Back in July I noted that climate scientist Michael Mann had threatened to sue National Review, Mark Steyn, and others for vivid online criticism. Mann is the originator of the famed "hockey stick graph" of global warming data; he was accused of academic misconduct based on notorious hacked emails, but cleared by a Penn State investigation. Steyn quoted and linked to a post by Rand Simberg at the Competitive Enterprise Institute, the rhetorical thrust of which was that Penn State clearing Mr. Mann was no more credible than its clearing of Jerry Sandusky.
Yesterday the other shoe dropped and Mann sued NRO, CEI, Steyn, and Simberg in D.C. Superior Court for libel and intentional infliction of emotional distress (or, as I prefer to call it, Butthurt in the First Degree). The Legal Times has posted the complaint. I've reviewed it, and have some initial thoughts.
First, the complaint seems almost calculated to support likely conservative narratives about it. It's very heavy on arguments by authority, citing the National Science Foundation and Columbia Journalism Review and Discovery Magazine and others for its propositions that the defendants are simply wrong in their criticisms of Mr. Mann. It fairly drips with righteous indignation over the existence of persistent global warming deniers. Global warming skeptics have been asserting that the scientific establishment is hostile to any dissent on global warming; this complaint isn't going to dispel that impression.
Second, the complaint misconstrues hyperbolic rhetoric and statements of opinion as false statements of fact. “Merely rhetorical hyperbole" and "lusty and imaginative expression of . . . contempt" and "vigorous epithets" are generally treated as protected statements of opinion, not actionable statements of fact. Milkovich v. Lorain Journal Co., 497 U.S. 1, 17 (1990); Letter Carriers v. Austin, 418 U.S. 264, 284-286 (1974). Here, many of the statements by Simberg or Steyn complained of are clearly hyperbole in the service of political opinion. For instance:
Mann could be said to be the Jerry Sandusky of climate science, except for instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.
This is patently not a statement of provable fact. No rational person could construe it to mean that Mann molested children like Sandusky. And data cannot be "molested and tortured" except in a stylized rhetorical sense.
Mann has become the posterboy of the corrupt and disgraced climate science echo chamber.
Michael Mann was the man behind the fraudulent climate-change 'hockey-stick' graph, the very ringmaster o/the tree-ring circus.
The words "corrupt" and "disgraced" are exactly the sort of rhetoric that courts typically classify as opinion, not actionable statement of fact. Price v. Viking Penguin, Inc., 881 F.2d 1426, 1445 (8th Cir. 1989) (statement that plaintiff was "corrupt" was opinion, not statement of fact); DuBoff v. Playboy Enterprises Intern., Inc., 2007 WL 1876513 (D. Or., June 26, 2007, CIV.06 358 HA) ("The phrase 'disgraced academic' is similarly hyperbolic opinion."). The "ringmaster" language is a clear signal of political rhetoric, not an actionable false statement of fact. Similarly, though Mann complains that NRO characterized his research as "intellectually bogus" in its reaction to his lawsuit threat, "bogus" is also a classic term of opinion. Cooke v. United Dairy Farmers, Inc., 2005 WL 736246 (Ohio 2005) (reference to "bogus claims" was statement of opinion)
To have any chance of prevailing, Mann will have to establish that statements accusing him of scientific dishonesty must, even in the context of political opinion blogs, properly be interpreted as specific statements of fact, not statements of opinion. That's a tough burden. Courts focus on the context in evaluating whether statements should be interpreted as fact or opinion, and increasingly interpret internet rhetoric as opinion rather than fact.
Third, by filing in the District of Columbia, Mann has subjected himself to the District of Coumbia's relatively new anti-SLAPP statute. Mann might want to chat with Washington Redskins owner Dan Snyder about that.
Fourth, in reading the complaint, and seeing how much of it attacks statements of opinion and asserts the inviolability of scientific consensus, I have to wonder whether Mann's aim is political debate by other means, not genuine redress of wrongs. The complaint reads like Mann is looking for a forum for a fight over global warming denial. He may find, to his chagrin, that most judges aren't up for providing a forum for such a fight. Moreover, I don't think a lawsuit is going to persuade anyone who wasn't already persuaded about the truth of global warming.
I look forward to covering this one more.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016