Can Michael Mann Sue The National Review For Defamation Over Accusations Of Scientific Fraud?

[Update, October 23, 2012: The Blog of the Legal Times is reporting that Mann has filed his lawsuit (in D.C. state court), and they have a copy of the Complaint, which makes allegations along the lines I described below, i.e., that accusations of fraud in his profession constitute libel per se. D.C. has "anti-SLAPP" laws, so the merits of this case might be decided quite quickly.]

The entire scientific community, save a dwindling number of attention-seeking contrarians, believes temperatures on Earth since 1950 have risen by a little under 1 degree Celsius as a result of humanity’s relentless burning of fossil fuels. Even the Koch brothers’ own funded study agrees. As Bill McKibben explains, the global warming math is pretty simple: another 2 degrees increase will probably create a catastrophic environmental disruption, and right now in the ground are “proven reserves” of more than five times the fossil fuels needed to produce amounts of carbon dioxide sufficient to create that 2 degree increase.

But this is America, where everyone has freedom of speech, the constitutionally-guaranteed right to open your mouth and remove all doubt that you are indeed a fool, and so anyone, anywhere can show themselves to be scientifically illiterate by claiming there’s no proof of global warming. What Americans don’t have, though, is the right to make up falsehoods about others. Milkovich v. Lorain Journal, 497 U.S. 1 (1990)(rejecting attempt to dress up defamatory factual assertion as “opinion,” noting, “at common law, even the privilege of fair comment did not extend to ‘a false statement of fact, whether it was expressly stated or implied from an expression of opinion,’” quoting Restatement (Second) of Torts, § 566, Comment a (1977)). I’ve written a lot about defamation in the past; perhaps there’s some right to lie about yourself and the Congressional Medal of Honor you didn’t win, but, at least for now, the Supreme Court has rejected every effort to claim a right to maliciously defame others.

Which brings us to Michael Mann, the physicist and climatologist at Pennsylvania State University famous for his work on the Intergovernmental Panel on Climate Change and for the “hockey stick graph” showing a dramatic increase in global temperature over the past century. He’s also been called “the Jerry Sandusky of climate science.”

Wait, what? 

That insulting quote — drawing a parallel between Mann and the single most reviled person at Mann’s own school — comes from Rand Simberg, of the Competitive Enterprise Institute (which, big surprise, receives substantial funding from oil and gas interests). The full quote is:

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

Mark Steyn of the National Review picked it up, adding:

Not sure I’d have extended that metaphor all the way into the locker-room showers with quite the zeal Mr Simberg does, but he has a point. Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph, the very ringmaster of the tree-ring circus.

In response, Mann said he was considering legal action, and eventually his lawyers at Cozen O’Connor sent a letter to the National Review demanding a retraction.

Ken at Popehat concludes, “This is not a prudent move on Professor Mann’s part — unless his purpose is to use the courts to conduct a political, scientific, and cultural debate, something that is generally a poor use of the legal system.” I agree that the legal system generally shouldn’t be used for political purposes (like the mining industry’s threat to sue over the diesel exhaust study, which never materialized into a lawsuit), but I disagree Mann’s threatened suit is an example of that. Ironically, Simburg’s response gets right to the legal heart of the matter:

Interestingly, he seems much more upset about the accusations of scientific fraud than about the Sandusky comparison (the latter is almost an afterthought in the lawyer’s letter). But does he really want to litigate the hockey stick in a court of law? Does he in fact want to dig into any of his unscientific behavior in a venue in which he will be under oath, and he won’t have sympathetic colleagues covering for him? Does he really want those emails to be read aloud in court? And has he talked to the University of Virginia? Even if they continue to fight the FOIA, how will they fight a subpoena for the missing emails in a civil lawsuit?

There’s nothing surprising about Mann’s lawyer focusing on the accusation of scientific fraud: Simberg and Steyn’s opinions about global warming are protected speech, as is the Sandusky comparison standing alone. As I mentioned back in the FunnyJunk v. Oatmeal nonsense, satire and humor are protected speech, even when done in an aggressive and potentially misleading manner. Consider The People v. Larry Flynt, which was actually Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), in which Hustler magazine posted a blatantly false “interview” with Jerry Falwell in which he described drunkenly losing his virginity to his own mother in an outhouse. (For example, “INTERVIEWER: But your mom? Isn’t that a bit odd? FALWELL: I don’t think so. Looks don’t mean that much to me in a woman.”) In many ways, the more hyperbolic the speech, the more likely it is to be protected.

But things change when you talk about fraud in one’s profession. In Pennsylvania, “it is well-settled law that a communication which ascribes to another conduct, character, or a condition that would adversely affect his fitness for the proper conduct of his business, trade, or profession, is defamatory per se.” Pelagatti v. Cohen, 536 A. 2d 1337 (Pa. 1987). The classic example of defaming someone’s fitness is to accuse them of “fraud” or other dishonesty in their business. The presence of per se defamation is doubly beneficial to Mann because, “with words that are actionable per se, only general damages, i.e., proof that one’s reputation was actually affected by defamation or that one suffered personal humiliation, or both, must be proven; special damages, i.e., out-of-pocket expenses borne by the plaintiff due to the defamation, need not be proven.” Joseph v. Scranton Times LP, 959 A. 2d 322 (Pa. Super. Ct. 2008).

Mann thus has a non-frivolous claim: the First Amendment is not a license to call others a fraud. But that’s not quite the end of the story.

Consider Phantom Touring, Inc. v. Affiliated Publications, 953 F. 2d 724 (1st Cir. 1992), which arose from a Phantom of the Opera that was not, in fact, Andrew Lloyd Webber’s play — rather, it was an earlier adaptation of Gaston Leroux’s 1911 novel, an adaptation written in 1977 by Ken Hill, which Webber saw before writing his own hit version. The Boston Globe didn’t take kindly to it, saying the producers were “trying to score off the success of Andrew Lloyd Webber’s `Phantom’” and “deliberately confusing people.” The producers sued for defamation.

The First Circuit panel (including now-Justice Breyer) held that, “Arguably, the connotation of deliberate deception is sufficiently factual to be proved true or false, and therefore is vulnerable under Milkovich,” but nonetheless affirmed dismissal because:

Whether or not the allegation of intentional deception meets the “provable as true or false” criterion, however, we think the context of each article rendered the language not reasonably interpreted as stating “actual facts” about appellant’s honesty. The sum effect of the format, tone and entire content of the articles is to make it unmistakably clear that Kelly was expressing a point of view only. As such, the challenged language is immune from liability.

The opinion went in depth about how “as a regularly run theater column, [it was] a type of article generally known to contain more opinionated writing than the typical news report,” but the key issue was the breadth of information provided:

Of greatest importance, however, is the breadth of Kelly’s articles, which not only discussed all the facts underlying his views but also gave information from which readers might draw contrary conclusions. In effect, the articles offered a self-contained give-and-take, a kind of verbal debate between Kelly and those persons responsible for booking and marketing appellant’s “Phantom.” Because all sides of the issue, as well as the rationale for Kelly’s view, were exposed, the assertion of deceit reasonably could be understood only as Kelly’s personal conclusion about the information presented, not as a statement of fact.

All of which brings us back to where we started: whether Steyn’s post — considering the whole scope of it, including the fact that it’s on a blog, and whether Steyn should have disclosed more context (like the exonerating investigations noted by Mann’s lawyer) in his post — alleges “actual facts” about Mann that are “provably true or false,” and so isn’t a protected expression of opinion. In my humble opinion, Steyn’s and Simberg’s accusations of fraud are provably false, but the answer certainly isn’t guaranteed as a matter of law, and I can see many courts granting their inevitable motion to dismiss.

Of course, if the Court doesn’t grant the motion to dismiss, then Steyn and Simberg might have a bit of a problem on their hands, and that’s where the Sandusky comment comes into play. Assuming their remarks aren’t protected opinion, and they can’t prove their accusations are actually true, then Mann can likely convince a Middle District of Pennsylvania or District of Columbia jury that the accusations were made with “actual malice” — just consider the Sandusky analogy.

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  • Bruce Rheinstein

    No discussion of whether Prof. Mann is a public figure?

    • http://www.litigationandtrial.com/ Max Kennerly

      The post felt too long as is. I think he is undeniably either a public figure or a limited purpose public figure when it comes to the “hockey stick” graph, and so he would have to show “actual malice” to recover. That’s where the Sandusky comment comes in: the defendants would claim that was merely snark and hyperbole, but, well, you don’t just call somebody at PSU the Sandusky of anything. Them’s fightin’ words.

      • J Melcher

        Aside from the use of the term “Fraud” the charge was published that Mann “tortured” his data.

        In point of fact there is a dispute about a data set, and its usage, referred to as “Upside Down Tijander”. The data was developed by an original researcher — Tijander — and interpreted as a proxy for temperature in one fashion. Mann used the same data, reversed the interpretation without discussing what physical mechanisms supported his interpretation, and used the proxy, among others, to validate the “hockey stick”.

        To characterize “taking” somebody else’s data and “turning it upside down” to “satisfy one’s own desires” might — in certain venues such as talk radio and political blogging — be arguably metaphorically and hyperbollically correct as “torture” and comparable to whatever Jerry Sandusky was doing.

        Or it might not.

        But the lawsuit will certainly emphasize, rather than conceal, the number and nature of such disputes in the course of Mann’s scientific career.

        • http://www.litigationandtrial.com/ Max Kennerly

          Mann would have a hard time proving the “torture” of data is defamatory. Sure, “torture” means “to twist,” and for a scientist to “twist” data certainly implies improper conduct in their business, but I bet most courts would find that to fall within the permissible bounds of protected opinion. “Fraud,” though, has special meaning in defamation law: it is rarely interpreted as a mere opinion about something, but rather an outright assault on a person’s reputation. If it turns out that assault was false and maliciously done, then liability attaches.
          I agree entirely that, in the event of a lawsuit, the propriety of Mann’s research will be front and center. The intriguing question to me is if the defendants will forego an “opinion” argument and forego a “public figure” argument — if they did (which would undoubtedly be contrary to their lawyer’s advice), they would make the case truly about the truth or falsity of their allegations. If they don’t, then the case isn’t exactly about Mann’s data.

  • David Springer

    “In my humble opinion, Steyn’s and Simberg’s accusations of fraud are
    provably false, but the answer certainly isn’t guaranteed as a matter of
    law, and I can see many courts granting their inevitable motion to
    dismiss.”

    You base that opinion on what? A thorough review of evidence which Mann and the University of Virginia have steadfastly refused to produce even through the best effort of the Virginia Attorney General asking for it to determine if Virginia’s fraud against taxpayer laws had been violated? Methinks your opinion has no basis, counselor.

    “But this is America, where everyone has freedom of speech, the
    constitutionally-guaranteed right to open your mouth and remove all
    doubt that you are indeed a fool, and so anyone, anywhere can show
    themselves to be scientifically illiterate by claiming there’s no proof
    of global warming.”

    Lucky for you. You have no science background. The fool in this case is you.

    • http://www.litigationandtrial.com/ Max Kennerly

      I base that on stuff I read casually on the internet, a handful of books, and no scientific training past college. And yourself?
      I might be a fool, but I’m not in the case. Maybe if you read past the first two paragraphs you’d see what my post was about, which was to explain the applicable law — I am a lawyer, and one who has done many defamation cases — to non-lawyers.
      It will be interesting to see if this actually turns into a lawsuit and, if so, what Mann’s critics argue. If they argue that their assertions were “opinion” — which is what any competent lawyer would tell them to do — then they run into the Papa John’s / Domino’s public relations problem of describing their own advertising as “puffery.” Do you think they should argue their statements were “opinion,” or make the trial really about whether Mann committed fraud or not?

  • Andrew W

    On this page of his blog: http://www.transterrestrial.com/?p=44177#comments
    Rand Simberg makes this claim:
    “It doesn’t matter what you think. That’s not how libel law works. If I
    believe it to be true, it is not a “reckless disregard for the truth,”
    and they lose.”

    He appears to be arguing that as he genuinely believes Mann committed fraud, he (simberg) cannot be found to have slandered/libeled Mann.

    • http://www.litigationandtrial.com/ Max Kennerly

      Mann would indeed have to prove some sort of reckless indifference or actual malice by Simberg – but note that, as a political matter, this is a cop-out by Simberg, an admission that his accusations are convincing only to him and his supporters. IMHO, if he really wants this to be a case about the hockey stick, he should drop that argument and stipulate to a negligence standard if he wants to win the PR war. Otherwise he’s all talk, hiding behind the generous protections of the First Amendment.

  • Peterb

    Being from Germany and no layer i’m not familiar with american law, but there are two things in this case that make me wonder.
    The first ist that (as far as i found on wikipedia) calling someone a criminal is libel per se.
    Fraud is a crime, so it should be libel per se, at least if he didn’t do a fraud.
    Does he still need to prove actual malice to win the case?

    And in Germany you are not allowed to call someone a criminal until he is convicted by a court for that crime.
    It would be a very short trial, as MM was not convicted for fraud and it would be no problem to prove that.
    If someone calls OJ Simpson a murderer would be the same, since he was ‘not guilty’ on court.
    MM is not guilty of fraud as he was not convicted for it.
    Or is that to easy?

    Hope i have not to many spelling mistakes, my english is quite rusty…

    • http://www.litigationandtrial.com/ Max Kennerly

      It is not that easy in the United States, which is often considered to have the most speech-protective libel laws in the world. I have assumed for my analysis that Dr. Mann would be considered either a “limited purpose public figure” or “public figure” under free speech law, because the comments about the hockey stick graph involve a matter of considerable public interest and Dr. Mann has, on many occasions, but his work into the public sphere.
      Because he is a “public figure,” the United States Supreme Court has held that, under the protections of the First Amendment to the United States Constitution, the plaintiff has to show “actual malice” to recover. The purpose of this rule is to ensure “breathing space” for a wide variety of commentary about issues of public concern, including hostile commentary. Note that “actual malice” has a bit of a strange definition under First Amendment case law, in that it can sometimes include reckless conduct.

  • zen

    And it won’t be available. The end.