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.”
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.