One Mann’s Assault on the First Amendment Continues

By Robert Lufrano (Rutgers Law Student) It has been over four years since Dr. Michael E. Mann, climate scientist at Pennsylvania State University, filed an anti-defamation lawsuit against conservative magazine National Review and its columnist Mark Steyn, and public policy think tank Competitive Enterprise Institute (CEI) and its former adjunct fellow Rand Simberg. Yet the D.C. Superior Court has still not decided this case on the merits. The case had been stayed pending an appeal regarding procedural matters with respect to D.C.’s Anti-SLAPP Act, when finally this past December the D.C. Court of Appeals decided to allow the case to proceed and that Mann had offered sufficient evidence to succeed on the merits, and thus dismissed the defendants’ motion. Mann filed suit in response to online columns published by Steyn and Simberg criticizing Mann and his 1999 “Hockey Stick” graph, which had been heavily promoted by Mann and the IPCC (Intergovernmental Panel on Climate Change) as proof of man-made global warming. Referring to the so-called “Climategate” scandal of 2009, wherein leaked emails allegedly showed Mann and U.K. researchers attempting to cover-up scientific data that didn’t support Mann’s global warming graph, Simberg wrote an online article for CEI stating that “Mann could be said to be the Jerry Sandusky of climate science, except for instead of molesting children, he has molested and tortured data in the service of politicized science”, with Simberg playing on the fact that Mann and the infamous child molester Sandusky were both employed at Penn State. Steyn then wrote for National Review that “Michael Mann was the man behind the fraudulent climate-change ‘hockey-stick’ graph, the very ringmaster of the tree-ring circus”, alluding to Mann’s use of tree ring data to support his graph. It is principally these comments that led Mann to file his lawsuit, claiming that they harmed his reputation. The defendants’ primary contention is that Mann is attempting to silence their views on contentious political issues in violation of their First Amendment rights. The defendants assert that their statements are constitutionally protected statements of opinion that were not made with actual malice or reckless disregard for the truth under NY Times Co. v. Sullivan, and Steyn in particular also insists that his assertions were in fact completely true, i.e. that Mann’s “Hockey Stick” was created with fraudulent data. Aside from the First Amendment implications, Mann’s lawsuit is troubling in several other respects. As an initial matter, how is the Anti-SLAPP Act doing its job of deterring lawsuits that chill free speech when it takes years to resolve a special motion to dismiss? Moreover, the pleadings evince a rather hypocritical Mann, employing ad hominem attacks and making misrepresentations about his credentials. The complaint repeatedly refers to the defendants as climate change “deniers”, and the original complaint contained multiple false assertions that Mann was a Nobel Peace Prize recipient. This being untrue, Mann eventually had to amend his complaint to “clarify” that he was never in fact awarded the Nobel Prize (though how Mann could be confused on this point in the first place is still unclear). It is also unclear what reputational damage Mann has suffered, as he is still employed at Penn State, and is still being touted as a climate change authority by news outlets. Finally, even though Mann proclaims to be defending science by initiating his lawsuit, not a single scientist has filed a brief on his behalf. In contrast, climate scientist Dr. Judith Curry has recently filed an amicus brief on behalf of the defendants. The brief is a scathing rebuke of Mann, his research, and his apparent pattern of trying to silence his detractors instead of allowing his research to speak for itself and stand up to scientific scrutiny. Indeed, Mann has also filed an anti-defamation lawsuit in Vancouver against Canadian geographer Dr. Tim Ball after Ball questioned the integrity of Mann’s data. Also of note is that in 2015, Steyn, while waiting for the case to go to trial, released a book entitled A Disgrace to the Profession, The World’s Scientists in Their Own Words on Michael E. Mann, His Hockey Stock, and Their Damage to Science. The book is a compilation of lengthy quotes from climate scientists the world over, criticizing Mann and the legitimacy of his “Hockey Stick”. Not surprisingly, free-speech advocates are aligned against Mann. Numerous briefs have been filed in support of the defendants by such diverse media and public policy outlets as the Washington Post, the ACLU, Cato Institute, Fox News, NBCUniversal, Time, etc. It is clear that the importance of the free speech issues here have brought together an unusual alliance of climate change skeptics and proponents, scientists, and both conservative and liberal organizations. Should Mann prevail on the merits, it could have a very chilling effect on the free speech rights of news and opinion outlets, especially those which often thrive on provocative and incendiary commentary spanning the entire political spectrum, from Breitbart News to The Huffington Post.