DC Court affirms Michael Mann's right to proceed in defamation lawsuit against National Review and CEI

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Superior Court of the District of Columbia

Superior Court of the District of Columbia (Photo: Wikipedia Commons)

Two decisions handed down July 19 in DC Superior Court affirmed climate scientist Michael Mann’s right to proceed in his defamation lawsuit against the Competitive Enterprise Institute and the National Review Online for their statements accusing him of data manipulation and fraud. The Court is not buying the Defendants arguments in their Motion to Dismiss that their statements are protected speech under the First Amendment, mere “opinion,” “rhetorical hyperbole,” or “fair comment.”

Full text of the decisions:

On the National Review's Motion to Dismiss

On the Competitive Enterprise Institute's Motion to Dismiss

We quote below several excerpts from the CEI decision (underlining added):

“Defendants argue that the accusation that Plaintiff’s work is fraudulent may not necessarily be taken as based in fact because the writers for the publication are tasked with and posed to view work critically and interpose (brutally) honest commentary.  In this case, however, the evidence before the Court, at this stage, demonstrates something more and different that honest or even brutally honest commentary.” [at 14-15]

“Given the dictionary definition as well as the common readers’ thought about the use of these words (fraud and fraudulent) the Court finds that these statement taken in context must be viewed as more than honest commentary—particularly when investigations have found otherwise. Considering the numerous articles that characterize Plaintiff’s work as fraudulent, combined with the assertions of fraud and data manipulation, the CEI Defendants have essentially made conclusions based on facts.” [at 15]

The definition of “bogus” in the Merriam-Webster online dictionary, inter alia, is “not genuine . . . sham.” BOGUS, MERRIAM-WEBSTER: ONLINE DICTIONARY AND THESAURUS, http://www.merriam-webster.com/dictionary/bogus. In Plaintiff’s line of work, such an accusation is serious. To call his work a sham or to question his intellect and reasoning is tantamount to an accusation of fraud (taken in the context and knowing that Plaintiff’s work has been investigated and substantiated on numerous occasions).” [at 15-16]

“Having been investigated by almost one dozen bodies due to accusations of fraud, and none of those investigations having found Plaintiff’s work to be fraudulent, it must be concluded that the accusations are provably false.  Reference to Plaintiff, as a fraud is a misstatement of fact.” [at 19]

“Plaintiff has been investigated several times and his work has been found to be accurate. In fact, some of these investigations have been due to the accusations made by the CEI Defendants. It follows that if anyone should be aware of the accuracy (or findings that the work of Plaintiff is sound), it would be the CEI Defendants. Thus, it is fair to say that the CEI Defendants continue to criticize Plaintiff due to a reckless disregard for truth. Criticism of Plaintiff’s work may be fair and he and his work may be put to the test. Where, however the CEI Defendants consistently claim that Plaintiff’s work is inaccurate (despite being proven as accurate) then there is a strong probability that the CEI Defendants disregarded the falsity of their statements and did so with reckless disregard.” [at 21]

The record demonstrates that the CEI Defendants have criticized Plaintiff harshly for years; some might say, the name calling, accusations and jeering have amounted to a witchhunt, particularly because the CEI Defendants appear to take any opportunity to question Plaintiff’s integrity and the accuracy of his work despite the numerous findings that Plaintiff’s work is sound. At this stage, the evidence before the Court does not amount to a showing of clear and convincing as to “actual malice,” however there is sufficient evidence to find that further discovery may uncover evidence of “actual malice.” It is therefore premature to make a determination as to whether the CEI Defendants did not act with “actual malice.” [at 21]

“There is sufficient evidence presented that is indicative of “actual malice.” The CEI Defendants have consistently accused Plaintiff of fraud and inaccurate theories, despite Plaintiff’s work having been investigated several times and found to be proper. The CEI Defendants’ persistence despite the EPA and other investigative bodies’ conclusion that Plaintiff’s work is accurate (or that there is no evidence of data manipulation) is equal to a blatant disregard for the falsity of their statements. Thus, given the evidence presented the Court finds that Plaintiff could prove “actual malice.”” [at 23]

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51 Responses to DC Court affirms Michael Mann's right to proceed in defamation lawsuit against National Review and CEI

  1. Desertphile says:

    This is excellent news. The cults refuse to take responsibility for their unethical and abusive behavior: it's sad to see how often the USA court system must be called upon to make cultists behave.

    • djaymick says:

      In the courtroom, everything will be brought to light. That means Mann will have to explain his formulas/calculations that helped develop the hockey stick. The biggest problem is that the original data is missing.
      This will also allow us to get information from the university Mann taught in Virginia. They have refused to hand over this information. Now all of this will come out in a courtroom.
      Don't cheer until the hearing is over.

      • Rick - Climate Science Watch says:

        Yes, we'll see how things go. I expect it will be of some interest for the Plaintiff to discover the internal communications of CEI and the National Review.

        • drnoah says:

          or the contractual obligations they made quid pro quo with the donor's trust to place certain PR agency hit pieces into the hands (and mouths) of their spokesmen, in both written and oral form.

      • Kelly Anspaugh says:

        djaymick: I assure you that Dr. Mann and his lawyers relish the thought that in court "everything will be brought to light." This a wonderful opportunity to show the denialists for the malicious SOBs that they are. I promise you CEI and the NR are dreading the prospect of "everything being brought to light."

        • Greg Laden says:

          Kelly, exactly. It will be very interesting to see what discovery produces. This may be the last stand of certain denialists and the last we see of their nefarious efforts. Between the climate becoming so much more obviously affected by the seemingly unchecked release of fossil Carbon into the atmosphere an blunders like Heartland's Unibomber billboard campaign, the denialists have pretty much lost all their credibility, but this may put the proverbial nail in the coffin.

      • caerbannog says:

        Yep -- Dr. Mann hid his data and code so carefully that I had to use Google to find it!

        Linkies here: http://www.meteo.psu.edu/holocene/public_html/Mann/tools/tools.php and http://www.meteo.psu.edu/holocene/public_html/Mann/research/res_pages/reconstructions.php

        Anyway, it's not like any of you "skeptics" would have any idea what to do with that data.

        • Carlton Benson III says:

          caerbannog says: Anyway, it's not like any of you "skeptics" would have any idea what to do with that data.

          Caerbannog -- Steve McIntyre indeed knew what to do with the data. Steve knows statistics; Mann doesn't. This is why the hockey stick has been pretty well disparaged (does anyone still refer to it with a straight face?), and why the IPCC has walked away from it. Mann's Tijander series was upside down yet Mann still said it didn't matter, it was correct.

          Flashback: ClimateGate scientists on Michael Mann and his work: "probable flaws" and "clearly deficient", and "crap" and "way too defensive", oh my!

          Flashback: 2002 Briffa email mentions Mann's "diminishing support" and the "questionable nature of much of Mann's verbiage"; says "Mike could be a lot more open about the real uncertainty of his early temperature estimates"

          Flashback: In case you missed it: Hockey stick co-author: "it may be that Mann et al simply don't have the long-term trend right"; "I hedge my bets on whether there were any periods in Medieval times that might have been "warm", to the irritation of my co-authors!"

          Flashback: Phil Jones to Mann: "both of us think that you're on very dodgy ground...What the real world has done over the last 6000 years and what it ought to have done given our understandding of Milankovic forcing are two very different things"

          Flashback: Briffa gives Mann a positive? reference, but includes phrases like "not sufficiently aware of the characteristics of some of the data with which he worked"; "overconfidence in his work which bordered on seeming arrogance"

          Flashback: Michael Mann vs Michael Mann: Did I say that the hockey stick might qualify to be the "truth" as portrayed in the IPCC Policy Makers Summary? I meant it was an "obscure graph" that unnamed other people have made "appear more definitive than it was ever intended"

          Flashback: Email 1705, April 2002, what "settled" science looks like: After Michael Mann writes "There are some substantial scientific differences here, lets let them play out the way they are supposed to, objectively, and in the peer reviewed literature", Raymond Bradley writes to Briffa "excuse me while I VOMIT!!"

          • Rob Honeycutt says:

            Carlton Benson III... Perhaps, seeing you believe McIntyre is such an expert in this field of research, you can point is to HIS multiprox reconstruction that shows conclusions different than those presented in Mann's work.

            What's that you say? You can't? Because McIntyre has never done one? Over a dozen other research papers have done similar research and their conclusions agree with Mann's work. But somehow McIntyre can't do one?

            Or... Perhaps he tried and didn't like the results.

          • Dennis says:

            Flashbacks?
            "You keep using that word. I do not think it means what you think it means."
            Sounds more like hallucinations….

          • caerbannog666 (@caerbannog666) says:

            McIntyre committed some basic boo-boos in his attacks on Mann. Details here: https://wottsupwiththatblog.wordpress.com/2013/07/10/debunking-the-hockey-stick/#comments

            A quick summary (from above)
            1) McIntyre relied on a 100:1 cherry-pick to get his “random noise” hockey sticks.

            2) His random noise was badly contaminated with “hockey-stick” signal statistics (i.e. he didn’t filter the hockey-stick out of the tree-ring data before he used it as a template for his random noise).

            3) In spite of (1) and (2) above, McIntyre’s random-noise hockey sticks were *much* smaller than Mann’s genuine tree-ring hockey-stick. No competent analyst would confuse a McIntyre random-noise hockey stick with a genuine Mann tree-ring hockey stick.

          • caerbannog666 (@caerbannog666) says:

            One more quick followup

            Mann's Tijander (sic) series was upside down yet Mann still said it didn't matter, it was correct.

            Did McIntyre perform a sensitivity test to see what impact the Tiljander series would have? Do you know what a sensitivity test is?

            (And yes, Mann did -- the series could be removed with little impact on the final results. I'll let you collaborate with Mr. Google to find Mann's Tiljander vs. no-Tiljander results).

      • Paul says:

        "In the courtroom, everything will be brought to light."

        Yet the CEI and Nat Review are the ones trying to prevent their accusations being tested in court. How do you figure that?

    • Astrostevo says:

      Cultists eh?

      I think you are very confused about what is a cult and what is science.

      People who have dedicated years of their lives to study, research and in-depth understanding of what our planet's climate is doing and how it works have looked carefully at the evidence. They have made millions of observations repeatedly and consistently for decades, performed complex calculations and refined these over time to match the reality we see around us. Thees are intelligent, honest, hardworking individuals who have come to some worrying conclusions based on the stark facts they've recorded and quintuple (and more) checked. They've been scrutinised, criticised and passed all the tests of knowledge science offers. There's no religion of climatology, just the scientific method at work, producing results.

      Time we stopped hounding them and listened.

  2. Susan Anderson says:

    It's about time. Congratulations are due to Dr. Mann's dedication and persistence. Lies have been treated as half-truths for too long.

    • deborah brady says:

      I think it shameful that our courts take so long. justice delayed is sometimes justice denied ... all the more so when when a persons professionalism is attacked ... and justice delayed has bigger ramifications to all of human kind, when malice causes review and review and review, delaying ongoing important research and action.
      better late than never.

      • dammad says:

        Absolutely, justice delayed is justice denied - always. Though, it sounds that you have your mind made up t hat Mike Mann is right. See Carlton above.

        • Greg Laden says:

          Carlton is going to choke on all those cherries he's picking.

          • Leif Knutsen says:

            Injustice ignored = Injustice condoned. Stop profits from the pollution of the commons. "Socially Enabled Capitalism" is a failed paradigm. GO GREEN! Resistance is fatal to Earth's life support systems.

  3. John Mashey says:

    Well, as noted in Strange Scholarship in the Wegman Report, section 3.3, CEI (via Myron Ebell) was involved many times in the flow that led to the Wegman Report.
    - in the 1998 GCSCT project
    - brought McKitrick to Washington in 2001, etc ,etc.

    In Essex & McKtrick(2008), Taken By Storm, revised edition, they talk about Essex arranging Fred Singer's visit to U Western Ontario to speak in 2001 ... and ~8 months later, Ebell brings McKitrick to Washington. I'd always wondered how that connection happened.

    Basically, CEI + GMI organized the attacks on Mann, coached M&M, brought them to Washington, made introductions etc ...

  4. Pingback: DC Court affirms Michael Mann’s right to proceed in defamation lawsuit against National Review and CEI | Planet3.0

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  6. Jeremy Kemp says:

    Good news.

    May it be only the first of many times that the denialist machine is brought to account. The ramifications of their success, to date, in helping to prevent successful action against AGW are likely to be both massive and horrendous, and their culpability is correspondingly great.

    One small detail: in both versions of the pdf I've downloaded page 4 is blank. Any chance that can be put right, or otherwise can someone point me in the direction of the full version?

    • Rick - Climate Science Watch says:

      Jeremy--
      Page 4 of the National Review version of the order looks OK to me. I see the problem with page 4 of the CEI document. For some reason we're having trouble getting that one page to upload properly. Page 4 is identical in both documents. We'll email the files to you. Maybe that will work.

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  8. Craig King says:

    Finally we get a public debate about the science. Let's hope the referee is even handed.

    Personally, like most folk, I can't wait to hear Mike Mann explain his position to Steve MacIntyre.

    • Astrostevo says:

      @Craig King : "Personally, like most folk, I can't wait to hear Mike Mann explain his position to Steve MacIntyre."

      I'm sure Dr Michael Mann will do a good job on this - he's already written two books ( Dire Predictions: Understanding Global Warming' in 2008 and 'The Hockey Stick and the Climate Wars: Dispatches from the Front Lines') in 2012 and co-founded and run the RealClimate blog explaining the science to everyone incl. MacIntyre after all. So yes, I look forward to that too.

      Question is will Steve MacIntrye actually listen, understand and learn from the experience? Same applies to the other Human-Induced Rapid Global Overheating (HIRGO) deniers out there too.

  9. John Reeves says:

    Yes, this is good news. Plus, another justification to support the Legal Defense Fund that rallied here, versus the huge funds and deceit of the "denial Machinery"- with billionaire funders that have cleverly arranged ways for people to hide their real identies. Our Representative government system is again being lynched by these denialists.
    Congratulations are due to Dr. Mann's dedication and persistence. Lies and unsupported opinions have been treated as almost "equal" in the media versus the decades of hard, massive, peer-reviewed scientific work.

  10. Brian Ettling says:

    Congratulations to Dr. Michael Mann for DC Court affirming his right to proceed in defamation lawsuit against National Review and CEI. His 1998 hockey stick graph has been affirmed by least 14 reconstructions since then, according to the 2007 IPCC Fourth Assessment Report. Since 2008, ten or more subsequent reconstructions, including Mann et al. 2008, have supported these general conclusions. You could field a whole hockey team, if not a league, by all the affirmed hockey stick graphs.

    Even more, there have been at least 8 independent investigations into the the poorly named 'Climate Gate' scandal. Dr. Mann and all the other scientists who had their e-mails stolen have been exonerated or all the major or serious charges were dismissed by the investigations every single time. The only scandal was that the e-mails were stolen. There nothing in the contents of any of those e-mails to indicate any kind of fraud.

    With this in mind, it was an extreme outrage that National Review and the Competitive Enterprise Institute wrote statements comparing him to convicted child molester Jerry Sandusky, since they both worked at Penn State. These statements were offensive and defamatory.

    It is one thing to disagree with Dr. Mann and his climate research. However, tt is way over the line to say such derogatory statements.

    I wish him all the best in his court case.

    Brian Ettling

  11. Chris Young says:

    Very encouraging. "The Sky is Pink" as a PR method may be getting a little more risky for the Deniers.

    That's from Josh Fox's movie of the same name. The idea is you sew doubt just by repeating an outright, total lie (which you know to be a lie) often enough.

    When it's done to damage a person's professional reputation, that would seem to meet the definition of libel.

  12. Joe says:

    From The NSF Report - Conclusions "Although the Subject's data is still available and still the focus of significant critical examination, no direct evidence has been presented that indicates he Subject fabricated the raw data he used for his research or falsified his results. Much of the current debate focuses on the viability of the statistical procedures he employed, the statistics used to confirm the accuracy of the results, and the degree to which one specific set of data impacts the statistical results. "

    In summary, the NSF exonerated Mann for something he was not accused of and aknowledged what he was accused of.

    • Rick - Climate Science Watch says:

      So, on the basis of a disagreement about statistical methodology in peer-reviewed science -- on a scientific issue where multiple studies using different methodologies have come to essentially the same conclusions -- it's OK to defame Mann year after year, including comparing him with pedophile Jerry Sandusky. Which is what the defamation suit is about. The National Review and CEI lawyers will have to do a bit better than this.

      • Joe says:

        Yet "the other reconstructions using different methodologies arent using significantly different methodologies." Not really, they are using the same data sets and have similar systemic errors. Look at briffa's yamal sets, it has shown that while the yamal tree ring series shows no warming during the MWP and little or no cooling during the LIA, the tree lines show significant differences during the MWP and LIA.

        The significant statistical over weighting of the bristlecone pines greatly hides the mwp. The other reconstructions rely on the bristlecone pines. keep in mind that the bristlecone pines didnt even pick up the North American warming from 1910-1940. Why would any credible scientist rely on the bristlecone pines as a valid proxy.

        • Rick - Climate Science Watch says:

          This is science debate and not germane to the defamation lawsuit. Mann is not suing people who discuss science issues in a scientific manner, he is suing people who use a political approach of attacking climate scientists in a defamatory manner.
          Climate Science Watch is not a science debate site. This has all been discussed in the paleoclimate research community, i.e., among credible experts who actually publish in the scientific literature. Take your argument up with them. For general readers, a concise discussion of the 'Hockey Stick is broken' arguments is at Skeptical Science:
          http://www.skepticalscience.com/broken-hockey-stick.htm
          Mann discusses paleoclimate research issues in his book The Hockey Stick and the Climate Wars.

  13. D. C. Sessions says:

    Discovery is bitch.

    You can generally judge a lot about the parties' confidence in a lawsuit by their relative resistance to entering discovery.

    It's also expensive. For all concerned. That's one place that deep pockets (and both NRO and CEI have access to very, very deep pockets) can make a huge difference.

    Make of that what you will.

  14. Kevin says:

    I haven't heard a thing about the First Amendment right to freedom of speech here. Before everyone jumps on me to explain how "defamation is not a right," I'm just wondering...are there no free speech liberals anymore in the mold of, e.g., the Warren Supreme Court?

    • mikel says:

      Libel isn't a free speech issue. I'm not sure the Warren court was about to do away with libel laws. As far as accusations of fraud go, the defendants and those sympathetic to them are free to make such charges as long as they can back them up. Truth is a defense.

  15. Evan Kramer says:

    Too bad you guys weren't around to sue and attempt to suppress
    Copernicus.

    • Rick - Climate Science Watch says:

      I think perhaps you have it backward. The corporate-funded and ideologue politicians and their propagandists are analogous to the power structure that the scientists were up against in the time of Copernicus and Galileo.

  16. Ben Pugh says:

    Here's a link to attorney ratings of Judge Natalia M. Combs Greene, who issued these decisions: http://www.therobingroom.com/dc/Judge.aspx?ID=3789

  17. Ben Pugh says:

    I just read the National Review order. Not bad. At least to me, Judge Combs Greene did not live up to her reputation. It looks like National Review's lawyers put all their eggs into the "opinion" basket - i.e., that on their face all the allegedly defamatory statements were mere expressions of opinion rather than assertions of fact - without bothering to introduce evidence of actual scholarly criticisms of Mann's work (for instance, here: http://www.powerlineblog.com/archives/2013/06/another-nail-in-the-climate-change-coffin.php, and here: http://rps3.com/Files/AGW/EngrCritique.AGW-Science.v4.3.pdf). If National review had introduced evidence of scholarly criticisms of Mann's work, along with evidence Mark Steyn read these criticisms and relied on them to come to his "opinion" that Mann's work was "fraudulent" I think National Review would have won the Anti-SLAPP motion.

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  21. Hank Roberts says:

    > attorney ratings
    Some grad student ought to comb through that site and see if there's any clustering of those anonymous opinions

    Do judges appointed by Democrats average the same opinions as judges appointed by Republicans?
    And if there are enough judges and enough opinions to get any useful comparison, how do the opinions rate women vs men judges? White vs. nonwhite judges?

    I kind of distrust these online "rating" collections. One has to wonder.
    Well, no, people are already doing science on these sorts of collections:
    http://www.theguardian.com/science/2013/aug/08/snowball-effect-skews-rating-systems

    Sinan Aral of the Massachusetts Institute of Technology's Sloan Business School ... led the latest research

  22. bobarl says:

    So far this court litigation is going well, the right way. Michael Mann has suffered enough from these (%%$$^^&*) can't probably say what I want to about these denialists. They are actually helping to keep us from succeeding in curtailing the dangers that climate change will cause (an is already causing). Terrible as they are, I believe it is the Tea Party and other conservative politicians in this country who are crippling our ability to lick this super serious problem of climate change. I worry for my grandchildren

  23. Online GPS says:

    Its a real shame that our courts take so long to make a decision.

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