Lies, Damned Lies, and Climate Denial

One key question is whether these statements amounted to factual accusations that Mann had engaged in scientific misconduct.

A D.C. trial judge recently refused to dismiss climate scientist Michael Mann’s libel lawsuits against the National Review and the Competitiveness Institute.  There are some serious constitutional barriers against such libel suits, which are designed to provide ample breathing room for free speech.  Is this one of the rare cases that can jump the hurdles?

The story begins with a blog post at the Competitive Enterprise Institute.  Written after the Sandusky pedophilia scandal became public, the blog post suggests that Penn State’s investigation of Mann’s conduct was just as shoddy as its handling of the Sandusky matter.  Whether an investigation was probing enough is clearly a matter of opinion, and comparing the two investigations is a fair way of raising the issue, if a bit nasty.  But at least some of the language in the blog post seemed to go well beyond criticizing the investigation itself.  The current version of the blog accuses Mann of “engaging in data manipulation to keep the blade on his famous hockey-stick graph.”  It also states that two inappropriate sentences have been removed from the post.  One of those sentences read: “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.”

A second blog post in the National Review picked up on the issue.  This blog post suggested that the author “was not sure” he would have gone so far as comparing Mann’s conduct with Sandusky’s.  But the blog post also called Mann “the man behind the fraudulent climate-change hockey stick graph, the very ringmaster of the tree-ring circus.”  (I’ll bet the author felt awfully clever for coming up with that one.)

One key question is whether these statements amounted to factual accusations that Mann had engaged in scientific misconduct.  Or were they just a hyperbolic way of saying that he made a mistake or was a bit careless or was unintentionally biased?  It’s true that the level of vitriol among climate deniers is especially high, even given the generally horrible overall state of public discourse in America.  But it seems to me that a reader would be justified in thinking that the language in these blogs was not just hyperbole or humor.  The reason is that this language is used in the context of demanding a formal investigation.  If I call someone a “murderer,” that might not be meant as a factual statement, but if I say “he’s a murderer and a grand jury should investigate,” that sounds a lot more like a serious allegation of criminal misconduct.

In addition, I notice that neither source has published a disclaimer stating that they do not, in fact, believe that Mann was guilty of professional misconduct.  Indeed, the National Review carefully stated in a follow-up that they had not used the term “fraudulent” to mean criminal fraud.  Given the care with which their lawyers must have phrased this disclaimer, that suggests that they did mean to indicate serious but non-criminal misconduct.  It’s like calling someone a killer and then issuing a disclaimer saying, “but I didn’t mean first degree murder.”

The other constitutional issue is whether either blogger actually believed that Mann had engaged in serious misconduct, despite the fact that he had been cleared by several investigations (not just by Penn State).  Under current constitutional doctrine, Mann has to prove that the bloggers either knew he wasn’t actually guilty of scientific misconduct or were aware that they didn’t know one way or the other.  Mann did not have any direct evidence of their state of mind, except for the fact that they made the charges after he had been repeatedly investigated and cleared. The judge said that Mann was entitled to conduct discovery to find evidence that they weren’t being honest about their beliefs.

Perhaps I’m naïve, but I assume that they actually did believe what they were saying, just as other people at those same institutions believe that President Obama was born in Kenya and is secretly planning to abolish private property, confiscate all guns, and institute Sharia law.  If so, Mann’s lawsuit will ultimately fail. Under our Constitution, you’re entitled to say anything you want about a public figure, if you’re dumb enough or crazy enough to believe it yourself.

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Reader Comments

13 Replies to “Lies, Damned Lies, and Climate Denial”

  1. “…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…”

    Many people who support the catastrophic climate change campaign also seem to advocate the practice of gay sex among young people, hence the comparison to Sandusky. These are very sensitive issues which can lead to misunderstandings and strong emotional responses on both sides.

    Mann may not be guilty of professional misconduct but his so-called “scientific” work (hockey stick) is highly questionable and appears to be the result of a very sloppy analysis.

  2. bqrq,

    This is not the first time that you have made strained comparisons between the points made on this blog and issues relating to sexual orientation. See http://legalplanet.wordpress.com/2013/04/02/when-streamlining-environmental-review-really-means-undermining-itntal-review/

    It’s nice to see that you are now turning towards comparing those you disagree with to child molestors. I assume that a Nazi comparison is forthcoming soon. You should be ashamed of yourself.

  3. Eric said to bqrq
    “…It’s nice to see that you are now turning towards comparing those you disagree with to child molesters…”

    Dear Eric,
    I said in my previous post that these are very sensitive issues which can lead to misunderstandings and strong emotional responses on both sides. To be clear, it was Dan who pointed out that Michael Mann had been compared to Jerry Sandusky by some blogger on the internet. We may disagree without alluding to child molesting.

    There appears to be is a strong political connection between climate activists and gay activists, but I do not claim to understand this connection. All of us are unworthy sinners who are not qualified to throw the first stone.

  4. I stand by my comments, bqrq. Dan discussed a (disgusting) analogy between alleged scientific fraud and the rape of young boys. You then stated that such a comparison was understandable because: “Many people who support the catastrophic climate change campaign also seem to advocate the practice of gay sex among young people, hence the comparison to Sandusky.” The implication, of course, is that those who disagree with you on climate change “advocate the practice of gay sex among young people,” including the rape of young boys. I doubt you are so clueless as to not realize the implication of your statement. Your prior behavior on this blog in comments (as indicated in the link I posted) is also consistent with your intentional use of such an obnoxious analogy. Moreover, your post associates those who support gay rights with the rape of young boys. That’s even more disturbing. Again, you should be ashamed of yourself.

    As for throwing stones here, I think it’s fair to say that your initial comment was the first stone.

  5. Eric said;
    “…your post associates those who support gay rights with the rape of young boys…”

    Dear Eric,
    I was very careful to not-associate the rape of young boys with those who support gay rights. We all agree that sexual relations with underage juveniles is wrong and should be condemned. We may disagree on the propriety of such relations after a child reaches the legal age of consent, but we are in agreement on underage children. It is my understanding that the legal age of consent is the primary moral standard that is universally embraced by most gay activists (and climate activists).

  6. bqrq,

    Now you are contradicting yourself. Your original post implied that there was necessarily confusion about the position of gay-rights and climate activists with respect to molestation. (you said: “Many people who support the catastrophic climate change campaign also seem to advocate the practice of gay sex among young people, hence the comparison to Sandusky. These are very sensitive issues which can lead to misunderstandings and strong emotional responses on both sides.”) Now you say that opposition to child molestation is “universally embraced.” But if it is universally embraced, how could there be any misunderstandings? Why would it be plausible for the Cato blogger to make this mistake?

    No. Your original post was designed to imply that those who supported climate activism also supported child molestation. Otherwise, how could such confusion occur? Why use the ambiguous phrase “advocate the practice of gay sex among young people”? Young people of course includes children.

    You were very careful in your original post. Very careful to use language that is consistent with the standard troll-like behavior of making statements that imply the worst about others, provoking outrage, and then attempting to claim the outrage for yourself because you claim to have been misunderstood — when all along you intended to cause the outrage in the first place. You’ve done this before, as others have noted on this blog.

    Usually the best method to deal with trolls like you is to ignore them. Generally speaking that is what I do as well. But frankly, accusing climate activists — and everyone on this blog — of supporting child molestation is just too much. You should provide an apology. But you won’t. Instead, I’m sure you’ll continue to feign innocence and proclaim how you have been wronged. Shame on you.

  7. “It’s like calling someone a killer and then issuing a disclaimer saying”

    No..it’s more like calling Billy Joe Bob of Billy Joe Bob’s Auto emporium a crook and a liar.

    Billy Joe Bob is exceptionally well skilled at being misleading without actually lieing to anyone.

    The infamous Hock Stick…if I remember the facts of the matter correctly was ‘caveated’ in the fine print just like Billy Joe Bob’s procalamations of the used vehicles he sells being of the ‘finest quality’.

  8. The defendants were not demanding a formal investigation they were ridiculing the notion that a Penn State investigation should be taken seriously.

    Torturing the data, cherry picking data, data mining, selective reporting, are rife in science notwithstanding the judge’s quaint notion that accusing someone of manipulating data is a deadly and defamatory accusation. Because they did not accuse him of actually inventing the data they are free and clear of guilt of accusing him of anything beyond the pale.

    In fact, the hyperbole about molesting data , distasteful as it is, actually strengthens their defense. Manipulation, fudging, selectively choosing what results to reort and what statistical tests to apply are the normal contentiousness of science and not unusual in advocacy or debate. Look at Paul Krugman and his opponents in economics – they slam each other over the use and onterpretation of data all the time but none of them have every filed a defamation lawsuit.

    Truly the law is an ass. No wonder so many lawyers are unemployed, the US legal system and its practitioners are devoid of common sense.

  9. “just as other people at those same institutions believe that President Obama was born in Kenya. . . ” Wow, this is what is defamatory. Does this author have any proof that anyone at NRO or CEI believe any of the assertions he blithely ascribes to them? In the real world you need facts “professor.”

  10. I believe the heart of this case is going to focus on “reckless disregard for facts” when Steyn used the phrase “fraudulent hockey stick graph.” His phrasing doesn’t suggest anything about an opinion, it’s a statement that can be proven true or false.

    Dr. Mann’s 1998/99 research papers that first produced the hockey stick graph have been the subject of nearly a dozen very public, high profile, investigations. Each and every one of those investigations has shown that Mann’s work was not fraudulent. Subsequent multiproxy reconstructions similar to Mann’s work, but using different statistical methods and different proxy sets, have all turned up conclusions that agree with Mann’s work. On top of that, there have been no reconstructions that have shown anything contradictory.

    I think it’s going to be difficult for Steyn, NR and CEI to claim that they were not aware of all this readily available information.

  11. If you print that referee must have been bribed and you don’t have actual proof, you are in trouble. If you print that a referee is blind and gave an unfair advantage to team X, then that is opinion and you are in the clear.

    This case is much the same. Steyn and co. are in trouble. They could have said that Mann’s work was shoddy, unreliable, flawed, etc. without any repercussions. Instead they called his work fraudulent, which is factual and not an opinion anymore.

    Their best defence may indeed be the claim that they actually believed he was a fraud, somehow convincing a jury that not trying to verify the truth of this was not reckless and that Mann is a public figure (easy for an elected official, a lot harder for a scientist).

    My recommendation to Steyn and co. would be to apologize as soon as possible. Their chances in a continued court case don’t look good.

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Dan Farber

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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