The most interesting thing about today's hearing at the DC Court of Appeals was that Michael E Mann was a no-show. In this interminable procedural bollocks now well into its third year, he's supposedly the plaintiff - and yet in the last two years he has shown up in court on precisely one occasion. Dr Mann is not merely a fraud as a Nobel Laureate and a fraud as an octuply "exonerated" scientist, he's a fraud as a plaintiff, too.
I have learned over the years to have a particular contempt for serial litigants who never show up for their own cases. One of the reasons I worked so hard in Canada to get the Section 13 "hate speech" law repealed (which it now is) was that over a 15-year period the plaintiff on every single case was a man called Richard Warman. Yet he never once appeared in court - unlike the mostly poor and unrepresented defendants. To reprise my old line, the process is the punishment - and Warman was not a genuine plaintiff, but merely a man who loosed the process upon others and then got on with his life while they were ensnared in a time-consuming savings-draining nightmare.
Dr Mann is the same. He claims to have suffered professional and emotional damage from what I wrote about him. So you'd think he'd want to be in the courthouse today - to underline by his presence the real victim in this, and the great wrong done to him. But no, he's getting on with his life, and leaving it to the Big Climate-funded lawyers, because, for him as for Warman, the process is the punishment.
I was there, even though, formally speaking, I was not one of the parties today - merely an amicus curiae. My co-defendants National Review, Rand Simberg and the Competitive Enterprise Institute were appealing the Superior Court's denial of a motion to dismiss the case under the anti-SLAPP law. I chose not to appeal, for reasons I'll re-state below.
One of my own counsel made the point afterwards that the First Amendment was only mentioned six times in the course of the morning. Yet the First Amendment is what's at stake. I've said on TV and radio recently that if Mann wins this case it would be the biggest setback for the First Amendment in 50 years, and one or two interviewers have raised a skeptical eyebrow. But the scale of what Mann is attempting to impose was made clear by his counsel, John Williams. It's not just the charge of "fraud" or "scientific misconduct": Williams said today that there is no right to call Mann's hockey-stick graph "misleading". In Mann's world, free speech does not extend even to the mildest adjective.
The three lady judges - by comparison with that slapdash idiot Combs Greene in the trial court - were on top of the case, and they had some sharp exchanges. When Mann's lawyer sneered that the defendants did not believe in "climate change", Judge Easterly interjected, "Man-made climate change". It was interesting that she thought it an important distinction to draw.
CEI's Sam Katzman was sitting in front of me and wrote up his own impressions:
The judges were not that active in questioning Mann's attorney, John B. Williams, but they made several very telling comments. When Williams claimed that eight separate investigations had exonerated Mann, one judge asked, "What if CEI sincerely believes that those investigations are flawed? They take them apart quite thoroughly in their reply brief." Another question: "If CEI strongly believes that its statements are true, then how can you ever show malice?" When Williams cited one Supreme Court case as being directly on point, a judge asked, "how is that the right fit for this case?" Another noted that, under Williams' approach, the Anti-SLAPP law "wouldn't be doing very much work." And when Williams claimed that preponderance of evidence should suffice, a judge asked, "but you need clear and convincing evidence for malice." And the judge noted that Williams failed to ask for the directed discovery that is expressly allowed under the Anti-SLAPP law. Finally, when Williams argued that a jury could evaluate misleading effect, all three judges made some rolling-eye expressions.
Here's a view from the other side:
Since this is an appeal against the denial of relief under the anti-SLAPP statute, the court asked, ok, why not let a jury decide if this was distortion or not? NR said that, well we don't let juries decide about whether one opinion or the opposite is correct and then the Court brought the hammer, pointing out that Rich Lowry had written in NR challenging Mann to meet NR in court so what are they doing here in the Court of Appeals.
My own view is that the Appeals Court troika, as engaged and up to speed as they were, will nevertheless not toss this case. Which means we're going to trial. That's what I thought ten months ago when I had the opportunity to join NR, Rand Simberg and CEI in this appeal. I chose not to, because it seemed to me unlikely even then that the Appeals Court would reverse judges Combs Greene and Weisberg's decisions, and therefore we might as well get on with it:
I'm not part of this appeal. By choice. I want to get to court as soon as possible, and put Michael E Mann, PhD (Doctor of Phraudology) on the stand under oath. I haven't wasted two years on this guy to be denied my moment in court. That's one reason I've countersued Mann. He thinks the DC Superior Court is competent to litigate his fraudulent "hockey stick". Fine, let's get it to a jury - before the sclerotic DC "justice" system's procedural delays go on as long as the global-warming "pause".
Today confirmed that for me. Still, I was pleased to see so many friendly faces in court, including Ann McElhinney and Phelim McAleer, whose film Not Evil Just Wrong was a withering response to Al Gore's Inconvenient Truth. I got the vague feeling that, once they've finished their Kermit Gosnell movie, they wouldn't be averse to giving Mann the big-screen treatment. And as some old blowhard told The Daily Caller only yesterday:
I am represented by counsel, but I don't entirely rule out cross-examining Michael Mann for the sheer entertainment value. I have to think of the movie deal down the road.
~Mann has his defenders, of course. But you'd be better be prepared to go all in. Ask Richard Keppler:
Mr. Mann has blocked me, and I'm someone who generally sides with him on the defamation claim.
You only "generally" side with him? What are you, some #KochMachine denialist?
~Afterwards, I spoke to Mary Kissel from The Wall Street Journal. Click below:
~On Wednesday morning I'll be starting the day with Toronto's Number One morning man John Oakley, live on AM640 at 8.30am Eastern. f you'd like to help support my end of the upcoming Mann vs Steyn trial of the century, please see here.