As you may have heard, Big Climate consensus-enforcer and fake Nobel Laureate Michael E Mann is suing me and a trio of co-defendants for disparaging his hockey stick. On Monday, as I mentioned the other day, various bodies from the ACLU to the Cato Institute filed a flurry of briefs with the District of Columbia Court of Appeals. That in turn has prompted a slew of news stories on the case, the general gist of which you can get from the headlines:
Media and rights organizations defend National Review, et al. against Michael Mann (The Washington Post)
...and of course:
By contrast, the response from Doctor Fraudpants' dwindling band of ecophants has been somewhat muted. Mann diehard Oakden Wolf objected to that headline about "groups" rallying around and rewrote it:
There should be modifications of "Groups", i.e., "Conservative, climate skeptical, oil-friendly groups rally..."
Yes, indeed. It's just Koch-funded notorious right-wing denialist groups like the ACLU, The Washington Post, NBC News, and The Los Angeles Times coming out against Dr Mann. Nothing for you chaps in the Big Climate bubble to worry about.
Steve McIntyre summarized it this way:
I get the sense that the Washington libel community and U.S. national media have belatedly woken up to the potential threat of Mann v Steyn and that the tide is now starting to run strongly against Mann in the anti-SLAPP proceedings. The most visible evidence of this is an impressive Amici brief from the ACLU and an imposing list of 25 other media organizations.
Steve may be right. Six years ago, in my battles with Canada's "human rights" commissions, it was initially just me, Ezra Levant, Maclean's, and a handful of notorious fringe crazies. As I said to my boss at Maclean's, Ken Whyte, we could hold the big free-speech rally in the back of his Honda Civic. But the months went by, and eventually PEN Canada, the Canadian Committee for World Press Freedom, The Globe & Mail, The Toronto Star and the rest of the gang all got on board, leaving the Canadian Islamic Congress with no-one but Bernie Farber and a handful of other kinky state-censorship fetishists.
It's premature to say the same process is underway here. But let us note the difference a year makes. Last autumn, when this matter first came before the DC Court of Appeals (I could explain why, but it makes my eyeballs bleed - instead, see page six of my own brief), the same media bigfeet jumped in. I wrote about it in a post headlined "My New Friends" - a somewhat sardonic title, given that the friendship of The Washington Post, NBC et al was very narrowly confined. They were supporting us
...only in our right to appeal the Superior Court's rejection of our motion to dismiss under the D.C. SLAPP statute.
Well, here we are nine months later, and the media grandees have gotten a little cozier with me. Some of Steve McIntyre's commentators think that the ACLU/Big Media support is still only on the narrow procedural issue of immediate appealability, but that's not so. More than half the brief is a principled free-speech defense of what I and Rand Simberg said - or as the contents page puts it:
II) THE CHALLENGED STATEMENTS ARE PROTECTED EXPRESSIONS OF OPINION ON AN IMPORTANT SCIENTIFIC AND PUBLIC POLICY DEBATE
So they've gone from being "my new friends" to "my new best friends". They don't really like me all that much, of course - anymore than The Globe & Mail or PEN Canada did in 2008. There's no danger of me being offered a gig at The Washington Post or Time or The Chicago Tribune any time soon. Nor does it mean they agree with me on the substance. The Los Angeles Times, for example, refuses to print on its letters page any correspondence from so-called "climate deniers".
But that's the point: Their refusal to print dissenting opinion is their choice, not Michael Mann's - and they want it to stay that way. Furthermore, were this weird insecure bully to succeed in shrinking the First Amendment to his own particular needs, the consequences would not be confined to "climate change" (on which they happen to agree with him) but would extend to every other aspect of public discourse. The ACLU & Co are very vigorous in where a victory for Mann would lead:
The language of the commentaries similarly confirms that they are opinions. They describe Mann variously as "unscientific " and "the ringmaster of a tree-ring circus" and compare him metaphorically to both Jerry Sandusky and Bernie Madoff. And they criticize the official reviews of his methods, using terms like "scandal," "whitewash," "cover up," and "Climategate"... That the court below [the appalling and incompetent judge Natalia Combs Greene] found unprotected opinions expressed in such a context and using such obviously opinion-based language is particularly concerning to amici, which regularly include opinions within their publications, broadcasts, and websites.
They also reject the simpleton notion advanced by Mann's groupies - that merely wrapping oneself in the mantle of "science" should insulate someone from criticism:
As Mann himself concedes, the commentaries did not accuse him of fabricating data from thin air but instead were harshly critical of his scientific models, methods, and conclusions... Amici respectfully submit that permitting such a defamation claim to proceed will substantially chill speech that challenges scientific conclusions, as well as public policies based on them. In holding otherwise, the court below failed to appreciate that hyperbolic criticisms are a legitimate part of the "rough and tumble" nature of heated debate on important issues of public concern.
And they are utterly contemptuous of the core of Mann's defense - that because a government bureaucrat somewhere or other has given his wretched "science" a clean bill of health, that ends all debate:
Furthermore, to the extent the Superior Court credited Mann's assertion that investigations by the EPA, the National Science Foundation, and Penn State, among other scientific and governmental bodies, "laid to rest" defendants' questions regarding Mann's research, Am. Compl. ¶ 24, this too was in error. See also July 19, 2013 Orders at 16 (suggesting that statements were actionable because "Plaintiff's work has been investigated and substantiated on numerous occasions"). The fact that certain official panels backed Mann's methodology – facts that were not only disclosed in the challenged publications but in fact formed the basis for them – cannot allow him to silence his critics in a defamation claim. Under the First Amendment, the government is not the final arbiter of truth with the power to foreclose further challenge to its policies.
"To the extent the Superior Court credited Mann's assertion" is a very discreet way of putting Mann's flimflam, but there's an important truth therein: Whether or not government bodies support Mann is irrelevant. In, say, Ferguson, Missouri, a police bureaucrat might well stand up and say, "We've looked into the fatal shooting of this kid, and everything was done by the book." That does not mean the citizenry do not have the right to dispute the official conclusion. Likewise, a Treasury internal investigation might say, oh, the IRS did nothing wrong in going after Tea Party groups. That doesn't mean we all have to shut up and accept it. Mann is demanding something that no free society can give him.
One of Steve McIntyre's commenters makes a sharp point on the multiple falsehoods in Mann's court pleadings:
As a retired judge I find it extremely puzzling that Mann's lawyers, who are apparently very well paid and presumably competent, would have allowed allegations to be included in the complaint and other filings, such as the obviously and demonstrably false statements regarding the various inquiry approvals of his work. It smacks of poor preparation and, perhaps, of being dominated by a forceful client. If I were hearing this matter, I would not like at all the fact that obvious misrepresentations had been made to the court in the sworn pleadings.
To which Steve replies:
It's hard to believe that independent lawyers wouldn't be embarrassed by such falsehoods. However, I think that one of Mann's lawyers has gone with him on a couple of occasions to the AGU convention to preach to climate scientists. That suggests that the lawyer is also infused with the "Cause" and that one should not assume that the errors and misrepresentations are entirely the fault of a forceful client. Because their pleadings include language more or less copied from SKS (including the list of supposed exonerations), I wonder whether the lawyers performed any relevant due diligence (e.g. reading the inquiry reports) and, if so, how they could have incorrectly characterized the reports in more or less the same way as SKS.
I can't claim to know what's inside Mann's overheated head. Perhaps he genuinely believes he's a Nobel Laureate who's been exonerated by Sir Muir Russell and Lord Oxburgh and NOAA and the British Government and everybody else. But his lawyers - even the ideologues, like Peter Fontaine - can't plead self-delusion. As officers of the court, they're obliged to do what Steve calls "due diligence". Mann has played fast and loose with the facts all his adult life. If I were his counsel, I would be double-checking everything he tells me.
Given the procedural bollocks the disgraceful Judge Combs Greene made of this case, my preference since December has been to go to trial as soon as possible. I've responded to Mann's discovery requests on me, and I'd like him to reciprocate and undergo deposition. I think it would be better, both for my own case and the law in general, for him to lose at trial, and I'd like to get there sooner rather than later. All that said, I am modestly heartened by how this case is going, and by the way Mann's behavior is being seen for what it is. I would especially like to thank SteynOnline readers from around the world who've supported this pushback against a vexatious litigant and prodigious liar by buying my books, gift certificates, exclusive trial merchandise, and even my Christmas disco CD over at the Steyn store. You kept us in the game at a very difficult time when the conventional wisdom was that Mann was cruising to victory, and you enabled me to hire a first-rate free-speech legal team that, like me, is itching to get on with deposition and discovery.
He might still win, of course. Given the ghastly misapplication of the law by Judge Combs Greene, one would be foolish to rule out any possibility in this so-called justice system. My plan in such an eventuality was to put a false beard over my real beard, flee jurisdiction, and undergo reconstructive surgery somewhere where they do a nice job, like Switzerland. However, as I said to Hugh Hewitt on the radio today, it's clear that what's changed is that the major media and human-rights groups now recognize that Mann's suit is a serious threat to their freedom. As the ACLU/Big Media brief puts it:
While Mann essentially claims that he can silence critics because he is "right," the judicial system should not be the arbiter of either scientific truth or correct public policy. While a mici may not necessarily agree with the con tent of defendants ' speech, they believe that, if left to stand , the decision below will chill the expression of opinion on a wide range of important scientific and public policy issues, and therefore urge that it be reversed.
So, even if he did win in DC court, we'd be pushing on, if necessary all the way to the Supreme Court. And in the end he will lose, and lose big - because the alternative would be the worst setback for the First Amendment in half-a-century.
UPDATE! Dr Judith Curry comments:
The link between 'defending Michael Mann is defending climate science' seems to have been broken...
I'm curious as to what kind of support Mann is getting from the science community – beyond the support from Romm, Krugman et al. I haven't seen much, but I might not be shining my light in the right places.