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.
Excerpt from Sylvia Tognetti at the Post-Normal Times (Rhetorical hyperbole? Or reckless disregard for truth?):
Rather than stand behind their allegations – that Michael Mann has been engaged in fraud and scientific misconduct, the Competitive Enterprise Institute (CEI) and the National Review (NR) along with two of their journalists. now argue that these were merely “expressions of opinion and rhetorical hyperbole… not assertions of fact”. ...
[U]nless the defendants find other ways to have the case dismissed, it looks like a jury will get to decide whether they were making good faith arguments, or not. In a few previous posts, I reviewed some of the hockey stick allegations to make that case that these so-called climate “skeptics” are not acting in good faith. Rather, that they are engaged in a deceptive parody of science, intended to deceive those least informed, who cannot tell the difference. It starts with the act of calling themselves “skeptics”. ... In those previous posts, I neglected to discuss the role of certain think tanks, such as CEI, who played a lead role in publicizing if not actually fabricating these unsubstantiated claims, and in calling for investigations. However, much of what is known is well chronicled in Michael Mann’s book, and by John Mashey. …
It also looks like Myron Ebell (one of the ringleaders at CEI) will get what he once wished for. According to some of the Mashey Chronicles, back in 2005, when Congressman Joe Barton sent letters to Mann and his co-authors, essentially initiating a witch hunt, Ebell very promptly circulated those letters to an undisclosed email list – possibly before they were even seen by those to whom they were addressed. Ebell was also quoted in a BBC article saying “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.”
So one would have expected at least CEI to welcome the opportunity to make their case, and to hear something more from them than the chirping of crickets. However, as Eli has pointed out, the arguments in their Motion to Dismiss, that the statements were “not assertions of fact” is “going to make it tough for them to argue that they were telling the truth about him ... [emphasis added]
Presumably Prof. Mann thought about all this before filing his lawsuit. Thus far he has not given the impression that he is particularly worried about discovery. Are the defendants? Stay tuned. First we'll have to hear from the Court of Appeals on their motion to
Raw Story's take: We were dead before the ship ever sank
Earlier CSW posts on the case:
DC judge denies another effort to derail Michael Mann's defamation lawsuit (September 13, 2013)