to suppress articles by scientists he does not like.
This long-running litigation may not be over. Steyn's camp has indicated they intend to challenge the punitive damages award (if not other aspects of the decision). Mann's attorney also told the NYT they still plan to appeal the prior decisions that had removed CEI and National Review from the case: "Asked about Competitive Enterprise Institute and National Review, John Williams said, 'They're next.'"
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A post-script. Here is a disclaimer I have included in prior posts about this litigation:
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. If either of these facts makes you suspect bias on my part, so be it.
Note that while I was once something of a climate skeptic (much like Jerry Taylor), my views have changed. Today I have profound disagreements with CEI on the subject of climate change, having argued in defense of the scientific "consensus" on climate change and in favor of a carbon tax, among other measures to address the climate threat. My interest in this litigation arises from this implications for robust debate on matters of public concern, as I explained in this post.
