The Procedural Tail That Wags The Substantive Dog: Update On Michael Mann's "Hockey Stick" Lawsuit

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136 Responses

  1. Jeffrey Ellis says:

    (I think it's Rand, not Reed, Simburg.)

  2. TJIC says:

    procedural issues can be dry, obscure, difficult to understand, annoying, and completely transformative of the way the court system works for real people.

    I find it hilarious that people do not realize that legal games are like chess-boxing: there are two halves, and you can win (or lose) either way.

    I own a small company and am battling some twit over copyright law (the tedious details: I own a company that rents out DVDs, as is legal under 17 USC 109. A vendor is butthurt because I've made literally dozens of cents off of the $500 of inventory I've purchased from him. He's tried a DMCA takedown to shut down my website (failed), filed in small claims court in Massachusetts (failed), filed in small claims court in PA (failed) and has recently filed against me in federal court. )

    Anyway, the point is procedural issues. The lawyer I hired in PA destroyed the plaintiffs most recent federal shenannigans not by pointing out that we win on the merits (we do), but by pointing out that the plaintiff has three years to file an action from the date of the event and waited seven.

    BANG. HEADSHOT.

    Procedure matters.

  3. PonyAdvocate says:

    Just to clarify: when you refer to the "DC Court of Appeals", this is an appeals court in DC's municipal judiciary, and not the Federal Circuit Court for the DC Circuit, right? Assuming this to be the case, is there any higher DC municipal court? To what court, if any, would an appeal of a decision by the [municipal?] DC Court of Appeals be directed?

  4. Matt says:

    I'm confused – is this an anti-SLAPP against Mann's original suit, or Mann's anti-SLAPP against Steyn's countersuit?

  5. OH Krill says:

    PonyAdvocate,

    This suit is filed in D.C. Superior Court, which is the equivalent of a state trial court. There is only one appellate court that hears appeals from Superior Court – the Court of Appeals, and as you might expect, it usually functions as any state appellate court would. There is no higher court.

  6. jimmythefly says:

    @ Matt, It's the anti-SLAPP against Mann's original suit. But as Ken said, the other anti-SLAPP has been stayed too while this gets sorted.

  7. Sinij says:

    *Blankly stares into void*

    I wonder if procedure molasses/legalese is necessary element of a justice system or just a side effect.

  8. rpenner says:

    I think Michael Mann's career path of being a scientist escalates claims that he was either dishonest or corrupt in drafting his scientific correspondence into claims of major malfeasance on the level of a policeman taking bribes to assist criminals or a judge sentencing offenders to do his yardwork. In science, absolute and verifiable honesty in reporting the acts and fair inferences from them is more mission-critical than in the journalism which is necessary to the functioning of a democratic republic. (c.f. The Man Who Shot Liberty Valance, etc.)

    In that there has not been a scientific debunking Mann's most famous graph feature (indeed, the main talking point from the coal industry has gone from "there is no global warming (GW)" to "most of GW is not anthropogenic global warming (AGW)" to "most likely AGW won't be expensive to live with — it might even benefit you"), the baseless claims of scientific malfeasance are primarily unsupported defamatory claims.

    The fact that climate science just happens to be hotly contested for a variety of ideological reasons and short-term financial interests and that Mann has been asked to speak about them does not elevate baseless pejorative claims about Mann's scientific writing (as opposed to his advocacy in popular media) into sensible Public Participation in envisioned by the authors of SLAPP laws.

    As with those that want Creationism or "Intelligent Design" in the classrooms, or those that wanted doctors to endorse cigarettes or adding tetraethyl lead to gasoline (c.f. Cosmos: A SPACETIME ODYSSEY, epsiode 7 "The Clean Room") it is incumbent on those that want to cloak their claims in the respectability of science to base their claims on all the fairest and best summaries of all the evidence. Name calling (Constitutionally-protected though it may be), and baseless claims of professional misconduct (that I argue must be actionable) are no way to go about trying to usurp the authority of science.

  9. Earle says:

    @rpenner

    Prior threads on the Mann v Steyn et al. lawsuits have been locked down because comments veered too far afield from the legal aspects of the case and instead devolved into a cacauphony of tribal drumbeats about the merits of climate science and the virtues of Dr. Mann. Please govern yourself accordingly.

  10. stavro375 says:

    @Sinjii
    Clark wrote a post about complexity and law a few months ago. My understanding is that the only thing worse than a horrifically complex legal system, is an overly simplistic one.

    (Link: http://www.popehat.com/2013/11/15/the-law-is-complicated-because-reality-is-complicated/)

  11. Xopher Halftongue says:

    In "That makes defendants think twice about censorious lawsuits," do you mean plaintiffs? Otherwise I'm confused.

  12. melK says:

    So now you're planning on packaging up articles like these and selling them as a substitute for silica gel? Pack a few hundred of these into a room and you can make your own mummies!

  13. David C says:

    sensible Public Participation in envisioned by the authors of SLAPP laws.

    It's not called SLASPP.

    Anyway, as far as this article goes, I'm not sure where I stand. The more appeals that you allow before the trial, the longer justice gets delayed. The case here has been going on since 2012 already, and they have not even had discovery yet. There needs to be a balance between getting SLAPP lawsuits out of the system quickly, and allowing good lawsuits to actually get to trial before everyone involved dies of old age.

  14. Joe Blow says:

    @rpenner • Apr 23, 2014 @1:24 pm
    >>>I think Michael Mann's career path of being a scientist escalates claims that he was either dishonest or corrupt in drafting his scientific correspondence into claims of major malfeasance

    By that standard, peer review resulting in adverse commentary is libel per se.

    You can't question the science. No, really, not allowed.

  15. rpenner says:

    Earle:

    I didn't try to derail the thread with links to the totality of scientific evidence that supports that Mann was _right_ ; while I wanted to emphasize that there is no fact-based argument to communicate the belief that Mann was incompetent or evil in the way the defendants stated, my main topic was that a SLAPP motion shouldn't be allowed simply because the moving party has based their "public participation" fundamentally opposed to the factual record uncovered by the defamed non-moving party's research.

    Although I do not agree with Ken White's take on defamation versus SLAPP in the case filed by Mann, the bulk of my post was directed at the grossly pejorative nature of the complained of statements in the particular profession of science and how this would (in my opinion) generally weigh against a SLAPP finding against Mann (albeit without any citation of applicable law.)

    Ken White is welcome to close comments on his forum as you indicate has been done in the past, but I don't see that I'm necessarily derailing the thread. I _think_ my above post is just a robust opposing opinion on the above article that you are seeking to chill without the authority to speak for the blog owner.

    David C:

    How are laws for the District of Columbia enacted? By act of Congress or do they have some representative government of some sort? Ken White has already drawn some comparisons to other jurisdictions where the appellate procedure is known.

    Joe Blow:

    Peer review, like all criticism, baseless or not, can be painful to one's feelings but it differs qualitatively from the baseless defamatory statements about Mann's professional work that prompted Mann's complaint.

    1) Peer review is supposed to be fact-based and rational (Pointing out weak arguments or unsupported claims) because it is an argument to the editors that your work has flaws that should be corrected prior to publications
    2) Peer review is constructive in that it offers ways to improve the paper prior to publication (Missing an important citation?)
    3) Peer review is the culturally acceptable way to criticize (Just like a football tackle isn't assault on the gridiron)

    Mann's critics are (according to the complaint) none of these things.

  16. Ken White says:

    I have no problem with passing references, but I would be nonplussed and would take unpleasant action if this thread devolves into a spittle-flecked "debate" of the scientific issues, for which this is a poor forum.

  17. jdgalt says:

    The entire point of an anti-SLAPP statute is that legislatures recognize that defendants should not have to go through the entire process of discovery and trial when faced with a vexatious attack on speech.

    That analysis doesn't fit this case, because (according to Steyn on his own blog) he's already provided Mann with everything Mann asked for in discovery, while Mann hasn't even begun to answer Steyn's own requests.

    One wonders how long the judge will allow Mann to stall before either finding him in contempt or entering a summary judgment for Steyn. If I were the judge the answer would certainly be before today.

    @rpenner:

    I think Michael Mann's career path of being a scientist escalates claims that he was either dishonest or corrupt in drafting his scientific correspondence into claims of major malfeasance on the level of a policeman taking bribes to assist criminals or a judge sentencing offenders to do his yardwork. In science, absolute and verifiable honesty in reporting the acts and fair inferences from them is more mission-critical than in the journalism which is necessary to the functioning of a democratic republic. (c.f. The Man Who Shot Liberty Valance, etc.)

    That's really the point. Those who make the claims of catastrophic climate change that can only be prevented by drastically reducing our CO2 output do not merely disagree with us — they are using government to force a whole series of drastic, debilitating changes in our lifestyle that are almost certainly not necessary. It seems self-evident to me that a false claim of that sort (if in fact found to be false by a jury) fully deserves the same punishment as a false bomb threat that gets a whole city locked down and/or leads to SWAT teams raiding innocent people's homes. (And that's not even considering that the hoaxters are misusing government grant money to perpetuate the fraud, AND corrupting most of the world's major science institutions, which may take a century to earn their reputations back.)

    Am I the only one who has thought of the parallel between Mann and Ayn Rand's character Wesley Mouch?

  18. eigenperson says:

    I don't think it's out of the question that peer review could be libelous.

    Try this scenario:

    Professor X submits an article to the Journal of Broccoli Metabolism entitled "Broccoli consumption causes lung cancer in rhesus monkeys." The paper describes an experiment in which monkeys were fed either real broccoli or a placebo, after which their incidence of lung cancer was recorded. The journal editor selects Professor Y as a referee and sends her a copy of the paper.

    Two months later, Professor Y returns a referee report reading as follows: "This paper should be rejected because I have discovered that the author, Professor X, did not actually perform the experiment as described in the paper. Instead, he just made up his numbers out of whole cloth."

    As a result of Professor Y's referee report, J. Broc Metab rejects the paper, destroying Professor X's chance to win an Ig Nobel.

    Assuming Professor X actually did do the experiment as described, should he be able to sue Professor Y? I think so.

    On the other hand, suppose Professor Y's report reads: "This paper should be rejected because it's bullshit, and I'm not even convinced that Professor X really did the study." Then it's a poorly argued referee report, but also clearly a statement of opinion.

  19. David C says:

    @rpenner:

    my main topic was that a SLAPP motion shouldn't be allowed simply because the moving party has based their "public participation" fundamentally opposed to the factual record uncovered by the defamed non-moving party's research.

    If I read that right, you think SLAPP shouldn't apply because the people trying to apply it are wrong on the facts and therefore their participation isn't worth protecting? That seems to be a dangerous road to go down.

    How are laws for the District of Columbia enacted? By act of Congress or do they have some representative government of some sort? Ken White has already drawn some comparisons to other jurisdictions where the appellate procedure is known.

    Congress has authority, but they also have elected officials. Don't ask me who passed this particular law.

  20. HandOfGod137 says:

    @eigenperson

    At least as far as Europe goes, libel involves making some false statement in a permanent and publicly accessible medium (i.e. not just in a review note to a journal): q.v.

    http://www.emwa.org/Documents/JournalArticles/JA_V17_I4_Heywood1.pdf

    What should happen in the scenario you suggest is that further investigation is made into the paper in question. Unless there is some sort of bizarre conspiracy, the truth should emerge. Data is king in science: opinion, in the sense of personal bias, should (and mostly does) play little part.

  21. CJK Fossman says:

    Am I the only one who has thought of the parallel between Mann and Ayn Rand's character Wesley Mouch?

    Maybe not, but so far this is the only ad-hominem argument. I, for one, hope it remains the only one.

  22. VinceClortho says:

    Ken,

    How are we to finally and conclusively settle the climate debate if we can't debate it in your comments?

  23. Irk says:

    Stand by while I put you in a coma with my lawsplaining.

    *SWOONS*

  24. HandOfGod137 says:

    @VinceClortho

    I'm not sure science is covered by the word debate in the same way more subjective (for the want of a better term) subjects like law and politics are. It now seems to have come down to whether you accept the science or think someone is telling the odd porkie: so, rather than test the patience of our host, depending upon your personal stance it's either WuWTW or the likes of Ars Technica etc. I'd recommend Ars, but then I would, wouldn't I.

  25. MJW says:

    HandOfGod137 • Apr 24, 2014 @1:31 pm

    I'm not sure science is covered by the word debate in the same way more subjective (for the want of a better term) subjects like law and politics are.

    Yes! Back off man, they're Scientists!

  26. MJW says:

    HandOfGod137 • Apr 24, 2014 @3:15 am

    At least as far as Europe goes, libel involves making some false statement in a permanent and publicly accessible medium (i.e. not just in a review note to a journal):

    Certainly in the U.S, defamation doesn't require the statement be made in a permanent and publicly accessible medium. "Publication" in defamation law means making a statement to a third party. I wonder if the author of the cited article fails to consider slander as well as libel. Slander generally applies to defamation through more informal means of communication.

  27. HandOfGod137 says:

    @MJW

    Er, well, not exactly what I meant. And as I'm trying really hard not to derail, perhaps I could have better expressed it by saying that some subjects (like the aforementioned law and politics) are principally human constructs rather than attempts to distil the structure of the universe into laws defined by logic and mathematics. So while one can constructively discuss the nuances and varying interpretations of a piece of legislation and its implementation, debates in science often boil down to whether a theory successfully accommodates existing data and makes testable predictions, and is the data good.
    To own the truth, I'm not trying to suggest science isn't subject to debate, just that the debate often must take a different form. And as Ken clearly doesn't want a load of shouting about the validity or otherwise of the science, such an argument might be better conducted at a venue that specialises in scientific discussion. Ars Technica is actually excellent for this.

  28. HandOfGod137 says:

    @MJW (again: re libel/slander)

    IANAL, so thanks for that. I'm not very clued in about the law of my own country, so you'll have to forgive my complete lack of knowledge regarding the USA's legal system (excluding what I've picked up from The Wire/True Detective/Law & Order etc, of course!)

  29. Dictatortot says:

    I'm not particularly in the mood for debating the rights/wrong of the climate-change issue in itself either, HandofGod. But I observe that your criteria make most forms of speech fair game for everyone … but makes speech on issues that touch upon natural science the relative prerogative of a mandarin class. Should we increase the libel/slander liability of people without economic degrees who criticize the economic prescriptions of those who hold them? (Ignore that one if you're a Paul Krugman fan; I'm pretty sure I know the answer.)

  30. HandOfGod137 says:

    @Dictatortot

    I must be on a particularly bad roll at the moment, as I didn't intend to give that impression. My argument was that some domains are more subjective than others: if you are discussing the interpretation of a law there may be a number of valid views on the subject, but if you are discussing the energy absorption of CO2 at 2.7, 4.3 and 15 micrometers, it is data that can be measured and confirmed. If you discussing policy and how we deal with the discoveries of science, there are multiple valid lines that can be taken, but with the measurements and theoretical explanations of the science itself, it seems to me that you have to show that the data or theories are unsound with more data and better theories (with all the testing that is required) if you wish to supplant the current best theory. Think Newtonian gravity and its replacement with GR as more data came in to support that paradigm shift.

    It's the evidence-based nature of the hard sciences, as opposed to the interpretive nature of other subjects – I don't think you can talk yourself to a correct result, you have to produce the data to support the correct result. This doesn't mean that I think these subjects have a special status, just I think a different form of debate is more appropriate if you are really trying to explain the natural world

    When it comes to slander and libel, I'm afraid I'm in the buggered-if-I-know camp. Which is why I'm here to see what people who know a lot about USA law think.

  31. Allen says:

    Once in a great while the urge comes over me… "Will no one rid us of these troublesome fools."

    After all the back and forth does anyone recall how Mann was supposedly defamed? Is he continuing his work or has he picked up the sword of legality?

    Does anyone actually recall what Steyn said? Or, is it about who has the law on their side at this moment in time?

    Defendant/Plaintiff Pro Tip: discovery is exposure. (Including those pictures you thought were long gone.)

  32. R. Penner says:

    @jdgalt (Randian pseudonym):

    That's really the point. Those who make the claims of catastrophic climate change that can only be prevented by drastically reducing our CO2 output do not merely disagree with us — they are using government to force a whole series of drastic, debilitating changes in our lifestyle that are almost certainly not necessary.

    That was not the finding that Mann is famous for. As Mann struggled towards excellence, at the beginning of his career he ran afoul of the collective actions of the oil and coal industries who didn’t want him to upset their little world with truth and Reason. Mann was simply pointing out in 1995, 1998 and again in 1999, that there is evidence that favors the hypothesis that global warming in the 20th century is something humans have had no precedent with in 600, then 1000 years. This “Hockey Stick graph” is what he is known for and the specific target of Rand Simberg’s slurs.

    [Mann] has molested and tortured data in the service of politicized science…

    [Mann] had been engaging in data manipulations to keep the blade on his famous hockey-stick graph…

    [Mann] has become the [exemplar] of the corrupt and disgraced climate science echo chamber

    [Mann’s university would likely act] to hide [Mann’s] academic and scientific misconduct…

    Mark Steyn built on this with

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

    So Mann’s graph is comparable to Clair Patterson’s discovery that 20th century environmental lead levels were out-of-line with historical expectations. But instead of following up with more questions like “how reliable is this result?”, “what does this mean?” and “what is the cause of this?” Simberg and Steyn seem to have assumed John Galt stole his motor from the collective Mann reached his conclusions via fraud. That’s not journalism; that’s not fair comment; that’s defamation.

    You also have asserted that Mann’s graph is gravely in error, but have given no fact-based reasonable argument to suggest why that is. Mann can’t be Wesley Mouch because Mann was in 1995, 1998 and 1998 announcing observations and drawing reasonable conclusions from them. He was acting like John Galt’s training would have him act: as a scientist and a philosopher. I encourage you to also follow John Galt’s example in getting good understanding of reality instead of settling for the assumption that your preconceptions are “good enough.”

    Thanks, CJK Fossman.

    @eigenperson:
    But peer review isn’t published in any normal sense — so can it be libel? Professor Y certainly doesn’t have a duty under peer review to try and verify the experiment happened. I don’t see a scenario where Y would just accuse X of not doing the experiment without laying out a basis of fact and logical argument which leads to a reasonable belief that X is a fraud, and with basis the statement of opinion should be protected. Lacking such a basis and argument, I don’t see why the editor would take action on Y’s report, so X would have no damages.

    HandOfGod137 (physics reference detected) seems to say something similar.

    @David C:

    you think SLAPP shouldn't apply because the people trying to apply it are wrong

    No, I’m saying that defendants Simberg and Steyn should not be allowed to prop up their “public participation” with baseless defamation of scientists who make inconvenient graphs without the consequence of exposure to simple defamation suits. Mann may be right or wrong (although the evidence certainly favors being right), but Simberg and Steyn have leapt to denouncing Mann as a fraud before explaining how they know if and how that fraud was done.

    Mann is not their opponent, their opponent is his scientific research. They are free to dismiss it, ignore it, claim that it just isn’t so. But when they baselessly allege fraud they commit defamation against Mann as I see it.

    If Simberg and Steyn have an baseless belief in the badness of Mann’s science, that should motivate them to do better science to prop up their belief with a communicable foundation. Rather famously the Berkeley Earth Surface Temperature group (they really wanted to be the BEST) had pooh-poohed the instrumental temperature record for years before doing the work themselves to discover all their claims of “but it’s not good enough” were just a nitpicking distraction from the real story.

    @VinceClortho:
    I’m really trying to stick to just the Mann/Simberg/Steyn topic. But I have to touch a little on the “public participation” and on the elements of defamation. If I follow Neil deGrasse Tyson or Jacob Bronowski, eventually everything’s connected.

    @Dictatortot:
    Do you think I’m wrong to assert that having a factual basis for forming an opinion is a big factor that weighs against a finding of defamation. “I called him a murderer because I saw him push what I thought was his wife from the rooftop. How was I supposed to know he was rehearing with a life-like mannequin in his wife’s clothes?”

    @Allen:
    I have quoted Simberg and Steyn above, and while I looked for context that would seem to indicate these claims were opinions formed from some reasonable factual basis, they seem to be naked assertions of professional wrongdoing by Mann.

  33. HandOfGod137 says:

    @jdgalt

    That's really the point. Those who make the claims of catastrophic climate change that can only be prevented by drastically reducing our CO2 output do not merely disagree with us — they are using government to force a whole series of drastic, debilitating changes in our lifestyle that are almost certainly not necessary. It seems self-evident to me that a false claim of that sort (if in fact found to be false by a jury) fully deserves the same punishment as a false bomb threat that gets a whole city locked down and/or leads to SWAT teams raiding innocent people's homes. (And that's not even considering that the hoaxters are misusing government grant money to perpetuate the fraud, AND corrupting most of the world's major science institutions, which may take a century to earn their reputations back.)

    If you can parse the strangled syntax of what I posted above (one really shouldn't attempt to contribute to a discussion while suffering from a vast bout of insomnia), I am arguing that the idea that a jury is the mechanism to prove a scientific principle is totally false. Scientific theories gain acceptance by explaining the existing data and predicting what new data will be found, not opinion. As Feynman said,

    It doesn't matter how beautiful your theory is, it doesn't matter how smart you are. If it doesn't agree with experiment, it's wrong

    It seems more apposite to ask whether Steyn's claims can be supported (i.e. is it reasonable to make those claims in light of the reproducible work and supporting evidence) and do they do harm to Mann's standing as a scientist. IMO, no and potentially yes: whether you as an individual choose to accept current understanding of AGW, Mann's peers overwhelmingly do, so claiming he got his results fraudulently would seem to demand supporting evidence to be made in good faith, and accusing a scientist of fraud can be a career-ending act.

    I, obviously, accept the science of AGW and consider Mann's work to be, if not without error initially, to still be good science. Equally I view Steyn as either wilfully ignorant or a septic-for-hire and beleive there should be consequences for accusing scientists of being frauds without good reason to do so. That being said, the whole freedom of speech issue is clearly problematic, but it really seems to me that Steyn is cynically using it as a cover to spread FUD.

  34. Dan says:

    A bit of discussion here about how defamation law works. In the United States, here are the high points.

    Defamation is defined as negligently or willfully (depending on the plaintiff's status) making a false negative statement to a third party. Defamation exists in two forms, libel (not "liable") and slander. Purely oral defamation is called slander; any other form of defamation is libel. There are a lot of fine points in the law of defamation, and Ken has covered many of them here much better than I could ever hope to. I'm just trying to cover the basics.

    So, to the question of whether a peer review could ever be libelous, assuming that it isn't privileged in some way, it's obvious that it could be. If the review falsely says, "I happen to know that Dr. X never did the study, and that he falsified his results", that's clearly libel.

  35. Dictatortot says:

    I must be on a particularly bad roll at the moment, as I didn't intend to give that impression. My argument was that some domains are more subjective than others…

    That's true enough; sorry if I misread you. However, even less subjective domains are open to a lot of interpretation, and it won't do to legally award the franchise on interpretation to a sub-group of citizens, academic or not. If something you say comports with something a reasonable layman might think, I'm going to give you the benefit of the doubt in a libel case; it doesn't have to be au courant with academic opinion.

    Do you think I’m wrong to assert that having a factual basis for forming an opinion is a big factor that weighs against a finding of defamation. “I called him a murderer because I saw him push what I thought was his wife from the rooftop. How was I supposed to know he was rehearing with a life-like mannequin in his wife’s clothes?”

    Leaving the rights/wrongs of global warming aside, Penner, it seems clear that Steyn has at least some "factual basis" for alleging that Mann's stuff doesn't prove what he claims it proves. Steyn might be wrong about that, for all I know, but his objections aren't transparently invalid to non-specialists; they're objections that an intelligent, disinterested layman could reasonably hold. This makes it entirely plausible that Steyn believes what he says, is acting with no intent to falsify, and deserves the legal benefit of the doubt on that count.

    And if I understand you correctly, you're not necessarily denying that members of the scientists' guild are "supercitizens" who enjoy greater protection from contradiction than others would in the same situation … just that it's okay, because the sort of rough gainsaying that we groundlings sometimes have to live with as the price of Constitutional rule is extra-super-duper-hurtful in Mann's line of work. This makes him and his peers free-speech snowflakes of an especially special speciality. Call me a big meanie if you like, but this argument somehow fails to impress.

  36. R. Penner says:

    @Dan

    I think you are oversimplifying as, false or not, the statement is in a round of invited conversation and the naked assertion of a factual claim raises more questions than a potential to cause harm. If you assert plagiarism the question is "from where" and if you assert lying the question is "how does one know" — a refusal to continue the conversation harms Y's reputation in the eyes of the editor more than X. But just as Y's peer review comment could contain a confession to murder or stolen state secrets, it is possible that it contains false statements motivated by malice — I just don't see it harming X's reputation.

    @Dictatortot, I meant to type "rehearsing" instead of "rehearing" in my hypothetical scenario. Sorry.

    @David C, the above link indicates Congress OKed the SLAPP law even if they did not author it.

    While I am trying to tilt the balance of a SLAPP versus defamation analysis towards defamation when baseless slurs against a scientist's professional honesty are being made, I am _motivated_ by my conviction that Mann was not only not a fraud, but actually right. Other paleoclimate studies with wide geographic scope seem to agree well with Mann's data and analysis. To fixate on Mann's early work does seem to make Simberg and Steyn look out of touch with the field. To allege fraud in the face of all data and investigations makes the charges look reckless and motivated by malice. SLAPP is a postage size fig leaf for actual defamation when the “public participation” aspect seems to be part-and-parcel of the element of malice. Rather than invent Mann's motives, Simberg and Steyn could have spent some time examining their own.

    @jdgalt, I think the known facts make Mann much more like the protagonist, or even the hero, of the story. Simberg and Steyn seem to want to rely on their assumptions even in the light of investigations, additional data and additional analysis that leave Mann as a brilliant pioneer in the field of paleoclimate research. An innovator. A leader of scientists and philosophers into new realms of human knowledge. So I don't put much confidence in your attempt to portray Mann as a Randian villain.

  37. HandOfGod137 says:

    @Dictatortot

    While I agree that there are many areas of science subject to varying interpretations (Copenhagen/Many-Worlds etc spring to mind), accusations of making up data or fiddling its processing strike me as being much more objective statements: it's possible to prove the accusation (for the non-technical definition of proof) true or false. By accusing Mann of scientific fraud, Steyn has made a statement that can be objectively falsified – there is no need to consider balance of probabilities or the opinion of the layman, it can be shown if he did it or not.

    In such a situation, and in the knowledge that experts in Mann's field (not to mention the overwhelming majority of the scientific/academic community worldwide) have stated that he has not committed fraud (and all the investigations have agreed, for that matter), should Steyn not have considered how supportable an accusation of fraud was? Although less likely for a reasonably established scientist like Mann, such accusations can destroy careers.

    Even though I'm not American, I can dig that a perceived attack on free speech puts Mann on a sticky wicket in many people's eyes. That being said, I still get a definite odour of a cynical "I'll allude to paedophilia and say you made your data up, because your only defence lets me play the 'they terk er jerbs' card. The attacks on Mann over the last few years have been outrageous: my innate sense of fair play is telling me there's something off here.

  38. David C says:

    Do you think I’m wrong to assert that having a factual basis for forming an opinion is a big factor that weighs against a finding of defamation.

    You're not wrong, but you're wrong.

    Obviously, showing a factual basis would be grounds to protect Steyn – truth is always an absolute defense to defamation – but a factual basis is not necessary.

    If Simberg and Steyn have an baseless belief in the badness of Mann’s science,

    Then they are not liable for defamation, whether or not the science holds up. All that is required is that they believed what they said, not that they have a basis for it. This is why Obama cannot sue random people on the Internet that claim he doesn't have a birth certificate, and Neil Armstrong cannot sue people that claim he staged the moon landing, unless they can prove those people knew they were lying.

    And in my opinion, the speech this is meant to protect is exactly the speech in question here. I should absolutely be able to proclaim my opinion that OJ is guilty OR my opinion that the cops who arrested him framed him, without going through a defamation suit if it turns out I'm wrong. Issues of public importance, and the people involved in them, should be able to be discussed freely, even among the ignorant. Intentional lies are not permitted, but pretty much anything else should be.

  39. R. Penner says:

    @Dictatortot:

    Leaving the rights/wrongs of global warming aside, Penner, it seems clear that Steyn has at least some "factual basis" for alleging that Mann's stuff doesn't prove what he claims it proves. Steyn might be wrong about that, for all I know, but his objections aren't transparently invalid to non-specialists; they're objections that an intelligent, disinterested layman could reasonably hold. This makes it entirely plausible that Steyn believes what he says, is acting with no intent to falsify, and deserves the legal benefit of the doubt on that count.

    I don't follow you. Steyn is the one who says Mann's 1998 or 1999 data and analysis is "fraudulent" and then the bit about "tree-ring circus" which is meant to single out Mann as the culprit. This is not an "objection" to Mann's data and analysis, this is a slur on the man himself at the heart of his professional reputation.

    It's not up to us to assume Steyn has a factual basis for making such reckless charges — it certainly doesn't "seem clear" that he has such a basis — it's up to Steyn to communicate that basis. Mann has been exonerated by multiple investigations over the years and his findings generally confirmed by multiple threads of evidence. These are factors that weigh against Steyn's reasonableness of belief since how could Mann have committed "fraud" if other lines of discovery lead to very similar charts?

    And if I understand you correctly, you're not necessarily denying that members of the scientists' guild are "supercitizens" who enjoy greater protection from contradiction than others would in the same situation … just that it's okay, because the sort of rough gainsaying that we groundlings sometimes have to live with as the price of Constitutional rule is extra-super-duper-hurtful in Mann's line of work. This makes him and his peers free-speech snowflakes of an especially special speciality. Call me a big meanie if you like, but this argument somehow fails to impress.

    No, I'm saying that the right to Free Speech has never absolved journalists of the need to get the facts right or insulated those that spread baseless and malicious untruths from paying for the harm they do to reputations. Simberg and Steyn directly target Mann's professional reputation for no other discernible reason than that they seem to prefer that the field of paleoclimate research didn't exist to upset their “public participation” narrative which seems to be “GW is nothing to worry about.” Well how do we _know_ it's nothing to worry about unless we have data and analysis which is, by definition, scientific research?

    So in summary, the basis of my belief in Mann's suit are: 1) Where is there a demonstration Mann's 1998 and 1999 data and analysis was fraudulent and 2) How can it be fraudulent and still agree so well with a) isotope studies of diatoms, b) directly measuring the fossilized paleoclimate heat signature from boreholes, c) otherwise well confirmed. Without reasonable and communicable answers to these questions, Simberg and Steyn are just authors of conspiracy fiction and have made the mistake of casting a real person in their public fantasies. That they have based some sort of “public participation” campaign about these fantasies seems unfortunate, but Mann should not be without recourse.

    The balance of justice requires weighing the lack of reasonableness, the severity of the charges, and the potential for damage to Mann's professional reputation versus Simberg and Steyn's right to invent (or endorse) baseless stories to support their particular political cause.

    I don't see why you would denigrate expertise. Lawyers for lawyering, doctors for doctoring, sociopaths for CEOing, … We all can't be good in every field. No need to view experts as some sort of "out group" to be feared and mocked.

  40. Brian E says:

    @ Handofgod137 “but if you are discussing the energy absorption of CO2 at 2.7, 4.3 and 15 micrometers, it is data that can be measured and confirmed.”
    I think this highlights a key part of the problem (and by extension the danger of this suit), which is that differing levels of subjectivity are being asserted under the same protective blanket of “science.” Mann’s work does not involve radiative physics, or for that matter, anything involving the actual mechanisms governing the Earth’s radiative balance. Instead, he is looking for evidence of 2nd order effects; he uses temperature proxies to estimate past global temperatures. This is certainly subjective insofar as the output is sensitive to which proxies you choose to use, how you choose individual proxies from a group, if those proxies are even reliable proxies (i.e. the issues with divergence and “hide the decline”), and the inherent problems with comparing low (temporal) resolution proxy data with high-resolution instrument data. None of this means Mann is incorrect, but his work should certainly be open to question, and this is without getting into questions about data sharing, withholding R2 scores, etc. that, while not incompatible with correct conclusions, are reasonable signals to laymen that someone may be careless or dishonest.

  41. HandOfGod137 says:

    @Brian E

    Oh, I agree wholeheartedly. The radiative physics was illustrate the general point, and no discussion or criticism of scientific work should be verboten. Science progresses by finding what is wrong/unexplained in the existing paradigm. The underlying principle of the scientific method is the attempt to disprove your hypothesis and in fairness to Mann, that process is ongoing: no one would claim his initial work was flawless, and his results are being tested all over the world. It should be noted, though, that where errors have been identified, they do not spring from misconduct or fraud, they're just bits he got wrong, like all scientists do.

    My point is that if Steyn disagreed with Mann's results, he should have looked for errors in the data or its analysis. A straight out accusation of fraud is a different matter.

  42. Dictatortot says:

    this is a slur on the man himself at the heart of his professional reputation.

    Yes, it is. And I just hate it for him. Doesn't make it ipso facto prosecutable.

    But if Mann really wanted to vindicate his professional reputation in the long run, he's chosen a damned funny way of going about it. With every disingenuous attempt he makes–or his would-be defenders make–to proscribe critiques from laymen, he's knocking huge holes in whatever reputation he's had to this point for scientific probity, personal honesty, and benefit of the doubt on matters professional and otherwise. He's Streisand-ing himself at a snowballing pace, and neither Simberg nor Steyn is responsible–Mann's doing it to himself at no charge.

  43. Brian E says:

    Thanks, HandOfGod137 for your reply. Your last sentence raises a question for me, which may already have been addressed by others in previous post on this topic. Is there a single, accepted definition of fraud (or, to use the exact wording, “fraudulent”) in the context of this case, and how much does it matter (legally), particularly if the meaning/connotations vary between disciplines? I ask because if someone were to ask me casually whether I thought Mann or his hockey stick was fraudulent, I’d probably say “yes,” but in the sense of him/it being phony or misleading rather than an example of formal scientific or legal misconduct. But I’m an engineer, not a scientist, so the connotation may be different.

  44. MJW says:

    R. Penner • Apr 25, 2014 @9:32 am

    It's not up to us to assume Steyn has a factual basis for making such reckless charges — it certainly doesn't "seem clear" that he has such a basis — it's up to Steyn to communicate that basis. Mann has been exonerated by multiple investigations over the years and his findings generally confirmed by multiple threads of evidence. These are factors that weigh against Steyn's reasonableness of belief since how could Mann have committed "fraud" if other lines of discovery lead to very similar charts?

    Perhaps you could name the multiple investigations that exonerated Mann.

  45. Rand Simberg says:

    I have quoted Simberg and Steyn above, and while I looked for context that would seem to indicate these claims were opinions formed from some reasonable factual basis, they seem to be naked assertions of professional wrongdoing by Mann.

    You can't have looked very hard. All you need to do is read the original blog post that started the whole thing, and follow the links.

    I also never fail to be amused at failed attempts to read my mind. The primary target of the criticism was not so much Mann, but Penn State University.

  46. rpenner says:

    @MJW — here is a three-part examination of one, the June 2010 Penn State final report, by a blogger on science and ethics.

    http://scienceblogs.com/ethicsandscience/2010/07/02/in-search-of-accepted-practice/
    http://scienceblogs.com/ethicsandscience/2010/07/03/in-search-of-accepted-practice-1/
    http://scienceblogs.com/ethicsandscience/2010/07/05/in-search-of-accepted-practice-2/

    Some of the links, notably the PDF of the final report appear to have gone stale. Following up on that was the NSF:

    http://www.nsf.gov/oig/search/A09120086.pdf

    The research in question was originally completed over 10 years ago. Although the Subject's data is still available and still the focus of significant critical examination, no direct evidence has been presented that indicates the Subject fabricated the raw data he used for his research or falsified his results. … scientific debate is ongoing but does not, in itself, constitute evidence of research misconduct.

    Concerning False Claims, 18 U.S.C. §287 and 31 U.S.C. §§3729-33, and False Statements, 18 U.S.C. §1001, we examined the elements of each suggested offense and have concluded that there is insufficient evidence of violations of any of these statutes to warrant investigation.

    There was also a preliminary Penn state report in Feb 2010 and at least 6 other related investigations largely prompted by a release of stolen emails. http://www.skepticalscience.com/Climategate-CRU-emails-hacked.htm

    Hopefully, not all of those secondary links will be stale, but the conclusion of investigation after investigation is that there is no “fraud” — no scientific misconduct, no data fudging, no finger on the scales.

    Scientifically, there seems to be a concordance of research that supports that in large part, not only was Mann not defrauding anyone, but that he was right on this issue (comparing 20th century to paleoclimate).

    http://skepticalscience.com/broken-hockey-stick.htm

  47. MJW says:

    rpenner • Apr 25, 2014 @1:37 pm

    @MJW — here is a three-part examination of one, the June 2010 Penn State final report, by a blogger on science and ethics.

    Criticizing the Penn State report was the main point of the supposedly defamatory publications.

    The report is, by the way, ridiculous. One of its primary arguments that Mann didn't misbehave is that brought in a great deal of grant money: He must be a good scientist because he's a rainmaker. I'm not too impressed by a self-serving report from the same institution that found no wrongdoing by Sandusky. I want you to name those other six reports and tell me how they exonerate Mann. Oh, and skip the links — I want you to tell me.

  48. rpenner says:

    Summary: Pseudo-skeptics invent reasons to dismiss conclusions they don't like because the evidence isn't "good enough" while scientists and good journalists strive to work with the best evidence available.

    @Rand Simberg (who I will naively assume is actually one of the defendants, for I am just a babe in these dark woods)

    Thank you for posting to this thread when you have no obligation to do so. I was looking at text copy that did not have your hyperlinks, true.

    Minor quibble, it is not original-original in that your editor has removed two sentences.

    Larger quibble the: linked-to-2009 source does not support that _Mann_ was the the one who manipulated anything, in that the curve affected in the 1999 WMO report cover was not Mann's _blue_ line. The only "trick" of Mann's is using the best data — proxy data when all we have is proxy temperature data and instrumental temperature record when we have surface temperature data. Both are actually proxies to the concept of global warming which is a global energy trend in the biosphere. Famously temperature alone can't tell you about energy trends which is why summer beverages are served “ice cold.”

    Minor quibble: the link to the source of the "posterboy" line has gone stale. The section you preserved by quoting did not support allegations of corruption, but is entirely conclusory.

    But worst of all this posterboy source only refers to the January preliminary report and not the June 2010 final report or the 2011 report by the NSF's Office of Inspector General (the NSF is a federal agency and is not the NAS, an advisory non-profit organization established by act of Congress during the Civil War) which independently looked at the claims of data manipulation. Looking only at some of the history leaves your position vulnerable to questions of how you know the facts you allege and why you ignore newer investigations that found faults with the older investigations you cite.

    When you get around to the NSF report, you pooh-poohed it for _obtaining information_ from Penn State. You invent conspiracy, complacency and cover-up and don't base it on any factual story of how the NSF-Penn State investigation was specifically flawed. For all you know and all you bothered to find out the NSF stormed the campus with guns and tortured administrators and technical staff until they broke and "provided" information. Is that what you want? The NSF Science Gestapo? Even if we had the NSF Science Gestapo that would not necessarily lead to different wording than they reviewed "additional information provided by PSU."

    Finally, Penn State is not a monolithic entity and trying to damn the entire institution by associations both concrete and attenuated seems misguided at best. If you waited until after Jerry Sandusky was convicted (June 22, 2012) before writing your piece (July 13, 2012) against "primary target" Penn State, it seems just plain mean-spirited to republish allegations against multiply-exonerated Michael Mann.

    Thank you for your time.

  49. Rand Simberg says:

    Here's another version of the dead link.

    You invent conspiracy, complacency and cover-up and don't base it on any factual story of how the NSF-Penn State investigation was specifically flawed.

    I suggest that you reread what I wrote, this time for comprehension. Note emphasized words. Beyond that, I really shouldn't comment, to minimize angst on the part of my counsel.

  50. HandOfGod137 says:

    @Brian E

    The definition given by Penn State in their investigation seems a pretty fair version (q.v. http://www.research.psu.edu/orp/documents/Findings_Mann_Inquiry.pdf). The relevant bit would be:

    fabrication, falsification, plagiarism or other practices that seriously deviate from accepted practices within the academic community for proposing, conducting, or reporting research or other scholarly activities

    And on that note, this would seem a good time to quit this discussion, as the spittle-flecked crew appear to have moved in with demands for Google searches (in italics, to indicate srz bznss), because physical law is affected by ideology, or something. We were warned not to start down this road chaps.

    Anyway, if anyone wants to debate the science in a forum more suited to that subject, as I said before, Ars Technica is a pretty good place to start. I have no desire to annoy the blog hosts here, so I'm off.

  51. MJW says:

    rpenner • Apr 25, 2014 @3:44 pm

    But worst of all this posterboy source only refers to the January preliminary report and not the June 2010 final report or the 2011 report by the NSF's Office of Inspector General (the NSF is a federal agency and is not the NAS, an advisory non-profit organization established by act of Congress during the Civil War) which independently looked at the claims of data manipulation.

    The NSF closeout memo only said it found no direct evidence of research fraud by Mann. Perhaps in your world that qualifies as exoneration. Furthermore, it was written anonymously, and provided virtually no evidence for its conclusions.

    Under NSF standards, withholding adverse results qualifies as fraud. Mann computed the R2 statistic, but didn't reveal it in his paper. The R2 value showed Mann's results were statistically insignificant. There is certainly a reasonable argument that Mann withheld a result that casts doubt on the validity his paper's conclusions. The NSF memo doesn't address the issue.

    The NSF closeout memo also claims it isn't within its purview to assess the appropriateness of Mann's statistical methods. However, there's a closeout memo that criticizes a different researcher for using inappropriate statistical methods.

    One of the allegations that the Penn State said it was investigating was: "Did [Mann] engage in, or participate in, directly or indirectly, any actions with the intent to delete, conceal or otherwise destroy emails, information and/or data, related to AR4, as suggested by Phil Jones?" There's no doubt that he did, since he forwarded to Eugene Wahl the request from Phil Jones to delete IPCC-related emails. The Penn State investigators avoid this problem by considering only whether Mann, himself, deleted emails. In fact, that's how the issue was reframed when presented to the NSF. The question was presented as whether Mann engaged in "concealing, deleting or otherwise destroying emails, information or data."

    Also, both Penn State and the NSF accepted ludicrously weak evidence that Mann didn't delete emails. Instead of looking at the university's servers and backup files, they allowed Mann to provide a zip file containing the emails in question. That doesn't prove Mann didn't attempt to destroy emails, since it's at least as consistent with the possibility that Mann made a private backup of the emails before deleting them from the university computer system.

  52. MJW says:

    rpenner • Apr 25, 2014 @3:44 pm

    Finally, Penn State is not a monolithic entity and trying to damn the entire institution by associations both concrete and attenuated seems misguided at best. If you waited until after Jerry Sandusky was convicted (June 22, 2012) before writing your piece (July 13, 2012) against "primary target" Penn State, it seems just plain mean-spirited to republish allegations against multiply-exonerated Michael Mann.

    Perhaps an institution that's willing to cover up the actions of a sexual predictor to protect its football program is willing to let the chips fall where they may when it comes to their star scientist who brings in oodles of grant money. Perhaps the M of my first initial stands for "Marie of Romania."

    I'm still eager to hear which six other investigations exonerated the multiply-exonerated Michael Mann.

  53. R. Penner says:

    If you want to critique Mann's science — do science better than Mann. It worked for Newton, Maxwell and Einstein. If you want to accuse Mann of wrong doing, have a specific charge well-supported by evidence. It worked for Brian Deer. If you want the public to support your “public participation” have fact-based arguments to persuade them that you have their interests at heart.

    Upon review, I have addressed some problems I have with the charges that Simberg, MJW and Brian E are content to repeat and seek to explain reasons why I think that they have been lazy and unhelpful by repeating them. This is at the absolute periphery of the topic of how defamation should be weighted against SLAPP — the idea that a vague baseless slur needs to be refuted is antithetical to our system of justice, but is very close to how we think about reputations. Thus defamation suits seek to curtail speech and SLAPP motions seek to curtail limits on speech when that speech addresses a matter of public concern. In that the defendants never needed to baselessly accuse Mann of fraud to make their point, I continue to view Mann's suit with favor.

    Now onto the specifics where we run the risk of triggering a thread meltdown.

    @MJW

    I want you to name those other six reports and tell me how they exonerate Mann. Oh, and skip the links — I want you to tell me.

    I'm still eager to hear which six other investigations exonerated the multiply-exonerated Michael Mann.

    Well, I should skip the links because too many will subject my post to moderation. But now that I have linked to a list of 9 investigations (further reading makes it clear that the 2 Penn State investigations were independent of each other, so I have named 3 already) I would point out that it is ridiculous for you to believe you have both a right to demand a reply from me and a right to dictate the form of my reply.

    As there is no one who has direct evidence of wrong doing, it is not surprising that there is no specificity to the charges of wrong doing, even 14+ years later.

    @Brian E

    None of this means Mann is incorrect, but his work should certainly be open to question, and this is without getting into questions about data sharing, withholding R2 scores, etc. that, while not incompatible with correct conclusions, are reasonable signals to laymen that someone may be careless or dishonest.

    @MJW

    Under NSF standards, withholding adverse results qualifies as fraud. Mann computed the R2 statistic, but didn't reveal it in his paper. The R2 value showed Mann's results were statistically insignificant.

    Mann shared data when allowed to and didn't share data when not allowed to which was and is the practice.
    If you are referring to R² statistical tests, you need an independent variable and a dependent variable and a hypothesis of a linear relationship between them before an R² statistic's significance is of merit. (Right tool for the right job.) To what specific R² test do you refer and which hypothesis of Mann's do you think that statistic weighs against?
    After doing some reading, I believe you are criticizing R² scores between individual local proxy series and the global or northern hemisphere instrumental temperature record during the time when they overlap. But that was not Mann's hypothesis which is why he used PCA analysis to extract a signal from multiple proxies, a technique I was familiar with prior to 1996. R² is a measure of a particular (linear) relation of signal-to-noise, and one of the ways to reduce noise is to use more independent measurements with the statistical expectation that the signals will align and the noise will not align for a net gain of signal-to-noise. Now, I won't assume that this is what you meant — I'm asking you did you share the same pathetic misunderstandings of the R² statistic as I found elsewhere? What exactly is the charge here?

    In comparison, Mann seems to have worthy grasp of statistical tests in MBH98: http://www.meteo.psu.edu/holocene/public_html/shared/articles/mbh98.pdf

    So going back to my first quote of MJW, the baseless charges against Mann have been numerous — unspecific allegations are easy — but unfruitful. Some of the remaining 6 listed investigations (as Rand Simberg points out, it is stupid not to follow links when you have them) have British government panels (just about as authoritative a body as you can find on the use of the English language) specifically indicate that "Mike's trick" is non-pejorative jargon for a technique, not fraudulent data manipulation.

    Critics of CRU have suggested that Professor Jones’s use of the word “trick” is evidence that he was part of a conspiracy to hide evidence that did not fit his view that recent global warming is predominately caused by human activity. The balance of evidence patently fails to support this view. It appears to be a colloquialism for a “neat” method of handling data. (Paragraph 60)
    Critics of CRU have suggested that Professor Jones’s use of the words “hide the decline” is evidence that he was part of a conspiracy to hide evidence that did not fit his view that recent global warming is predominantly caused by human activity. That he has published papers—including a paper in Nature—dealing with this aspect of the science clearly refutes this allegation. In our view, it was shorthand for the practice of discarding data known to be erroneous. We expect that this is a matter the Scientific Appraisal Panel will address. (Paragraph 66)

    Thus from across the Atlantic, these charges against Mann have been found to be baseless.

    Although Rand Simberg alleges his "primary target" was Penn State, he does seem to spend an inordinate amount of effort alleging fraud by Mann without basis. That he would do this after so long and so many chances to substantiate the charges have gone by tends to suggest he has animus.

    He piled upon the whale's white hump the sum of all the general rage and hate felt by his whole race from Adam down; and then, as if his chest had been a mortar, he burst his hot heart's shell upon it.

    That makes for poor public writing. It's not enough to feel in your heart that the whale is evil, the point of persuasive writing is to give others the facts and reasoned argument why the whale is evil. When you stopper your ears against certain facts or counter-arguments you lose the right to be considered a fair advocate. And without fair advocacy, “public participation” pleadings should not weigh against charge of malicious, baseless defamation.

  54. Rand Simberg says:

    Although Rand Simberg alleges his "primary target" was Penn State, he does seem to spend an inordinate amount of effort alleging fraud by Mann without basis.

    I do?

    News to me.

  55. Earle Williams says:


    I do?

    News to me.

    Shhh. He's on a roll.

  56. MJW says:

    R. Penner • Apr 26, 2014 @11:03 am

    If you are referring to R² statistical tests, you need an independent variable and a dependent variable and a hypothesis of a linear relationship between them before an R² statistic's significance is of merit. (Right tool for the right job.)

    It just so happens that those are the same assumptions required to use PCA.

    To what specific R² test do you refer and which hypothesis of Mann's do you think that statistic weighs against?

    The R2 value of the weighted proxy data versus the temperature data during the verification period. A low correlation shows that the proxy data doesn't do a good job of predicting the temperature data.

  57. MJW says:

    R. Penner • Apr 26, 2014 @11:03 am

    But that was not Mann's hypothesis which is why he used PCA analysis to extract a signal from multiple proxies, a technique I was familiar with prior to 1996. R² is a measure of a particular (linear) relation of signal-to-noise, and one of the ways to reduce noise is to use more independent measurements with the statistical expectation that the signals will align and the noise will not align for a net gain of signal-to-noise. Now, I won't assume that this is what you meant — I'm asking you did you share the same pathetic misunderstandings of the R² statistic as I found elsewhere? What exactly is the charge here?

    All PCA does is produce the weights for a weighed average of proxies. The weighed average is then used to predict the temperatures. The weighed average is the independent variable; the temperature is the dependent variable.

  58. MJW says:

    R. Penner • Apr 26, 2014 @11:03 am

    Well, I should skip the links because too many will subject my post to moderation. But now that I have linked to a list of 9 investigations (further reading makes it clear that the 2 Penn State investigations were independent of each other, so I have named 3 already) I would point out that it is ridiculous for you to believe you have both a right to demand a reply from me and a right to dictate the form of my reply.

    I don't think I have the right to demand anything of you. I do have the right to draw attention to your inability to actually list the reports that supposedly exonerate Mann. The fact is, almost all the reports Mann claims exonerate him neither investigated him nor cleared him. The assertion that the Penn State investigations should be believed because they're "independent" is comical.

  59. MJW says:

    So going back to my first quote of MJW, the baseless charges against Mann have been numerous — unspecific allegations are easy — but unfruitful. Some of the remaining 6 listed investigations (as Rand Simberg points out, it is stupid not to follow links when you have them) have British government panels (just about as authoritative a body as you can find on the use of the English language) specifically indicate that "Mike's trick" is non-pejorative jargon for a technique, not fraudulent data manipulation.

    Critics of CRU have suggested that Professor Jones’s use of the word “trick” is evidence that he was part of a conspiracy to hide evidence that did not fit his view that recent global warming is predominately caused by human activity. The balance of evidence patently fails to support this view. It appears to be a colloquialism for a “neat” method of handling data. (Paragraph 60)
    Critics of CRU have suggested that Professor Jones’s use of the words “hide the decline” is evidence that he was part of a conspiracy to hide evidence that did not fit his view that recent global warming is predominantly caused by human activity. That he has published papers—including a paper in Nature—dealing with this aspect of the science clearly refutes this allegation. In our view, it was shorthand for the practice of discarding data known to be erroneous. We expect that this is a matter the Scientific Appraisal Panel will address. (Paragraph 66)

    The quoted section, with its shameless excuse making, is practically a parody of a whitewash. (Even though British government panels are certainly the unrivaled authority on the use of the English language. After all, most of the panel members have been using the language all their lives — what more could you ask?)

  60. MJW says:

    You should notice, R. Penner, that the person discussed in the British report was Phil Jones, not Michael Mann. The British panel investigated (a term I use very loosely) the CRU. In the section you quoted, they didn't even mention Mann's name in their weaselly attempt to justify Jones's use of the word "trick." That report didn't investigate Mann, so it couldn't have exonerated him.

  61. MJW says:

    MJW: The weighed average is the independent variable; the temperature is the dependent variable.

    To clear up any confusion (or perhaps add to it), I should point out that, physically, the temperature is the independent variable, and the proxy data, which is assumed to depend on the temperatures, is the dependent variable. I meant that, because the proxies are used to predict the temperatures, in computing the correlation, the proxies are the x variables, and the temperatures are the y variables.

  62. Wick Deer says:

    Gosh, I didn't think I was doing anything unethical when I learned the trick of mating with two rooks in chess.

    Guess I was cheating all those years and didn't know it.

  63. MJW says:

    Let me try one more time on the correlation issue. I was led a bit off track because of R. Penner's comment regarding independent and dependent variables, which really doesn't matter much in the discussion.

    Mann constructed a model which attempts to determine temperatures based on proxy measurements, such as tree rings. He actually constructed a number of models for different time periods, since many of the proxies weren't available over the entire time range. He calculated the models' coefficients by mathematically comparing how the proxies and measured temperatures behaved over a time period, which he called the training interval. He then tested the models over a separate time period, the verification period. The models were tested by comparing the predicted temperatures to measured temperatures. One of the statistics he computes in his code is a very standard statistical test value called R2, which is the squared correlation coefficient. (The Firefox "sup" tag doesn't work, or I'd make it a superscript like Penner does.) The R2 values are terrible. Mann claims that even though he included code to compute R2, he didn't reveal them in his paper because R2 is not a good assessment of model "skill" (which is what model-makers call the ability of a model to match real-world data). That's half right. A high correlation doesn't prove a model is good; however, a poor correlation is pretty strong evidence the model is bad. In other words, a good correlation is a necessary but not sufficient condition for a model to be good. I believe many people would have dismissed Mann's paper if they'd known how low the R2 values were.

  64. Wick Deer says:

    @MJW Were similar statistical errors also made in the BEST study?

  65. MJW says:

    Wick Deer • Apr 27, 2014 @5:24 pm

    @MJW Were similar statistical errors also made in the BEST study?

    The BEST study wasn't a paleoclimate reconstruction. In any case, the issue here isn't really whether Mann's results were valid despite the low R2 values, but rather whether the NSF IG report should have at least addressed the issue of whether Mann withheld adverse results, before concluding there was no direct evidence of fraud. Withholding adverse results is research fraud under the NSF's definition.

  66. R. Penner says:

    @MJW • Apr 27, 2014 @5:19 pm
    Thank you for taking the time to elaborate on the topic of r². You briefly covered that r² measures goodness of fit in a univariate model *.
    If for a sample of N x's and associated y's, we define:
    x̅ = (1/N) ∑ x
    y̅ = (1/N) ∑ y
    s_xx = ∑ ( x − x̅ )² = ( ∑ x² ) − N x̅²
    s_yy = ∑ ( y − y̅ )² = ( ∑ y² ) − N y̅²
    s_xy = ∑ (( x − x̅ )( y − y̅ )) = ( ∑ x y ) − N x̅ y̅
    Then r² = ( s_xy )² / ( s_xx s_yy ) which tells you how much information appears to be shared between series x and series y. (For small values N, there is a pretty good chance that quite high values of r² can happen between independent noise. This is why you need a way to assign a minimum level of significance for a particular combination of N and r². **) That this is a univariate model statistic is obvious, but can be make concrete by modeling as a function of x (simple least squares linear regression). We get the predictor function ŷ(x) = a + b x where
    b = s_xy / s_xx
    a = y̅ − b x̅
    Thus ŷ(x) = y̅ + ( s_xy / s_xx ) ( x − x̅ )
    Thus the sum of the squared amount by which the model misses the mark is Res = ∑ ( y − ŷ )² = s_yy − 2 b s_xy + b² s_xx = s_yy − (s_xy)² / s_xx = s_yy ( 1 − r² )
    Thus r² = 1 − Res / s_yy = 1 − ( ∑ ( y − ŷ )² ) / ( ∑ ( y − y̅ )² )
    which shows why r² is so relied upon. For a univariate linear model, it is the percentage of ∑ ( y − y̅ )² that appears to be explained by the x series.

    And the definition of β given by Mann, Bradley & Hughes (1998) is :
    β = 1 − ( ∑ ( y_ref − ŷ )² ) / ( ∑ ( y_ref )² )
    which makes sense, especially in light of the removal of the mean described in the paper. **

    What are the differences between β and r² ?
    r² is a univariate model statistic, tables describing significance of r² assume gaussian residuals, and use of a linear model assumes stationarity of the mean.
    β is better suited because the EOF model already gives us a ŷ so why would we need to treat it as x, as a series where we are asking if they are related. β actually tests the model.
    β is better suited because the authors established the statistical worth of the β statistic by modeling based on the year-to-year autocorrelation of the series rather than rely on tables that assume independence of sequence values.
    β doesn't assume stationarity of the mean. Rather than subtract out the sample mean, the population mean was already subtracted. *** So the variance that is modeled includes all nonstationarity present in the series.

    So I think that Mann was not obliged to compute r², not obliged to publish it if it was irrelevant, and if β (and use of β) is often better and never worse than r² in many ways then clearly use of β obliviates the need to rely on r².

    He then tested the models over a separate time period, the verification period. The models were tested by comparing the predicted temperatures to measured temperatures.

    This differs significantly from the description in two-part verification procedure described in MBH98. ****

    * Adapted from http://mathworld.wolfram.com/CorrelationCoefficient.html
    ** A null hypothesis that the data are unrelated and both from stationary gaussian distributions is tested from Student's t-test with t statistic = r √( (N−2) / ( 1 − r²) ) with N−2 degrees of freedom. If the conditions are different than these assumptions, then this test is not applicable.
    *** See MBH98, Methods appendix, subsection Calibration, paragraph two.
    **** See MBH98, Methods appendix, subsection Verification, paragraph one.

    Apologies to everyone where this Unicode formatting won't work. It appears to work on a modern Mac, Safari browser, javascript preview.

  67. Allen says:

    @R. Penner

    I happen to think both of their reputations are being harmed, by their own actions. To me, they are both exhibiting childlike behavior which doesn't redound to their favor.

    You found that Steyn had no reasonable cause to call Mann a fraud. Bully for you, Steyn is an ass.

    Others believe Steyn expressed an opinion, in impolite terms, but it's protected. Mann sues. Bully for them, Mann is an ass.

    Thus my comment, discovery often shows one's arse.

    As an aside, scientific opinion is considered as protected speech, as it should be.

  68. R. Penner says:

    @Allen — I thank you for keeping on the topic of law, justice, defamation versus SLAPP, etc.

    While many lawyers will council to avoid impulsive lawsuits, I think it's unfair to call all defamation lawsuits "childlike." Fictions are protected except 1) when they consist of plagiarism or copyright infringement, 2) when they incite riot, 3) when told where a duty to tell the truth exists, 4) when they are told to defraud people of possessions and 5) when they materially damage the reputation of someone. (Perhaps other cases exist, I didn't research the topic.)

    So lawsuits, while expensive, time-consuming, risky and pointedly confrontational as they are, are not to be entered into lightly but protect a statutory and customary right. You suggest that Mann's newfound litigiousness casts him in a negative light, but I don't see it harming his reputation of academic integrity. Aren't we taught that one part of ordinary integrity is standing up for oneself?

    Based on polling data, ideological polarization on the topic of climate change significantly deepened not in 2006, the year of Al Gore's movie, but 2009, the year of Barack Obama's inauguration (Jan) and the release of CRU emails (Nov).
    http://news.msu.edu/media/documents/2011/04/593fe28b-fbc7-4a86-850a-2fe029dbeb41.pdf (esp. first graph of figure 4).

    Consequently, climate scientists have seen themselves increasingly under ideological fire even when the scientific discussion on particular points (is GW happening? is it mostly man-made? are there historical patterns where similar events happened?) have seen all the evidence cluster tightly about certain answers. Negotiations have broken down as scientists take their authority from empiricism and ideological conservatives respect authority which tells them not to respect the judgements of the relevant experts.

    In regard to why Mann felt he needed to sue, that's a hard thing to judge. Perhaps he felt necessary to tilt at a windmill. But so far, even with the likelihood of Mann being a public figure and the need to beat down a colorable SLAPP defense and carry the burden of proof, Mann thought adding a third authority, the law, into this debate was a good one.

    And scientific opinion is not especially protected speech ( see http://www.shapingtomorrowsworld.org/rf1.html and http://retractionwatch.com/2014/02/13/psychiatric-times-retracts-essay-on-satanic-ritual-abuse/ ) which is troubling to me. Truth is a defense in a defamation lawsuit, but it is not a defense against getting sued by the litigious.

    Defamation of scientists is one thing and basing one's public participation in opposition to the research of scientists is another thing, and using a SLAPP law to try to block Mann's defamation lawsuit is the fault of those that confused the two when justice, journalism and (I hope!) the law require that facts and opinions are different things.

  69. jdgalt says:

    @R. Penner: Mann's "hockey stick" was the result he decided he wanted before he began his so-called studies, and he did deliberately throw out data that would have spoiled its desired shape (for instance, by showing that the Medieval Warm Period existed). All this is spelt out in Montford's The Hockey Stick Illusion, and backed up by Mann's own correspondence copied therein. That's no ad-hominem argument. It's fraud.

  70. R. Penner says:

    @jdgalt — Books can be scholarly and scientific. Books can be hatchet jobs and repackaging of blogs. Books can (famously) be filled with ideological reinforcement of desired thoughts, (c.f. Mao's little red book.)

    Montford's claims are based on contextomy, tortured readings and reliance on people who understand PCA worse than Michael Mann. There is an element of conspiracy ideation in the peculiar readings of Michael Mann's emails. And some of the arguments are over the top ridiculous like altering selection of data that started in 1400 would result in a demonstration of existence of the MWP (about 950-1250 according to Wikipedia). Or criticizing Mann's choice of selection rules of which principle components to keep while hagiofying McIntyre and McKitrick who ignored the issue completely and arbitrarily kept two components of a different PCA analysis.

    http://www.realclimate.org/index.php/archives/2010/07/the-montford-delusion/

    It's not fraud — it's looking at a huge amount of data with sophisticated tools and statistical techniques. Montford's book-length blog post doesn't use facts to conduct fair and rational argument that fraud exists — it's just preaching to the choir.

  71. rpenner says:

    @MJW — thank you for continuing to press on the issue of r² versus β.

    By continuing my research, I have just now discovered that on July 15, 2005, Michael Mann authored a letter jointly to Joe Barton, chairman of the House Committee on Energy and Commerce and Ed Whitfield, Chairman of the Subcommittee on Oversight and Investigations. By magic of discovering digging up his 2005 formal response to Congress after my 2014 comment, I see that he echoed my independent sentiment on β, which here he calls the “reduction of error” statistic:

    [β] is the preferred measure of statistical skill because it takes into account not only whether a reconstruction is “correlated” with the actual test data, but also whether it can closely reproduce the mean and standard deviation of the test data. If a reconstruction cannot do that, it cannot be considered statistically valid (i.e., useful or meaningful). The linear correlation coefficient (r) is not a sufficient diagnostic of skill, precisely because it cannot measure the ability of a reconstruction to capture changes that occur in either the standard deviation or mean of the series outside the calibration interval.

    (quoted from the second paragraph starting on page 9)

    Citations:
    Cook, E.R., Briffa, K.R., Jones, P.D., Spatial Regression Methods in Dendroclimatology: A Review and Comparison of Two Techniques. International Journal of Climatology, 14, 379-402 (1994)

    Wilks, D.S., Statistical Methods in Atmospheric Science, chap. 7 (Academic Press 1995);

    Mann, M.E., Bradley, R.S., Hughes, M.K., Global-Scale Temperature Patterns and Climate Forcing Over the Past Six Centuries. Nature, 392, 779-787 (1998) and http://www.nature.com/nature/journal/v392/n6678/suppinfo/392779a0.html

    Luterbacher, J., Dietrich, D., Xoplaki, E., Grosjean, M., Wanner, H., European Seasonal and Annual Temperature Variability, Trends and Extremes Since 1500. Science 303, 1499-1503 (2004).

    National Center for Atmospheric Research, Media Advisory: The Hockey Stick Controversy New Analysis Reproduces Graph of Late 20th Century Temperature Rise (May 11, 2005)

    Rutherford, S., Mann, M.E., Osborne, T.J., Bradley, R.S., Briffa, K.R., Hughes, M.K., Jones, P.D., Proxy-Based Northern Hemisphere Surface Temperature Reconstructions: Sensitivity to Method, Predictor Network, Target Season, and Target Domain. Journal of Climate 18.13 (2005): 2308-2329.

    Wahl, E.R., Ammann, C.M., Robustness of the Mann, Bradley, Hughes reconstruction of Northern Hemisphere surface temperatures: Examination of criticisms based on the nature and processing of proxy climate evidence. Climatic Change 85, 1-2, 33-69 (2007)

  72. MJW says:

    R. Penner • Apr 27, 2014 @7:49 pm

    For small values N, there is a pretty good chance that quite high values of r² can happen between independent noise. This is why you need a way to assign a minimum level of significance for a particular combination of N and r².

    Even with large N, a significant R² value doesn't prove the model is good, but as I previously mentioned, if the R² value isn't significant, the model is highly suspect.

    So I think that Mann was not obliged to compute r², not obliged to publish it if it was irrelevant, and if β (and use of β) is often better and never worse than r² in many ways then clearly use of β obliviates the need to rely on r².

    The claim that the Reduction of Error statistic, β, is superior to R² is, as far as I know, completely unsupported by standard statistical literature. R² is universally used by statisticians, while β is a rather obscure statistic used almost exclusively by climatologists. Unlike R², β hasn't been extensively analyzed, so it's properties aren't well established.

    R² has a known theoretical distribution, β doesn't. No independent researcher can look up Mann's β values in a table to determine if they're statistically significant. Instead, Mann performed Monte Carlo simulations to establish what he claims are the significance levels. Steve McIntyre performed his own simulations, and claims Mann's significance levels are wrong. No matter who's correct, a statistic whose significance that can only be confirmed by Monte Carlo simulations is far from ideal.

    I don't think you can point to a single publication prior to MBH98 that claims β can or should be used in place of R². If Mann felt R² didn't matter, why did he include the R² calculation in his program? R² is a standard statistic for assessing the "skill" of models. Mann knew the values were extremely low, and knew or should have known they would call the skill of his model into question. Even if he believed his model was valid despite the adverse R² values, he should have revealed the values and explained why they didn't matter, just as a researcher who eliminates outliers for valid reasons is still obligated to reveal which samples were rejected and why.

  73. R. Penner says:

    @MJW:

    R² has a known theoretical distribution, β doesn't.

    Incorrect. r² has a known theoretical distribution only if you make assumptions of stationarity of mean and uncorrelated gaussian noise. As I have calculated for you, if you assume x and y are different things with a linear correlation and stationary means, then r² between x and y is the same statistic as β between ŷ' = ŷ(x) − y̅ = a + b x − y̅ and y' = y − y̅ , where a and b are the coefficients of the best linear fit. Mann's reliance on β is appropriate because here x and y are not "different things" and so instead of needing to find a and b, we set a = 0 and b = 1 because here ŷ(x) = x. This positive measure of skill is important because we are trying to fit the signal not the noise, and multivariate methods are more susceptible to spurious fits than univariate linear methods.
    @MJW:

    I don't think you can point to a single publication prior to MBH98 that claims β can or should be used in place of R².

    I've already cited two:

    Cook, E.R., Briffa, K.R., Jones, P.D., Spatial Regression Methods in Dendroclimatology: A Review and Comparison of Two Techniques. International Journal of Climatology, 14, 379-402 (1994)

    Wilks, D.S., Statistical Methods in Atmospheric Science, chap. 7 (Academic Press 1995);

    Neither of those sprung full-formed from the head of Zeus — both of those works point to earlier work.
    @MJW:

    No matter who's correct, a statistic whose significance that can only be confirmed by Monte Carlo simulations is far from ideal.

    Please tell that to the various Large Hadron Collider research teams.

    All of this has been one big quibble of “not good enough” which is the hallmark of science denialism for proponents of tetraethyl lead, selling cigarettes, teaching creationism in biology class, and doing nothing about anthropogenic climate change. Like many of these previous examples, a litany of baseless charges is passed around. Here we can find a common source.
    @jdgalt:

    All this is spelt out in Montford's The Hockey Stick Illusion,

    @MJW:

    Steve McIntyre … claims Mann's significance levels are wrong.

    And Montford's book rests heavily on McIntyre's blog and "Corrections to the Mann et. al. (1998) Proxy Data Base and Northern Hemispheric Average Temperature Series" — a 2003 non-peer reviewed article co-authored by McIntyre's in Energy & Environment, a policy journal.
    Mann wrote in 2005:

    I know of no independent scientific group that has found any of McIntyre and McKitrick’s claims to be valid. … McIntyre and McKitrick’s work has been discredited by ample peer-reviewed, scientific work.

    (One of those things was that they seem to have confused the Little Ice Age (1350 to about 1850) with the Medieval Warm Period (950 to 1250) and took their spurious fit for wildly higher temperatures in the 1400's (figure 8 of M & M, 2003) as proof Mann was hiding the MWP). So I don't think this is just a reasonable and fair dispute between Mann's clique and McIntyre's clique. I see this as ideologically-motivated attacks on science's leading edge — the place where progress is made.

    http://nofrakkingconsensus.files.wordpress.com/2012/01/mann_response_to_barton.pdf

    But in light of you saying that you think that this is an active dispute between Mann and McIntyre's correctness, what do you say to the principle that accusing Mann of scientific "fraud" is a dishonest way to sway public opinion? What do you say to Mann's right to not be accused of evils that he hasn't partaken of?

  74. ftzc says:

    rpenner: this is a legal blog and not one of those physics forums you normally hang with. You can at least attempt to be precise and not misrepresent what exactly Steyn said. You are obviously not interested in legal aspects of the case, why are you here?

  75. HandOfGod137 says:

    @ftzc

    I'd say he/she is cutting through the nonsense and direct copypasta from the likes of McIntyre's blog that is the standard toolkit of the denialist. And doing a splendid job of it. I can't be bothered myself: the metaphor of mud-wrestling with pigs is often brought up at this point, and I'm wary of bringing down the Wrath of Ken, but I'm glad someone is.

    Also, with reference to what Steyn actually said: he repeated Simberg's statement that Mann was "the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data." and went on to say "Mr. Simberg does [have] a point. Michael Mann was the man behind the fraudulent climate-change 'hockey-stick' graph." He directly accused Mann of scientific misconduct, so I fail to see how rpenner has misrepresented anything.

  76. Philemon says:

    Penn State had some deficiencies in their investigations, because of the funding, with matters not related to climate science, which involved child abuse.

    http://climateaudit.org/2011/11/10/penn-state-president-fired/

    So, as an intelligent person, would you really expect their investigations into lesser discretions from other sources of funding would be any less of a white-wash?

    I'm with Ken. I don't really give a damn what you do in your little corner of academia. And you can say what you think about it. But other people should have the right to say what they think of it, too.

    By the way, the "conspiracy ideation" and "mud-wrestling with pigs"? Do you guys go to some sort of depot for talking points? Or maybe you follow WUWT!

    http://wattsupwiththat.com/2012/09/07/lewandowsky-thinks-failure-to-get-or-find-email-is-conspiracy-theory/

    http://wattsupwiththat.com/2014/04/28/exeter-university-prof-debating-skeptics-is-like-mud-wrestling-with-pigs/

  77. Philemon says:

    s/b indiscretions!

  78. rpenner says:

    I'm not perfect. I had forgotten completely Chapter 2 of Consider Phlebas. And I've made no secret that I have preferred Mann's epistemology and reasoning and data and correspondence with past and future paleoclimatology. But if you want legal argument, I have attempted that also.

    From http://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation :

    A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.

    The typical SLAPP plaintiff does not normally expect to win the lawsuit. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat. The difficulty is that plaintiffs do not present themselves to the Court admitting that their intent is to censor, intimidate or silence their critics. Hence, the difficulty in drafting SLAPP legislation, and in applying it, is to craft an approach which affords an early termination to invalid abusive suits, without denying a legitimate day in court to valid good faith claims.

    To the extent that this sentiment is representative of the intent of the D.C. statute and its interpretation by the courts, Mann has raised a colorable defamation claim that weighs his career-long entire professional reputation against defendant's customary right to say what they want without the need to defend those words as the truth. This apparently legitimate conflict has a history that goes back over 15 years and both sides have their partisans. At issue is should defendants have a communicable fact-based chain of logic to support their charges against Mann before making them apparently in an attempt to discredit some aspect of anthropogenic global warming science. In science, the answer is yes. In academic practice, the answer is yes. In journalism, the answer is yes. In defamation law, the answer is yes. In SLAPP law, I submit that the most important factors should be the damage an unopposed charge of scientific fraud would be to the career of a scientist and a colorable demonstration of good faith in belief of the deliberate falsehood or recklessness of the charges against Mann.

    Defendants didn't say "There's still a pall of smoke over MBH98 — or is that just FUD dust?" — they ignored people who went looking (2005-2011) at the site of the smoke to say "Fire!" — or rather, "Hell's unholy flames have been summoned by a witch!" Strident unreasoning demonizing of scientists looks reckless. Setting off to tarnish by association all those at Penn State looks reckless. Ignoring the literature on the topic seems reckless.

    The conclusion of judges who have been asked to consider this so far seems to be that Mann intends to win. Thus, in SLAPP law defendants may in fact have to defend their words with a communicable fact-based reasonable argument.

    I do hang out to some extent on science discussion forums, and perhaps I have grown thin-skinned at casual claims of having cosmic truth on one's side. Thus for some years, I attached the following signature to my posts:

    "And the peace of God, which passeth all understanding, shall keep your hearts and minds through Christ Jesus." Philippians 4:7
    It's just good Netiquette. Failing that, Chlorpromazine.

    Perhaps someone will paraphrase that for this blog someday.

  79. David C says:

    At issue is should defendants have a communicable fact-based chain of logic to support their charges against Mann before making them apparently in an attempt to discredit some aspect of anthropogenic global warming science… In defamation law, the answer is yes.

    No, it is not. Not when dealing with public figures. You need actual malice to have defamation. And to be clear, "actual malice" has a specific definition here: knowledge that the statements are false or reckless disregard of their truth or falsity. And "Reckless disregard does not encompass mere neglect in following professional standards of fact checking. The publisher must entertain actual doubt as to the statement's truth." http://en.wikipedia.org/wiki/Actual_malice

  80. R. Penner says:

    @David C: Who has conducted himself most accordingly.

    Aha! You may be very, very correct on the extra burden public figures have. (This is the Federal definition of 'public figure' under discussion which concerns a constitutional issue that can't be swept aside by State or in this case D.C. law.) However, is that not a two-edged sword?

    Let's assume that 1998 researcher Mann was a limited purpose public figure with regard to his practice as a scientist *, even though his celebrity seems to consist entirely of people demonizing him. Doesn't this public figure status make it proportionately easier for defendants to research their claims in 2012? Thus wouldn't mere ordinary care lead defendants to know that the, by then ancient, charges of fraud are nebulous, contested and so far rejected by investigations. The blogs linked to by defendants offered no demonstration of fraudulent acts. Simberg did, in fact, reference the 2011 NSF report from the OIG with such recklessness that he called it the NAS and via tortured readings of one quote from it, invented reasons to disregard it. That smells like recklessness to me — recklessness that colorably may rise to the level of demonstration of actual malice. Associating nebulous claims about Mann's scientific conduct with concrete and particular demonstrated facts about disgraceful acts by others were retracted by Simberg's publisher but also suggest to me animus at the time of original publication. This grossly unfair attempt to besmirch Mann's reputation by common association at a university with over 17,000 full-time staff and faculty appears to be the common thread between the defendants.

    In summary, an actual mental state of doubt seems confirmed in that they quoted, and thus presumably read, the 2011 NSF's OIG report. That they then published the claim of scientific fraud would seem at least "acting with reckless disregard for the statement's truth or falsity."

    http://www.dmlp.org/legal-guide/proving-fault-actual-malice-and-negligence

    * As I understand it, he would not be a public figure with regard to his practice tipping at restaurants.

  81. R. Penner says:

    @David C

    Also did you want to discuss the "clear and convincing evidence" standard articulated in New York Times Co. v. Sullivan, 376 U.S. 254 (1964)?

  82. David C says:

    Let's assume that 1998 researcher Mann was a limited purpose public figure with regard to his practice as a scientist *, even though his celebrity seems to consist entirely of people demonizing him.

    I think publishing a paper in a scientific journal makes you a public figure in regards to that paper, especially when the issue in question has a large public policy impact.

    Thus wouldn't mere ordinary care lead defendants to know that the, by then ancient, charges of fraud are nebulous, contested and so far rejected by investigations.

    Perhaps, but I don't think any duty of ordinary care is legally owed here. After all, in the Times case, there was "evidence that the Times published the advertisement without checking its accuracy against the news stories in the Times' own files" but that did not prevent a reversal.

    In summary, an actual mental state of doubt seems confirmed in that they quoted, and thus presumably read, the 2011 NSF's OIG report. That they then published the claim of scientific fraud would seem at least "acting with reckless disregard for the statement's truth or falsity."

    Perhaps. It could be that they read the thing poorly or that they only believed the parts they agreed with. But evidence that they actually knew it was false might be enough to at least survive the SLAPP motion.

  83. David C says:

    Also did you want to discuss the "clear and convincing evidence" standard articulated in New York Times Co. v. Sullivan, 376 U.S. 254 (1964)?

    Hmm. I think whether the evidence was "clear and convincing" or not would be something for a jury. Unless the court claims that no jury could reasonably hold a particular way.

    On a side note, I never realized this, but the NYT vs Sullivan court split 5-4. Not on whether the speech in that case was defamation – they all said it was not – but on whether defamation was possible against a public figure even if there WAS malice.

    But what I'd actually like somebody to comment on (because almost nobody in the comments here really has) is the actual point of this article in particular – whether SLAPP should be appealable right away, or not until after the trial.

    I think I've changed my mind; it should be appealable immediately. After a final ruling on the merits of the case itself, the SLAPP motion is practically moot: if there's a finding for the plaintiff, then SLAPP obviously would have been improper, and if there's a finding for the defendant, then you've missed the main point of SLAPP which was to avoid the proceedings in the first place. Beyond that, if the SLAPP ruling is initially in the defendant's favor, then the plaintiff gets to appeal it right away (because that would really be the only thing left.) I don't think it would be fair to tell one side they can appeal right away but the other side that it can't.

  84. R. Penner says:

    @David C:

    I think publishing a paper in a scientific journal makes you a public figure in regards to that paper, especially when the issue in question has a large public policy impact.

    That makes no sense as a general proposal. If X writes a paper, Y gets a free pass to accuse X of defrauding the grant providers who funded that paper? X is just the reporter, not the story, until Y makes X the story. Thus Y is liable for defamation under the negligence standard.

    Research may be a tool used by advocacy programs but research itself is not advocacy. And the scope of a particular area of being a limited public figure must be greater than a single magazine or journal article. (Or so I suggest must be the case in lieu of any case law research….)

    Perhaps, but I don't think any duty of ordinary care is legally owed here. After all, in the Times case, …

    Ah, but Simberg quotes the NSF OIG report, so it's not a muddy question of what information a corporation "knows" but the particular documents that Simberg used to build the story as evidenced by what is quoted in the same story.

    But evidence that they actually knew it was false might be enough to at least survive the SLAPP motion.

    As the SLAPP motion precedes discovery, it would tend to create in Mann's mind the impression that they had a report from the top investigative officials of the funding group — for which allegations of scientific fraud are allegations that they are victims of economic fraud that concluded that there was no evidence of fraud or other statuary violations to continue an investigation on — and on that basis it is not unreasonable for Mann to assume actual malice in the rather tortured reading what was quoted. Thus Mann presents the appearance of someone who wants to win the defamation case, could possibly win the defamation case, and isn't just using the defamation case to silence his critics.

  85. David C says:

    That makes no sense as a general proposal. If X writes a paper, Y gets a free pass to accuse X of defrauding the grant providers who funded that paper

    X published it, which by definition makes it public. In my mind, that means X's motives in publishing it are fair game.

    Thus Mann presents the appearance of someone who wants to win the defamation case, could possibly win the defamation case, and isn't just using the defamation case to silence his critics.

    On the other hand, he did also go after, for example, National Review Inc. for publishing the allegedly defamatory statements, even though they might not have this same knowledge. And he also sued over statements besides the "fraudulent" one; statements like "intellectually bogus" that are almost certainly protected opinion, and the Jerry Sanduski comparison which nobody could reasonably take as meaning Mann molested children. Such overreach might support a conclusion that he was trying to shut up his opponents. As Ken has previously said, "in reading the complaint, and seeing how much of it attacks statements of opinion and asserts the inviolability of scientific consensus, I have to wonder whether Mann's aim is political debate by other means, not genuine redress of wrongs."

    And frankly, after reading Sandburg's statements about the OIG report (and the report itself), I don't see how that proves he knew his comments were false. It would appear that he doesn't think the report really proves anything because they depended mostly on Mann and PSU for their information. Mann was the one being investigated and PSU had not shown itself to investigate its employees properly in all cases. I don't see anything there that rises to a reckless disregard for the truth; he is not obligated to change his mind merely because the OIG issued a report disagreeing with him.

    And the report specifically did NOT investigate the statistical stuff, and the statistical stuff appears to be important as to whether Mann's graph could be considered "fraudulent". From the report: "Much of the current debate focuses on the viability of the statistical procedures he employed, the statistics used to confirm the accuracy of the results, and the degree to which one specific set of data impacts the statistical results. These concerns are all appropriate for scientific debate and to assist the research community in directing future research efforts to improve understanding in this field of research. Such scientific debate is ongoing but does not, in itself, constitute evidence of research misconduct." So even if the report could have been taken as 100% true, someone could still think that the graph was fraudulent based on the statistical methods used.

  86. Rand Simberg says:

    FTR, Mann has already stipulated in his own filings that he is a public figure, so it is pointless to argue about that.

  87. rpenner says:

    @David C :

    On the other hand, he did also go after, for example, National Review Inc. for publishing the allegedly defamatory statements, even though they might not have this same knowledge.

    I'm not sure if the author was an agent, employee, invited speaker or paying customer, but in providing an edited publishing venue aren't they delegating that responsibility to the author with a duty to review what appears under their masthead? Without discovery, Mann's knowledge of the publisher's knowledge is the same of his knowledge of the author's knowledge — he knows what words were printed. It's not up to Mann to guess at reasons why the publisher's conduct would be less apparently reckless than the author's.

    So even if the report could have been taken as 100% true, someone could still think that the graph was fraudulent based on the statistical methods used.

    Not as I see it. I think that someone could think MBH98 was potentially materially wrong on general principles and on the opinion of the NSF OIG. I don't think someone can hold the believe that it was fraudulent (both materially wrong and knowingly wrong or without basis) on the basis that someone objects to their statistical methods. On that point the non-peer-reviewed MM03, that neither defendant appears to rely on directly (but might be the source of the charge of "molesting data"), attempted to demonstrate materially wrong, but arguably got things more wrong by not using a rigorous methodology and confusing a spurious reconstruction with an accurate one. (RMOBBHJ05, WA07). So without a demonstration of materially wrong or knowingly wrong, the claim of "fraud" rests on nothing and defendants published not just negligently but recklessly.

    Courts solicit opinion testimony from experts for a reason. Laymen don't have a right to guess the appropriateness of choice of mathematical procedures.

  88. David C says:

    The difference between wrong and fraudulent is intent, which Mann's opponents cannot know. And of course, at least one defendant has claimed that they took "fraudulent" to essentially just mean "wrong". Which of course brings up the question of whether, when someone uses the word" fraudulent" in the context of a blog, it means the same thing as when it is used in court, or whether it should be taken as hyperbole in an article like that.

    with a duty to review what appears under their masthead?

    I don't see what gives them the duty in this case, when the Times didn't seem to have one in that case. An ethical duty, sure. But a legal one?

    Laymen don't have a right to guess the appropriateness of choice of mathematical procedures.

    Maybe not in court, but certainly in a blog they can.

  89. LongCat says:

    @ rpenner: "Courts solicit opinion testimony from experts for a reason. Laymen don't have a right to guess the appropriateness of choice of mathematical procedures."

    And that's why Mann will lose. An honest misunderstanding of the meaning and importance of R2 precludes a finding of actual malice. Given the the expertise required to understand the topic, it's going to be almost impossible to show that the non-statistician speakers honestly knew their professed opinions on statistics to be incorrect.

    That ends the case even if Mann is 100% correct on the math and the science.

  90. rpenner says:

    David C and LongCat have articulated standards where, if accepted as general principles, no one who writes a published article can recover defamation damages arising from a baseless charge that that article was plagiarized and no Treasury official can recover defamation damages arising from a baseless charge of embezzlement. This does not strike me as possibly the correct summary of 1st Amendment law in the US. It cannot be the case that an act of publication makes every author a limited purpose public figure, and it cannot be the case that defendants are allowed to redefine printed words after-the-fact in lieu of a retraction of the common read, in-context meaning, and it cannot be the case that public figures must prove a willful telling of untruth when absolute certainty of the truth was held by the defendant in order to recover damages for defamation.

    By my recollection, Mann had celebrity thrust upon him after publication of MBH98, possibly as late as AR4 work and possibly not until the furor over released East Angelica emails in late 2009.

    See: Google Trends 2004-2014: Michael E. Mann, ipcc tar, ipcc ar4, mann climate, mann hockey stick (in contrast, the celebrity of film directors "Michael Mann", "Michael Bay" and ex-mayor "Michael Bloomberg" has long term support.)

    Thus I see no support generally, or even in the particular case, that publication confers public figure status. Lois Lane doesn't lose her right to protect her good name by reporting on some of the activities of super criminals.

    Defendants in any civil or criminal action will always want words read to support a particular reading which favors them. The law in defamation cases is unlikely to defer to an unconventional reading no matter who advocates for it. Simon Singh was sued by the BCA over a 2008 article "Beware the spinal trap" where the BCA wanted the particular reading that "bogus" meant "promoted despite known as unhelpful" where Singh used a parallel construction to show it meant "not evidenced as helpful."

    The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.

    I can confidently label these treatments as bogus because I have co-authored a book about alternative medicine with the world's first professor of complementary medicine, Edzard Ernst. He learned chiropractic techniques himself and used them as a doctor. This is when he began to see the need for some critical evaluation. Among other projects, he examined the evidence from 70 trials exploring the benefits of chiropractic therapy in conditions unrelated to the back. He found no evidence to suggest that chiropractors could treat any such conditions.

    Singh eventually needed an appeal to get his reasonable and mature reading adopted; soon after the BCA dropped the case. But Singh's success in no way suggests that defendants in this case have presented the relevant reading of the words at issue.

    And the claim that Mann's public figure status and the difficulty of proving what defendants held in their truest heart at the time of publication guarantees victory for defendants, I think badly misstates the standard. It will be, I believe, sufficient to prove that they had or should have had materials which should have caused them to doubt their factual claim that MBH98 was predicated on misconduct. Deferring exclusively to the actual (as opposed to evidenced and inferred) interior thought processes of a defamation defendant would lead to a trivial insanity defense in a civil case which seems wrong in at least two ways. Just like you're not saying Mann's science was in any way demonstrated incorrect or distorted by preconceived notions of what it should say, I'm not saying Mann will win or win easily. I'm saying he's met his burden of being allowed to try.

    With the law in Washington D.C. being in some sort of electronic backwater, I doubt we will ever see applicable caselaw citation links that didn't come straight from the Supremes. I'd like you to consider my latest $ 0.02 USD.

  91. Rand Simberg says:

    It cannot be the case that an act of publication makes every author a limited purpose public figure, and it cannot be the case that defendants are allowed to redefine printed words after-the-fact in lieu of a retraction of the common read, in-context meaning, and it cannot be the case that public figures must prove a willful telling of untruth when absolute certainty of the truth was held by the defendant in order to recover damages for defamation.

    By my recollection, Mann had celebrity thrust upon him after publication of MBH98, possibly as late as AR4 work and possibly not until the furor over released East Angelica emails in late 2009.

    You continue to make arguments that are utterly irrelevant to this case. As I said, Professor Mann has stipulated in his own filing that he is a public figure, even without his false (and since retracted) claim to be a Nobel Laureate.

    If you want to argue about the case, here's a pro tip. Educate yourself about it. The filings are publicly available.

  92. barry says:

    Not necessarily about Mann, but claiming to be a public figure doesn't seem quite enough to make you one.

  93. HandOfGod137 says:

    @Rand Simberg

    If you want to argue about the case, here's a pro tip. Educate yourself about it. The filings are publicly available.

    If you want to argue about AGW, here's a pro tip. Educate yourself about it. Peer-reviewed science is publicly available.

    And now my irony meter is broken.

  94. rpenner says:

    @Rand Simberg
    Discussions can be about more that one thing. Sometimes, to take in the authors meaning and intent, whole paragraphs or even multiple paragraphs have to be parsed carefully. Thus context matters.

    In this context, addressing posts above, I was arguing against the reasonableness of what I thought was the position of another poster. Thus your review of what you consider relevant to your present case is irrelevant to our conversation.

    Would it be too much to expect a retraction and apology?

  95. Rand Simberg says:

    I apologize for trying to prevent you from wasting your time on an issue irrelevant to the topic.

  96. R. Penner says:

    I apologize for not realizing you were the person responsible for use of my time and the sole arbiter of what the topic of discussion is.

  97. Wick Deer says:

    @Rand Simberg

    I would refer you to Ken's previous post.

    http://www.popehat.com/2014/01/15/the-privilege-to-shut-up/

    You may find it useful in deciding whether to comment further.

  98. Eli Rabett says:

    Somewhere up there Earle asked how laws in DC are made. Well, for the most part the City Council passes the laws which are approved by the Mayor. If the Mayor vetoes there is an override procedure.

    Then it gets gnarly. If the law is passed by normal procedures it is sent to Congress which has a set amount of time to review and disapprove. There is an "emergency" procedure where the law takes effect immediately but is still subject to review.

    Presidential approval is not necessary.

    However, where the politics are ripe enough, Congress can get up on its hind legs and pass laws for the district on their own bat but those (Eli thinks) require Presidential approval.

  99. Eli Rabett says:

    Rand Simberg. Something tells Eli that Ken White's advice to you would be STFU. You are doing yourself no good here and complicating your lawyers jobs.

  100. Jerslan says:

    I don't understand… Waterworld *isn't* the epitome of "Feel Good Movies"? It's the lovely story of human survival & evolution after catastrophic climate change. ;)

  101. Bishop Hill says:

    Golly, this is like the good old days all over again. Taking some of the points in the comments above about the Hockey Stick Illusion:

    a) "based on contextomy and tortured readings": no examples of this alleged behaviour given, but a link to a RealClimate post that includes the most outrageous bit of "contextomy" I can recall: I quote Mann saying something wrong and the RC post says in effect "Montford is saying wrong things", cutting out the fact that I was quoting Mann to deliver its effect. See here.
    b) "reliance on people who understand PCA worse than Michael Mann": The book quotes extensively the opinions of Ian Jolliffe (a specialist in PCA), the NRC panel, and Edward Wegman, all of whom rejected the idea of centring the data on part of the series. To describe all these as "people who understand PCA worse than Michael Mann" is heroic, to say the least. :-)
    (c) "the peculiar readings of Michael Mann's emails": Again, no examples given. The book was completed before Climategate, with the final chapter added after that story broke, showing how it supported the case made in the rest of the book. So the case against Mann is not based on readings of Mann's emails, let along tortured readings of them.
    (d) "rests heavily on McIntyre's blog and …a 2003 non-peer reviewed article co-authored by McIntyre's in Energy & Environment, a policy journal.". Energy & Environment includes peer-reviewed and non-peer reviewed papers; MM03 was peer reviewed. It is cited four times, as is MM05(EE). MM05(GRL) is cited six times. There is a whole chapter on the NAS panel and Wegman reports too, plus consideration of Jolliffe's views. "Relies heavily on MM03" is not refuted by even a cursory review of the index.

  102. JMI says:

    I'm late to this party, but in reading through the comments, it appears R. Penner misses the point on R2. The question is not so much whether R2 or RE is a better verification statistic. We can argue that all day. The issue is whether Mann calculated the r2 statistic and whether he had a duty to disclose the very poor result (in addition to, not in place of, RE). When testifying to the NAS panel, Mann stated: "“We didn’t calculate it (r2). That would be silly and incorrect reasoning”. Well, the evidence is clear that he did actually calculate r2 and that his statement to the panel was incorrect. So from Steyn's point of view: Mann calculated a verification statistic, that statistic cast substantial doubt on the credibility of the reconstruction, Mann did not disclose the statistic and Mann further denied (incorrectly) ever performing the calculation. Does this rise to the level of academic fraud? Maybe not, but seems a pretty strong defense against actual malice.

  103. R. Penner says:

    r² measures one thing, β measures a different thing. Measuring the wrong thing is why people fail statistics exams.

    r² is a damn silly thing to measure if the variance of your sample (something like half a century) doesn't match the variance of your population (something like 600 years). r² is just silly if your data is not stationary in mean and varience. r² is silly for different reasons if you comparing ŷ and y instead of x and y, because in the first case you aren't expecting correlation but concurrence.

    Moreover, this story seems to originate from a brief exchange between John Christy and Michael Mann at a meeting of the "Committee on Surface Temperature Reconstructions for the past 1,000-2,000 Years: Synthesis of Current Understanding and Challenges for the Future" on March 3, 2006 (day 2 of a two-day conference). The closest I have to original form is McIntrye's

    Christy did ask Mann: “Did you calculate R2?” ‘? Mann’s answer was: “We didn’t calculate it. That would be silly and incorrect reasoning”‘?.

    and Ned's

    John Christy asked Mann about the r2 statistic. Mann said it was an inappropriate measure for these types of analyses.

    . Neither of these were in the context of "testifying" and neither is in detail enough to know what was being asked. The purported direct quotes do not have enough context to identify for example what "reasoning" was being critiqued.

    The whole description of Mann's methodology hinges on computing β and assigning a statistical significance to β by direct Monte Carlo simulation of the null hypothesis. The claim of a missing r² calculation is not relevant to the discussion of Mann's methods in MBH98. The 2006/03/03 exchange is not well-documented enough for me to have any confidence of the topic of discussion. Nevertheless, I would not characterized it as "testimony" in front of a "panel." Sounds like John Christy just asked a question at a lecture from an invited lecturer. If John Christy asked a cognizant and coherent question, the reports of the exchange do not convey support for that.

  104. HandOfGod137 says:

    @R. Penner

    I think what we're witnessing is the denialist's overwhelming desire to change the narrative so as to make Mann some sort of scam artist in the fervent belief that this will change the nature of reality and stop AGW from ever have existing. The only question I have left is whether they are ignorant (in the non-pejorative dont-have-the-facts sense), stupid or evil. Or just all three.

  105. Venus01 says:

    David C. It does not matter whether a defendant believes his/her defamatory statement to be true. If a statement is untrue & causes damages, it is defamatory regardless of the speaker's belief. Thus why "negligent" is part of the first element. Factual basis IS necessary if one's "opinion" is surrounded by purported facts that are untrue. Any first year law student can tell you that. Belief is not an element to an affirmative defense. The only defenses are the statement was true or successful anti slapp motion. As for public figures, especially political, that's a whole other monster. The law provides stricter reqs for defamation since they interjected themselves into the lime light. The public has a right scrutinize & to know who they are voting for. Not going into in depth public policy reasoning discussion as the courts have already done that.

  106. JMI says:

    R. Penner,

    You probably shouldn't try to talk authoritatively when you are new to the area and appear quite uninformed on some of the basic facts, particularly as regards the NAS panel (and Bishop Hill's evisceration of your prior postings must have been particularly embarrassing). To help you out, I'll quote from Wikipedia: "At the request of the U.S. Congress, initiated by Representative Sherwood Boehlert as chairman of the U.S. House of Representatives Committee on Science, a special "Committee on Surface Temperature Reconstructions for the Past 2,000 Years" was assembled by the National Research Council to quickly prepare a concise report. The NRC Committee, chaired by Gerald North, consisted of 12 scientists and statisticians from different disciplines. Its task was to "to summarize current scientific information on the temperature record for the past two millennia, describe the main areas of uncertainty and how significant they are, describe the principal methodologies used and any problems with these approaches, and explain how central is the debate over the paleoclimate temperature record to the state of scientific knowledge on global climate change."

    Your comments on r2 are of course mostly nonsense. I suggest you read chapter 9 of the North Report and see what they say on the issue of r2 and RE in proxy reconstructions. There are strengths and weaknesses to both (just not the ones you identified!). Please note also that they stated: "a more general finding of this committee, which is that uncertainties of the published reconstructions have been underestimated."

  107. R. Penner says:

    Executive summary:

    We do not heed their dismal sound, \\ For joy reigns everywhere around! — Also, the NAS report does not encourage the use of r² when use of r² is silly.

    @JMI — Bishop Hill is free to assert whatever alleged facts he chooses to assert provided he has no duty to tell the truth or rule afoul of certain laws that leave him open to civil or criminal judgements in applicable jurisdictions. Likewise, your characterization of Bishop Hill's assertions as an "evisceration" is yours and you are guaranteed a measure of ownership rights in that content just as the fixing of any form of fiction guarantees certain ownership rights.

    But if you want to engage in feeble character assassination on the basis of interpretation of quotes lifted from tertiary reference sources, that is your right (not necessarily on Popehat's servers) under the US Constitution's first amendment. It won't much bother me. The Internet, after all, is made of 14-year-old mean girls, so I think we've all seen better written ad hominem attacks. It might bother the hell out of the kind people who pay for the electrons though.

    I was hoping that you would make a principled argument for or against either early appeal in SLAPP decisions or for or against the various SLAPP motions in this case. If you insist on trying to advance your partisan view of the science of MBH98 and related, one would hope you could do so as from a mathematical or scientific viewpoint, not as some theologian or press flack. To that end, please provide a bibliography of global or northern hemisphere paleoclimate reconstructions covering the last 2000 or 1000 or 800 years and a list of objective criteria so that we may know which of these are more and less reliable. For example, if someone reconstructs the Little Ice Age was a time warmer than average, would that weight for or against their authority?

    As to the report, starting on about page 92 in Chapter 9, they go into detail about r²

    However, r² measures how well some linear function of the predictions matches the data, not how well the predictions themselves perform. The coefficients in that linear function cannot be calculated without knowing the values being predicted, so it is not in itself a useful indication of merit.

    and RE (Mann's β)

    If the reconstruction has any predictive value, one would expect it to do better than just the sample average over the calibration period; that is, one would expect RE to be greater than zero.

    and their preferred measure of merit, CE, which they recommend be "considered":

    Despite a common CE, these two reconstructions match the temperature series in different ways. The blue curve is more highly correlated with the short-term fluctuations, and the green curve tracks the longer term variations of the temperature series. The difference between the blue and green lines illustrates that the CE statistic alone does not contain all the useful information about the reconstruction error.

    So JMI, it is clear that this report condemns blindly relying magically on r² just because you think you are familiar with it. Now if you have a time machine you can go back to the 1990's and lecture Mann on CE vs. RE, but in the real world those statistics measure different things and Mann conducted his research predicated on his choice. Since then, also mentioned in the report, research continues and Mann's findings have been pretty robust.

    The report is here, with a interface (click on Table of Contents) to browse it for free: http://www.nap.edu/catalog.php?record_id=11676

  108. JMI says:

    R. Penner,

    Your comments are basically incomprehensible. But to respond to those that have a modicum of clarity: Bishop Hill eviscerated your comments factually line by line. You don't seem to accept that and that's your prerogative but any objective reading of your comments and his response will reach that conclusion. It would be nice if you acknowledged and apologized for your false claims, but I am guessing that is not very likely.

    Why on earth do you bring up this strawman of "blindly relying magically on r² just because you think you are familiar with it"? (and of course not acknowledging you wrote nonsense on r²). Let me quote part of my original comment: "The question is not so much whether r2 or RE is a better verification statistic. We can argue that all day. The issue is whether Mann calculated the r2 statistic and whether he had a duty to disclose the very poor result (in addition to, not in place of, RE)."

    Now I had an unfair advantage over you when I wrote my comment. I actually had researched the topic and read the North report. I was also aware of the evidence that Mann had calculated r2 and made a conscious decision not to disclose the adverse finding. I was also aware that the North report had concluded that Mann's validation underestimated the uncertainties. Now you are aware of these items too. You are welcome.

  109. R. Penner says:

    @JMI — The hallmark of science criticism is to do science better. The hallmark of anti-science criticism of science is to whine "but it's not good enough." The Report criticizes relying on r²

    However, r² measures how well some linear function of the predictions matches the data, not how well the predictions themselves perform. The coefficients in that linear function cannot be calculated without knowing the values being predicted, so it is not in itself a useful indication of merit.

    aligns with my independent assessment:

    r² is a damn silly thing to measure if the variance of your sample (something like half a century) doesn't match the variance of your population (something like 600 years). r² is just silly if your data is not stationary in mean and variance. r² is silly for different reasons if you comparing ŷ and y instead of x and y, because in the first case you aren't expecting correlation but concurrence.

    and it aligns well with one of the two eyewitness reports of the Christy/Mann exchange in 2006:

    John Christy asked Mann about the r2 statistic. Mann said it was an inappropriate measure for these types of analyses.

    You say you have a smoking gun as to Mann's state of mind when he did some of the research and some of the writing in MBH98. Great. Have you linked to it or described it? Not so great.

    Obsessing over MBH98 — quibbling over vague claims of "not good enough" — doesn't make sense in a world where MBH98 is a mainstream paleoclimate reconstruction. Sorry for spending so little time cleaning up the language in these last two posts. Heatwave here.

  110. JMI says:

    R. Penner,

    I think you are again deliberately missing the point. The question is not RE versus r2. The question is RE *and* r2 and the the obligation to disclose adverse findings. The evidence is clear that Mann misspoke when he said he did not calculate r2. The North report criticizes relying on r2 alone, not in conjunction with other statistics. In fact it gives specific examples where r2 adds meaning in conjunction with other statistics. My comments have been consistent throughout notwithstanding your attempts to create strawmen.

  111. Dictatortot says:

    As this thread and countless other public debates have demonstrated, whether or not AGW holds water, there appear to be counterarguments that a reasonable, intelligent layman could find compelling, or at least consider grounds for agnosticism on the subject. Mann's case seems to depend on the implication that only ill-will, stupidity, or intellectual negligence could prevent one from agreeing with AGW partisans. Whether or not one would be correct in disagreeing with them, this implication is a palpable falsehood … and a revealing one at that.

  112. HandOfGod137 says:

    @Dictatortot

    there appear to be counterarguments that a reasonable, intelligent layman could find compelling

    So give one then. With supporting evidence. Personally I'm with how you imagine Mann thinks: you have to be either ignorant, stupid or evil to deny the basic physics and huge amounts of data that support AGW, but I'm open to be convinced otherwise.

  113. JMI says:

    HOG,

    You are looking at things in too binary a way. The mainstream skeptic tends towards being a "lukewarmer". Fully believes in the physics behind greenhouse gases and that CO2 is a greenhouse gas, but that the sensitivities of temperature to a CO2 doubling have been overestimated by the models, probably due to an incorrect treatment of feedbacks. There are a number of recent papers supporting this view of low equilibrium climate sensitivity (Masters 2013, Lewis 2013 etc.). As regards the hockey stick, they believe that the tools are just not there to create a temperature reconstruction with annual resolution over multiple centuries. Not that the hockey stick is necessarily wrong, but that a true reconstruction without using contaminated lake sediments or cherry picked BCPs will have floor to ceiling confidence intervals. They are frustrated that some scientists are using what they believe to be bad science to support a high equilibrium sensitivity view.

  114. Dictatortot says:

    So give one then. With supporting evidence. Personally I'm with how you imagine Mann thinks: you have to be either ignorant, stupid or evil to deny the basic physics and huge amounts of data that support AGW, but I'm open to be convinced otherwise.

    Judicious use of the up-arrow key in this thread alone would take you to three or four posters whose arguments might or might not be valid, but that don't strike me as self-evidently faulty. And I believe you'll find that the descriptors I used were ill-willed, stupid, or intellectually negligent. "Evil" was your own homegrown contribution, interestingly enough.

    I'm not a climatologist, but I'm an ordinary human being with his ordinary, God-given portion of sensitivity to polemical "DO NOT TRUST ME" indicators. Anyone with your extreme presumptions about someone having the temerity to take the other side in an argument like this is protesting altogether too much … and has ceded the presumption of good faith, honest dealing, and humility before the possible facts.

    In short, you leave me far more suspicious of AGW arguments than you found me, and I doubt that I speak for myself alone. On a larger scale, Mann also seems determined to sow AGW skepticism with his telling inability to countenance contradiction. What's more, he'll reap it.

  115. HandOfGod137 says:

    @Dictatortot

    So, no facts or genuinely persuasive arguments then. Although, to be honest, I'm rapidly reaching the point where I simply don't care if idiots choose to ignore verifiable science in favour of some nebulous "God-given" feeling about the issue. There's increasing evidence a major El Nino is brewing for later this year (oops, there goes the "no warming since '98" bullshit) and approx 50% of the USA is already in a state of drought, so best of luck with your suspicion about AGW. Although you may get lucky and the Western Antarctic ice sheet collapse might speed up to the point that rising sea levels put out some of the wildfires.

    And my presumption is expecting someone who wants to debate the subject has made the effort to learn some of the science first. Do you express similarly uneducated opinions on General Relativity? Quantum Electrodynamics? Would you expect anyone to take you seriously if you did? Why is climate science different?

  116. JMI says:

    HOG,

    Your comment is what makes skeptics so infuriated – taking valid scientific findings / papers and hysterically hyping them into alarmism. Take your snark on the Western Antarctic ice sheet. Sure, there were two recent studies indicating melting which could raise sea levels. But let's also look at the context: "But the researchers said that even though such a rise could not be stopped, it is still several centuries off, and potentially up to 1,000 years away."

    When you resort to alarmism of this type, why would you expect anyone to take you seriously?

  117. Dictatortot says:

    Do you express similarly uneducated opinions on General Relativity? Quantum Electrodynamics? Would you expect anyone to take you seriously if you did? Why is climate science different?

    Because professionals in the fields you cite, when contradicted, generally do not react in panicked outrage like a maiden aunt who's just been flashed. Additionally, they seem secure enough in their theories not to bother hauling any public naysayers into court. Makes for an impressive contrast.

  118. jackn says:

    @Dictatortot

    thats dumb

  119. HandOfGod137 says:

    @JMI

    When we're busy pushing the climate away from the state that has held over the period human civilization developed into a mode that could see massive impacts on agriculture and geopolitics, a certain amount of alarmism is a rational response. Smug dismissal on ideological grounds is the idiotic alternative.

    @Dictatortot

    You really have no idea about the actual science, do you? Do yourself and everybody else a favour and do a spot of research that doesn't involve echoing the opinions of equally ignorant politicians and bloggers. Here's a clue: validity in science has bugger all to do with your impression of how the scientists have responded to public vilification and systematic witch-hunts, but is based on verifiable data and logical extrapolation. Try it.

  120. Dictatortot says:

    HoG: I'm not actually debating you on the science. I'm debating whether the arguments accessible to a reasonable, disinterested layman are sufficient to earn Steyn the benefit of the doubt on questions of malice or culpable negligence. So far, it's looking as if they are.

    [V]alidity in science has bugger all to do with your impression of how the scientists have responded to public vilification and systematic witch-hunts [sic] …

    No doubt. But validity in law–the ability to present a convincing case for unfair or unreasonable treatment–is somewhat relevant to the issue. And getting or retaining the public's trust in the soi-disant professionals as honest brokers has an enormous lot to do with it. You're shooting yourself in the foot pretty enthusiastically on both counts. Now, if you find those concerns beside the point … hey, they're your feet. Just don't complain if the public and the politicians whom they represent increasingly tune you out.

  121. R. Penner says:

    a reasonable, disinterested layman

    A disinterested person would not make claims of fraud in national media. A reasonable person would hold opinions based on a fact-based rational and communicable basis. And a reasonable layman would not arrogantly put his preconceptions ahead of a community of professionals.

    So a a reasonable, disinterested layman may have reasons to conclude that Steyn was neither reasonable or disinterested when the article was written. Despite MBH98 having three authors and having gone through peer review and editorial review at one of the most influential scientific publications on the planet, and despite over a decade since with other paleoclimate reconstructions agreeing with MBH98's conclusion that modern warming is without known precedent in rate or departure from average in 500, 800, 1000, 2000 years, it is Mann who is singled out as the target of the vilification campaign. That doesn't make sense unless authors are motivated — but their motivations don't seem to come from science or the discussion would be held in the scientific press.

    It might be ideology. It might be crank magnetism. It might be "evil, pure and simple, by way of the Eighth Dimension!" It might be an unwitting self-organized emergent cognitive pathology of a network of friends (group-think). It might be pandering to an audience that demands fodder to express outrage against. But I doubt that it can be a reasonable opinion based on concrete, well-investigated facts and supported by communicable arguments because somehow, crucially, they failed to communicate those arguments to any investigative body, despite communicating the allegations.

    A decade later, to argue Mann is unreasonable to sue for defamation over charges of "fraud" is to argue that defamation judgements are always unreasonable. To argue that suing is not "nice" is special pleading. Why would scientists have to be "nice"? Newton wasn't nice and he was the greatest of all scientists. Darwin was nice and it didn't help the opinion held of him by those ideologically opposed to his research and arguments.

  122. Dictatortot says:

    A disinterested person would not make claims of fraud in national media.

    He certainly would if the target's behavior appears to support such a reading. Saying that the latter's behavior couldn't possibly appear that way to a disinterested person is begging the question–it's the issue at hand.

    [A] reasonable layman would not arrogantly put his preconceptions ahead of a community of professionals.

    If that community's knee-jerk reaction to being gainsaid strikes onlookers as something short of "professional," and bears every hallmark of … I believe your words were "an unwitting self-organized emergent cognitive pathology of a network of friends (group-think)," then yes, he could and would.

  123. David C says:

    @Venus01:

    The only defenses are the statement was true or successful anti slapp motion. As for public figures, especially political, that's a whole other monster.

    Mann IS a public figure for purposes of this lawsuit. And even if that wasn't the case, mistake of fact is a legitimate defense even for cases involving non-public figures, even if it is much weaker. And even if THAT wasn't the case, saying those are "the only defenses" is just plain wrong. There are many other defenses that could apply to defamation cases.

    @Rpenner:

    But I doubt that it can be a reasonable opinion based on concrete, well-investigated facts and supported by communicable arguments

    You keep thinking the standard is much higher than it is. Nothing says he has to have well-investigated facts or have a well-reasoned argument. Again, in Times v Sullivan, the Times could have merely checked their own articles to find information indicating that what they published was false, but they were found to have not defamed.

  124. ruralcounsel says:

    As a practicing attorney and a scientist/engineer I find the above comments both fascinating and infuriating. With regard to tort law, I know only as much as I needed to pass bar exams … so the details of defamation and the defenses is informative. As a PhD in engineering with what I flatter myself is an above-average understanding of physics, chemistry, and numerical simulation techniques, I'm appalled at the faux certainty advocated by the AGW theocrats (@rpenner appears to be over a decade behind in his knowledge about the science of the hockey-stick fiasco and its weak scientific underpinnings, but he clearly is a "true believer" and it may make no difference to him/her).

    The debate about AGW is, to a large part, irrelevant. We have soothsayers on either side, advocating for their own public and hidden reasons. The USA could shut down all combustion processes today and have literally no significant impact on worldwide carbon dioxide emissions. We would, of course, starve to death after an impressively historical economic crash.

    That said, I find the use of the legal system to quash scientific debate troubling. And have no doubt there is a huge debate still raging about AGW – despite the feeble 97% consensus fairy tale still bandied about (mostly by idiotic politicians who ought to have staff or speech writers smart enough to know better). Every published scientific article and public address is an invitation for criticism; the touchier one gets about the responses one invited the more suspect is one's position. Mann's damages to his reputation are mostly self-inflicted.

  125. HandOfGod137 says:

    @ruralcounsel

    You present no actual data or evidence, so your self-assessment of your prowess in physics, chemistry and numerical simulation techniques seems a tad irrelevant in the standard denialist "it's not happening, but even if it is we can't do anything about it" cant you present. Unless, of course, you have some actual evidence that contradicts the current paradigm. Which should be good as the reason that the "feeble 97% consensus fairy tale" is still bandied about is because, well, 97% of climate scientists believe AGW is happening right now. Regardless of your data-free rhetoric

    Engineering is not climate science. Your (self-declared) expertise in one domain means next to nothing in the other, and your concern with the short term economic issues exposes your actual motivation for taking the position you do.

    Why this subject has become so polarising on political grounds really does escape me, but as it has, I'd like you to consider the economic downside that major sea-level rise may bring. As the loss of 159 billion tonnes of ice per year from the Antarctic might be sending our way.

    http://onlinelibrary.wiley.com/doi/10.1002/2014GL060111/abstract

  126. R. Penner says:

    @David C

    they are not liable for defamation, whether or not the science holds up. All that is required is that they believed what they said, not that they have a basis for it.

    I think you base the above on New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

    I should absolutely be able to proclaim my opinion that OJ is guilty OR my opinion that the cops who arrested him framed him, without going through a defamation suit if it turns out I'm wrong. Issues of public importance, and the people involved in them, should be able to be discussed freely, even among the ignorant.

    I disagree, both as a matter of justice and a matter of case law. But I’m willing to admit saying “OJ looks guilty” after looking at some of the evidence may be defensible opinion formed on a basis of fact.

    when dealing with public figures. You need actual malice to have defamation. And to be clear, "actual malice" has a specific definition here: knowledge that the statements are false or reckless disregard of their truth or falsity.

    I think you base the above on New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

    I don't think any duty of ordinary care is legally owed here.

    I think you base the above on New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

    You keep thinking the standard is much higher than it is. Nothing says he has to have well-investigated facts or have a well-reasoned argument. Again, in Times v Sullivan, the Times could have merely checked their own articles to find information indicating that what they published was false, but they were found to have not defamed.

    But, having no time to visit a law library and learn to do legal research from scratch, even the wikipedia page on Times v Sullivan points out that:

    Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) held that public figures who are not public officials may still sue news organizations if they disseminate information about them which is recklessly gathered and unchecked.

    which distinguishes one type of public figure from another. Rather than link to a Wikipedia page, I will give a link for the Curtis Publishing v Butts decision.

    http://supreme.justia.com/cases/federal/us/388/130/case.html#155

    the rigorous federal requirements of New York Times are not the only appropriate accommodation of the conflicting interests at stake. We consider and would hold that a "public figure" who is not a public official may also recover damages for a defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.

    Food for thought.

  127. David C says:

    I think you base the above on New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

    Yeah, this is why I'm not a lawyer – Times is still good law as far as I know, but your case appears to apply better, since we're dealing with a public figure who is not a public official. (Unless, of course, it's been superseded by another case sometime in the last 47 years or so, and I'm not inclined to check.)

    Curtis says that "Nothing in this opinion is meant to affect the holdings in New York Times and its progeny, including our recent decision in Time, Inc. v. Hill".

    Time, Inc. v. Hill said in part that

    Constitutional protections for free expression preclude applying New York's statute to redress false reports of newsworthy matters absent proof that the publisher knew of their falsity or acted in reckless disregard of the truth… Erroneous statements about a matter of public interest… are inevitable, and, if innocent or merely negligent, must be protected if "freedoms of expression are to have the breathing space that they need to survive…" But constitutional guarantees of free expression can tolerate sanctions against calculated falsehood without impairment of their essential function.

    So I guess then we're left with whether it rises to the level of "a defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers". I notice the court used a lot of adjectives there. Not just unreasonable conduct, "highly" unreasonable. Not just a departure from standards, an "extreme" departure. The bar is lowered from where is was in Times v. Sullivan, but it's still set pretty high from what I can see.

  128. MJW says:

    R. Penner • May 21, 2014 @7:57 am

    But, having no time to visit a law library and learn to do legal research from scratch, even the wikipedia page on Times v Sullivan points out that:

    Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) held that public figures who are not public officials may still sue news organizations if they disseminate information about them which is recklessly gathered and unchecked.

    which distinguishes one type of public figure from another. Rather than link to a Wikipedia page, I will give a link for the Curtis Publishing v Butts decision.

    The risk of relying on Wikipedia is that sometimes the information is misleading or just plain wrong.

    That particular holding in the plurality opinion in Curtis Publishing v Butts was rejected in the later case, Harte-Hanks Communications, Inc. v. Connaughton, 491 US 657 (1989):

    The language in the Court of Appeals' opinion discussing professional standards is taken from Justice Harlan's plurality opinion in Curtis Publishing Co. v. Butts, supra, at 155. In that case, Justice Harlan had opined that the New York Times actual malice standard should be reserved for cases brought by public officials. The New York Times decision, in his view, was primarily driven by the repugnance of seditious libel and a concern that public official libel "lay close" to this universally renounced, and long-defunct, doctrine. 388 U. S., at 153. 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." Id., at 155. This proposed standard, however, was emphatically rejected by a majority of the Court in favor of the stricter New York Times actual malice rule. See 388 U. S., at 162 (opinion of Warren, C. J.); id., at 170 (Black, J., dissenting); id., at 172 (BRENNAN, J., dissenting). Moreover, just four years later, Justice Harlan acquiesced in application of the actual malice standard in public figure cases, see Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 69-70 (1971) (dissenting opinion), 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.

  129. R. Penner says:

    And from Justice Blackmun's concurring opinion in Harte-Hanks v Connaughton:

    The form of the story in this case is markedly different from the form of the story in Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), where the informant's description of the events was presented as truth rather than as contested allegations. These differences in presentation are relevant to the question whether the publisher acted in reckless disregard of the truth: presenting the content of Thompson's allegations as though they were established fact would have shown markedly less regard of their possible falsity.

    Which is why one shouldn't repeat an allegation of fraud as a claim of fraud until one has corroborated the allegation in a non-reckless manner.

  130. David C says:

    Harte-Hanks says:

    A public figure may not recover damages for a defamatory falsehood without clear and convincing proof that the false "statement was made with 'actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was false or not."

    Interestingly, there is a "clear and convincing proof" standard that must be met, instead of the normal "preponderance of the evidence" standard used in most civil cases.

    As far as what reckless disregard is, from Harte-Hanks:

    A "reckless disregard" for the truth, however, requires more than a departure from reasonably prudent conduct. "There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." The standard is a subjective one — there must be sufficient evidence to permit the conclusion that the defendant actually had a "high degree of awareness of . . . probable falsity." As a result, failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard. In a case such as this involving the reporting of a third party's allegations, "recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports."

  131. MJW says:

    R. Penner • May 22, 2014 @7:28 am

    Which is why one shouldn't repeat an allegation of fraud as a claim of fraud until one has corroborated the allegation in a non-reckless manner.

    You still want to use "reckless" in the way Harlen used in it Butts. Blackmun didn't say the question was whether the speaker acted recklessly; he said the question was whether the speaker "acted in reckless disregard for the truth." As David C points out in his response to your comment, "reckless disregard" requires that the speaker believed the allegations were probably false.

    (I'll assume unless you say otherwise that you now accept that the New York Times standard applies to public figures.)

  1. April 23, 2014

    […] White has looked at the amicus briefs (I think), and explains, as entertainingly as possible, what the current status of the case […]

  2. April 28, 2014

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