Michael Mann Files Anti-SLAPP Motion Against Mark Steyn's Counterclaims

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183 Responses

  1. Dr. Nobel Dynamite says:

    Here's hoping this comment page will finally accomplish what the previous story on this topic came so close to (until Ken shut it down) and finally, once and for all, conclusively prove or disprove anthropogenic global warming.

    The comment section on a free speech blog are probably the most likely place that debate is going to be settled, right?

  2. Ken White says:

    I will cut you.

  3. Dictatortot says:

    Somehow that threat looks MORE ominous next to your kid's picture, not less.

  4. PonyAdvocate says:

    @ Mr. White

    I can't recall your having solicited monetary contributions to a litigant in the past, at least not in the recent past. Your doing so in this instance startles me.

  5. Dictatortot says:

    But in all seriousness, Steyn's main purpose seems to be protesting and publicizing the extent to which existing U.S. and Canadian law can be marshalled against citizens trying to exercise their inherent free-speech rights. If I understand him correctly, winning the case with maneuvers that help camouflage or obscure these systemic problems wouldn't be "winning" in any sense that mainly concerns him.

    And though I'd never be so reckless as to represent myself in court or commit any other of Ken's no-noes, it's hard to think of a lawyer Steyn could retain who wouldn't try to bend the strategy in the direction of winning the case in court, at the expense of what Steyn wants to demonstrate about the courts. (Ethically, could a lawyer even represent Steyn's priorities, if doing so increased the chances of losing? IANAL, to say the very least.)

  6. mcinsand says:

    We need an award, and let's call it the Molly. Dr. Nobel Dynamite would get it for today. This is for injecting a contentious topic into a thread purely for mischievious entertainment purposes. Given the inflammatory nature, the award could be a bottle with a rag sticking out of the top; The Molotov.

  7. Dan T. says:

    Did the court actually find that Mann had a "likelihood of prevailing" in his case, versus the weaker finding that his case isn't obviously going to fail, so that it deserves not to be dismissed early? A failure to dismiss a case seems more like the latter than the former, but Mann's attorney is treating it like he's already practically won the case.

  8. W Klink says:

    So you can't sue someone for suing you, unless you're suing them for suing you for suing them…

  9. Chris says:

    I can't recall your having solicited monetary contributions to a litigant in the past, at least not in the recent past. Your doing so in this instance startles me.

    Well, given that Steyn is insisting on representing himself, Ken's usual strategy of aiding free-speech litigants by finding them representation through the Popehat Signal doesn't really apply in this case.

  10. Capt Dingleberry says:

    To offer some balance to the Ying with some Yang, there is also a "Climate Science Legal Defense Fund" which can be found at:
    https://org.salsalabs.com/o/823/p/salsa/donation/common/public/?donate_page_KEY=7935

    Toodle Pip.

  11. Levi says:

    @Dan T.

    You can read the decisions here. In the 7/19 decision, the court takes the statute text

    (b) If a party filing a special motion to dismiss under this section
    makes a prima facie showing that the claim at issue arises from an
    act in furtherance of the right of advocacy on issues of public
    interest, then the motion shall be granted unless the responding
    party demonstrates that the claim is likely to succeed on the merits,
    in which case the motion shall be denied.

    … and interprets some California caselaw to dilute "likely to succeed" into basically the same standard as a motion to dismiss (page 10). This despite noting that the question of whether the statements are opinion is "a very close case" (page 16, footnote 14) and that the evidence in hand does not amount to a clear and convincing showing of actual malice (page 21). The appeal reinforced this by considering all of the allegations thus far "in the light most favorable to the plaintiff" (page 3), which seems to be an odd approach to an anti-SLAPP issue. So, Mann's attorney is just construing this in the most positive light possible, which I gather is not unusual in legal proceedings.

    I think the strangest part of the decisions is that the offending quote

    Michael Mann was the man behind the fraudulent climate-change 'hockey-stick' graph, the very ringmaster of the tree-ring circus.

    … is taken as a serious statement of fact with regard to the word "fraudulent" and is not rhetorical hyberbole in context, while at the same time noting that "ringmaster of the tree-ring circus" certainly appears to be an exaggeration (page 17).

  12. Matthew Cline says:

    @Dictatortot:

    But in all seriousness, Steyn's main purpose seems to be protesting and publicizing the extent to which existing U.S. and Canadian law can be marshalled against citizens trying to exercise their inherent free-speech rights. If I understand him correctly, winning the case with maneuvers that help camouflage or obscure these systemic problems wouldn't be "winning" in any sense that mainly concerns him.

    But how are bad legal filings going to help with that? Besides people like Ken (and through him his readers), not many people actually read the legal filings involved. It seems to me that he'd be better served by raising those issues in interviews, press releases and such.

  13. Dictatortot says:

    Well, I believe he's done precisely those things as well. And I wasn't really referring to his legal filings–more his disinclination to play within the very rules that give plaintiffs like Mann such untoward powers against Steyn's speech. Strategically (though not tactically), he seems to have something of a point.

  14. Matthew Cline says:

    @Dictatortot:

    And I wasn't really referring to his legal filings

    But aren't his pro se legal filings the precise subject that Ken is talking about (and hence the subject of this comment thread)?

  15. lcs says:

    IANAL, but I have watched My Cousin Vinny over 30 times. I'm wondering if Mann's anti-SLAPP motion can be approved if the judge uses the same standard he used for NRO/Steyn's anti-SLAPP motion?

  16. Dictatortot says:

    But aren't his pro se legal filings the precise subject that Ken is talking about (and hence the subject of this comment thread)?

    Maybe, but I'm not legally astute enough to infer that from what Ken wrote. If so, though, then maybe the ease with which such filings can be unintentionally turned into a club wielded against the filer says something about the current system.

  17. Matthew Cline says:

    the very ringmaster of the tree-ring circus.

    "Tree-ring circus". Heh.

  18. Anonymous Coward says:

    This case has always stuck out at me when I read about it here on Popehat.

    First let me say that my understanding of First Amendment issues mostly comes from reading Ken's articles. So you might say that I am likely to agree with Ken.

    So, although some of the comments that Mann claimed are clearly not libel, it seems to me that some of the other comments clearly are. Those comments deal with facts, they are provable/disprovable, and they are obviously meant to associate Mann with criminal misconduct. Simberg's blog post doesn't really even leave room for interpretation. He says as much a bunch of times in different ways. So how is Ken so sure it isn't libel?

  19. PonyAdvocate says:

    @ Chris

    Well, given that Steyn is insisting on representing himself, Ken's usual strategy of aiding free-speech litigants by finding them representation through the Popehat Signal doesn't really apply in this case.

    Indeed. If Mr. White were to send up a Popehat Signal on Mark Steyn's behalf, I would lead the applause. But legal assistance with a specific case is not fungible, and money is.

    The issue, I think, is that Mark Steyn is (ab)using the legal system in a way that could lead some to conclude he is a crank (if not worse), even without taking into account his AGW denialism, or that he might well be on the wrong side of the First Amendment in this case. To solicit fungible monetary donations on behalf of a crank might lead one to conclude that the solicitor sympathizes with the crankitude, or is even himself a crank, or perhaps just a fool. IANAL, but if I were, and if I were called upon to represent a Ku Kluxer accused of race-based murder, I would, I hope, consider it to be honoring to my profession to do so. But that does not mean I would solicit donations to a fund to buy wood to make a cross, to buy kerosene to set it on fire, or to buy bed sheets to be sewn into Ku Klux suits.

    To sum up, the optics here seem strange to me. I admire much of what Mr. White says, and I almost always admire how he says it. To find that he is a crank or a fool would disillusion me a great deal, so I hope Mr. White governs himself accordingly.

  20. @Dictatortot:

    But in all seriousness, Steyn's main purpose seems to be protesting and publicizing the extent to which existing U.S. and Canadian law can be marshalled against citizens trying to exercise their inherent free-speech rights.

    I'm not sure that's going to work either. The general public, I suspect, aren't going to focus on the free-speech issue, but on the politics of the speech in question. YMMV.

    @Anonymous Coward: basically, if I've read Ken correctly, the US interpretation of free speech actually *allows* you to defame a public figure so long as they can't prove that you knew you were lying, which is, in almost all cases, impossible. How that works when the putative victim is only a public figure *because* he's been defamed, I'm not sure. :-)

  21. To offer some balance to the Ying with some Yang, there is also a "Climate Science Legal Defense Fund" which can be found at:

    Because Lord knows that with the CEO of Apple, the POTUS, and the Prince of Wales on your side, you definitely need a legal defense fund.

    There is neither ying nor yang here. There's a man who said some things you may not agree with, and a man who is suing to shut him up.

    To sum up, the optics here seem strange to me. I admire much of what Mr. White says, and I almost always admire how he says it. To find that he is a crank or a fool would disillusion me a great deal, so I hope Mr. White governs himself accordingly.

    :(

  22. Dictatortot says:

    I'm not sure that's going to work either. The general public, I suspect, aren't going to focus on the free-speech issue, but on the politics of the speech in question. YMMV.

    You could be right about that, I'm afraid. But well-considered or ill-considered, it's a strategy. And if that's the one you're going with, I can see how singlemindedly pursuing a finding for the defendant might not necessarily serve your strategic purposes.

  23. @Not Claude Akins: personally, I think Steyn went beyond saying things people "may not agree with" and is well into the territory of "intentionally harassing an innocent victim".

    That doesn't necessarily mean that Mann should or will win the lawsuit, but it's hardly a slam-dunk either way.

  24. Excalibur says:

    Mann has problems in Canada.

    http://www.principia-scientific.org/michael-mann-faces-bankruptcy-as-his-courtroom-climate-capers-collapse.html

    "The fact Mann refused to disclose his ‘hockey stick’ graph metadata in the British Columbia Supreme Court, as he is required to do under Canadian civil rules of procedure, constituted a fatal omission to comply, rendering his lawsuit unwinnable. As such, Dr Ball, by default, has substantiated his now famous assertion that Mann belongs "in the state pen, not Penn. State." In short, Mann failed to show he did not fake his tree ring proxy data for the past 1,000 years, so Ball’s assessment stands as fair comment. Moreover, many hundreds of papers in the field of paleoclimate temperature reconstructions that cite Mann’s work are likewise tainted, heaping more misery on the discredited UN’s Intergovernmental Panel for Climate Change (IPCC) which has a knack of relying on such sub prime science."

  25. Rachel says:

    So Ken links to Steyn's legal defense fund, which is a fancy term to describe Steyn hawking coffee mugs, t-shirts, and gift certificates, and the concern trolling begins.

    The federal gov't has spent over 70 billion dollars, that's right, 70 billion, since 2008, to combat climate change. This figure does not include the amount states have spent, including universities, on research and climate change activities.

    This climate change stuff is big, big business, and if Steyn wins this suit, the publicity crisis for Mann and his fanbois is likely to be legendary. Winning this suit is also likely to have an impact on the entire climate change industry, which has reaped the benefits of billions of government largesse.

    So forgive me if I call bullshit on your concern trolling over Steyn hawking chotchkies. He is pro se fighting an industry which will very likely see hundreds of billions of your tax payer dollars enter its coffers.

  26. fitzc says:

    Michael Mann not only falsely claimed to be a Nobel Prize Laureate (in a legal complaint no less) but has consistently called climate change skeptics 'deniers', with the clear suggestion of being like Holocaust deniers in some degree. A despicable tactic. Any many more insults over several years, sometimes directed at climate scientists who don't agree with his views. He is very much a public figure influencing public policy with enormous potential impact on the world. He is not a 'victim' and mocking him as master of a 'tree-ring circus' and torturer of data is not harassment – it's a retort in sarcastic kind.

    Torturing data is so common and acknowledged to be common (careful selection of samples, cherry-picking results, not reporting negaitve results etc…) in science that it has generated its own jokes – "if you torture the data long enough it will confess.' Hardly defamation to claim that Mann was selective in what exact data to use or not and what analytical techniques or not. Note Steyn was careful to not say Mann invented raw data – that would be real misconduct. Anyhow, for it to be defamation Mann has to prove not only that the claim is false but that Steyn knew enough science to know it was false! So somehow Mann will prove that Steyn is simultaneously an expert on statistics and climatology and also an idiot?

    The whole warming debate was vicious on both sides long before Steyn wrote that column.

    Here's a prediction: Steyn will draw this out as long as he likes, years if need be. Meanwhile he is using this case as a pulpit and showcase, winning the war for public opinion. The lonely columnist selling books and mugs to fight the warmist establishment funding Mann's suits behind the scenes… David vs. Goliath. He is changing the rules of the game to his own advantage.

    China is rethinking the concept of carbon taxes following Australia's revoking them. So who is winning the war here? Mann's lawsuit was a gift to Steyn and his side, I suggest.

  27. joe schmoe says:

    Anonymous Coward said:

    "it seems to me that some of the other comments clearly are. "

    I ask, which ones?

  28. Decline to disclose says:

    @Rachel,

    Are you trying to argue that the renewable energy sector has deeper pockets than mining industry? Or the automotive industry?

    Really?

  29. tmitsss says:

    "W Klink • Mar 18, 2014 @10:54 am

    So you can't sue someone for suing you, unless you're suing them for suing you for suing them…:

    I once defended a doctor who was sued by lawyers he sued for suing them. Dr was sued for malpractice. Malpractice case thrown out as meritless. Dr. sues lawyers for malicious prosecution. Doctors case thrown out went court says you can only sue the plaintiff not her lawyers for malicious prosecution. Lawyers sue Dr. claiming among other things emotional distress for being sued. Court throws out Lawyers' suit because Dr. had probable cause. Three lawsuits, no winners.

  30. tmitsss says:

    "Excalibur • Mar 18, 2014 @9:19 pm

    Mann has problems in Canada."

    Mann's case against Tim Ball in Canada has not ended nor has there been a ruling in Ball's favor. Not yet

  31. Mu says:

    Moreover, many hundreds of papers in the field of paleoclimate temperature reconstructions that cite Mann’s work are likewise tainted
    Scientific papers don't get tainted because some scientifically illiterate judge or jury didn't get it.

  32. Rachel says:

    @Decline to Disclose
    Are you implying that Steyn is being funded by the mining and automotive industry? Is his hawking of chotchkies to fund his pro se-ness simply a ruse?

  33. Furg says:

    This is terrible news

  34. ftzc says:

    Further to my earlier comment, today Steyn writes:

    "If, like Professor Rabett et al, you too are enjoying "Steyn's full-bore crazy act", why not consider supporting it via our soon-to-be-collectors'-items Steyn vs the Stick merchandise or our SteynOnline gift certificates? The full-frothing-loon act's harder to keep up than you might imagine."

    It's rhetoric vs. a battery of lawyers….

  35. Joe Sixpack says:

    If I am to understand the Popehat's thesis as "it depends on how you present your case as to the correctness of your position," then there is no Law in any real sense of the word.

    I think that is what Mr. Steyn is attempting to illustrate.

  36. Ken White says:

    If I am to understand the Popehat's thesis as "it depends on how you present your case as to the correctness of your position," then there is no Law in any real sense of the word.

    I think that is what Mr. Steyn is attempting to illustrate.

    A couple of points. First, certainly some legal positions are clearly "correct" one way or the other. Some, however, are arguable, based on interpretation of precedent and analysis of language. That's because we're not robots and life is complicated and law is imperfect. So it's more accurate to say "how you argue your case may determine whether a judge accepts the correctness of your interpretation of the law over the interpretation of your opponent."

    Second, it's banal to say that advocacy influences the listener. Listeners are human. Judges are human. Clear, direct, skillful, persuasive advocacy is more likely to persuade a listener than a rant. You may wish we live in a world in which judges are like Heinlein's Fair Witnesses, but we don't live in that world.

  37. Marconi Darwin says:

    Do not misconstrue this as bragging that I was particularly insightful or clever. I wasn't.

    Quit being so modest for one goddamn minute, Ken.

  38. GeoffreyK says:

    @Rachel

    As a 3rd party observer, it would seem to me that Decline to Disclose was only making that implication to the extent that you had made the same implication regarding Mann and the "climate change industry" in your previous post. I'm unclear on where Mann is getting his funding, but my bet is that Decline to Disclose has a similar level of knowledge on that topic as I do.

    As to whether it is a "ruse", as some here have suggested, perhaps the reason Steyn isn't carrying out a traditional, "competent" legal defense, is that he's waging a war on hearts and minds rather than one of the law. If that's true, whether he needs the money or not, "hawking tchotchkes" might just be considered shrewd strategy for raising visibility of his supporters and helping clue in other potential converts.

  39. babaganusz says:

    "You may wish we live in a world in which judges are like Heinlein's Fair Witnesses, but we don't live in that world."

    i'd buy the hell out of a Popehat tchotchke with that on it.

  40. Castaigne says:

    @PonyAdvocate:

    Mark Steyn is (ab)using the legal system in a way that could lead some to conclude he is a crank (if not worse), even without taking into account his AGW denialism

    He doesn't have his own entry at RationalWiki or the Encyclopedia of American Loons yet, so he's not officially a crank. I'm betting he makes that level at the end of all this, especially if he continues to engage in Beale-style pseudolaw.

    ===

    @Harry Johnston:

    personally, I think Steyn went beyond saying things people "may not agree with" and is well into the territory of "intentionally harassing an innocent victim".

    Steyn does have a bug up his ass about Mann, much like Cuccinelli did.

    ===

    @Excalibur:

    Mann has problems in Canada.

    Nope, that article turned out to be a lot of hyperbole. See here and here. Even Ball's own counsel verified the claims were way overstated.

  41. Matthew Cline says:

    @GeoffreyK:

    As to whether it is a "ruse", as some here have suggested, perhaps the reason Steyn isn't carrying out a traditional, "competent" legal defense, is that he's waging a war on hearts and minds rather than one of the law.

    If that's the case, to me it doesn't seem wise to include legal filings among the war's venues, since there's lots of other venues for waging such a war, while for this lawsuit there's only the one venue for making legal arguments (besides oral arguments). Unless Steyn has either decided that 1) he's going to lose the suit no matter what, or 2) that losing the lawsuit will help because it will make him a martyr. But if one of those is the case, and he is indeed using legal filings as a venue for a "war of hearts and minds", then he should go whole-hog in order to gain more publicity. Like demands that Mann be stripped of his citizenship, or be drawn and quartered.

  42. Xennady says:

    I think Ken is spot on to note that Mark Steyn the lawyer has a fool for a client, but I don't Mark Steyn the crusader for free speech cares.

    It's striking to me just how often I see the global warming- oops, climate change- crowd attempt to shut up people who don't agree with them.

    It happened in that last thread here, it happened on Reddit, it seems to happen everywhere.

    Compare and contrast with folks who want to engage in the evolution debate. I pay no special attention to either the climate change or evolution discussions, but I routinely see folks on the pro-evolution side writing books in favor of evolution, or willing to engage in debate.

    I've never seen an advocate for evolution attempt to shut down creationists, anywhere. I've never happened to see an advocate for climate change willing to debate a "denier," or having written a book making a case for global warming.

    I'm sure both have happened. But not having made any special effort to discover either it just seems significant to me that I haven't simply stumbled across them, as I do with various pro-evolution tracts.

    Instead, I routinely stumble across the climate change crowd working to win their argument by shutting up their opponents.

    That's failure, in my view. Worse, it reminds me of the "nuclear winter" scenario pushed during the cold war. I recall reading articles in Scientific American regaling me with the horrors of the nuclear winter, openly arguing that the United States should unilaterally disarm.

    When the cold war ended suddenly talk of nuclear winter suddenly ceased.

    Gosh. What a coincidence. So pardon me if I figure the whole "global warming" storybook is just another scam intended to generate political support for what would otherwise be utterly unpopular and unworkable goals for partisans of a particular ideology.

    Wait, they're still unworkable and unpopular- but the warmist crowd still yet manages to claim they're "science," despite getting caught lying over and over again.

    Getting back to Mark Steyn, I think he notices all this and has been reacting accordingly from a correct political perspective- but not a correct legal perspective, alas.

  43. Bill Kilgore says:

    – Are you trying to argue that the renewable energy sector has deeper pockets than mining industry? Or the automotive industry? –

    The mining and automotive industries can make enormous profits (well maybe not the automotive industry in this country) without the assistance of los Federales. Sure those industries will buy and sell politicians because those types are openly for sale so why shouldn't corporations make rational decisions, but they needn't do so in order to have a marketable product. One of the advantages of selling a useful product that is valuable to consumers- without government interference- is that you don't need government force to get people to buy it.

    Conversely- with most renewables- absent a healthy spread of gumint cheese to wash them down, most of that garbage would never get made, let alone sold.

    As someone who works in electrical generation and has had his customers purchase seven figures worth of solar cells that everyone knew would never be used simply to secure the tax breaks that came from that purchase, I appreciate the Feds (and the various states with one in particular) increasing the number of times I can play golf at Pebble Beach this year. However, if your belief is that the people who make those useless cells aren't lathering up your preferred politicians at all hours of the day and night to make sure they get to play golf with me, you are mistaken.

    Fore!

  44. Matthew Cline says:

    @Xennady:

    I think Ken is spot on to note that Mark Steyn the lawyer has a fool for a client, but I don't Mark Steyn the crusader for free speech cares.

    How is decreasing the likelihood of him winning the lawsuit going to help him with his crusade for free speech? Or are you saying that he's so hyper-focused on the free speech issue that it's causing him to make mistakes with regards to his legal filings?

  45. @Xennady: I rather suspect that global warming denialists are widely seen as malicious, whereas evolution denialists are widely seen as uneducated. It's hardly surprising that they're treated differently.

    That's unfortunate, if true, partly because it's leading folk like you to draw the wrong conclusions, but also because while there is clearly organized malicious global warming denialism, most of the people being "shut up" are just regurgitating the misinformation they've been fed.

    … of course, there's also the fact that global warming denialism does, at least potentially, present a existential threat to mankind; the potential harm caused by creationists, while significant, is hardly comparable.

  46. JeffM says:

    Mr Cline's point is exactly on. Losing the case will certainly not help advance free speech, nor will it help demonstrate that the theory of AGW is bad science (if it is).

    Mark Steyn may despise the American legal system; I do too. Yet he is embroiled in it, and he is depending on one of its purported principles, namely that a statement about a public figure is not defamatory if what was uttered is true or if what was uttered was reasonably believed to be true by the speaker when uttered. It's more than stupid to say that you'll play the game but only according to that part of the rules of which you happen to approve. Steyn could argue on moral grounds that the US rules of defamation are wrong, that "free speech" should permit what US law currently deems defamatory. I would disagree with that position, but I could respect it. He is, however, not doing that. He is arguing that he wants the benefits of US law (truth or reasonable belief in truth is a complete defense to defamation) without accepting the costs of that law. He is worse than a fool; he is a sniveling fool: the world does not work the way that he desires so put a penny in his poke.

  47. Rachel says:

    @Harry Johnston-
    The problem is not that "global warming denialists are widely seen as malicious." The problem is that there simply aren't global warming denialists. In fact, when I write "denialist" the red line comes up for spell checking. Denialist isn't even a word.

    The idea that people, let alone scientists, "deny" that the globe has warmed, is utterly absurd. As a previous use of "denier" was to describe people who denied the Holocaust, its current use should plainly demonstrate that this debate is not about science at all. It is all pure propaganda generated to further a political agenda.

    The reason "denier" and "denialist" is used in conjunction with global warming (so 90s) and now climate change, is to make skeptics appear to be completely and utterly foolish. They are made to appear no better, and as evil (or more) as the people who say the Holocaust never happened.

    In actuality, the skeptics agree the climate is changing. The skeptics agree the globe has warmed. Try to find a scientist or a well-known or published skeptic who says the globe has not warmed or the climate has not changed. Sure, they may say the climate has not changed in X years or over a specific period of time. But it is pure and absolute rubbish to suggest that skeptics deny that the climate has changed.

    This is what the Michael Mann's of the world don't want you to know.

    Because if you believe that the hundreds of skeptic scientists are as evil and stupid as people who would deny the obvious horrors of the Holocaust, then the propaganda political scientists can rest assured you will never consider skeptic research, that is if the skeptics are even able to get research funded.

    So no, global warming denialism does not present an existential threat to mankind. It can't. Global warming denialism doesn't exist.

    What does exist is a very successful campaign to limit the research, limit the voices, and limit the impact of scientists who are skeptical that climate change will be catastrophic, and skeptical about much the climate is changing due to anthropogenic forcing.

    The only existential threat present is to science itself.

  48. @Rachel:

    There are several counterexamples to your thesis linked from here and here.

    … also, I'm puzzled: if these so-called "skeptics" agree that the climate is changing, what is that you think the debate is about?

  49. Mark - Lord of the Albino Squirrels says:

    The problem is that there simply aren't global warming denialists.

    A denialist denialist!

  50. @Mark: if I say, "no she's not!" does that make me a denialist cubed?

  51. giovanni da procida says:

    You're very clever young man, but it's denialists all the way down!

  52. Mark - Lord of the Albino Squirrels says:

    @Harry

    Yes, but if you also don't believe in anything else, you could be called da nihilist denialist cubed.

    @giovanni

    Except for that turtle. Turtles accept that denialists exist. True fact.

  53. Rachel says:

    Look! It's a shiny toy that squeaks! Get it boys!

  54. HandOfGod137 says:

    I'm not certain a browser's spellchecking function should be used as the final arbiter of what is a word (q.v. "spellchecking"). The wiki definition seems about right:

    http://en.wikipedia.org/wiki/Denialism

    Getting away from the subject that got the last thread nuked, as a non-american non-lawyer, my naive impression of Steyn's actions is that he has effectively attempted to limit Mann's speech by maliciously labelling his work fraudulent. As a scientist's reputation can be destroyed by the suggestion of data manipulation, and even a cursory check shows Mann cannot be reasonably accused of this, doesn't he have a case to answer?

  55. vinteuil says:

    Socrates' defense of himself in the *Apology* was, legally, speaking, quite ill advised. Almost as if he wanted to lose. Almost as if he wanted to make a point about the utter corruption of the system that assailed him.

  56. Rachel says:

    @HandofGod,
    You wrote, "…even a cursory check shows Mann cannot be reasonably accused of this [data manipulation]".

    Hmmm. Perhaps you missed this – it is perhaps Mann's most famous manipulation, known widely as Hide the Decline: "Indeed, they did not simply “hide the decline”, their “hide the decline” was worse than we thought. Mann et al did not merely delete data after 1960, they deleted data from 1940 on, You can see the last point of the Briffa reconstruction (located at ~1940) peeking from behind the spaghetti in the graphic below:"

    You can read the rest for yourself and observe the reconstructions with your own eyeballs. http://climateaudit.org/2011/12/01/hide-the-decline-plus/

    I expect one aspect of Steyn's case will be using Hide the Decline to bolster his defense. Data manipulation, homogenization, etc. are normal parts of climate science. Data manipulation itself is not necessarily fraudulent.

  57. HandOfGod137 says:

    @Rachel

    You are misrepresenting what "hide the decline" actually means. It refers to tree-ring data, not any attempt to obfuscate results.

    https://www.skepticalscience.com/Mikes-Nature-trick-hide-the-decline.htm

    Which sorts of illustrates my point. You could have found that link yourself with minimal effort, as could presumably Steyn. And the sort of manipulation Steyn accuses Mann of is better described as "making stuff up", not the statistical techniques all science uses to capture the salient signal from a complex dataset.

  58. Daublin says:

    Rachel is correct as far as I can see. I see that her respondents–as she predicted–are coloring her as so misinformed that an actual rebuttal is not worthwhile.

    For what it's worth, Skeptical Science has been shown to post data that really has been made up. This is easily determined by a little bit of web searching. I think it's fair to say we should be skeptical of anything that is posted there without independent confirmation. Using SKS as evidence is about as compelling as using sbc.net.

  59. Rachel says:

    @HandofGod

    Mann literally truncated the tree ring data when it diverged from the temperature data set. The tree ring data declined when the data from thermometers did not decline. Rather than include the tree-ring data that showed a decline, he deleted it and replaced it, thus hiding the decline. The issue was not so much that the decline was hidden. The issue was that the tree ring data had diverged from observable temperatures which called in to question the validity and reliability of using dendrochronology to make temperature proxies.

    While I included this as an example to show that Mann has manipulated data, that is not the major point in this. The major point, as @Daublin noted, is that we should be skeptical of anything that is posted. Unfortunately for science, the climate team of Mann et. al with the supporting cast of the media and liberal politicians, have made it virtually impossible to have a reasoned debate as being a skeptic is equated with being a Holocaust denier. Instead of debate, we get shutuppery.

    And because shutuppery is the de facto method of debate for most climate scientists, we get Mann suing Steyn.

  60. Jon B says:

    First side calls the second 'deniers'.

    Second side calls the first 'fraudsters'.

    I say 'A plague on both your houses'.

  61. Levi says:

    Steyn would bear a heavy burden indeed to draw any likeness between his foolish, poorly assembled counterclaim and the honesty and eloquent wisdom of Socrates. Not to mention that Socrates egged on the court into a death penalty (rather than exile) and then submitted willingly in respect of the very rule of law that unjustly convicted him. There are no heroes here.

    On the other hand, I continue to be amused by the people who suggest that a flippant insult from a political commentator poses any threat to the reputation of a scientist that has anything like Mann's following. Can someone think of an example where political articles were taken as serious scientific critiques and damaged the reputation of the scientist(s) involved?

  62. Basil. Forthrightly says:

    Folks, the host of this forum has made it abundantly clear that this isn't the place to debate the scientific issues, or even who's lying about them. The last time a thread on the legal aspects of this case was opened a few warriors ignored repeated pleas to keep the discussion on topic and as a consequence comments were closed.

    As someone interested in the legal aspects, it would really make me happy if that didn't happen again.

    This isn't STFU, this is "if you're gonna continue this debate, do it in someone else's living room". Please.

    (And to be abundantly clear, I'm just another nobody here and don't claim special rights to direct the discussion.)

  63. c andrew says:

    Xennady wrote;

    That's failure, in my view. Worse, it reminds me of the "nuclear winter" scenario pushed during the cold war. I recall reading articles in Scientific American regaling me with the horrors of the nuclear winter, openly arguing that the United States should unilaterally disarm.

    Looks to me like a prescription to fix global warming is available and has been for decades – at least by the standards of those same partisan advocates. And it would probably be less destructive than gov't regulation toward that end. What say you that we nuke the polar ice caps and see which proposition wins; nuclear winter or AGW?

    We could set it ups as a contest and each side could submit their best models, then we could have a real world test. Or we could settle for the scientific equivalent of academics in a sports bar yelling, "Great Taste! Less Filling!

    ;-)

  64. PonyAdvocate says:

    @ Levi

    Can someone think of an example where political articles were taken as serious scientific critiques and damaged the reputation of the scientist(s) involved?

    It depends on who's perceiving the reputation. From what I can tell, few genuine scientists, if any, give credence to any accusations of dishonesty aimed at climate scientists who are warning us about global warming. But AGW-denying pundits give ammunition to policymakers (think Sen. James Inhofe (R-OK)) who, for whatever reason, do not want the problem of global warming addressed, and who are not in the least interested in "serious scientific critiques". These policymakers use the spurious controversies generated by commentators such as Mark Steyn to justify inaction.

    Possibly, Professor Mann's lawsuit has a secondary goal: if he wins, then the taint of falsehood on Mark Steyn's accusation of fraud could well contaminate AGW denialism itself. If this is the case (and I have no idea if it is), then Professor Mann is (far more subtly and effectively) doing something similar to what Mr. Steyn is doing: using a legal battle as a proxy for the underlying conflict about the science that AGW deniers have manufactured.

  65. DanD says:

    On the argument about "denialism", the problem is that most self identified skeptics argue with AGW oponents using the word "skeptic" as well. Skepticism means observing the evidence and making your own judgments based on that evidence, without allowing any particular worldview to influence that judgement. Most AGW opponents repeatedly ignore data in order to maintain their their world view, which is a bit of a problem from the skeptic side of the fence.

    You may say that I am wrong in that assertion, but I challenge you to read a handful of reliable, peer reviewed climate articles, and see which way the evidence points.

  66. Rachel says:

    This endeavor is absurd. When the only place from which one can debate is that any skepticism equals denialism, then there can be no debate.

    The debate is not about warming or climate change. Yes, the propagandists want you to believe that is what the debate is about.

    The debate is about a.) whether climate change is or will be catastrophic and b.) how much human influence affects the climate.

    That is the debate that skeptic scientists want to have. They can't have it because the political propagandists call them deniers and say the science is settled. And yes, there are plenty of peer-reviewed papers that explore the two dynamics I listed in the paragraph above.

    Since the science is settled, and to say otherwise makes one a malicious denier, this question should be answered very easily:

    What is the perfect temperature for the Earth?

  67. Levi says:

    @ PonyAdvocate

    I think when we are talking about advocacy towards policymakers, we have strayed towards opinion and protected political speech. Besides, I have a hard time seeing political commentary itself used as a justification for inaction here. It would be as though climate change policy was "justified" by the film An Inconvenient Truth, with no reference or regard to the material used to make the film. Climate change policy references the IPCC, a body of scientists considering scientific documents, not Al Gore. The supporters of "climate stagnation" policy have plenty of interests (generally economic) with which to justify inaction and do not require Steyn as a spark.

    As for the secondary goal, Ken alluded this in the prior post as lawfare. I think this is probably actually a primary goal and I would not compare it to what Steyn is doing. Consider the sequence:

    1) Steyn et al post insulting articles in political speech forums
    2) Mann sues these people to shut them up, basically with the premise that their political opinions are invalid and not to be allowed in the public forum
    3) Anti-SLAPP motion is filed, dismissed, and dismissed again on initial appeal
    4) Losing patience with the appeal process, Steyn files a poorly conceived countersuit. Steyn is not telling Mann to shut up (no doubt he would relish new scientific studies or public statements from Mann as fresh fodder for ridicule), but rather "get off my ass with your expensive, time-consuming lawsuit". Note that Steyn is on his own here as there is no similar countersuit from NRO and CEI.
    5) Mann files anti-SLAPP against the iffy counterclaim (which will only affect Steyn)

    Steyn's countersuit is a reaction to the lawsuit, while Mann's initial suit is designed to quell and discourage what I think most would agree is political rhetoric. Again:

    Michael Mann was the man behind the fraudulent climate-change 'hockey-stick' graph, the very ringmaster of the tree-ring circus.

    The so-called reputation damaging statement of fact is bracketed by alliteration and puns. I fail to see how Steyn has abused the legal system, which was already aimed against him in what he considers an aggressive and misguided fashion. That does not make the countersuit a good idea, of course.

  68. En Passant says:

    Rachel wrote Mar 20, 2014 @10:08 am:

    What is the perfect temperature for the Earth?

    I don't know. But at least one line of good science holds that sometime after about 10 to the 100th power years, the Earth will be the same temperature as everything else in the universe.

    This will be catastrophic, since life as we know it cannot exist under that condition.

    No means are presently known to avoid that condition. So, something must be done.

    Government confiscation of all wealth and income for the foreseeable future to fund research to avoid that end is something.

    Therefore it must be done.

    Professor Mann's vision for saving the Earth is myopic.

  69. mpaul says:

    Perhaps it will even produce a satisfactory result, eventually.

    Lets talk game theory. This is a case that the American Press can not allow Steyn to lose. It would destroy the free press. So the more Steyn plays bat sh*t crazy, the more worried the major press outlets and the defenders of the free press become. At some point (maybe at appeal), the American press will be forced to assist Steyn in a most aggressive way — including throwing their celebrity climate scientists and Noble Peace Prize winner Mann under the bus. Mann's reputation survives (in my opinion) only because the press protects him. The loss of support from the Press will also have the effect of driving a wedge between Mann and his big money funders (who rely on the good graces of the press). In Steyn's current strategy, the more he loses the more he wins.

    Also, no matter how reckless and bone-headed Steyn's behavior is, no matter how rude and offensive Steyn is to the court, ultimately this case is un-winnable by Mann. Steyn just needs to keep his costs low and stay in the game. Mann will ultimately fold.

  70. wolfefan says:

    Hello @Rachel @en passant @HandofGod137 @daublin @dand and anyone else not discussing the lawsuit itself or the legal aspects thereof –

    Please listen to Basil Forthrightly above. The last time your arguing about tangential issues shut the thread down prematurely, despite Rachel's (I think – sorry if I am wrong) scoffing about how Ken would never censor discussion on one of his threads. Ken and a couple others of us warned you, and you ignored us. Respectfuly, please don't screw it up again. Take that part of the discussion elsewhere. Thanks!

  71. @Rachel: I don't think the distinction you're drawing is relevant to this case. It's clear that Dr. Mann has indeed been successfully defamed; you're obviously convinced that his results are at a minimum deliberately misleading, as are several other posters. (I'm confident that the courts will find otherwise – *if* the question is legally relevant.)

    But, on the other hand, that happened long before Steyn wrote his article. So, how does that affect things? My understanding of libel law in general (rather than in the US) is that it is no defense to say that you were merely reporting what other people have told you – but I have the impression that US law is different in this regard.

    Mann, to the best of my understanding, only became a public figure as a result of being defamed – the "Climategate" mess – but again, that happened long before Steyn, and as far as I know Steyn was not involved. So, how does that affect things? Mann didn't choose to become a public figure, unlike, say, politicians or actors – but I'm guessing that this is irrelevant, though I don't know that it should be.

    Finishing with an undoubtedly stupid question: if Steyn is defending himself, what does he need funding for?

  72. @mpaul: "This is a case that the American Press can not allow Steyn to lose. It would destroy the free press."

    I'm doubtful of that. To the best of my understanding, most of the rest of the free world doesn't give free speech anywhere near the level of protection necessary for Steyn to win this case, and the press somehow manages to carry on. Of course, what matters is not my opinion or yours but that of the press itself …

  73. MJW says:

    Harry Johnston:

    Mann, to the best of my understanding, only became a public figure as a result of being defamed – the "Climategate" mess – but again, that happened long before Steyn, and as far as I know Steyn was not involved. So, how does that affect things?

    Climategate began in November 2009. In December 2004, Mann and eight other climate scientists started the RealClimate website to publicly comment on climate-change issues. In 2008, Mann's book "Dire Predictions: Understanding Global Warming" was published. Those are but two of many examples of how Mann made himself a limited-purpose public figure on the issue of climate change well before climategate.

  74. Rachel says:

    @Wolfefan- I was not responsible for getting the thread shut down. Go back and read it. I quit commenting before Mr. White even issued his first warning.

  75. Matthew Cline says:

    Some people have hypothesized that Steyn is trying to lose, either to make a point or to force third parties to come help him. So, how does one tell the difference between a pro se defendant who is trying to lose, versus a pro se defendant who is being stupid? In this case, is it that Steyn is smart? But being smart doesn't protect you from doing stupid things. Even being a genius doesn't protect you from doing stupid things.

  76. @Matthew: perhaps another possibility is that Steyn is trying to put the court in a position where it has to decide on the merit of his original accusations against Mann? He might think that he can persuade the court that his original commentary was factually correct? It would certainly be a big PR win for his side if he could pull it off.

  77. ftzc says:

    Matthew

    I like your comment. Put it this way, it could be smart in a broader sense to do the legally stupid thing.

    Harry Johnston's question is a good question. Steyn may be (technically) defending himself, but advised for free by a very good lawyer, who nevertheless employs junior people to the grunt paperwork. Those juniors' time may be getting funded. I seriously doubt Steyn on his own conceived of his countersuit obviously intended to stop Mann withdrawing his suit at the last minute before discovery/trial. Notice also how Steyn has become way more restrained in criticism of the judge/s.

  78. Nathan R says:

    While I think Ken's analysis of the legal wrangling is spot-on (and IAAL), I think he may be missing Steyn's larger strategy here, which has its own basic logic. It stems from the division of defendants. National Review et al. ARE taking the dry, safe, conventional legal route that Ken is advocating, and are presumably making all the legal arguments at the appellate court level (and the trial court, if they lose the appeal) that Steyn's lawyers would make if Steyn was behaving as a normal litigant. This is why Steyn cut loose NR's lawyers. The court is very unlikely to punish one responsible, respectful litigant (NR) just because another litigant (Steyn) is being disrespectful and rather frivolous. By firing NR's lawyers, going pro se (though also very likely being advised behind the scenes by a non-appearing attorney), and making a dramatic public break with NR's position, Steyn gets the best of both worlds. He can drum up as much publicity as he likes, or to put it more charitably, can do his best to sway public opinion with emotional and policy arguments about free speech and the broader system of justice at play. Meanwhile, if NR's legal arguments prevail (as I think they should), Steyn will effectively prevail as well; while if NR's legal arguments fail (which I think unlikely), Steyn would probably have lost anyway. The only real downside I see is that, prior to the "real" decision based on NR's stodgy lawyering being reached by the courts, Steyn may be forced to pay some of Mann's attorneys' legal fees for frivolous pleadings. But of course his legal fee funding campaign can help with that side of it as well. In the main, Steyn going off the reservation increases his upside (better publicity, fundraising, and impassioned free speech defense on policy grounds) without increasing his downside (since NR will do the mundane legal work). Seen in that light, it's a pretty sound strategy.

  79. Duracomm says:

    mpaul may have had a point when he said,

    Lets talk game theory. This is a case that the American Press can not allow Steyn to lose. It would destroy the free press.

    At some point (maybe at appeal), the American press will be forced to assist Steyn in a most aggressive way

    Strange bedfellows: Climate change deniers, newspapers partner in a FOIA fight

    Public information laws have forged an unlikely team in Penn State climate scientist Michael Mann’s quest to keep his emails private

    Organized by the Reporters Committee for Freedom of the Press, 17 news organizations, including National Public Radio, Dow Jones, and The Washington Post, submitted an amicus brief in November, supporting the group’s rights to Mann’s emails.

    By exempting Mann’s emails from public release, the group argues, the court is setting what journalists see as a dangerous precedent—making it much more difficult to gain access to public records.

  80. cpast says:

    What is the legal status of someone who's a public figure only because of defamatory info? Didn't something along these lines happen with the security guard in the Atlanta Olympics? If you never attempted to become a public figure, but the media puts your name all over the front page with false, defamatory facts, can you claim private figure protection?

    Also, on subtlety: The initial lawsuit is around as subtle an attempt to say "AGW doubting is bad" as the invasion of Crimea is a subtle way to say "don't try to drift away from Russia".

  81. Matthew Cline says:

    @mpaul:

    Lets talk game theory. This is a case that the American Press can not allow Steyn to lose. It would destroy the free press.

    How? If he loses before a jury trial, what the jury decides isn't going to set a precedent. What the judge does about what is or isn't allowed as evidence, following procedural rules, and such might set a precedent. So what among what the judge has done would destroy the press?

    At some point (maybe at appeal), the American press will be forced to assist Steyn in a most aggressive way — including throwing their celebrity climate scientists and Noble Peace Prize winner Mann under the bus.

    Helping him in an appeal would only consist of providing him with a defense team and/or filing amicus briefs. Unless you're implying that appellate judges base their decisions on what the press says.

    ————————————————————————–

    @Harry Johnston:

    perhaps another possibility is that Steyn is trying to put the court in a position where it has to decide on the merit of his original accusations against Mann?

    IANAL, but from my understanding of things, to get that all Steyn would have to do would be to make a sworn statement to the court along the lines of "I wasn't being figurative or using hyperbole when I accused Mann of fraud".

    ————————————————————————–

    @ftzc:

    Steyn may be (technically) defending himself, but advised for free by a very good lawyer, who nevertheless employs junior people to the grunt paperwork. Those juniors' time may be getting funded. I seriously doubt Steyn on his own conceived of his countersuit obviously intended to stop Mann withdrawing his suit at the last minute before discovery/trial.

    If he has a lawyer willing to work on his case for free, why in the world would he pretend to be pro se, rather than having that lawyer be his pro bono counselor?

  82. wolfefan says:

    Hi @Rachel –

    I agree that you stopped commenting before the first formal warning, and I stand corrected and apologize. I think telling people to behave counts as a warning as well, although of course you may not believe that applied to you as much as to others. IMO you did, however, contribute to the thread being shut down by making numerous comments that were not about the topic of the thread. You were by no means as objectionable or as rude as PT or many others, however. Your comment about how ridiculous (or lovely, just lovely) the idea was that Ken would ever censor comments was ill-informed. No disrespect or offense meant – just my two cents, and almost certainly worth less.

  83. Rachel says:

    @Harry Johnston –
    You wrote, "It's clear that Dr. Mann has indeed been successfully defamed; you're obviously convinced that his results are at a minimum deliberately misleading…"

    Mr. Johnston, even with all the lawyers here, you are the first to say that Mann has been successfully defamed. And you are not a lawyer. Secondly, I've not stated that his results are deliberately misleading. I said that he manipulated data, and said that such things are common in climate science.

    First of all, Mann is without a doubt a public figure, and was years before this suit. This suit features speech that was about a public interest, an interest that is so profound as to be described as catastrophic, should it be ignored.

    IMO, New York Times v. Sullivan is directly applicable here. "The Court pointed to "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." The Court acknowledged that in public discussions — especially about public figures like politicians — mistakes can be made. If those mistakes are "honestly made," the Court said, they should be protected from defamation actions. The court made a rule that public officials could sue for statements made about their public conduct only if the statements were made with 'actual malice.'"

    And Steyn is exercising this right to debate a public issue of profound national importance with a public figure.

    The question then is, assuming Mann's Hockey Stick is not fraudulent, was Steyn's mistake "honestly made?" Did Steyn have access to the truth and simply not care what the truth was? Was he reckless? Did he bother to check before publishing?

    IMO, this is what the case should hinge upon, and this is why I believe Steyn has a stronger case than Mann.

    Since Mann is not a climate scientist, then how can he act with actual malice when speaking about a complex graph created with multiple proxies, homogenization of data, and principal component analysis? It is not like a colleague of Mann made this assertion. Steyn is a writer, a satirist, a journalist. He know more understands how the Hockey Stick graph was created than Mann knows how to write using the Queen's English.

    However, if Steyn was to actually research whether or not the Hockey Stick Graph is fraudulent, if he had doubts before he published, he would find many lay person explanations of both its flaws and features. It is very easy for Steyn to note all of the back and forth that has taken place, often in blogs and newspapers, devoid of the technical complexities of peer-reviewed papers, and use those as the basis for his opinion. He is, after all, not a climate scientist.

    For this to work, Steyn would have to admit he made a mistake. It doesn't look as if that is going to happen. Still, even if he tries to argue that the Hockey Stick is fraudulent, even if he brings expert witnesses to try and prove he is right, it will matter little if he is wrong because he was expressing what he honestly believed to be true.

  84. Rachel says:

    @Wolfefan- Thanks. I try to remain cordial. As for my comment "lovely, just lovely," that comment was made to a poster who suggested to Mr. White that he should have a policy of outright banning anyone who was a "climate denier." I do not have a problem with Mr. White shutting down comments, banning people for bad behavior or for just being annoying, but it did strike me as profoundly anti-free speech to ban a person before they ever get to speak, simply for the ideas they would be suspected to possess.

  85. PonyAdvocate says:

    @ Levi

    I think when we are talking about advocacy towards policymakers, we have strayed towards opinion and protected political speech.

    Policy advocacy can still contain factual claims that are testable as to whether they are true, and if they are not, whether they are defamatory (or otherwise actionable).

    …I have a hard time seeing political commentary itself used as a justification for inaction here. It would be as though climate change policy was "justified" by the film An Inconvenient Truth, with no reference or regard to the material used to make the film. Climate change policy references the IPCC, a body of scientists considering scientific documents, not Al Gore. The supporters of "climate stagnation" policy have plenty of interests (generally economic) with which to justify inaction and do not require Steyn as a spark.

    I wish, sir, that you were correct, and that fact and logic would govern policymaking in this area, and in all others. Unfortunately, I think your view is mistaken, and that you underestimate how deeply AGW denialist propaganda has infused civic discourse, and how susceptible to it many policymakers and the electorate at large are. You are certainly right, however, that AGW denialism is motivated mostly by the economic interests of those who finance and practice it. But Mark Steyn is not a "spark": he is an instantiation, and many policymakers use what he and others like him exposit as a justification, in defiance of fact and logic, for inaction on AGW.

    The so-called reputation damaging statement of fact is bracketed by alliteration and puns.

    You (and Mark Steyn, and those who defend Mark Steyn's "First Amendment right" to defame) may not understand how serious an accusation of scientific "fraud" is among scientists. If you were a criminal defense lawyer, you would take a very dim view, more so than the average citizen in the street, of an untrue accusation that you had ratted out a client to the DA. If you were a newspaper editor, you would take very seriously, more so than the public at large, accusations against your newspaper of fabrication or plagiarism. Lay folk might consider it mere hyperbole, but among scientists, scientific fraud is a most serious charge. In any event, Professor Mann seems to have found himself counsel and a forum that do not reject out of hand his claim of libel, so it's now up to the judicial system to decide.

  86. TMLutas says:

    The legal quest to get to discovery cannot be entirely divorced from the scientific battle of catastrophic anthropogenic global warming. There's quite a bit of history here dating back at least to the 1990s. In several cases, data that was not shared and stubbornly kept away from skeptics was, when finally disgorged, key to discrediting certain scientific assertions that the alarmists had made. It's something of a repeated pattern.

    Steyn the crusader is hoping that discovery will disgorge more data and the skeptic analysts will deliver the goods, discrediting Mann and accomplishing Steyn's objectives. This is not really a legal goal and I suspect sets every lawyers' teeth on edge upon reading it but the skeptics are pretty open about the strategy and have been for years.

    If I am correct, I suspect that once the data is out, Steyn will switch gears and go get legal representation to do the rest of the trial because the rest of the trial can be pursued conventionally by counsel and accomplish Steyn's goals.

  87. Rachel says:

    This just in – more filings in the Mann v. Steyn http://www.steynonline.com/documents/6183.pdf

    It seems that Mann is not so keen on allowing discovery to proceed with Steyn until there is a ruling on the NR appeal. And our esteemed host is quoted by Steyn: http://www.steynonline.com/6184/oh-wont-you-stay-ay-ay-just-a-little-bit-longer

  88. Matthew Cline says:

    @TMLutas:

    Steyn the crusader is hoping that discovery will disgorge more data and the skeptic analysts will deliver the goods, discrediting Mann and accomplishing Steyn's objectives. This is not really a legal goal and I suspect sets every lawyers' teeth on edge upon reading it but the skeptics are pretty open about the strategy and have been for years.

    What about Steyn's pro se behaviour will help him gain discovery against Mann?

  89. @Rachel: forgive me, but if you did not mean to imply that Mann's "data manipulation" was deceptive, how could it possibly have been relevant to HandOfGod137's comments?

    Certainly one can choose to define "data manipulation" in such a way that it covers all of science, but that is hardly the normal usage, and is certainly not the way HandOfGod137 was using it.

    I use the phrase "successfully defamed" as a layman, so there may well be subtleties that I'm missing. Nonetheless, it seems obvious that many people still believe that his work was and is deceptive, and that this is the direct result of propaganda put out by various groups and individuals commonly referred to in the collective as "climate change denialists" (whatever the merits or otherwise of that designation may be; you can substitute "ongoing anthropogenic climate change denialists" if you prefer). If that's not a successful defamation, what is? [Serious question.]

    Most of the rest of your comments can, I think, be summed up by my original observation: "the US interpretation of free speech actually *allows* you to defame a public figure so long as they can't prove that you knew you were lying". I may question whether this precedent is sensible, but I'm not disputing its existence.

  90. Castaigne says:

    @Rachel:

    The question then is, assuming Mann's Hockey Stick is not fraudulent, was Steyn's mistake "honestly made?" Did Steyn have access to the truth and simply not care what the truth was? Was he reckless? Did he bother to check before publishing?

    According to all information available so far, it appears that Steyn did not "honestly make" a mistake. See here. Steyn believes that Mann is the head of a massive global warming conspiracy, although he (along with other holders of the conspiracy theory) is vague on the conspiracy's goals. Steyn does have access to the facts (not truth – facts) and disregards any that do not fit his belief in the conspiracy as a result of confirmation bias.

    Since Mann is not a climate scientist

    Correction: Michael Mann IS a climatologist. Specifically, he is a paleoclimatologist; his degree in that work was obtained from the Yale Department of Geology and Geophysics as the specialty focus of his MPhil in geology and geophysics. If you wish to become a paleoclimatologist, that is what you are required to have.

    However, if Steyn was to actually research whether or not the Hockey Stick Graph is fraudulent, if he had doubts before he published, he would find many lay person explanations of both its flaws and features. It is very easy for Steyn to note all of the back and forth that has taken place, often in blogs and newspapers, devoid of the technical complexities of peer-reviewed papers, and use those as the basis for his opinion. He is, after all, not a climate scientist.

    Then he is indeed a fool, because a good journalist verifies their writing about various topics with experts in those topics before publishing.

  91. Wick Deer says:

    @TMLutas. If Steyn's goal is to get discovery, then he is even more a damn fool for going pro se. Maximizing your return on your discovery is a legal skill that needs an experienced attorney. The number of ways a pro se can screw up discovery is about the same number as the total possible moves in a chess game.

  92. Question: does Steyn need to concede that the statements in question were not factually correct in order to gain protection under NYT vs Sullivan?

  93. Peter the Lawyer from Oz says:

    The US system sounds absolutely awful.

    here in Australia we would have had the trial a few months after the alleged defamation and Mann would have been bested and licking his wounds as he tried to pay back the defendants' costs. And we only have the general common law protection of free speech!

    I've run complex tax cases that have been shorter than the Steyn case. It is no wonder Mark is getting frustrated.

  94. Rachel says:

    @Castaigne nothing in the global warming conspiracy link has one iota to do with Steyn. In fact he is not even mentioned on the page. Perhaps Steyn has published it somewhere and I've missed it, but I've never read where he has stated that Mann is the "head of a massive global warming conspiracy."

    I meant to write that Steyn is not a climate a scientist. Hopefully that was an obvious mistake from the context of what followed, but just in case it was not clear, now it should be.

    I suspect that Steyn will have experts that will go on record stating that Mann has manipulated data and has been deceptive. If so, it will not be a stretch for Steyn to defend what he wrote as factual.

  95. Devil's Advocate says:

    @Peter the Lawyer from Oz

    The big reason for the delay is that our politicians have decided that not appointing enough judges is a good idea. Originally this was because it saves money, which always looks good to voters, but now one of the parties has taken it up as a political strategy as well.

    The result is that anything that involves a judge's signature involves a lot of delay and probably less attention from the judge than it deserves. But hey, low taxes! We run our infrastructure on the same great system.

  96. HandOfGod137 says:

    @Peter the Lawyer from Oz

    It would certainly have been wonderfully ironic if the trial had been held in Australia.

    http://www.abc.net.au/news/2014-01-03/2013-was-the-hottest-year-on-record-for-australia/5183040

  97. MJW says:

    Harry Johnston • Mar 20, 2014 @9:58 pm

    Question: does Steyn need to concede that the statements in question were not factually correct in order to gain protection under NYT vs Sullivan?

    No, nothing of the sort. NYT v. Sullivan protects Steyn unless Mann can prove by clear and convincing evidence that Steyn had serious doubts about the truthfulness of his statements at the time he made them. There's no requirement that Steyn now say they were false, and there are plenty of defamation cases where the defendant claimed both that the statements were true, and that there was no evidence of actual malice.

    Perhaps you are confused by the defense that the statements were opinions, not assertions of objectively verifiable facts.

  98. Castaigne says:

    @Rachel:

    nothing in the global warming conspiracy link has one iota to do with Steyn. In fact he is not even mentioned on the page.

    I didn't say he was. I said that is what he believes. Specifically, he believes it's part of a UN plot to impose the New World Order on the USA.

    Perhaps Steyn has published it somewhere and I've missed it, but I've never read where he has stated that Mann is the "head of a massive global warming conspiracy."

    Go back to his writings in 2004. Have a field day.
    His discussions on the subject with Rush Limbaugh were particularly entertaining.

    I suspect that Steyn will have experts that will go on record stating that Mann has manipulated data and has been deceptive. If so, it will not be a stretch for Steyn to defend what he wrote as factual.

    That would really depend on which experts he puts on the stand and if he can find an actual climatologist or paleoclimatologist that will say that. If he resorts to the like of Ball, Monckton, or McIntyre, he'll have his ass handed to him on a platter. It will be Kitzmiller vs. Dover all over again.

    In fact, I feel confident of making a prediction: Steyn will not put experts on the stand. And if he does, his experts will fail to convince, being countered by the experts Mann puts up.

  99. wolfefan says:

    @Rachel – You're most welcome. I have noticed and appreciate the tone that you bring to the argument. There are many with whom I agree but still find myself wincing as I read.

  100. @MJW: so if you're a public figure (a low bar, apparently) the US legal system provides absolutely no legal avenue to prevent someone from repeatedly lying about you?

    Why, then, bother having defamation law at all? I mean, if it's impossible to win such a suit even in the most blatant of cases, what's the point of the courts even listening?

  101. Piper says:

    More adventures in defamation law vs the scientific method: http://arstechnica.com/science/2014/03/journal-pulls-paper-due-to-legal-context-created-by-climate-contrarians/

    Today, Frontiers has confirmed that the paper will be pulled permanently—not due to any flaws in it or misconduct by its authors, but because its "legal context is unclear." All indications are that lack of clarity involves some of its subjects threatening defamation suits….

    …The initial paper produced results that weren't entirely surprising. By surveying visitors to climate blogs, its authors found that free-market fans tended to reject scientific findings that had potential regulatory implications, something that's been found by a variety of other researchers. But it also found that there is a population of people who doubt scientific findings simply because they tended to doubt nearly everything, ascribing a variety of things—the Moon landings, the World Trade Center attacks, etc.—to conspiracies. This might seem surprising, but the results held up when the same authors extended the study to the US population in general.

  102. Rachel says:

    @Piper

    It is my understanding that this paper was retracted because the authors failed to obtain informed consent from the research subjects. If so, the statement about no misconduct by the authors seems a bit odd.

    There is discussion of this over on Clark's post "Chilling Effect, Next Steps, Final Steps, Hope" where some are asserting that neglecting to obtain informed consent or beginning the research without checking with the institutional review board may actually be illegal. You might want to join the conversation over there.

  103. Trent says:

    The big reason for the delay is that our politicians have decided that not appointing enough judges is a good idea. Originally this was because it saves money, which always looks good to voters, but now one of the parties has taken it up as a political strategy as well.

    No. No. No. Congress stopped approving judicial nominations as a political strategy. It started with a campaign by the religious right to make sure all federal judges want to overturn Roe Vs. Wade. It was successfully used first during the Regan administration to try to prevent any Judges that didn't toe the line on repealing RoeVWade to not make it through the appointment stage.

    It continued in this state until the Clinton Admin in 1992 when Gingrich and his cronies tried to use it as a political weapon against Clinton (while continuing on the RvW path was less important) as a form of retaliation and punishment. When Bush was elected the democrats elected to do the same (filibustering almost every Bush Judicial nomination) as payback for Gingrich. Since then it's continued under the current administration but much of the RvW focus has been lost though it comes to the surface every now and then.

    So no, it's not one party, it's both. And while this BS has been going on over the last 21+ years there are now more than 80 vacant seats. Many haven't had a Judge in the job for more than a decade. And some of the circuits have so many vacant seats trial times for incredibly simple cases are exceeding 5+ years. It's atrocious, but now that congress finally removed the filibuster on this, it won't matter who controls what branch of government and the political retaliation motive can stop and we'll finally start to undo the backlog.

    By all appearances that's exactly what's happened, Senators can still black card a nomination (called blue carding IIRC) in their district and not a single nomination brought to vote has seen any opposition. Now that it's no longer possible for an asshat senator from some BFE district to filibuster nominations across the country because his panties are in a wad about something else and he's using it as political payback I reckon things might return to sanity in the federal circuits.

  104. Matthew Cline says:

    @Castaigne:

    Go back to his writings in 2004. Have a field day.
    His discussions on the subject with Rush Limbaugh were particularly entertaining.

    Maybe my Google-fu is weak, but I can't find anything. Could you provide something that would narrow it down more than just "writings in 2004" or "discussions with Rush Limbaugh"?

  105. Rachel says:

    @Castaigne

    You wrote: "Specifically, he [Steyn] believes it's part of a UN plot to impose the New World Order on the USA."

    Do you have a link for this? A quick google search didn't yield any results that match what you have specified Steyn to believe.

  106. MJW says:

    Harry Johnston • Mar 21, 2014 @5:19 pm
    @MJW: so if you're a public figure (a low bar, apparently) the US legal

    system provides absolutely no legal avenue to prevent someone from repeatedly lying about you?

    Why, then, bother having defamation law at all? I mean, if it's impossible to win such a suit even in the most blatant of cases, what's the point of the courts even listening?

    Who said a person is allowed to repeatedly lie about someone? I didn't. To lie is to say something despite knowing it's false, which is actual malice. Actual malice is difficult to prove, but there are quite a number cases, including some reviewed by the Supreme Court, where defamation was found by the trial court and upheld on appeal.

    I don't know the basis for your conclusion that being a public figure is a low bar. It shouldn't be based on Mann. Mann is a lead author of an IPCC report, an active blogger on climate-change whose website was plugged by the journals Science and Nature, and the author of books on climate change that disparage his critics. He's been interviewed many times by wide-circulation magazines, and has recently written editorials for the New York Times advocating on climate-change policy. His claim that he's only a "reluctant public figure" is laughable.

  107. Alton says:

    @ Devil's Advocate and @ Trent:

    It is a testament to how far we’ve gone astray when discussing the slow pace of justice in this country in which an estimated 1 in 300 are lawyers, that blame is placed on lawyer legislators for failing to appoint more judges to properly referee all the lawyers.

  108. HandOfGod137 says:

    @Rachel

    If Casteigne doesn't get chance to respond, you can get a glimpse at Steyn's thoughts on the UN/AGW/New World Order thing at:

  109. Matthew Cline says:

    Well, he certainly has a good voice for doing voiceovers.

  110. HandOfGod137 says:

    Indeed. It would be nice if he also had some basic scientific literacy to add to his vocal qualities, but one can't have everything.

    Went to the same school as my dad. Interestingly, my dad has a Birmingham accent, but does understand science. Maybe it's a boolean thing.

  111. @MJW: "To lie is to say something despite knowing it's false,"

    Hmmm. If the statements are false, I don't see that it matters much to the victim whether the speaker believes them or not. However, I can see that this means that a very few rare cases might succeed, so it isn't blatantly silly for the courts to accept cases.

    Lots of people publish books, and practically everyone has a web site, so if those are relevant factors it seems a low bar to me. Being interviewed isn't all that big a deal for a scientist either. YMMV. Perhaps I'm biased by the fact that I'd never heard of Mann before Climategate.

  112. MJW says:

    Harry Johnston • Mar 23, 2014 @12:49 pm

    Lots of people publish books, and practically everyone has a web site, so if those are relevant factors it seems a low bar to me. Being interviewed isn't all that big a deal for a scientist either. YMMV. Perhaps I'm biased by the fact that I'd never heard of Mann before Climategate.

    You many not have heard of Mann prior to Climategate, but almost everyone who followed the climate-change debate had. That's what matters. Mann isn't a general-purpose public figure; he's a limited-purpose public figure on the climate-change issue.

    I really have no idea what level of involvement in an issue you'd require to become a limited-purpose public figure. If being a an IPCC report lead author, founding and blogging on one of the highest profile climate-change websites, writing books about climate change, being interviewed by major magazines about climate change, and writing NYT editorial columns on climate change isn't enough, what is?

  113. Piper says:

    @ Rachel – that makes sense, but… linky?

    Thanks!

  114. @MJW: I expect you're right. I just have trouble with the concept that being successful in your job means being obliged to put up with vicious personal attacks.

  115. MJW says:

    Harry Johnston • Mar 23, 2014 @12:49 pm

    Hmmm. If the statements are false, I don't see that it matters much to the victim whether the speaker believes them or not.

    If someone runs over a pedestrian, it doesn't matter much to the victim whether it was done on purpose or because the car's brakes failed. Intent matters. There's more to the law than just how something affects the victim.

  116. Rachel says:

    @HandofGod

    Thanks, I'll give it a watch.

    @Piper

    Check out the comments beneath Frontiers official retraction statement: http://journal.frontiersin.org/Journal/10.3389/fpsyg.2014.00293/full

  117. @MJW: "If someone runs over a pedestrian, it doesn't matter much to the victim whether it was done on purpose or because the car's brakes failed."

    They're both crimes, though, if the brakes failed as the result of the driver's negligence in failing to maintain them properly. At a minimum the driver is legally obliged to have the brakes repaired before driving the vehicle again, yes? I'd say that's analogous to being obliged to acknowledge that you were mistaken – and then if the driver runs over the victim a second time, we'll know it was on purpose. :-)

  118. Allen says:

    It would seem both Mann and Steyn are fighting for the role of Pyrrhus in this play. I suspect Steyn will eventually prevail on opinion as protected speech, but to my mind he's wandering into vexatious litigant territory.

    As for Mann. I do understand his frustration, but in the balance I think filing a defamation suit was misguided. It might have caused him more harm then Steyn's statements.

    "The work speaks for itself."

  119. MJW says:

    Harry Johnston, if my comments led you to believe I was conceding that the criticisms of Mann were false, that was not my intention. I was only pointing out that even if, hypothetically, they were false, Mann would still have to prove they were made with actual malice to win his defamation suit.

  120. HandOfGod137 says:

    This whole "malice" thing is the part that confuses me. For someone with a scientific perspective, there is so much evidence, it is so widely available and the underlying principles are so well understood that it seems ridiculous to suggest that Steyn was motivated by anything less when he launched his attack on Mann. However, this is clearly not such a self-evident fact in the legal context, so how does one prove malicious intent?

    There seems to the non-legal eye to be something fundamentally asymmetric about this whole thing: Steyn can get Mann to shut up (or at least attempt it) by suggesting he is a fraud (and possibly a child molester), whereas Mann's attempts to get Steyn to stop are an assault on your principles of free speech. I can understand the risk that entails, but my sympathies are entirely with Mann.

    So, legal chaps, is there some critical mass of supporting evidence the presentation of which will force the court to say "yes, only an idiot could fail to see this is well understood and not contentious in the scientific community, so Steyn was clearly talking out of his arse", or is Mann doomed to put up with his accusations (along with assorted death threats, malicious FOI requests etc etc) forever?

  121. Dictatortot says:

    There seems to the non-legal eye to be something fundamentally asymmetric about this whole thing: Steyn can get Mann to shut up (or at least attempt it) by suggesting he is a fraud (and possibly a child molester), whereas Mann's attempts to get Steyn to stop are an assault on your principles of free speech.

    What seems asymmetric to my non-legal eye is that whatever Steyn's motives, he's not suborning the government to proscribe Mann's research or speech. Mann is unquestionably, though, trying to get the government to proscribe Steyn.

    If in a debate, you make my arguments look foolish enough that I'm obliged to retreat in embarrassment and lick my rhetorical wounds somewhere, I suppose you've shut me up, in a sense. If I get a court to fine, imprison, muzzle, or otherwise sanction you for making your arguments in a debate, I suppose I've shut you up. But do you imagine that there's any meaningful parallel between the two? That the latter is as valid as the former, or the former as invalid as the latter? Do tell.

  122. @MJW: no, you've kept your non-legal opinions pretty well hidden up until this point, there was nothing to suggest you were "conceding" anything. Still, Mann's work has been independently verified (and more than once) and he's been quite thoroughly cleared of the accusations of wrong-doing, so if it becomes relevant to the case it seems unlikely that the court will side with Steyn's opinions.

    Which leads to my next question: if it does become relevant, what standard of proof is applicable? If Mann has to prove his innocence beyond reasonable doubt, that could be a problem for him – at least if a jury is involved. If it's a balance of probabilities, he's much more likely to be successful.

  123. TMLutas says:

    "This whole "malice" thing is the part that confuses me. For someone with a scientific perspective, there is so much evidence, it is so widely available and the underlying principles are so well understood that it seems ridiculous to suggest that Steyn was motivated by anything less when he launched his attack on Mann."

    Were the scientific part truly so well established we would

    1. Probably not have 95% of the GCMs running significantly warm compared to measured temperatures.
    2. It would not be pulling teeth to get warmists to come up with reasonable invalidation criteria
    3. of the few public criteria available (NOAA, Sander) we wouldn't arguably be fulfilling the invalidation criteria today.

    Before you get to malice, you have to prove that Steyn knew what he was saying was false, before you get to that, you've got to prove that what Steyn said was false. Mann's biggest problem isn't the third hurdle. It's the first.

  124. Piper says:

    @Piper

    Check out the comments beneath Frontiers official retraction statement: http://journal.frontiersin.org/Journal/10.3389/fpsyg.2014.00293/full

    It looks like that may have been a problem, but the libel suit threats there seem just as real. It's a bit difficult to tell… I suspect there are a variety of factors here, not the least of which being the use of real internet handles which may have been real names.

  125. Devil's Advocate says:

    I'm surprised that no one has mentioned the ruling in Curtis vs. Butts that it's sufficient to show "highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers." That seems like it would be fairly easy to show, maybe by comparing what the defendants said to how the vast majority of publications handled the same allegations, and/or by having a few "responsible publishers" people testify how they would handle it.

  126. HandOfGod137 says:

    @TMLutas

    By "invalidation criteria" do you mean falsifiability? Because there are any number of ways to do it:

    Show that the CO2 content of the atmosphere is not increasing due to human activity.
    Show that CO2 does not act as a greenhouse gas in the atmosphere.
    Show that increasing energy influx relative to energy efflux does not cause a net accumulation of energy.

    "Settled science" is a horrible (and misleading) phrase, but when all available data, all the theoretical work and the vast majority of the experts in the subject agree that something bad is happening, surely a reporter should do a little fact-checking before accusing people of fraud? Even "in my opinion I think they're mistaken" would be fair comment, but accusing someone of making up data because you disagree on ideological grounds is really not cricket.

  127. MJW says:

    HandOfGod137 • Mar 24, 2014 @1:38 am

    This whole "malice" thing is the part that confuses me. For someone with a scientific perspective, there is so much evidence, it is so widely available and the underlying principles are so well understood that it seems ridiculous to suggest that Steyn was motivated by anything less when he launched his attack on Mann. However, this is clearly not such a self-evident fact in the legal context, so how does one prove malicious intent?

    Wow, another "The debate is over!" argument through bluster.

    Though I reject your premise, I'll offer my opinion. Mann makes more or less the same argument, equating "ignoring the obvious truth" with "purposeful avoidance of the truth." I don't think that's correct. The Supreme Court used the phrase "purposeful avoidance of the truth" in Harte-Hanks Communications, Inc. v. Connaughton to mean a deliberate decision to not look at evidence, knowing it might contradict what the speaker wishes to claim. It's contrasted to a failure to adequately investigate, which even if it reaches the level of negligence, doesn't establish actual malice. The Supreme Court has repeatedly said that actual malice is a subjective standard. It depends on what the speakers believe, not what you or a judge think they ought to believe.

    Since I don't accept your premise, I'll make an analogy to something we likely agree on. I completely accept evolution, and think creationism is nonscientific. Nevertheless, I wouldn't assume a creationist who criticized "Dr. Niwrad's fraudulent DNA-based cladograms" was speaking with actual malice. I doubt many people would

    The Supreme Court, in United States v. Alvarez, warned against the government establishing a Ministry of Truth. Millions of people don't believe in evolution, and millions believe the threat of climate-change is overstated. Though I disagree with one group, and am sympathetic to the other, I don't see how anything but a Ministry of Truth could establish that holding either of those beliefs evidences actual malice in a defamation case.

    Furthermore, the phrasing of your comment — "there is so much evidence, it is so widely available and the underlying principles are so well understood" — shows that you're speaking of conclusions drawn from the principles and underlying principles, which are inherently matters of opinion about what the evidence and principles show. Whether those opinions are right or wrong, wise or foolish, they're protected expression under the Constitution.

    Finally, if the defendants' criticisms of Mann are so clearly wrong that no reasonable person could believe them, are they actually defamatory? How can an obviously ridiculous accusation cause harm? If I say Mann is a time-traveling lizard from Neptune out to destroy Earth, does that tarnish his reputation?

  128. MJW says:

    Devil's Advocate • Mar 24, 2014 @1:45 pm

    I'm surprised that no one has mentioned the ruling in Curtis vs. Butts that it's sufficient to show "highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers."

    Perhaps they were aware that that standard was explicitly disavowed in the later case, Harte-Hanks Communications, Inc. v. Connaughton:

    In place of the actual malice standard, Justice Harlan suggested that a public figure need only make "a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers." This proposed standard, however, was emphatically rejected by a majority of the Court in favor of the stricter New York Times actual malice rule. Moreover, just four years later, Justice Harlan acquiesced in application of the actual malice standard in public figure cases, and by the time of the Court's decision in Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), the Court was apparently unanimously of this view. Today, there is no question that public figure libel cases are controlled by the New York Times standard and not by the professional standards rule, which never commanded a majority of this Court.

    (Citations omitted).

  129. MJW says:

    Harry Johnston • Mar 24, 2014 @12:28 pm

    Which leads to my next question: if it does become relevant, what standard of proof is applicable? If Mann has to prove his innocence beyond reasonable doubt, that could be a problem for him – at least if a jury is involved. If it's a balance of probabilities, he's much more likely to be successful.

    Though the the Supreme Court has mentioned the question of whether a public-figure plaintiff is required to prove falsity by a preponderance of the evidence, or by clear and convincing evidence, I'm pretty sure they never answered it. Therefore it's left up to the legislatures and lower courts to decide what standard applies. As far as I can determine, Washington D.C. requires only a preponderance of the evidence; that is, more likely than not.

  130. @MJW: scientifically (that is, within the relevant scientific community) the debate is over, to all effects and purposes. You are not obliged to accept their conclusions, but for those of us who do, I don't see any point in pretending to think that the "denialist" claims are scientifically credible. Nor do I see any value in your referring to what is (to us) a simple statement of the status quo as "bluster". (I mean, what do you expect, a thesis?)

  131. Matthew Cline says:

    @MJW:

    If I say Mann is a time-traveling lizard from Neptune out to destroy Earth, does that tarnish his reputation?

    *gasp!* Our plot has been revealed! Retreat, fellow reptiles, retreat!!

  132. Matthew Cline says:

    Regarding the question of "has Mann's reputation actually been damaged", he doesn't need to prove damages if it's a case of defamation per se. According to Wikipedia:

    The four (4) categories of slander that are actionable per se are (i) accusing someone of a crime; (ii) alleging that someone has a foul or loathsome disease; (iii) adversely reflecting on a person's fitness to conduct their business or trade; and (iv) imputing serious sexual misconduct. Here again, the plaintiff need only prove that someone had published the statement to any third party. No proof of special damages is required.

    So, for the sake of the argument, lets say that Mann has committed scientific fraud in AGW research.

    1) Would doing so have been a violation of any criminal laws?

    2) Would that "adversely reflect on a person's fitness to conduct their business or trade"? What I mean is, for it to be defamation per se, does it have to impute the person's skills? Or if it doesn't impute the person's skills, but they still can't get work because no one trusts them to be honest, does fulfill part IV listed above?

  133. MJW says:

    Harry Johnston • Mar 24, 2014 @4:57 pm

    @MJW: scientifically (that is, within the relevant scientific community) the debate is over, to all effects and purposes. You are not obliged to accept their conclusions, but for those of us who do, I don't see any point in pretending to think that the "denialist" claims are scientifically credible.

    When "the relevant scientific community" is defined as "those who accept the consensus," the conclusion follows from the premise. There are scientists who disagree, such as Richard Lindzen, John Christy, Roger Pielke Sr., Christopher Landsea, and Judith Curry, but that very disagreement is used to prove they're not credible. So all the credible scientists agree the debate is over.

  134. @MJW: no, the "relevant scientific community" is all climate scientists. Lindzen et. al. are (I presume) credible, but they're also in a tiny minority. To get back to the case, though: I wonder whether any of those credible climate scientists you mention, if called as expert witnesses, would actually support Steyn's accusations against Mann? We should (I think) keep in mind that the case is about specific accusations – Mann is not suing simply because Steyn doesn't believe in global warming.

  135. HandOfGod137 says:

    @MJW

    "The relevant scientific community" is essentially the whole scientific community. In a scientific debate, the ultimate arbiter of who is right is the evidence, and that is overwhelmingly pointing to increased CO2 in the atmosphere has changed the energy balance of the planet. There's plenty of room to argue about forcings, feedbacks and sensitivity, but the underlying physics is accepted by just about everyone who understands the science and doesn't subscribe to the bizarre idea that the whole thing is left-wing conspiracy.

    Ultimately, it just boils down to conservation of energy. We can measure that the balance between the amount coming in from the sun has changed relative to the amount the earth radiates into space due to increased CO2 in the atmosphere (which we know is produced by us from the isotopic signature), and that energy has to go somewhere. If you're interested, there's a really nice explanation at:

    http://scienceblogs.com/stoat/2014/02/16/the-idealised-greenhouse-effect-model-and-its-enemies/

  136. @Matthew: that's a fascinating list! I'm particularly intrigued by (iv); I wonder what sort of serious sexual misconduct would not constitute a crime? Does this perhaps date from the era when infidelity would be considered serious misconduct?

  137. MJW says:

    Harry Johnston • Mar 24, 2014 @6:10 pm

    @MJW: no, the "relevant scientific community" is all climate scientists. Lindzen et. al. are (I presume) credible, but they're also in a tiny minority.

    If even a small minority of credible scientists disagrees, the debate isn't over. Only a small minority of biologists believed in "jumping genes."

    We should (I think) keep in mind that the case is about specific accusations – Mann is not suing simply because Steyn doesn't believe in global warming.

    I agree, but I was originally replying to a comment by HandOfGod137 that spoke of widely-available evidence and well-understood underlying principles that prove Steyn should have known better. I interpreted that as being more about global warming in general than being about Mann's particular research.

  138. @MJW: "If even a small minority of credible scientists disagrees, the debate isn’t over."

    Hence my use of the slightly weaselly modifier "to all effects and purposes". :-)

    The research will, of course, continue. But in the meantime I don't think the minority scientific opinion forms a valid basis for public policy or for a widespread acrimonious public debate – and in any case I don't think the public debate is often, if ever, based on that minority opinion, whose concerns are (most likely, and by and large) rather too subtle to make good sound bites.

  139. Rachel says:

    @HandofGod

    Ahhh…the old CO2 conundrum.

    It is a conundrum, isn't it? I mean CO2 is steadily rising, year after year, but for over 15 years, the global mean temperature has not. We have clear evidence of both, from data maintained, homogenized, and published by the "consensus scientists." What do we make of this? Well the "consensus scientists" now tell us that Trenberth's "missing heat" is now really in the deep ocean! How convenient. Except that before Mann's "faux pause" in the global mean temperature, not a single climate model predicted that temperatures would level off because the heat would move to the deep ocean.

    And don't bother to ask them how many thermometers they have in the ocean. Oh, why not… There are currently 4,000 argo floats covering a trivially small area and they have measured a trivially small about of warming at .03 degrees Celsius per decade. This measurement is even less significant considering that the consensus of these argo floats is that the upper 300 meters of the oceans have not warmed or cooled since 2003. But why bother with the details? The science is settled, after all!

  140. @Rachel: is the attitude absolutely necessary?

  141. MJW says:

    Harry Johnston, I don't think what Rachel said is that out of line to what HandOfGod137 said. I suspect both of them — and probably you and me, too — are wandering a bit too far off the legal issues and on to the climate science and policy issues.

  142. Rachel says:

    @HarryJohnston

    In @HandofGod's quoting from Stoat's blog, who is himself a disgraced and subsequently banned serial wikipedia climate change editor, the issue is plainly laid out, for all to see.

    HandofGod wrote: "There's plenty of room to argue about forcings, feedbacks and sensitivity, but the underlying physics is accepted by just about everyone who understands the science and doesn't subscribe to the bizarre idea that the whole thing is left-wing conspiracy."

    Yet here we are on here, the few of us who haven't swallowed the "denialist" propaganda hook, line, and sinker, trying to argue about forcings, feedback, and sensitivities. Because as I explained early on in this thread, there are no "denialist" scientists. I previously explained this in an earlier response to you. Here, let me quote myself:

    "In actuality, the skeptics agree the climate is changing. The skeptics agree the globe has warmed. Try to find a scientist or a well-known or published skeptic who says the globe has not warmed or the climate has not changed. Sure, they may say the climate has not changed in X years or over a specific period of time. But it is pure and absolute rubbish to suggest that skeptics deny that the climate has changed.

    This is what the Michael Mann's of the world don't want you to know."

    So here is @HandofGod publishing a quote from one of the "consensus scientists" where the scientist states that the debate IS about 'forcings, feedback, and sensitivities' which_is_exactly_what_I've_been_saying_this_entire_thread.

    And to make matters worse, the quote concerns CO2. There is a raging debate within climate scientists about the climate's sensitivity to CO2. Less sensitivity, and you get a climate that may see a 15 year period when temperatures do not rise. If the climate is more sensitive to CO2, you get Mann's Hockey Stick.

    Do you understand the irony in @HandofGod's quote juxtaposed against his position of debate which is that any dissent against the consensus is "denialism?" If you do see that the very quote he/she posted to prove the science is settled actually demonstrates the debate the skeptics are trying to have, perhaps you'll understand my frustration.

    That being said, I generally like you guys and do not wish you any disrespect.

  143. @Rachel: I can't shake the feeling we're talking past one another somehow. FWIW, my understanding, based on people that I trust, is that the debate you're talking about has already happened, and the conclusion was that the evidence is clear that global warming is ongoing – that the "global warming pause" doesn't exist. I don't doubt that there's still plenty of wiggle-room in the models, but that's not the same thing as saying that we should simply stop worrying about climate change and forget about trying to regulate greenhouse gasses, which is certainly the conclusion folks like Donald Trump or Matt Mead – and Steyn, of course – would like us to draw.

    I can't speak for anyone else, of course, but when I talk about climate denialists, I don't mean people who remain uncertain that the subtleties have all been properly accounted for. I mean the people who assert as a proven fact that climate change either does not exist, cannot possibly be related in any way to man's activities, or is entirely harmless. Few if any are scientists, but they do exist.

    I hope that clears up where I'm coming from. No disrespect intended, and I apologize for my (in retrospect) overly snappy response.

    @MGW: Agreed. I'm going to go silent at this point – I don't think I have anything more to contribute – though I'll continue to lurk. @Rachel, feel free to email me if you wish. My address is available from my blog.

  144. HandOfGod137 says:

    Yes, the "pause" has been pretty much shown to be an illusion caused by lack of data from the north pole and ocean depths. And whereas denialists (in part) now accept that global warming is happening, they've mostly just moved to one of the next stages of denial ("it's not our fault" or "it's not a problem"), which doesn't exactly fill one with confidence that the issue is being take seriously.

    @Rachel

    Nice bit of poisoning the well on Connolley at Stoat. Does that mean you have no argument with the actual model he presents, but would prefer to discredit him anyway? And while we do apparently agree that sensitivity is up for debate, you are aware that even the lower range (the AR4 1.5C) would be both extremely bad news, and gives rise to a "hockey stick" (which is a measurement, not a projection, anyway)?

    Anyhow, this is becoming SIWOTI, and the blog owner has made his feelings clear on the thread being hijacked into an AGW denial debate, so I too am going to shut up on the issue.

  145. Allen says:

    @HandOfGod137

    As to North pole data I would suggest the US Office of Naval Research website. They have quite a good database ( it's current) as well as some interesting predictions. Caveat: navigating the site to find the data of interest can be tedious.

  146. Eugene S says:

    Latest from Mark Steyn is that he has lawyered up, after all, and will be represented by heavy hitters Kornstein & Platt plus Michael Songer: http://www.steynonline.com/6201/what-kind-of-fool-am-i

    I have mixed feelings about this. On the one hand, Mann's case (which was flimsy before) now has not a snowball's case in hell of prevailing. That's a good thing, for Steyn and for people who hold free speech dear.

    On the other hand, Steyn in recent weeks had appeared to be casting his net wider, beyond the confines of libel law and climate debate, and taking aim at the perverse incentives in U.S. law that can be summarized under the rubric "the process is the punishment". He would quote Conrad Black, who has said that the U.S. has as many lawyers as the rest of the world taken together and that 10 percent of U.S. gross domestic product are gobbled up by them.

    For a while, it seemed that Steyn would defy the logic that says you must either knuckle under to "lawfare" or spend a fortune to defend yourself… and that he was willing to risk becoming a martyr to the "cause" of cutting back the kudzu-like encroachment of the law on every sector of the economy.

    That he now is backed by a team of legal experts who will likely not perform much differently from the lawyers he fired — i.e., the new lawyers, too, will "run up the clock" by filing motions, counter-motions, and all the other tedious stuff that lawyers do (some more effectively than others) — is disappointing but I cannot condemn Mr. Steyn, either. It's his life and Dr. Mann is threatening him with personal bankruptcy and ruin.

    Before this latest announcement, I had thought Steyn was using the uptick in sales from trinkets on his website to pay for "background" legal consultations while remaining in charge of his legal strategy. Now, with these prestigious hotshot lawyers on board, I think it is fairly certain that they have extracted promises from him not to embarrass them by going off like a "loose cannon" (according to lawyers' understanding of the term "loose cannon").

    Again, I cannot fault Mr. Steyn's decision… but if anyone had a chance to go up alone against the powerful vested interests of the legal profession that come at the expense of everyone else and make a dent in these interests, it was Steyn.

  147. Devil's Advocate says:

    @MJW:

    I'm surprised that no one has mentioned the ruling in Curtis vs. Butts…

    Perhaps they were aware that that standard was explicitly disavowed in the later case, Harte-Hanks Communications, Inc. v. Connaughton…

    It seems like the Wikipedia article on Curtis v. Butts is in need of serious attention from someone who knows the law better than I.

    But reading over Harte-Hanks, I can't help but notice that while they claim that they are applying a subjective beliefs standard, in their actual reasoning about the actual case, they are applying something more like "a reasonable man wouldn't do this unless…." kind of standard. Even the other opinions on the case use that kind of reasoning. It seems to me like those two standards could result in different results.

  148. MJW says:

    Devil's Advocate • Mar 25, 2014 @9:12 am

    But reading over Harte-Hanks, I can't help but notice that while they claim that they are applying a subjective beliefs standard, in their actual reasoning about the actual case, they are applying something more like "a reasonable man wouldn't do this unless…." kind of standard.

    It's a subjective standard, but since mind reading isn't possible, unless the defendant admits (or has admitted) to having doubts, intent must be inferred from circumstantial evidence. If someone does something that makes no sense except as an attempt to achieve some end, it's evidence they were attempting to achieve that end. That's true in any legal case that depends on subjective intent.

    Maybe I'll try to update the Wikipedia entry (assuming I can remember my username and password). In the "Talk" section there's a comment correctly saying: "This stub makes it seem like public figures are more protected than public officials; they are held at the same standard."

  149. MJW says:

    Eugene S • Mar 25, 2014 @4:05 am

    Latest from Mark Steyn is that he has lawyered up, after all, and will be represented by heavy hitters Kornstein & Platt plus Michael Songer: http://www.steynonline.com/6201/what-kind-of-fool-am-i

    I look forward to reading the court papers Steyn's new attorneys will file. I'm especially curious about how they'll deal with the counterclaims.

    I still think the NRO and CEI lawyers are proceeding correctly by trying to appeal the anti-SLAPP decision. Steyn complains about how slow that path is, but he fails to consider that it's because they're pioneers on a statute with almost no case law. If the appellate court rules for the defendants, it will make it much easier for future defendants to get similar defamation suits dismissed quickly by the trial courts.

  150. MJW says:

    I happened upon Steyn's response to Plaintiff's First Set of Requests for Admissions. The Requests for Admission ask Steyn to admit or deny the admissibility of the reports Mann claims clear him of misconduct. Their admissibility was a topic that was much discussed by me and others on a thread on "Lucia's Blackboard." The degree to which the reports clear Mann was discussed there, and especially on "Climate Audit."

    As far as I can tell, the response was written while Steyn was still proceeding pro se, but it seems to me to be just fine. Steyn initially points out that Mann's hotshot lawyers are using the wrong rules of evidence: they ask about admissibility under the Federal Rules, which the DC courts don't use. Steyn then denies the various reports are admissible under the DC rules because they lack relevance and are hearsay.

  151. MJW says:

    PonyAdvocate • Mar 20, 2014 @6:47 pm

    You (and Mark Steyn, and those who defend Mark Steyn's "First Amendment right" to defame) may not understand how serious an accusation of scientific "fraud" is among scientists

    What malarkey! A reference to "the fraudulent hockey stick" by a political commentator in the opinion comment section of a conservative opinion magazine's website poses a serious threat to Mann's scientific reputation. Tell me some more fairy tales, Mother Goose! (As I used to say when I was a kid.) I knew I'd seen an apt quotation in a court opinion, but couldn't recall where (which explains my delay in responding). Turns out it was the very recent U.S. Court of Appeals for DC case, Farah v. Esquire Magazine. Quoting Ollman v. Evans, the court observes:

    After all, some types of writing by custom or convention signal to readers that what is being read is likely to be opinion, not fact. It is one thing to be assailed as a corrupt public official by a soapbox orator and quite another to be labelled corrupt in a research monograph detailing the causes and cures of corruption in public service.

    (Alterations omitted).

    If NRO had a news article expose accusing Mann of specific acts of scientific fraud, Mann might have a valid case; but that's miles from what actually occurred.

  152. Devil's Advocate says:

    @MJW:
    While it's irrelevant to Farah, which was a satire case, the Supreme Court overturned a ruling based on that very paragraph from Ollman in a case about an opinion column — Milkovich v. Lorain Journal Co. Specifically they ruled that

    Simply couching a statement — "Jones is a liar" in terms of opinion — "In my opinion, Jones is a liar" — does not dispel the factual implications contained in the statement.

    It seems pretty clear to me from the writing itself and Steyn's subsequent behavior that he intended to state that Mann committed serious scientific misconduct, even though he did so with above-average rhetorical flourish.

    Does DC libel per-se law distinguish based on audience? While it's true his column probably has no effect on other climatologists' opinions of him, that column and others like it have certainly had an effect on others.

  153. MJW says:

    Devil's Advocate: While it's irrelevant to Farah, which was a satire case, the Supreme Court overturned a ruling based on that very paragraph from Ollman in a case about an opinion column.

    The Supreme Court held that there wasn't a "wholesale defamation exemption for anything that might be labeled 'opinion.'" Like other U.S. Circuit Courts, the Circuit Court for DC didn't interpret that as rejecting the importance of context in determining whether a statement is protected opinion or fact (including opinions implying factual assertions). Subsequent cases, such as Moldea v. New York Times Co. and Williams v. Smith confirm this.

    More applicable to Mann's case, in Guilford Transp. Industries v. Wilner, the DC Court of Appeals quotes Ollman:

    [This is so because] [t]he reasonable reader who peruses [a] column on the editorial or Op-Ed page is fully aware that the statements found there are not "hard" news like those printed on the front page or elsewhere in the news sections of the newspaper. Readers expect that columnists will make strong statements, sometimes phrased in a polemical manner that would hardly be considered balanced or fair elsewhere in the newspaper…. That proposition is inherent in the very notion of an "Op-Ed page." Because of obvious space limitations, it is also manifest that columnists or commentators will express themselves in condensed fashion without providing what might be considered the full picture. Columnists are, after all, writing a column, not a full-length scholarly article or a book. This broad understanding of the traditional function of a column like Evans and Novak will therefore predispose the average reader to regard what is found there to be opinion.

    The court then adds:

    Although the Supreme Court has made it clear, since Ollman was decided, that statements of "opinion" are not constitutionally protected if they assert provably false and defamatory facts, see Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), the constitutional principles that animate the passage we have quoted from Ollman remain equally compelling and equally good law today.

    It seems pretty clear to me from the writing itself and Steyn's subsequent behavior that he intended to state that Mann committed serious scientific misconduct, even though he did so with above-average rhetorical flourish.

    Could you please quote the words Steyn wrote and then state what specific provable facts they imply? Do you believe, as some claim, that "fraudulent hokey stick" implies Mann committed the crime of fraud? Or does it perhaps imply he committed academic fraud? How about scientific fraud? How do you know it doesn't just mean the hokey stick is bogus? Which does Mann have to disprove?

    There are many, many defamation cases where considerably more specific criticisms were held to be opinions that didn't assert provably false facts.

  154. HandOfGod137 says:

    @MJW

    If "fraud" is a deliberate act of deception, surely describing the temperature reconstruction graph as "fraudulent" means that you are saying either the data or statistical techniques used in the analysis of that data have been intentionally manipulated to deceive, which is pretty much the definition of scientific misconduct. Furthermore, as the same graph has been reproduced by several different groups using different datasets and analytical techniques, Steyn could easily have checked that Mann's work is considered to have some flaws, but to be a good bit of science overall. No matter how you twist the semantics, it seems pretty obvious Steyn was accusing Mann of scientific misconduct when a cursory fact check would have shown that this is demonstrably untrue.

  155. Rachel says:

    As I've been saying this entire thread, the debate is on. "Denialist" is propaganda. Those continuing to trumpet this terminology while hiding from the real debate are on the wrong side of history. The IPCC itself is saying so. If these leaks are true, it looks like the IPCC would rather remain as a viable institution rather than crucify itself on the cross of climate science propaganda.

    "The United Nations' Intergovernmental Panel on Climate Change will shortly publish the second part of its latest report, on the likely impact of climate change. Government representatives are meeting with scientists in Japan to sex up—sorry, rewrite—a summary of the scientists' accounts of storms, droughts and diseases to come. But the actual report, known as AR5-WGII, is less frightening than its predecessor seven years ago.

    The 2007 report was riddled with errors about Himalayan glaciers, the Amazon rain forest, African agriculture, water shortages and other matters, all of which erred in the direction of alarm. This led to a critical appraisal of the report-writing process from a council of national science academies, some of whose recommendations were simply ignored.

    Others, however, hit home. According to leaks, this time the full report is much more cautious and vague about worsening cyclones, changes in rainfall, climate-change refugees, and the overall cost of global warming.

    It puts the overall cost at less than 2% of GDP for a 2.5 degrees Centigrade (or 4.5 degrees Fahrenheit) temperature increase during this century. This is vastly less than the much heralded prediction of Lord Stern, who said climate change would cost 5%-20% of world GDP in his influential 2006 report for the British government."

  156. MJW says:

    HandOfGod137: If "fraud" is a deliberate act of deception, surely describing the temperature reconstruction graph as "fraudulent" means that you are saying either the data or statistical techniques used in the analysis of that data have been intentionally manipulated to deceive, which is pretty much the definition of scientific misconduct.

    As I alluded to in my previous comment, "fraud" has a range of meanings from humbug to a felony. Even assuming Steyn meant to imply an intention to deceive, the intention could could be of those who continue to use the hokey stick as proof of global warming even after it was, in Steyn's opinion, discredited.

    Furthermore, as the same graph has been reproduced by several different groups using different datasets and analytical techniques, Steyn could easily have checked that Mann's work is considered to have some flaws, but to be a good bit of science overall.

    This isn't the place to argue about the supposedly independent confirmations of the hokey stick, so I'll leave that up to sites like Climate Audit and RealClimate. I'll only say that there are many shared authors and proxy sets between the studies. If the hockey-stick shape for two different reconstructions results from the same sets of proxies, the studies can hardly be said to be independent.

    No matter how you twist the semantics, it seems pretty obvious Steyn was accusing Mann of scientific misconduct when a cursory fact check would have shown that this is demonstrably untrue.

    You seem to love to argue by bold assertion. It only works on those who already agree with you. Steyn could have concluded Mann engaged in scientific misconduct by, for instance, calculating but not revealing the r^2 values, and by using a non-standard PCA method without mentioning that in his paper. No doubt, you think that would be crazy; I think it would be quite reasonable. That's what happens in controversies: people disagree.

  157. HandOfGod137 says:

    @Rachel

    The Graun disagrees, quite strongly, with your prediction of the IPCC report's contents:

    http://www.theguardian.com/environment/2014/mar/28/ipcc-report-climate-change-report-human-natural-systems

    @MJW

    Well yes, I'm using the common definition of "fraud" and basing my bold assertion of Mann's non-fraudulent status on the multiple investigations he has undergone without any finding of fraud and the general acceptance of his findings by every national scientific body I can find and the massive majority of scientists.

  158. MJW says:

    HandOfGod137: Well yes, I'm using the common definition of "fraud" and basing my bold assertion of Mann's non-fraudulent status on the multiple investigations he has undergone without any finding of fraud and the general acceptance of his findings by every national scientific body I can find and the massive majority of scientists.

    Do you count, as Mann does, investigations that aren't even about Mann? Do you count the investigation instigated by the same fine folks who investigated Sandusky? Do you count an investigation that merely found no direct evidence of misconduct, and which provided none of the facts upon which its conclusions were based?

  159. HandOfGod137 says:

    @MJW

    Well, to be honest, unless you subscribe to the sort of insane conspiracy theory that holds that all of academia and science is working together to follow some hazily-specified "green" agenda that only the unbiased researchers at the Heritage Foundation, Fox News and the fossil fuel industries have had the courage to reveal, I'd have to say yes, they count as investigations.

    Mann has been pursued with accusations of fraud, death threats, vexatious FOI requests and the massed ranks of the hard-of-thinking blogsphere for years now, and not only have the investigations found no wrong doing, but his work has been verified by multiple independent researchers. And all for the equivalent of saying "look chaps, I think we should reconsider the amount of CO2 we're dumping in the atmosphere: we might be creating a bit of a problem for ourselves". It's insane. I'm just glad the Higgs boson wasn't seen as a threat by the Koch brothers, or fundamental HEP research might be suffering a similar witch-hunt

    Whether this is sufficient for an American court to find in his favour (or if the knock-on effects for freedom of speech make it a pyrrhic victory) is another matter. But my point is that Steyn could easily have seen the overwhelming scientific support for Mann's work, so it is hard not to assume both malice and an attempt to defame by claiming scientific misconduct.

  160. Earle Williams says:

    There's a reason why Poe's Law became so named. Is it live or is it Memorex?

    Compare

    Well, to be honest, unless you subscribe to the sort of insane conspiracy theory that holds that all of academia and science is working together to follow some hazily-specified "green" agenda that only the unbiased researchers at the Heritage Foundation, Fox News and the fossil fuel industries have had the courage to reveal, I'd have to say yes, they count as investigations.

    with

    I'm just glad the Higgs boson wasn't seen as a threat by the Koch brothers, or fundamental HEP research might be suffering a similar witch-hunt[sic]

    I really can't distinguish if this is parody or no.

  161. HandOfGod137 says:

    @Earle Williams

    Well, strictly it was a joke. But, given the Koch brother's well publicised involvement in financing the denialist movement (Americans for Prosperity, the Heritage Foundation, the Cato institute and the Manhattan Institute, to name but a few), and also given that it can't really be called a conspiracy theory if everyone knows about it, I think you may have got a little confused there.

    NB: "witch-hunt" is the correct usage as far as I'm aware, q.v. http://en.wiktionary.org/wiki/witch-hunt

  162. MJW says:

    HandOfGod137: (Replying to a comment which included, "Do you count, as Mann does, investigations that aren't even about Mann?") Well, to be honest, unless you subscribe to the sort of insane conspiracy theory that holds that all of academia and science is working together to follow some hazily-specified "green" agenda that only the unbiased researchers at the Heritage Foundation, Fox News and the fossil fuel industries have had the courage to reveal, I'd have to say yes, they count as investigations.

    I'm pretty sure even most of those who don't agree with the left's favorite bugbears — the Heritage Foundation, Fox News, the fossil fuel industries, and for good measure, the Koch brothers — still wouldn't think an investigation could clear someone it wasn't even investigating. I can see, though, why you believe Mann's undergone multiple investigations without any finding of fraud: there must be thousands upon thousands of investigations of people other than Mann that didn't find Mann guilty of misconduct. Just yesterday, an investigation into Gov. Christie and "bridgegate" mentioned no wrongdoing by Mann. Chalk up another exoneration of Dr. Mann!

  163. MJW says:

    HandOfGod137: But my point is that Steyn could easily have seen the overwhelming scientific support for Mann's work, so it is hard not to assume both malice and an attempt to defame by claiming scientific misconduct.

    I earlier offered the withholding of the of the adverse r^2 value, and the failure to disclose the use of a nonstandard PCA method as conduct that could justify calling of the hockey stick "fraudulent." There are other possible reasons, such as Mann continuing to claim the hockey stick is "robust" even after he knew it wasn't even robust to the removal of the problematic "bristlecone" proxies, and his extrapolation of the Gaspe series back to 1400 in order to justify including it the 1400 interval roster.

    You seem to believe that Steyn and I can't consider the arguments for both sides, and decide for ourselves whether or not Mann behaved properly; that we must instead defer judgement to committees of scientists and academics. That's false and ridiculous. Must we likewise only allow politicians to judge the ethics of politicians, and business executives to judge business executives? The issues I mentioned do not require some deep knowledge only available to an elite few, and as far as I'm aware, no one has established that scientists and academics possess a heightened sense of morality. You've become so used to relying on an appeal to scientific authority that you don't even consider that people are capable of evaluating the evidence and forming independent opinions.

  164. HandOfGod137 says:

    @MJW

    There's a difference between appealing to authority and relying on the evidence. Ljungqvist et al and Marcott et al have both confirmed Mann's work recently: the former with a similar (if larger) dataset to Mann's, the latter with sedimentation data. If every reputable study essentially confirms your results, I think you can be justified in calling it "robust". No one claims Mann's first analysis was perfect, but that doesn't make it fraudulent (at least not for any reasonable definition of the word).

    However, to be clear, there is also a difference between "evaluating the evidence and forming independent opinions" and relying on the likes of McIntyre and Watts for gotchas to use in internet debates. If Steyn (or indeed you) have done an independent analysis that shows Mann invented data or twisted the results to show something that wasn't there, please publish. Otherwise all you are really doing is appealing to your own ideological authorities, and they don't appear able to do the sums correctly.

  165. Earle Williams says:

    @HandOfGod137

    Wanting to believe something doesn't make it so. You cite Marcott et al. 2013 presumably because you've been told it confirms Mann's fundamental paleoclimate thesis. It doesn't. The authors themselves acknowledge that:

    Thus, the 20th century portion of our paleotemperature stack is not statistically robust, cannot be considered representative of global temperature changes, and therefore is not the basis of any of our conclusions.

    You may wish that Mark Steyn and a defamation trial jury, should it come to that, should disregard this particular bit of evidence and should instead rely on the press releases and interpretations that said in effect "See, we told you Mann's hockey stick was right!" But there it is, in it's honest, uncomfortable glory, saying that the actual science, the part where people do the sums, doesn't come close to the hype. What's an opinionated columnist supposed to do with that?

  166. HandOfGod137 says:

    @Earle Williams

    Marcott verified the period prior to the 20th century (protip: the "paleo" is a bit of a hint). We have actual records of measured temperatures for the 20th century. There are these things called "thermometers". Apologies if this is too hard for you to keep up.

  167. Earle Williams says:

    @HandOfGod137

    I think you've got a great argument, maybe you should forward it to Dr. Mann and his legal team. You've certainly got a flair for condescension like Dr. Mann. Your acknowledgement of the limitations of Marcott is noted.

  168. Rachel says:

    @HandofGod -

    You are missing the forest for the bristlecone pines.

    "Thus, the 20th century portion of our paleotemperature stack is not statistically robust, cannot be considered representative of global temperature changes, and therefore is not the basis of any of our conclusions."

    You note, condescendingly, that we have thermometers for the 20th century portion. Exactly. And when the measured observations do not match paleotemperature stack, there is big problem.

    So….when we didn't have thermometers and therefore have no real observations to compare against the reconstructions, how do we know the reconstructions are robust? We don't.

    What we do know is that often, and indeed in Mann's case, when the paleotemperature reconstructions are compared against real observable measurements, there becomes a problem of divergence.

    As I've said over and over, the debate is whether the recent bout of warming is catastrophic, not whether the globe has warmed. Since the paleoclimate reconstructions cannot rule out previous warming at the same pace as 1980 to 2000, and since the reconstructions tend to fail when compared against real, observable thermometers, what proof is there that the current warming is catastrophic? Please stop the propaganda and debate the real issue here.

    Perhaps you can tell the difference between these temperature rises, @HandofGod?

    http://www.woodfortrees.org/plot/hadcrut3gl/from:1910/to:1941/offset:0.2/plot/hadcrut3gl/from:1975/to:1999/offset:-0.15/plot/hadcrut3gl/from:1910/to:1941/trend/offset:0.2/plot/hadcrut3gl/from:1975/to:1999/trend/offset:-0.15/plot/hadcrut3gl/from:1860/to:1881/offset:0.3/plot/hadcrut3gl/from:1860/to:1881/trend/offset:0.3

  169. Rachel says:

    @HandofGod

    You noted that the Koch brothers finance the "denialist movement."

    You did_not_make any mention of the fact that the Koch brothers also finance Penn State University and University of Virginia, where Mann researched the climate and received his doctorate.

  170. HandOfGod137 says:

    Well chaps, this is turning into another denialists vs science debate, which I'm fairly sure we were told is not welcome here (although I do note that from the use of "hide the decline" you are probably getting your information from the likes of Watts and Curry, so you really need to improve the quality of your sources if you're not just going to be presenting arguments that have been debunked a thousand times before).

    Rather than argue with some bloke on the internet, why don't you do yourselves a favour and have a look at what the actual science says?

  171. Rachel says:

    @HandofGod

    In other words you are saying, "Hey, shut up, everyone! But first let me make another appeal to authority while ignoring all the uncomfortable arguments you've presented to me! And then I'll call you stupid in hopes that you don't notice what I'm doing!"

    I'd instead have you tell me the difference in the slopes in the graph I provided. Are you claiming that graphs of temperatures measured with actual thermometers are not science?

    I will note that your continued use of the word "denialist" even though no one is denying anything is a bordering on an ad hominem response.

    FTR, at the beginning of this thread, a 100 or so comments ago, I stated that the standard response for those who use the term denialists is to engage in shutuppery when confronted with the fact that the debate is not about whether the globe has warmed but instead is the warming catastrophic and how sensitive is the climate. Now faced with that debate, the shutuppery is in full effect.

    You are free to not respond to the science I post, but you will not shut me up.

  172. MJW says:

    HandOfGod137: Marcott verified the period prior to the 20th century (protip: the "paleo" is a bit of a hint). We have actual records of measured temperatures for the 20th century. There are these things called "thermometers". Apologies if this is too hard for you to keep up.

    It isn't valid to splice the records together. The proxy record used by Marcott heavily smooths the data, so it doesn't show fluctuations of less than several hundred years, while the thermometer record shows all the high-frequency wiggles.

    As the authors said (after McIntyre pointed out problems with the "blade" part of the reconstruction):

    Our global paleotemperature reconstruction includes a so-called “uptick” in temperatures during the 20th-century. However, in the paper we make the point that this particular feature is of shorter duration than the inherent smoothing in our statistical averaging procedure, and that it is based on only a few available paleo-reconstructions of the type we used. Thus, the 20th century portion of our paleotemperature stack is not statistically robust, cannot be considered representative of global temperature changes, and therefore is not the basis of any of our conclusions.

    All the initial press coverage emphasized the blade part of the supposed hockey stick. That's not surprising, considering the NSF press release for the paper said:

    What that history shows, the researchers say, is that during the last 5,000 years, the Earth on average cooled about 1.3 degrees Fahrenheit–until the last 100 years, when it warmed about 1.3 degrees F.

    I'm not sure how seriously any temperature reconstruction can be taken. One of the main disputes is whether temperatures were as warm in the Medieval Warm Period as they are today. Some "temperature proxies" indicate they were, others don't. Whether the reconstruction shows significant medieval era warming depends on the proxy selection. There's a reason why medical studies are double blind. Considerable skepticism is called for when researchers can consciously or unconsciously change the results to what they believe is correct.

  173. Don says:

    There's a difference between appealing to authority and relying on the evidence. Ljungqvist et al and Marcott et al have both confirmed Mann's work recently….If every reputable study essentially confirms your results, I think you can be justified in calling it "robust". No one claims Mann's first analysis was perfect, but that doesn't make it fraudulent (at least not for any reasonable definition of the word).

    This perfectly encapsulates why Mann's lawsuit is without merit. Mann took proxy data and calibrated it against the temperature record and produced a hypothetical model. The hockey stick is the output of feeding the calibration data back into the model. To scientifically assess validity by "relying on the evidence," one needs to test accuracy of temperatures produced using data not in the calibration set (i.e. test the model against nature). This is yet to be done.

    Ljungqvist and Marcott produced additional hypothetical models with similar results. But to claim their models as confirmation of Mann's work is to appeal to authority. One hypothesis cannot scientifically confirm another hypothesis. This same error is seen in claims that McIntyre and McKitrick "busted the hockey stick" by producing similar results using proxies constructed from random data. One hypothesis cannot disprove another hypothesis. This is actually one cognitive error that science helps us avoid by requiring that models be tested against observations, not each other.

    Although some temperature models agree with each other, their agreement with nature is still unknown. They reside in the scientific limbo of untested hypotheses. When someone updates the proxies, generates new results, and compares those results to the observed temperatures, we can begin to assess the value of the models. If this is done numerous times, we might analyze model robustness. But currently they are only hypothetical models.

    When Steyn noted the data gymnastics Mann used to produce his hypothesis and labeled the resulting hockey stick as "fraudulent," many claimed this was an accusation of scientific fraud. But there are no data treatment restrictions when producing a hypothesis. A scientist may use any harebrained data manipulation schemes he or she chooses to produce a hypothesis.

    It's when a scientists collects observations to test a hypothesis that the story changes. You can't cheat science by putting forward the most ridiculous of theories. But you can cheat science by manipulating observations to conform to, or disagree with, any theory. They key to scientific integrity is the scrupulous comparison of theory and independent observations. Mann's hockey stick could not be scientific fraud because he used no independent observations. He produced a theory; he did not test one.

    If Mann did not commit scientific fraud, what "reasonable definition" of fraudulent might apply here? Well, Collins English Dictionary – Complete & Unabridged 10th Edition defines fraud as: "something false or spurious." Is this reasonable? Well Mann's hypothesis is still untested, so it's validity is somewhere between 0% and 100%. Given that range, there's no way Steyn could have known his statement was false–one of the requirements, I believe, to demonstrate libel.

  174. HandOfGod137 says:

    @Rachel

    I'm not attempting to shut you up, I'm just pointing out this is devolving into the same pointless debate that got the last thread shut down. However you want to frame your particular version of denial (luke-warmist?), there are better places to discuss it.

    My original point was that the scientific establishment accepts Mann's work as not being fraudulent, Steyn's accusation of fraud equates to an accusation of scientific misconduct and he had no reasonable grounds to make such an accusation. As this is (mostly) as legal blog, I was curious as to how that would have a bearing on the current case, and if the freedom of speech issues were considered more important. Frankly, I couldn't care less what your opinion is on the reality or scale of AGW: the internet is full of people going "but look at this graph that I have cunningly crafted from finest cherry-picked data to support my personal view!" Boring and pointless.

    @MJW

    Much the same comment, to be honest. Not keen on the current science? Pick whatever version of "reality" you prefer, then. Geocentrism can be made to work with the appropriate reference frame if you have similar problems Copernicus.

  175. MJW says:

    HandOfGod137: Frankly, I couldn't care less what your opinion is on the reality or scale of AGW: the internet is full of people going "but look at this graph that I have cunningly crafted from finest cherry-picked data to support my personal view!" Boring and pointless.

    But, as I alluded to in my previous comment, that's a criticism that also applies to published temperature reconstructions. All reconstructions use some proxies and not others, so they, too, can be accused of cherry picking.

    Your snide comment regarding my supposed possible rejection of geocentrism, like so much of what you say, doesn't merit a response.

  176. MJW says:

    Everyone but HandOfGod137, in my previous comment, please change "rejection of geocentrism" to "acceptance of geocentrism." HandOfGod137, do whatever you want; I really don't care.

  177. Dictatortot says:

    Regardless of how the scientific debate progresses, it seems beyond question that currently, among reasonably intelligent laymen, there's more than enough room for doubt or agnosticism to earn Steyn a presumption of good faith.

    And on a related note, I feel sure that this pro-warming favorite falls under some well-attested form of logical fallacy:

    A: "All reputable experts believe X."
    B: "What qualifies someone as a reputable expert?"
    C: "Among other things, believing X."

    But for the life of me, I can't place it. Any ideas?

  178. Earle says:

    Maybe Argumentum ad shibboleth?

    ;-)

  179. David C says:

    @Dictatortot: It's either begging the question, or circular reasoning, or no true Scotsman. I'll let you decide which of those apply.

    That doesn't mean it's false, of course. A doctor who did not believe in germ theory would not be reputable for that very reason.

    Getting away from science and back to the case itself, I found part of the motion interesting. On page 6, Mann appears to claim that because Steyn is a public figure, anything involving him is automatically an issue of public interest. And because his counterclaims of course involve him, they involve a public figure, and therefore are an issue of public interest, and so they're eligible for anti-SLAPP.

    Is it really the case that ANY claim by a public figure is subject to anti-SLAPP? Or am I misreading what they are claiming?

  180. MJW says:

    David C : Is it really the case that ANY claim by a public figure is subject to anti-SLAPP? Or am I misreading what they are claiming?

    Not really any claim, but according to Mann, it applies to a malicious prosecution or abuse of process claim brought by a public figure. The DC anti-SLAAP law defines an "Issue of public interest" as:

    "Issue of public interest" means an issue related to health or safety; environmental, economic, or community well-being; the District government; a public figure; or a good, product, or service in the market place. The term "issue of public interest" shall not be construed to include private interests, such as statements directed primarily toward protecting the speaker's commercial interests rather than toward commenting on or sharing information about a matter of public significance.

    Mann's argument is that his lawsuit against Steyn is protected judicial petitioning against the public figure, Steyn. I don't think that's correct, though. Mann's primary legal citation is a 2003 California case, Jarrow Formulas, Inc. v. LaMarche. The California Supreme Court held that California's anti-SLAPP law applied to an malicious prosecution claim, for the previously mentioned reason: the law protected the right to petition, and the original lawsuit was judicial petition. (The court also held that the "public issue" restriction didn't apply, but that's a separate matter.)

    The problem as I see it is that the DC anti-SLAPP law differs from California law in an important way. The California law applies to “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue"; that includes “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”

    The DC law does not directly protect the right to petition. The law protects any "act in furtherance of the right of advocacy on issues of public interest," which is defined as:

    (A) Any written or oral statement made:

    (i) In connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or

    (ii) In a place open to the public or a public forum in connection with an issue of public interest; or

    (B) Any other expression or expressive conduct that involves petitioning the government or communicating views to members of the public in connection with an issue of public interest.

    The right to petition is a separate right from the right to free speech, and "expression or expressive conduct" seems to refer to speech associated with petitioning, not petitioning, itself.

    (All bold emphasis is mine.)

  181. MJW says:

    Steyn has filed a response to Mann's dismissal motion. I'll link to it in a follow-up comment, since the last time I included a link, the comment was held in moderation for several days before it was posted. My initial reaction is that, even taking into account the dubiousness of the counterclaims it has to defend, I'm not too impressed. I think on some points, better arguments could be made. I haven't yet looked up any of the cited cases, though, so perhaps I'll be pleasantly surprised by the support they offer.

  182. MJW says:

    Steyn's response to Mann's motion to dismiss the counterclaims.

  183. _Jim says:

    re: HandOfGod137 • Mar 29, 2014 @12:30 am

    "Well yes, I'm using the common definition of "fraud" and basing my bold assertion of Mann's non-fraudulent status on the multiple investigations he has undergone without any finding of fraud and … "

    Can anyone convince me the above is not unmitigated and quantifiable bilgewater (and technically, just so much hearsay evidence)?

    Rather, just one investigation, "the joke investigation by Penn State set up by a now disgraced college president currently facing 30 years in the slammer for obstruction of justice."

    .