A heartfelt thank you to everyone who's helped support my legal pushback against a lavishly funded campaign by fake Nobel Laureate Michael E Mann to put his shoddy science beyond criticism. I'm very grateful to those who've bought our Steyn vs the Stick products, our new SteynOnline gift certificates, my free-speech book Lights Out or one of our many other products. We have had generous supporters from across the globe, from some of the most populous nations on earth (India, Indonesia) and from some of the smallest imperial pinpricks (the Falkland Islands and the Cook Islands).
There are some developments in the case that I hope to be at liberty to discuss in the days ahead. In the meantime, how about a little Mann-related linkage? Dr Mann himself links approvingly to this characteristically somnolent piece from The Columbia Journalism Review:
Strange Bedfellows: Climate Change Deniers, Newspapers Partner In A FOIA Fight
The bedfellows are only "strange" if you think the press should have no principled position, which seems an odd view for a self-aggrandizing guild bible like the CJR to take. The reason NPR, The Washington Post et al are opposing Mann in Virginia is because they grasp that were he to prevail it would not merely be a victory for him but a massive defeat for freedom of information that would more or less gut the law in that state. Likewise, were he to prevail in my own case, it would be the biggest setback for the First Amendment in three decades (since Hustler vs Falwell). But you gotta love assistant editor Alexis Sobel Fitts and the fact-checking ethics bores at The Columbia Journalism Review, who seem reluctant to check anything:
But in recent years Mann has become known for his public battles against climate change-denial interest groups seeking opportunities to discredit his research. When the National Review called him "the Jerry Sandusky of climate science" he took them to court for defamation.
Er, no. It was Rand Simberg at CEI who called Mann "the Jerry Sandusky of climate science". National Review merely quoted his words, much like The Columbia Journalism Review did. So maybe Mann should sue you guys, too. Or maybe you could try looking it up next time. The alleged "defamatory publication" is only 270 words long. The distinctive CJR style of sludge-like pomposity requires a certain basic competence to be tenable.
In not unrelated news, it turns out that large slabs of American journalism are being written by robots. Has someone checked in the back to see whether Alexis Sobel Fitts' battery needs charging?
Cory Franklin, who is so non-robotic that the Harrison Ford role in The Fugitive was partially based on him, provides a somewhat more reliable overview of the case so far:
Mann subsequently went on the offensive by suing Simberg, Steyn, CEI and National Review for defamation. When the defendants tried to have the lawsuit dismissed by claiming they had a First Amendment right to criticize Mann publicly, a Washington superior court judge allowed the suit to go forward. The judge wrote, 'accusing a scientist of conducting his research fraudulently, manipulating his data to achieve a predetermined or political outcome, or purposefully distorting the scientific truth are factual allegations. They go to the heart of scientific integrity. They can be proven true or false. If false, they are defamatory. If made with actual malice, they are actionable.'
So Mann's lawsuit now proceeds and unless a settlement is reached, pre-trial discovery will make public both the critics' motivations and the details of Mann's research. (In a related development, Steyn launched a countersuit against Mann accusing him of violation of freedom of speech).
But by pursuing a lawsuit, Michael Mann is wrong. As are the judge and prestigious scientists who support him.
Mr Franklin is speaking in both a philosophical sense and a practical one, as the inept jurist Natalia Combs Greene (now gone from the case) never gave the slightest indication that her courtroom was competent to adjudicate the hockey stick.
American law is complicated, especially for us poor little foreigners, for whom the leisurely procedural torture of US "justice" would count as cruel and unusual punishment in most other systems. So I was interested to read this lawyer boiling down the legal issues to the essence. First, defamation law:
Defamation per se—Essential Factual Elements (Public Officer/Figure and Limited Public Figure)
Michael Mann claims that Mark Steyn harmed him by making the following statement: "Michael Mann's hockey stick is fraudulent."
To establish this claim, Michael Mann must prove that all of the following are more likely true than not true:
That Mark Steyn made the statement to a person other than Michael Mann;
That this person reasonably understood that the statement was about Michael Mann;
That this person reasonably understood the statement to mean that Michael Mann had used falsified or improperly selected data and computer programs in creating his hockey stick graph;
In addition, Michael Mann must prove by clear and convincing evidence that Mark Steyn knew the statement was false or had serious doubts about the truth of the statement.
So Michael Mann has a heavy burden to shoulder in order to win. He (not Mark Steyn) has the burden of proving that the statements are false AND he has to prove that Mark Steyn, at the time Steyn made the statements, believed them to be false or entertained serious doubts about the truth of the statement.
She also chews over the ruling of Combs Greene's successor judge with regards to the anti-SLAPP motion:
What Judge Weisberg should have done in writing his decision was address the following questions in the following order. First, is this a case arising from an act in furtherance of the right of advocacy on issues of public interest? If the answer to the first question is yes, he should have proceeded to the second question, has the plaintiff (Michael Mann) demonstrated that his claim is likely to succeed on the merits. Proving that your claim is likely to succeed on the merits is a question of both fact and law. Questions of fact are decided based on evidence. Such evidence can be submitted in the form of sworn declarations as CBS did in the case I described above.
Judge Weisberg, in his decision denying Steyn's Anti-Slapp motion, based his conclusions entirely on the allegations of the complaint. You can read Judge Weisber's order here. No evidence was cited in his decision showing that the allegations of the complaint were true other than a reference to the fact that many people agree with Michael Mann about global warning. None. He did not even address the intent issue which is critical in a defamation claim against a public figure. He did not decide whether Michael Mann is a public figure. He did not decide whether Michael Mann had any evidence to support his claim that Steyn acted with reckless disregard for the truth.
What he did was a major error, in my view. He decided the motion as if it were a motion to dismiss for failure to state a cause of action. He stated explicitly in his order that he was assuming that all of the facts alleged by the plaintiff were true... He mistook an Anti-Slapp motion to dismiss for an ordinary motion to dismiss.
That is a basic and egregious error. If Anti-Slapp motions are judged on the same basis as ordinary motions to dimiss, what is the point of having an Anti-Slapp statute?
The Weisberg order does not point to a shred of evidence that Steyn did not believe what he said was true.
Hmm. I'm not sure I should comment on that. In late-breaking news, Dr Mann today filed a motion to dismiss my counterclaims with prejudice. You can read his motion here with the proposed order here. My favorite bits are on page four:
Steyn filed a motion to vacate the Court's July 19 orders - which was nothing other than an extended diatribe against this Court, accusing it of 'improper', 'grotesque', and 'zombie-like' behavior.
So stipulated. What's your point?
This conduct should not be sanctioned, and attorneys' fees should be awarded.
I would have thought that, if the Court is as insulted as Dr Mann purports to be on the Court's behalf, then it's for the Court to seek compensation. Nevertheless on page 11 Mann returns to the theme:
By filing his counterclaims in the wake of multiple rulings by this Court that Mann's lawsuit is likely to succeed, not to mention the stream of invective that he has hurled at this Court, Steyn has shown a disrespect for this Court and the governing law. The Court should grant Mann the costs and attorneys' fees incurred filing this motion.
He hasn't actually incurred any costs because his unending litigation is being bankrolled by others, but let that pass. Let's also let that "multiple rulings" bit pass: The only reason there are multiple rulings is because, under the procedurally malodorous route this case has taken through DC Superior Court, we have had multiple judges. That's why I'm not a party to National Review's appeal. Only in the diseased bedlam of American "justice" does one get "multiple rulings" on whether a suit is "likely to succeed". In any civilized court system, it would either have succeeded or failed by now. So I'd just as soon be done with all this "likely to" bollocks. If it's that "likely to succeed", let's get it to trial.
~If you'd like to help support Mark's end of the upcoming Mann vs Steyn trial of the century, please see here.