Defendants Competitive Enterprise Institute and Rand Simberg have appealed Judge Weisberg’s denial of their motion to dismiss. One effect of this latest move is to further delay movement to the discovery phase of the lawsuit.
Accusing a scientist of conducting his research fraudulently is a factual allegation that can be proven true or false, not mere hyperbolic opinionating. If it is false it is defamatory, and if it is made with actual malice it is actionable. So said DC Superior Court Frederick Weisberg on January 22 in tossing out motions by defendants National Review et al. to dismiss Prof. Michael Mann’s defamation complaint — thus moving the case a step toward discovery proceedings and a jury trial.
But the defendants lost no time in filing an appeal on January 24 with the District of Columbia Court of Appeals. Presumably they and their supporters will argue that this appeal raises a necessary and appropriate freedom of speech issue that must be adjudicated up-front. And of course people will note that defendants would presumably prefer to cut down on their legal costs (while hopefully getting the case dismissed). OK.
On the other hand, it seems that it’s the defendants’ side of the case that is most reluctant to get on to the discovery phase. This might strike one as odd, since the defendants’ support subculture seems to think Prof. Mann’s case will be torn to pieces on discovery and that National Review and CEI will be able to demonstrate ‘truth’ as their defense on the defamation charge. Several commenters on previous posts on this case have taken that position.
CEI has taken what might be called a prosecutorial stance toward climate science and climate scientists for many years, in the service of its radical ‘free market’ anti-regulatory ideology. Myron Ebell at CEI was quoted in a BBC article in 2005 as saying, in connection with Rep. Joe Barton’s congressional inquisition on Mann and his paleoclimatologist colleagues, “We’ve always wanted to get the science on trial” and “we would like to figure out a way to get this into a court of law.” [emphasis added]
So here’s your chance.
I have written previously about the very distressing, by which I mean ‘high-larious’, legal woes of National Review which is being sued for letting contributor Mark Steyn defame climate scientist Michael Mann for comparing him to child molester Jerry Sandusky on the internet pages of NRO. Long story short: Competitive Enterprise Institute “scholar” Rand Simberg wrote an article attacking Mann’s research and, trying to be topical, referenced the fact that he teaches at Penn State as the basis for an oh-so-clever PSU Michael Mann = Penn State football coach/kid rapist Jerry Sandusky analogy. Writing at NRO, former drama critic Mark Steyn whose climate science knowledge is limited to knowing all the lyrics to They Call The Wind Maria, LOL’d and repeated what Simberg wrote. When Mann protested, CEI backed down and deleted the offending lines but not the rest of the post. On the other hand National Review Editor Rich Lowry seemed to be under the impression that he was William F. Badass Jr. and told Mann and his attorneys to pound sand.
If Mann sues us, the materials we will need to mount a full defense will be extremely wide-ranging. So if he files a complaint, we will be doing more than fighting a nuisance lawsuit; we will be embarking on a journalistic project of great interest to us and our readers.
My advice to poor Michael is to go away and bother someone else. If he doesn’t have the good sense to do that, we look forward to teaching him a thing or two about the law and about how free debate works in a free country.
“Poor” Michael Mann didn’t listen to Rich Lowry, and instead called his bluff and sued anyway forcing Lowry to beg for money from his readers because the treasure chest at National Review – which is a money losing wingnut welfare suckhole – couldn’t cover the check Lowry’s dumbass wrote:
As many of you know, National Review is not a non-profit — we are just not profitable. A lawsuit is not something we can fund with money we don’t have. Of course, we’ll do whatever we have to do to find ourselves victorious in court and Professor Mann thoroughly defeated, as he so richly deserves to be. Meanwhile, we have to hire attorneys, which ain’t cheap.
The bills are already mounting.
This is our fight, legally. But with the global-warming extremists going all-out to silence critics, it’s your fight too, morally. When we were sued, we heard from many of you who expressed a desire to help underwrite our legal defense. We deeply appreciated the outpouring of promised help.
Now we really need it.
lush with reader cash the NRO team has so far gone 0 fer 2 with the judges and now their ship is beginning to sink and the crew is jumping overboard because Mark Steyn attacked Judge Natalia Combs Greene. According to Mother Jones :
Earlier this month, Steptoe & Johnson, the law firm representing National Reviewand its writer, Mark Steyn, withdrew as Steyn’s counsel. According to two sources with inside knowledge, it also plans to drop National Review as a client.
The lawyers’ withdrawal came shortly after Steyn—a prominent conservative pundit who regularly fills in as host of Rush Limbaugh’s radio show—publicly attacked the former judge in the case, Natalia Combs Greene, accusing her of “stupidity” and “staggering” incompetence. Mann’s attorney, John B. Williams, suspects this is no coincidence. “Any lawyer would be taken aback if their client said such things about the judge,” he says. “That may well be why Steptoe withdrew.”
Steyn’s manager, Melissa Howes, acknowledged that his commentary “did not go over well.”* But Steyn maintains it was his decision to part ways with his attorneys.
Yeah. the old “you can’t break up with me, I already broke up with you, so there!” line.
More hilarity at the link.
“Myron Ebell at [Competitive Enterprise Institute]: “We’ve always wanted to get the science on trial”
google ‘the conversation an insider’s story of the global attack on climate science’
I read this article after being pointed to it by the excellent website skepticalscience.com. It is perhaps the most chilling aspect of the deep-pocketed global push for ‘free-market capitalism’ that this ideology cannot let Scientists do Science. That New Zealand case was just a small instance of a global effort to paint Scientists as Witches in a new version of the Salem Witch trials.
What is it about ‘free-market capitalism’ that finds Freedom of Inquiry so threatening? And what other freedoms does it feel threatened by?
“And what other freedoms does it feel threatened by?”
Good question. Let’s make a list—-this is not all-inclusive—just a start..
1) The “freedom” of workers to organize and bargain collectively for improved salaries, benefits, and working conditions.
2) The “freedom” of a society to legislate laws and regulations for the common good regarding air and water pollution, food and drug safety, etc.
3) The “freedom” of that society to support its government and provide for the common good by a fair and equitable tax system.
4) The “freedom” of that society to pass laws to protect itself from the rapacious plundering of the wealth of the 99% by the 1% through financial manipulation by banks and Wall Street.
5) The “freedom” of the society’s elected representatives to vote their consciences and truly represent the greater good rather than the special interests and the plutocracy.
=As many of you know, National Review is not a non-profit — we are just not profitable. A lawsuit is not something we can fund with money we don’t have. Of course, we’ll do whatever we have to do to find ourselves victorious in court and Professor Mann thoroughly defeated, as he so richly deserves to be. Meanwhile, we have to hire attorneys, which ain’t cheap.
The bills are already mounting.
This is our fight, legally. But with the global-warming extremists going all-out to silence critics, it’s your fight too, morally. When we were sued, we heard from many of you who expressed a desire to help underwrite our legal defense. We deeply appreciated the outpouring of promised help.
Now we really need it.=
——————————————————————————————————-
Well if you’re ‘just not profitable’, maybe the ‘free market’ is trying to tell you something? Maybe the nice folks over at the Competitive Enterprise Institute can clue you in on how the market works. This is how it works: When you find yourself in dire straights financially, try to grab as much socialized money as possible. Err…no that can’t be right. Beg readers to pay more for your product than it’s actually worth? Hmmm….
Oh, I know: form a new LLC, fund it with whatever liquidity you have, file for bankruptcy protection for your old company to make those nasty legal bills just ‘go away’ (we call that market discipline), use your new LLC to grab back your non-liquid assets, and carry on. [Or something like that; I’m not an expert in fooling the market].
[Or something like that; I’m not an expert in fooling the market].
Really? What you outlined sounds a lot like what Romney and his fellow hedge-funders would do, and they got rich by “fooling the market”
Freedom is as freedom does.
Is that a photo from Liar, Liar with Jim Kerry?
Yes
I’d love to know the deepest pockets which could potentially be found responsible to pay Dr Mann enormous quanta of just compensation.
Be interesting to see how the CEI, National Review, Rich Lowry, Rand Simberg, and Mark Steyn have been leveraged as far as tax deductions and legal entities in relationship to the Republican National Committee, Americans for Prosperity, the Rush Limbaugh show just to name a few.
Wonder how much of a case could be made that the titanically huge pockets of the Koch brothers might be exposed to jeopardy here, as the CEI was simply doing the dirty work that the Koch’s have such a rich history of funding. Wonder if there is a document trail of interest there. Wonder if the RICO laws would apply here?
70% + of Americans want AGW solved. So, theoretically, 74%+ of jury pools would be populated by people favorable to sending a message to the architects of the billion dollar-a-year anti environmental propaganda machine that each year of Dr Mann’s emotional pain and suffering might be worth, say, a billion dollars of compensation. That would have a certain ring of poetic justice, would it not?
We can only dream that the Kochs will be found lurking under a rock somewhere in the evidence trail and somehow tapped for $$$.
I think you are guilty of a little hyperbole when you talk about a “billion” dollar settlement. Sometimes defamation awards are only a dollar or two, but this one should be worth many tens or even hundreds of of thousands of dollars at a minimum—-if there is any real justice in the world, that is.
Have you ever sat through jury selection? A very onteresting experience. You can bet that both sides will be doing their best to pick a jury favorable to their side. That may actually be the most important thing in getting a verdict and award—-more important than the evidence, perhaps. It is a civil suit, and may not require the unanimity that a criminal conviction does, but “hanging” a jury or getting a small award if found guilty can be influenced by who gets chosen.
We have an adversarial justice system. It’s like boxing match with match judges chosen in a weird way. Psychologists and statisticians are hired by both sides to rig the decision their way. Truth, justice, the American way of life. Able to leap tall buildings… It’s about myth, not reality. Although most are dedicated, the system has about as much relationship to truth finding as a cock fight. It is a battle, not a scientific inquiry. Those hoping for scientific truth or certainty are looking in the wrong place. It’s like expecting truth by watching a Monckton debate, or deciding GW by a tavern arm wrestle. It’s the social behavior that is under judgement. Procedurally, the finding of the court must render judgement of fact based on expert testimony, not their own scientific understanding. Judgement of behavior is from law. The judge has rendered the case valid for consideration and indicated the behavior qualifies. Do they sell popcorn at ringside?
If I’ve been keeping up on this case accurately, I would understand that the science is not on trial. What’s on trial is whether or not CEI, et. al. maliciously and strategically libeled Mann. Given that in their deposition that they invoked the famous “It was just our opinion” defense, it would seem that the science behind MBH 98 isn’t even going to make a cameo appearance. But given that fact that Mann’s team has a great deal of reach in the discovery phase, I too, like dumboldguy, wonder if Team Mann could be on the way to opening up the back panel to the whole denial machine, and finding out what kind of batteries that “Machine” runs on. Got my extra large salted and buttered popcorn order in. 🙂
True, it’s not the science per se that is on trial, but the science will be important to the defense in a roundabout way. The only defense against defamation is truth. If they could show that Mann’s “science” was wrong, they might try to say “we got a little carried away with our rhetoric, but Mann’s science was wrong and he deserved to be taken to task—-everyone should know when scientists do bad things”.
They could try to build on that, except for what Judge Weinberg said in his ruling. “Accusing a scientist of conducting his research fraudulently is a factual allegation that can be proven true or false, not mere hyperbolic opinionating. If it is false it is defamatory, and if it is made with actual malice it is actionable”.
The old saw says “everyone is entitled to their opinion”, but an opinion that can NOT be proven to be true AND is delivered with malicious intent is the definition of “libel”. If they can’t disprove Mann’s science and can’t show evidence that he did something fraudulent with it as they “opined”, they are dead meat.
If they have any brains, they will settle as soon as they can. I’m sure the Kochs will funnel enough hidden and dirty money their way to cover their costs. That WOULD be a shame, though, because the “back panel” would stay closed. I hope Mann rejects any settlement offers so that we can perhaps see some truth.
You and Christopher had better forget about popcorn (unless you’re watching on TV). I have seen people hauled out of the court room for merely saying a couple of words to a neighbor after everyone was told to shut up and say not one more word. You do NOT want to be sent to the DC jail for contempt or any other reason, trust me.
And I’m getting pumped here—haven’t been in a courtroom for a while—-maybe I’ll try to snag a spectator seat for this once it gets going—-I’m only 25 miles out and the DC Metro system is great.
We can order the popcorn for the post game play by play. The judge really does not have to decide if Mann is correct. He only has to decide if in fact, Mann was fraudulent. Now, the burden of proof rests with the defense. The other matters of defendant behavior are judged fit for adjudication. Most likely, the final judgement will follow precedent and declare the defendant behavior was defamation. The attorneys that left the defendant did so not only because of defendants stupid defamatory comments re the judge. They probably considered this line of argument leading to factual discovery a loser. So the loudmouth defendants claim to want to get rid of former attnys may have an element of truth. The irony of the defendant defaming the former judge in a defamation lawsuit is probably not lost on the justices.
If the defendants were counting on McIntyre and McKitrick(2005) to prove Mann, Bradley, Hughes(199) wrong (and remember, that paper has 3 authors, not just Mann), they have a real problem, since the error in MBH99 (decentered PCA for a fraction of the data) made zero significant difference in the real analysis.
On the other hand, to try to discredit MBH99, they made a bunch of “errors” that all went one way, and then did an explicit 100:1 cherry-pick to get the answers they wanted, and I’d allege that to be falsification/fabrication … i.e., academic fraud.
See Deep Climate’s replication and Due Diligence… or Nick Stokes’ Effect of Selection in the Wegman Report., which used the same code as McIntyre.
The defense has to prove an innocuous error that made no difference was fraud … using a paper with a 100:1 cherry-pick without which the M&M claims evaporate. So, if the defense tries to drag in M&M or Wegman, it will be really interesting.
I am curious, who is paying for Michael Mann’s suit?
anyone that wishes to help can click on the “Climate Science Legal Defense Fund” icon at the right
The Climate Science Legal Defense Fund successfully, and very efficiently, played defense with Michael Mann against Ken Cuccinelli. Having helped Dr. Mann move to offense, they now defend other scientists, and remain a worthy cause.
John Williams’ resume indicates that his firm is more interested in the odds of winning the case than they are about the environment. That’s a hopeful leading indicator.
“He is presently representing the noted climatologist, Michael Mann, in a high-profile defamation case.”
http://www.cozen.com/people/bios/williams-john
Actually, as per this
‘Mann is represented by Peter J. Fontaine, Bernard Grimm, Catherine Rosato Reilly and John B. Williams of Cozen O’Connor.’
Peter at least, sometimes comes to AGU meetings and speaks on legal issues for scientists being attacked… Cozen., O’Connor wants to win, and Steyn’s lawyers have already quit, good move.
Meanwhile, cases up North grind on. These things take years, but in that one, I note that Mann’s lawyer (and Andrew Weaver’s in another such case) is Roger McConchie, who “wrote the book” (!2,000 pages, I own one) on Canadian Libel and Slander Actions. I would not bet much on Tim Ball’s chances.
Thanks for that. Peter Fontaine was a key defense lawyer in the litigation by American Tradition Institute v. University of Virginia (Michael Mann). I did not realize that he was with Cozen. Continuity is good!
http://climatesciencedefensefund.org/american-geophysical-unionclimate-science-legal-defense-fund-legal-education-webinar-series/
As a point of fact, Richard Mellon Scaife has been the more consistent funder of CEI than the Kochs. See p.92 of Crescendo to Climategate Cacophony (2010).
Scaife: (Allegheny+Carthage+Sraa Scaife): $2,300KI)
Kochs (CG Koch, CR Lambe, DH Koch): $666K, although with caveat that I had not yet discovered the Donor’s Trust money laundry and Bob Brulle had not yet done his massive study on funding.
CFACT (Marc Morano) is another one of Scaife’s.
Moral: there is plenty of Koch $$, but in this case, seems to be less than Scaife’s.
Of course, it is an open question whether CEI pundits really know much about the parts of the competitive free market that are actually productive and create progress. They do know know how to fight for the tobacco industry.
Hey, I’m a magnanimous guy – let’s add Scaife to the list (and thanks for pointing that out!) 🙂
Scaife, Koch x 2, Limbaugh and all the rest already belong on another and more important list:
Those Who Will Be First Up Against The Wall When The Revolution Comes.
(TWWBFUATWWTRC)
Gotta love how “You’re not allowed to commit libel against people you disagree with” translates to “silencing critics”.
Not having any facts on your side doesn’t mean you get to make up new ones and get away with it.
You caught that too. It’s all about the ‘framing’ when it comes to these characters.
How does that old saying go?
“When the facts are against you, pound on the law.
When the law is against you, pound on the facts.
When the law and the facts are against you, pound on the table.”
I think that we’re seeing the third option being brought into play here.
The DC Circuit Court of Appeals?
This will be the trickiest part of this whole saga: they’re THE most conservative court in the country and IIRC, at least 2 of the judges are on record against climate change.
Hmmm!