Energy & Environment

Why defamation suit against climate denialists is the right move

Ethan Elkind

One of the country’s leading climate scientists, Dr. Michael Mann, has been harassed, threatened, and berated for his views that human actions are contributing to global climate change. But not just from anonymous commenters on websites — from leading publications like the National Review Online. After being compared to Jerry Sandusky and having the credibility of his work questioned, Mann finally has had enough. He is suing Rand Simberg of the Competitive Enterprise Institute (CEI) blog and Mark Steyn at National Review Online for defamation.

Michael Mann

Climatologist Michael Mann

So what is defamation and how do you prove it? To be sure, this is not my area of legal expertise. But the basics are fairly straightforward. As an overview, defamation means a public attack, based on false facts, on a person’s professional character or standing on an issue of public interest. The attacks have to cause damage to the plaintiff.

You can defend yourself against charges that you defamed someone by proving that you spoke the “truth.” You can also defend yourself by saying it was just an “opinion” as opposed to fact, although some jurisdictions have eliminated that distinction.

In this case:

Mann alleged that four phrases in Simberg’s post were defamatory: “data manipulation,” “academic and scientific misconduct,” “posterboy of the corrupt and disgraced climate science echo chamber,” and accusing the Penn State professor of molesting his data and thus being the “Jerry Sandusky of climate science.” He also cited a subsequent CEI press release that called his research “intellectually bogus.”

Trevor Burris of Forbes penned a full-throated defense of National Review and the other defendants, arguing that their words amounted to nothing more than name-calling:

While some of these phrases might be impolitic and unprofessional, they are not defamatory. Pugnacious rhetoric is still protected by the First Amendment, especially in matters of public debate.

Furthermore, he thinks the lawsuit will hurt the cause of climate change advocacy:

Proponents of the theory of catastrophic climate change should think twice before they support Dr. Mann’s lawsuit. In fact, anyone who engages in vigorous intellectual debate should be afraid that Mann’s lawsuit wasn’t immediately dismissed as a nuisance suit that is attempting to stifle First Amendment-protected speech. If Mann wins this lawsuit, he or his friends could easily find themselves on the other side of a defamation suit. Climate-change catastrophists consistently accuse climate-change “deniers” of intellectual and professional malfeasance.

I disagree. First, the comments against Mann aren’t just name-calling — they are name-calling to further false challenges to Mann’s work. They misleadingly call into question the accuracy of Mann’s research and methodology. In reality, there’s no real scientific debate on the overall facts. Sure, you can debate the scale of the warming and the precise amount of impact that human activity is having, but an astounding 97% of scientists have reached consensus on the overall issue. The courts should rightly investigate how factually plausible the challenges to Mann’s work are.

But should climate advocates be afraid of riding the defamation tiger, in case it turns around and bites them, as Burris suggests? I think there’s nothing to fear from judicial scrutiny if advocates label the fossil fuel-funded campaigns against their work phony and misleading. After all, a court wouldn’t sanction someone for calling people crazy who deny that smoking causes lung cancer or HIV causes AIDS. These are areas of broad scientific consensus with overwhelming supportive evidence. The link between human-caused greenhouse gas emissions and global warming is as equally supported.

Burris also seems to miss the point that this is a debate about science and numbers — not just values or general opinions. He cites Paul Krugman as potentially slanderous for calling Paul Ryan‘s budget a “fraud,” but Krugman has substantial evidence to back up his assertion that the Ryan budget was filled with misleading numbers that contradicted its stated effect. Like the Ryan budget, the dispute over Mann’s work is based on hard numbers, not intangible values or perspectives. Courts should be well-suited to see through these kinds of ideologically motivated, phony attacks.

Most importantly, from a purely strategic perspective, a court victory here would be a major public relations win for climate-change advocacy. For climate deniers to lose in court would send the signal to the public that they are not to be trusted. That’s a great headline and PR win for climate change advocates, confirming a narrative that advocates have been emphasizing for years. Of course, a court loss for Mann could have the opposite effect, but given the facts, I think Mann may be on safe ground here.

I’m all in favor of a debate about climate science, but it can’t be a debate where journalists intentionally print misleading and false attacks based on transparently phony evidence. That stenography of lies is precisely the dynamic that sets back climate advocacy — and not this lawsuit.

Cross-posted from the environmental law and policy blog Legal Planet.

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Comments to "Why defamation suit against climate denialists is the right move":
    • Thomas Hanson

      This is an astonishing piece from the bastion of “Free Speech”! The professor ought to read what Jack M. Hollander, Professor Emeritus of Energy and Resources at UC-Berkeley, wrote about climate change in his book “The Real Environmental Crisis.” Pages 66-89 are devoted to “Is the Earth Warming?” and they should be read by anyone who thinks the science is settled and that skeptics should keep their mouths shut. Here is a brief excerpt: “… from about 1940 until about 1980, during a period of rapid increase in fossil-fuel burning, global surface temperatures actually went into a slight cooling trend rather than an acceleration of the warming trend that would have been expected from greenhouse gases. (…) Even today, physicist Freeman Dyson expresses the view that ‘the onset of the next ice age would be a far more severe catastrophe than anything associated with warming.'” — 23 pages of similar factual disagreement with the likes of Mann. Read the chapter. Delete this piece. (But I promise not to sue or defame you if you persist in your error.)

      [Report abuse]

    • Ofen

      The double standard here is unbelieveable. That someone would think that something like a budget policy dispute can be simply reduced to facts on their side and “fraud” on the other side… it’s amazing that someone with such a crude and partisan grasp of reality, such an unworkable epistemology, would be employed as a scholar.

      The censorship and the danger that would flow from people thinking that dissent from a new scientific hypothesis is denial, and that assessing shaky scientific methods and patched up graphs as fraudulent, should be punishable by force of law, seems too obvious to be taken seriously. We know what can happen when people treat one side of an issue, truth itself, as so obviously one-sided that we can confortably shut down dissent.

      This person does not understand the nature of error, or the scope of reasonable disagreement. Assessments of industry-funded research as fraudulent are perfectly accurate, but not of research that validates his worldview. Krugman is dealin in plain facts in calling out fraud in a budget with different priorities. But criticizing people on the left, that’s never factual, just defamation. Yeah.

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    • LTJ

      To Ethan Elkind. Since Mann’s suit is not about free speech, but rather science and the law, as a climate-change research fellow at Berkeley Law you may be uniquely qualified to answer the following question:

      Why was not one single amici brief filed on Mann’s behalf?

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    • Steve Koch

      “One of the country’s leading climate scientists, Dr. Michael Mann, has been harassed, threatened, and berated for his views that human actions are contributing to global climate change.”

      This statement is totally false. The vast majority of sceptics understand that doubling co2 will contribute to global warming by raising the global avg temp by about one degree C. It is not believable that Elkins has so little understanding of the sceptics’ position. The key question being debated is how sensitive the climate is, how much more heat will result from the basic forcing resulting from the co2 released by man.

      The climate sensitivity estimates in the existing climate models are all over the place currently, i.e. there is no consensus.

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    • Hops

      How does what skeptics believe make that statement false? It doesn’t. The issue is whether he was defamed and harassed.

      Was the defamation casual, or it was part of a campaign? Were the people and organizations PAID to defame Mann? I hope the trial brings out the facts.

      And I would say there is faction out there that doesn’t really care what the sensitivity is, so long as they can continue to fatten their bank accounts burning fossil fuels without regard for the impact on others.

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    • Harry MacDougald

      You would do well to acquaint yourself with the fundamentals of defamation of public figures before you publicly opine that the case is not about free speech. (Mann admits he’s a public figure for purposes of defamation law.)

      You can start with New York Times v. Sullivan and then read the appellate briefing from National Review, CEI and the various amici, all of which is very well done. You might also profitably peruse A Dissertation on the Canon and Feudal Law by John Adams to sort of brush up on the importance of free speech.

      Once you are done relieving your ignorance on that topic, you should read Andrew Montford’s books, The Hockey Stick Illusion and Hiding the Decline, which describe the underlying controversies.

      Upon completion of those assignments you will have at least a sporting chance of knowing what you are talking about. Right now, not so much.

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    • xerxes

      I think you are conflating climate science and Mann’s hockey stick. I am persuaded that climate is changing due to human actions, but the matter at hand is not climate science, it is Mann’s hockey stick. I find his work very unconvincing, as the flat part of the stick seems not to explain actual variations in climate.

      Since he has not made his data available, I think the whole thing likely to be a crock, and I support anyone’s right to say that in whatever manner they choose. Climate scientists seem to have bought into the whole argument, so much that they can’t evaluate this piece of work objectively. I think it will do the whole field enormous damage in the long run.

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    • geronimo

      In his writ he claimed that he had been exonerated by a number of inquiries, none of which had investigated him.

      He also claimed that he was a Nobel Laureate and had to put a hold on the defamation action while he took this false claim off the writ.

      He has himself made similar claims about the work of Judith Curry and other scientists, and is vociferously offensive to those who don’t agree with him.

      There is one investigation which the defendants might like to bring before the court and that’s the Wegman congressional investigation which excoriated Mann for using a hitherto unknown, and consequently un-used method to weight Principal Components.

      He will also be liable to discovery, and given that his detractors have been trying to get information from/about him for years he has now presented them with the perfect opportunity.

      He won’t go to court because he’s hiding things he doesn’t want others to see.

      Other than that he’s in fine shape.

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    • James

      “the accuracy of Mann’s research and methodology” is not in doubt. In the words of one of his climate science colleagues,
      “I have just read the M&M stuff critcizing MBH. A lot of it seems valid to me. At the very least MBH is a very sloppy piece of work”

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    • William Holder

      Odin2 is right of course. It’s pretty clear Boos and Elkind haven’t put any real time into this. Stands to reason given the Yale study that found the more educated one is the more sceptical they are.

      This article about data manipulation is only the latest example of a 25 year fraud. (See this article.)

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    • BooS


      Actually no, Mann has not been caught manipulating any data. And he is also not using the courts to silence his critics. This lawsuit has NOTHING to do with free speech. Repeat, NOTHING.

      Seriously, its like the “skeptics” haven’t even looked into the actual court case, and are happy spreading more disinformation.

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      • Ken

        The lawsuit has everything to do with freedom of speech. The defendants have the ACLU, freedom of the press organizations, and just about every major newspaper in the United States on their side (all of whom jointly filed an amicus brief on NR/CEI’s behalf to get the lawsuit dismissed). Mann is using taxpayer-funded counsel to fight an unwinnable legal battle against the 1st amendment purely for PR purposes. It has close to no chance of success.

        As a general comment to this blog piece, Mr. Elkind is exaggerating the importance of this lawsuit on the debate over climate change. Mann represents a small subset of this field of study, namely millennial-scale climate reconstructions.

        Far from Mann being “harassed, threatened, and berated for his views that human actions are contributing to global climate change,” he is actually justifiably called out not for his fraudulent studies. Mann used statistically invalid methods, removed inconvenient data, used outdated data, and oriented data upside down, among various other activities. All of this is well-founded and researched. See, for instance, McShane & Wyner 2010.

        There is a reason that the IPCC has begun to distance itself from the hockey stick in the most recent report, as the scientific basis for a significant medieval-modern differential has diminished. Where the science is concerned, the merits of this lawsuit are absolutely terrible.

        Additionally, Mann outright lies multiple times in his filing, including referencing reports where he isn’t mentioned, citing a Nobel Prize (the Nobel Committee admonished him for this), and mischaracterizing his accomplishments. All signs point to Mann being a serial fraudster.

        The only effect of Mann’s lawsuit being dismissed/Mann losing in court would be a ding on Mann’s already poor reputation. Nothing about the observational temperature record is changed. Nothing about climate models are changed. The science of climate change and debate over climate change is not affected in the least. The process of extricating Mann’s fraudulent studies from the scientific body of literature has already begun without this lawsuit.

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