A Libel Suit Threatens Catastrophe for the Climate of Public Debate
A Libel Suit Threatens Catastrophe for the Climate of
Public Debate
Michael Mann sues to silence critics, and errant courts
ignore the First Amendment to help him.
By MICHAEL A. CARVIN and ANTHONY DICK Updated Feb. 5,
2017 8:16 p.m. ET
The First Amendment provides robust protection for
political and scientific debate, but it faces a new threat from a climate
activist determined to silence his critics. In a case pending before the
District of Columbia Court of Appeals, Penn State professor Michael Mann is
waging an aggressive campaign of lawfare, accusing of defamation those who dare
to question his work. So far, the courts have given this assault on free speech
a green light.
Mr. Mann is famous as the creator of the “hockey stick”
graph, which portrays a dramatic trend in global warming over the past century.
Numerous critics have cast doubt on the quality and accuracy of his work. They
argue that his historical temperature proxies are unreliable, his data
presentation misleading, and his statistical techniques skewed.
Even among those who support the theory of global
warming, some have singled out Mr. Mann’s work as sloppy and exaggerated. David
Hand, a former president of Britain’s Royal Statistical Society, has written
that Mr. Mann’s technique “exaggerated the size of the blade at the end of the
hockey stick,” which corresponds to the 20th-century temperature rise.
Not content to answer his critics in the public square,
Mr. Mann has sued them. One target of his lawsuit is the political magazine
National Review, which published a 270-word blog post criticizing Mr. Mann as
“the man behind the fraudulent . . . ‘hockey-stick’ graph.” His lawsuit objects
to the magazine’s decision to quote a critic who wrote that Mr. Mann “could be
said to be the Jerry Sandusky of climate science, except that instead of
molesting children, he has molested and tortured data.”
National Review moved to dismiss the suit, citing a
phalanx of Supreme Court precedent. The Constitution obviously does not allow
crippling damages to be imposed for voicing one’s opinion, however vehemently
or caustically. Punishing such criticism because a jury disagrees with it does
not aid the search for truth, but impedes it by stifling conflicting views. As
the liberal Justice William Brennan observed: “Truth may not be the subject of
either civil or criminal sanctions where discussion of public affairs is
concerned.” Such speech “is the essence of self-government.”
As a federal court once put it in the particular context
of scientific controversies: “More papers, more discussions, better data, and
more satisfactory models—not larger awards of damages—mark the path toward
superior understanding of the world around us.” Even a meritless defamation
suit can be an effective weapon to intimidate critics and shut down debate
through ruinous litigation costs.
In this case the trial court refused to dismiss Mr.
Mann’s libel suit. Judge Natalia Combs Greene ruled that the defamation claims
were “likely” to succeed because “to call his work a sham or to question his
intellect and reasoning is tantamount to an accusation of fraud,” when in fact
Mr. Mann “has been investigated by several bodies (including the EPA)” which
determined that his research was “sound and not based on misleading
information.” For procedural reasons, the case was reassigned to Judge
Frederick Weisberg, who largely adopted Judge Green’s reasoning.
Appellate courts, which exist to reverse such legal
error, in this case compounded it. National Review was supported in
friend-of-the-court briefs by such unlikely allies as the American Civil
Liberties Union, the Electronic Frontier Foundation, the Washington Post and
the Reporters Committee for Freedom of the Press. Yet a panel of the D.C. Court
of Appeals—Judges Vanessa Ruiz,Corinne Beckwith and Catharine Easterly—held in
December that Mr. Mann’s suit should proceed to a jury. The court again relied
on various “official” investigations that had cleared Mr. Mann of misconduct,
including an inquiry by the federal government. Speech that disagrees with the
government is at the core of the First Amendment’s protection—though not in
this court’s topsy-turvy world.
National Review has filed a petition for rehearing along
with its co-defendants, the Competitive Enterprise Institute and Rand Simberg.
If the full court of appeals does not correct the error and end this assault on
the First Amendment, the case will doubtless proceed to the Supreme Court.
Those hoping Mr. Mann prevails because they agree with
him about global warming are missing the point. If he succeeds in diminishing
the right to free speech, he and his fellow climate activists have just as much
to lose. Mr. Mann has attacked his critics for peddling “pure scientific
fraud,” engaging in what he calls “the fraudulent denial of climate change,”
and taking “corporate payoffs for knowingly lying about the threat climate
change posed to humanity.” He accused Fox News of trying to “mislead its
viewers” through a “deceptive” report about climate change.
None of this is particularly polite, but it is common in
the cut-and-thrust of public debate. If such caustic criticism is now to be
fair game for legal action, big oil companies and other well-heeled interests
can launch their own lawsuits asking juries in Texas or Oklahoma to silence Mr.
Mann and his allies.
The logic of Mr. Mann’s position threatens to convert
political and scientific debate into a litigation free-for-all, with all sides
seeking to sue one another into submission instead of resolving differences
through the free exchange of ideas. For those who care about the spirit of open
inquiry at the heart of the scientific enterprise, it is scarcely possible to
imagine a greater legal disaster than the prospect of Mr. Mann’s succeeding on
his claims.
Messrs. Carvin and Dick are Washington lawyers. They
represent National Review in Mr. Mann’s lawsuit.
Comments
Post a Comment