Significant Developments In D.C. Anti-SLAPP Law.

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63 Responses

  1. Have you seen footnote 6? It, essentially, says that the decision here does not affect the Mann case.

    Shachar

  2. Scott says:

    "appeal the District Court's denial of a motion to quash a subpoena aimed at discovering his identity"

    Sentences like these hurt my brain. So there was a subpoena aimed at discovering Doe's identity. Doe filed a motion to quash that subpoena. Then the court denied it. And the ruling is that Doe can immediately appeal that denial?

  3. Patrick says:

    I have of course read the opinion and footnote six. As a practical matter, I believe this precedent does decide the Steyn case. It will be very hard to distinguish.

  4. Charlie says:

    Not to quibble, but you may want to change the part about this decision being handed down by the D.C. Circuit Court of Appeals to reflect that it was handed down by the District of Columbia Court of Appeals (DC's version of a state supreme court).

  5. David says:

    @Scott, Yes, that's right. Whether the denial may be appealed immediately rather than later, in the wake of the eventual litigation, turns out to matter a lot for reasons Ken explained in this post right here. In law as in comedy, timing is everything.

  6. Dave Crisp says:

    Just as an aside re: the end of the video: Since the Defamation Act was commenced earlier this year, there's a far higher bar to defamation suits by non-residents here in Blighty. Hopefully it'll cut down on that sort of stupidity.

  7. Respectfully, this piece gets one detail wrong.

    This is not the D.C. circuit. This is the D.C. Court of Appeals. It is the highest territorial court of D.C.

    D.C.'s system is kind of weird but the best way to think of it is to pretend D.C. is a state, even though it is not. they have one set of courts that handle what is more typical of state issues, while the D.C. circuit, with its district courts below deal with more traditional "federal" issues. Adding to the confusion is that the Court of Appeals is what we more traditionally think of as a Supreme Court. In other words, this is the highest territorial court of D.C. and of course the additional weirdness is that D.C. has its own circuit all by its lonesome, too, with its special work in relation to the administrative state.

    But the best translation from all that confusion is to say that this is like the Supreme Court of the "State" of D.C., recognizing that it is not a state and not called the Supreme Court. Does that make any sense?

  8. CJColucci says:

    As someone who comes from a state where the lowest-level general-jurisdiction trial court is called the "Supreme Court" and what other jurisdictions call their "Supreme Court" is called the "Court of Appeals," it makes perfect sense to me.

  9. WDS says:

    Is there a reason that the link to a document takes you to a link to the document instead of to the document? I don't understand the need for the extra link.

  10. WDS, the document is linked in that fashion to prevent it from falling into the wrong hands. These are matters of national security. I can say no more.

  11. WDS says:

    @Mr. Non-White,

    Well it didn't work, it fell into my hands, and I'm told I'm as wrong handed as you can get.

  12. Malc says:

    On the video: I find it enormously tiresome that so many people are still engaged in what appears to be a deliberate effort to pretend global warming isn't happening, by acting as if they don't know that "global warming" means that the overall average temperature of the globe is warming, not (as they falsely claim) that every possible point on the globe is warming.

    It is, of course, categorically settled that global warming is happening (look at the ice caps). Where there is dispute is on the cause of that warming.

    Indeed, it is entirely possible that the minority who claim that the warming has little to do with mankind's actions are actually correct. They will have a slightly tougher time justifying why man-made pollution doesn't matter, but that's an ethical and moral issue for them to consider (Anyone who's thought "it's a cesspit, so dumping more crap can't matter" has never had a septic tank…).

    It is also undeniable that global warming as a whole messes with local climates, which is why you get more blizzards and hurricanes and floods and droughts.

  13. david says:

    I find your tiresomeness exacerbates my disturbment by magnifying my butthurtedness. Ponies.

  14. Malc says:

    Heh. Perhaps those who are determined to pretend that there is no warming should read the links they post?

    There could be as little as 1 Cº global warming this century, not the 3-4 Cº predicted by the IPCC.

    Read that carefully; even the data used to try to refute the idea of global warming supports the fact of warming.

    But that set of data isn't accurate. Or rather, the raw data was converted incorrectly, a fact we've known for many years.

    Interestingly, the glee advanced by non-scientists when errors in data are discovered (almost always by people desperately trying to fault real climate scientists' statements) seems entirely absent when the faults in the data that they depend on to support their unscientific bias are revealed:

    Whoopsie!

    Here's the real chart: Actual UAH/RSS Satellite Data Showing Stuff That Denialists Want To Pretend Isn't Happening
    So, wanna try again?

  15. Malc says:

    Oh, and on that whole consensus thing? You know how it's often claimed that 97% of climate scientists agree that AGW is real and problem? One of the biggest denialists, cited by those who wish ponies were puppies (or whatever), is Richard Tol.

    He re-analyzed the data. He disagrees that 97% of climate science supports AGW. He reckons the number is 91%

    So, best case (for those who want to stick their head in the sand): 9 out of 10 scientists say they're wrong. Worst case? All 10.

  16. jdgalt says:

    @Malc: There's a lot more in dispute than the cause of the warming. The "global warming AKA climate change" story that Mann is selling includes the assertions that this warming will have catastrophic effects on man if it goes on unchecked; that the drastic cuts in CO2 emissions he advocates will prevent the catastrophe; and that no reaction less destructive of our way of life will prevent it. Those last two assertions, especially, are the important part of Mann's story as well as quite lacking in proof to say the least, so to simply assert as you do that the earth is warming is a red-herring argument.

    And counting scientists' noses is another — not least because all those scientists' careers depend on grant money from EPA and other institutions committed to the doctrine of GW/CC, and they know it perfectly well. That's more like a Soviet election than an honest poll.

  17. Malc says:

    @jdgalt it may, or may not, be a red herring to some argument you want to make (or Mann made, or whatever).

    It isn't a red herring to comments like the one in the video about the snow and access to the bunker.

    The fact is that the globe is warming. A related fact is that this will shift weather patterns, and shifting weather will result in more blizzards and floods as well as more droughts and hurricanes.

    That really isn't in dispute, but many like to pretend that it is.

    Now, WHAT we do about it, WHY it's happening, etc. are all valid questions.

    But the globe is warming.

  18. MJW says:

    Footnote 12 is significant in regard to Mann's suit because in arguing the denial of an anti-SLAPP motion shouldn't be immediately appealable, Mann seems to rely heavily on the fact that the anti-SLAPP statute doesn't provide for interlocutory appeal. The court rejects the identical argument in Doe v. Burke, pointing out that the DC Council deleted a provision allowing an immediate appeal because it concluded that under the Home Rule Act, it was up to the court, not the Council, to determine when the court had jurisdiction to hear an appeal.

  19. R. Penner says:

    @Malc — that "recalculation" from 97% to 91% was a statistical argument that did not hold water. If it was a sound argument it would imply that the original counters started counting 1,2,3,… and wound up at negative 500. If it was a sound argument it would demand that over 303 papers exist in a fixed sample set where the authors, in the abstract, deny or pooh-pooh the idea that the majority of global warming is of man-made causes, which is ridiculous when no one has found 3.

    One mathematical analysis of why Tol's method cannot work as Tol claims is here: (PDF) http://t.co/wXd0FjekBE

    Tol’s analysis appears to be flawed. The work fails both simple common-sense sanity checks, and basic testing to ensure that the method can reproduce the known results of the reconciliation step. The reduction in consensus percentage is primarily an artifact of the method, rather than arising from the shifts in the reconciliation step. The behavior of the method does not reflect Tol’s description of that behavior. The correction algorithm gives an initial impression of being correct, but on further analysis appears to be statistically meaningless.

    From (PDF) sks.to/24errors :

    [Tol] applies a ‘correction’ assuming that the probability of an erroneous rating and the size of correction does not depend on the rating category, except for preventing changes to outside of the category range 1–7. This assumption is incorrect and invalidates [Tol's] correction. Disagreement was much more common over endorsement or rejection ratings (34% of disputed cases) than over no position ratings (9% of cases). [Tol] assumes, based on the average of all reconciliations, that among ‘no position’ papers that are misrated, 55% become ‘rejection’ papers and 45% become ‘endorsement’ papers. In reality, during reconciliation, 2% of ‘no position’ abstracts were moved to ‘rejection’ and 98% to ‘endorsement’ (Figure 1a).

    So the 91% is based on a method that 1) does not reflect reality, 2) is always going to dilute a finding on 90%+ consensus for or against most of global warming having anthropogenic causes by assuming that the "no opinion found" category contains an approximate 50-50 no-consensus split.

    Absence of evidence is often not evidence of absence, but Tol is claiming in the abstracts of less than 8000 papers that almost 1/27 of them have some overlooked stated bias against the idea that 50% or more of global warming is the action of man. That's not absence of trace evidence or absence of unquantifiable evidence — that's denial of evidence.
    If Tol is right — a sample of 82 of those abstracts has a 95%+ chance of having at least 1 paper to support Tol's main assertion (average expectation: 3+). Likewise, N=125, p > 99%, > 4.5. Likewise, N=210, p > 99.95%, > 7.7. To cast aspersions on the claim on 97% by ad hoc procedures that dilute any consensus for or against the proposition, isn't science or valid statistics.

  20. wolfefan says:

    To the many people debating the issue of global warming – respectfully, please go away from this thread. That's not what this thread is about. Threadjacks of this type have led to comments being closed on this very issue. Patrick may be more tolerant than Ken, but I would rather not run that risk. I enjoy learning about legal principles and their application. I also enjoy learning about global warming, but this isn't where anyone comes to do that.

  21. vinteuil says:

    Everybody here seems to be so fascinated by the little details of American "law" and climate "science" that they're incapable of grasping the big picture, which is all about FREEDOM OF SPEECH.

    Does that phrase mean *anything* to *anybody* here?

  22. Narad says:

    I find it enormously tiresome that so many would now like to issue an incantation to summon people are still to engaged in what appears to be a deliberate effort to pretend global warming isn't happening….

    FTFY.

  23. Eli Rabett says:

    IEHO Steyn is to free speech what those guys with AKs in Chipolete are to the right to carry

  24. R. Penner says:

    @wolfefan — How can you say that when the author of this post seems to have authored a Hitler parody to raise straw men arguments against both global warming ("Al Gore wants to cripple the US Military") and Mann's case (not in fact for "Eleventy-Billion dollars" and the video ignores assertions that Mann wasn't just wrong, but fraudulent).

    @vinteuil — The US Government has held in the past that freedom of speech is not without limits. Some historical examples include conspiracy, sedition, provoking a riot, and defamation. It's undeniable that defendants said hurtful things. It seems undeniable that they relied largely or entirely on one blogger who does not have a factual basis to make such claims. It seems undeniable that they could have been unaware of various people tasked with looking into Mann's record for evidence of wrong doing. Therefore it seems that the claims that Mann was guilty of "scientific fraud" (not a direct quote, because these court documents aren't in Federal Court where I could grab them easily) would automatically give a colorable claim for defamation if it weren't for Mann's public figure status, the exact impact of which is still debated. I am of the opinion that neither Mann's limited public figure status as a paleoclimate scientist should not protect people who accuse Mann of being part of a conspiracy to commit fraud (as opposed to, say, being unskilled at paleoclimatology). Even if one disagrees with me on that, the Defendants have been co-opted into hysterical conspiracy ideation to the point that, like accusers in the Satanist day-care scare of the 1980s and 1990's, they have lost the ability to claim that they ever made an investigation into the truth of the claims sufficient to meet the standards set by the Supreme Court even for claims about public figures in areas connected to their public figure status.

  25. Narad says:

    I am of the opinion that neither Mann's limited public figure status as a paleoclimate scientist should not protect people who accuse Mann of being part of a conspiracy to commit fraud (as opposed to, say, being unskilled at paleoclimatology).

    Even if one disagrees with me on that….

    It might help if the antecedent of the final "that" were phrased in English.

  26. Wesley says:

    Even if one disagrees with me on that, the Defendants have been co-opted into hysterical conspiracy ideation to the point that, like accusers in the Satanist day-care scare of the 1980s and 1990's, they have lost the ability to claim that they ever made an investigation into the truth of the claims sufficient to meet the standards set by the Supreme Court even for claims about public figures in areas connected to their public figure status.

    Active — or indeed any — investigation is not required by the actual malice standard applicable to public figures in defamation law.

    Your view of this issue seems to be dramatically colored by the fact that you personally and ideologically disagree with the defendants in this case. I can sympathize with that; as a staunch pro-science person, the rabid denialism of the willfully ignorant (whether for climate change, evolution, or vaccination) is very grating. For all of those issues, there is clearly no global conspiracy to hide The Truth.

    But that does not change the First Amendment analysis. By the standards you propose, conspiracy theorists would be criminals (or at least bankrupt after litigation) instead of simply crackpots. That is simply not the case, and nor should it be.

    Ken has done a great job in previous posts of distinguishing between conclusions based off of hidden facts versus conclusions based off disclosed facts. The latter is virtually always protected opinion under the First Amendment. The denialists have disclosed their "data" and their basis for believing that Mann is part of some so-called conspiracy; this is not a case where they have said "I got a look at Mann's emails, and he's communicated with other scientists about knowingly committing fraud." Instead, this is classic opinion-laced hyperbole and invective that is firmly protected by the First Amendment, and we are free to agree or disagree — or even deride and make him suffer social consequences. We are not free to make him suffer legal consequences.

  27. Dictatortot says:

    But that does not change the First Amendment analysis. By the standards you propose, conspiracy theorists would be criminals (or at least bankrupt after litigation) instead of simply crackpots. That is simply not the case, and nor should it be.

    Not only that, many of Mann's own friends and defenders might be criminally liable under such an expansive reading. After all, they've gone to extraordinary lengths to make him and his colleagues look like people with something to hide–or at least with something they can't afford to allow overly pointed discussion about. They've managed to make climate scientists everywhere, their methods, and their professional probity look far, far worse than a Steyn or Simberg could ever dream of achieving.

    So if anything, believers in AGW should thank their lucky stars that the legal standards for criminally impugning the honesty & credibility of their favored specialists are so rigorous.

  28. MJW says:

    R. Penner • Jun 7, 2014 @9:55 pm

    It seems undeniable that they relied largely or entirely on one blogger who does not have a factual basis to make such claims. It seems undeniable that they could have been unaware of various people tasked with looking into Mann's record for evidence of wrong doing. Therefore it seems that the claims that Mann was guilty of "scientific fraud" (not a direct quote, because these court documents aren't in Federal Court where I could grab them easily) would automatically give a colorable claim for defamation if it weren't for Mann's public figure status, the exact impact of which is still debated.

    I deny they relied almost entirely on one blogger, and that there wasn't a factual basis for making their claims. No one — least of all the defendants — denies people claimed to have looked into Mann’s record for evidence of wrong doing . The main thrust of the supposedly defamatory articles was to mock one such "investigation," comparing it to the investigation, by the same institution, which discovered no wrongdoing by Sandusky. Even if I accepted your premises, your conclusion doesn't follow. First, the defendants didn't accuse Mann of "scientific fraud"; they referred to the hockey-stick graph as "fraudulent." Perhaps you're thinking of Mann's e-mail to NYT reporter Andy Revkin in which Mann called McIntyre and McKitrick's work "scientific fraud." Second, comments similar to those made by the defendants have been deemed to be protected opinions in a number of defamation cases.

    I'm not sure what you mean by, "the exact impact of which is still debated." The impact is that Mann has prove by clear and convincing evidence that the statements were made with "actual malice". That is, the defendants either knew the statements were false, or at least had serious doubts about their truthfulness.

  29. Levi says:

    @ R. Penner

    Let me help you out then. You can find many of the decisions to date here. The offending quote in question was:

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

    The post in question was made in response to one of the investigations you indicate. For some reason, I am having trouble finding the suit where Mann is suing Steyn et al for false claims of being a circus ringmaster. It's almost as though the post in question is larded with opinion and hyperbole and located on a political opinion site.

    I am also currently having trouble finding the no doubt substantial evidence that the scientific community carefully combs though political blogs for factual claims of fraud to use in furthering their research, or the legal background whereby the spitwad of "fraud" uttered near alliteration and puns is magically transformed into a highly damaging cannonball when it strikes the pristine clothing of a scientist. I am sure it must be out there because many have attempted to explain the seriousness of an allegation of fraud when leveled against a scientist versus any other person.

    To my knowledge, Mann is not even disputing public figure status here? How is that relevant?

  30. Levi says:

    @ Eli

    Regarding your analogy, I think it would be closer to the facts if it were Steyn : free speech :: guys with AKs at a gun show : right to carry. This was a political opinion site, after all.

  31. Georg Felis says:

    The longer this goes on, the more I am just baffled by the courts not throwing Mann and his lawsuit out the door and down the stairs. It seems like in summary the way this is playing out:

    The Way It Should Have Gone:
    Mann: Man-made Global Warming! Hockey Stick! Needs fixed!
    Chorus: Dooom!
    Steyn/NR: Show real numbers. Serious discrepancies. Liar.
    Mann: (shows real numbers) or (spouts more hot air)
    -VS-

    The Way It Seems To Have Gone:
    Mann: Man-made Global Warming! Hockey Stick! Needs fixed!
    Chorus: Dooom!
    Steyn/NR: Show real numbers. Serious discrepancies. Liar.
    Mann: Sue! Megabucks! Denier! Heretic! Science Settled! Shut up!
    Steyn: Show real data! Show model! Science is skepticism, not sheep.
    NR: Shh. You’ll make him mad.
    Chorus: Denier! Repent! Drive him from the garden! Heretic! Infidel!
    Steyn: First amendment! Discovery! Show us the real numbers!
    Mann: No! Shut up! Real numbers secret! World ending! Shut up! Sue you into bankruptcy and prison!

    And here we are. I hope I don't get sued for expressing my opinion this way. I used to think my mindless natterings were protected speech, but lately it seems there is a CO2 exemption in one of the perumbra's of that document.

  32. Earle says:

    @ Levi:

    Not only is Mann not disputing public figure status, he conceded it. Albeit, reluctantly.

    That simple fact won't stop people from arguing about what ought to be, rather than what is.

  33. Jonathan Goodman says:

    Not meaning to come off as a humorless liberal, still, Michael Mann as Hitler trying to destroy America?? Seriously??

    He might be guilty of over-reacting to insults, sloppy science together with a big ego.

    Also, if the legal issues were as clear cut as you say, the several courts who have considered them, at least one of them, would have at least in part agreed with you. They haven't. That doesn't prove you're wrong, but it suggests the issues aren't obvious.

  34. Per says:

    "…the Defendants have been co-opted into hysterical conspiracy ideation…"
    Hilarious. When you make such statements about the defendants, they are free speech. When the defendants use hyperbolic opinion, it is not free speech.
    "It seems undeniable…"
    Watch me deny. Haven't you noticed that steyn is gagging to get into court precisely to go through the evidence ?
    The issue of whether steyn can use the defence of truth is live. although you don't seem to recognise there is any issue here, that can equally speak to your lack of knowledge

  35. James Picone says:

    Frankly I'm disturbed that so many people on this site are verging on the lunatic fringe.

    The case seems pretty clear-cut to me. Steyn has claimed that Mann is guilty of scientific misconduct. Yes, he talks in hyperbole and the like, but it's impossible to read Steyn's comments without concluding that he is literally claiming that Mann has manipulated data and statistics in an underhanded way to try and reach a particular conclusion.

    That claim is undeniably false. MBH98, the original paper that McIntyre went off at that started the whole 'the hockey stick is a fraud' thing had some errors in it, which is to be expected in any piece of scientific research pushing new boundaries. Later papers have corrected many of those flaws where they can be corrected, none of them have a substantive impact on the result, and there certainly aren't any that could reasonably be believed to be the result of malice. In addition, other paleoclimate studies using different proxies, different methods, by different people, all match up with MBH98 within error bars.

    These claims that Mann acted fraudulently have obviously damaged his professional reputation – there are otherwise rational people on this site, for example, who seem to think he's a bit shady and that associating him with Hitler is appropriate. There's been umpteen different reviews and investigations and panels. I imagine the emotional strain of being the hated whipping boy of a not-insignificant group of people is pretty substantial, too. Yeah, yeah, 'butthurt' and all, you aren't the ones receiving death threats.

    I'm not a lawyer, of course, and I'm not familiar with the details of defamation law – let alone American defamation law – but my understanding is that if you publicly publish claims, those claims are false, and those claims cause significant harm to another, there's grounds for a lawsuit. I don't see what in that set of requirements isn't met here.

    Yes, free speech is important. So is the ability for professionals just doing their job investigating things to be able to report their results without being subjected to horrifying levels of abuse.

  36. David C says:

    I'm not a lawyer, of course, and I'm not familiar with the details of defamation law – let alone American defamation law – but my understanding is that if you publicly publish claims, those claims are false, and those claims cause significant harm to another, there's grounds for a lawsuit. I don't see what in that set of requirements isn't met here.

    For public figures, the standard is raised. It's not enough for the claims to be false – the person making the claims pretty much had to think they were false in order to be sued. (This is what protects the man on the street who ignorantly tries to claim Obama is a Muslim – so long as he actually believes it, Obama can't sue him.)

    Yes, he talks in hyperbole and the like

    Hyperbole and opinions and satire and all that jazz are protected. To have defamation, you need a provable fact that is false (and in this case, that the speaker knew was false.) Saying that the paper is "bogus" is not a provable fact, for example.

  37. James Picone says:

    For public figures, the standard is raised. It's not enough for the claims to be false – the person making the claims pretty much had to think they were false in order to be sued. (This is what protects the man on the street who ignorantly tries to claim Obama is a Muslim – so long as he actually believes it, Obama can't sue him.)

    Huh. Honestly, that seems kind of strange to me. But fair enough – I don't doubt that Steyn honestly believes the things he says.

    Hyperbole and opinions and satire and all that jazz are protected. To have defamation, you need a provable fact that is false (and in this case, that the speaker knew was false.) Saying that the paper is "bogus" is not a provable fact, for example.

    'molested and manipulated data' is a provable fact, surely?

    I'm kind of surprised that you can get away with seriously damaging someone's reputation just because you honestly believe the things you're claiming and the person in question is vaguely public. I'd imagined the reason Obama can't sue Man In The Street about birther nonsense was mostly because it's hard to demonstrate harms (and the reason he /doesn't/ is because it looks kind of awful). How much of that aspect of defamation law varies by country? Are there exceptions for, for example, situations where the defendant should have known that the provable fact was false?

  38. David C says:

    I'd imagined the reason Obama can't sue Man In The Street about birther nonsense was mostly because it's hard to demonstrate harms (and the reason he /doesn't/ is because it looks kind of awful).

    That's undoubtedly true as well. (But the "looks awful" reason also seem to apply here – as Ken previously wrote, "Global warming skeptics have been asserting that the scientific establishment is hostile to any dissent on global warming; this complaint isn't going to dispel that impression.")

    How much of that aspect of defamation law varies by country?

    Pretty much all of it. The high standard in the US is due to the application of the First Amendment freedom of speech, which not all countries have. And the standard was established in the US Supreme Court case Times v. Sullivan, which would obviously not apply in other countries.

    In case you're wondering, there's something called the SPEECH Act which makes foreign libel judgements unenforceable in US courts unless the judgement complies with the First Amendment. So Mann can't bypass this by suing in Sweden or something. (Well, he *can*, but he'd never be able to collect in the US, so it would be pointless.)

    Are there exceptions for, for example, situations where the defendant should have known that the provable fact was false?

    For public figures, not really. But you can't point at a random public figure and say he beats his wife, and then claim you didn't technically KNOW that was false because you never saw his wife and for all you know she has bruises everywhere. That would be a "reckless disregard for the truth", and result in liability. But mere failure to fact-check would not rise to that level. In the Times case, they had information in their own archives that would have shown the information they were printing was false, yet they were found to be not liable.

    I'm kind of surprised that you can get away with seriously damaging someone's reputation just because you honestly believe the things you're claiming and the person in question is vaguely public.

    Mann is a likely a "limited-purpose" public figure – he's only a public figure for purposes of his area of expertise, which is a highly debated issue of public importance. False allegations of child abuse or something against him would not get this level of protection, because that falls outside of his limited public figure role.

    'molested and manipulated data' is a provable fact, surely?

    Ken, in a previous article on this, said:

    This is patently not a statement of provable fact. No rational person could construe it to mean that Mann molested children like Sandusky. And data cannot be "molested and tortured" except in a stylized rhetorical sense.

    Any researcher is going to manipulate data to some extent, especially in research like this where you're trying to determine which data sets are acceptable proxies for actual temperature. Each time you decide that a particular data set is or is not a good proxy, you "manipulate" the results. Whether the manipulations were appropriate or inappropriate is a matter of opinion.

    I suppose that this is as good a place as any to also point out that conclusions based on presented facts are better protected than conclusions based on secret evidence that the reader isn't given. Assuming the source facts are true and are presented to the reader, the writer can then present their conclusion as a protected opinion.

    In one of the articles alleged to be defamatory, there are over a dozen links embedded in the text. For example, the phrase "engaging in data manipulation" is a link to a website which contains a hacked email referencing "Mike's Nature trick" to "hide the decline" on a diagram. The link to this source material allows the reader to decide for himself whether improper manipulations were going on, or whether this was just one out-of-context email with an unfortunate word choice and dubious source. (I am NOT going to get into which it was – it's sufficient to say that the reader can decide.)

  39. MJW says:

    James Picone • Jun 15, 2014 @11:32 pm

    MBH98, the original paper that McIntyre went off at that started the whole 'the hockey stick is a fraud' thing had some errors in it, which is to be expected in any piece of scientific research pushing new boundaries.

    In an e-mail to a NYT reporter, Mann called McIntyre's valid criticisms "pure scientific fraud." Mann can dish it out, but he can't take it.

  40. MJW says:

    David C • Jun 17, 2014 @11:14 am

    I suppose that this is as good a place as any to also point out that conclusions based on presented facts are better protected than conclusions based on secret evidence that the reader isn't given. Assuming the source facts are true and are presented to the reader, the writer can then present their conclusion as a protected opinion.

    That was recently discussed by Eugene Volokh on the Volokh Conspiracy blog.

    (The case that brought up the issue — Loftus v. Nazari — seems to me to extend that principle considerably beyond what would be necessary to conclude that the comments in the Mann case are protected opinions, not factual assertions.)

  41. James Picone says:

    Ken, in a previous article on this, said:

    I read that one. I'm still not entirely certain why it matters that you can't literally molest data. The implication that Mann's manipulation was improper was pretty clear. As far as I can tell, Judge Weisberg agrees that it could be read as a factual claim, and it's worth having a jury look at it.

    In an e-mail to a NYT reporter, Mann called McIntyre's valid criticisms "pure scientific fraud." Mann can dish it out, but he can't take it.

    First, truth is an absolute defence – I know that much. McIntyre's method was fundamentally broken, and choices like sorting the random results by 'hockey-stick index' and showing the top ten make it lot awfully deliberate. See this.

    Second, an email to a NYT reporter isn't in quite the same realm as a news organisation or a well-trafficked blog.

  42. James Picone says:

    Oh, I should say that the discussion on this blog about anti-SLAPP provisions does make sense to me, even as someone who would clearly like Mann to win this case. If it can't be immediately appealed it rather defeats the point of the provision.

  43. David C says:

    @James Picone: Yeah, if it's not immediately appealable, there's little point in allowing an appeal at all. It would be rather silly to wait until after the case has concluded to appeal the decision on whether it should have proceeded in the first place.

    @MJW: Thanks for the link. I don't think anyone can reasonably claim, after reading the allegedly defamatory articles, that Steyn and company are basing their statements on implied undisclosed facts. Right or wrong, they do state WHY they think the way they do, or link to other articles that state why.

    In the case referenced in the article you linked, the court said several things that may apply to this case:

    The bottom line is protected opinion exists if “[t]he reader is in as good a position as the author to judge whether the conclusion . . .[i]s correct."

    Further, it must be taken into account that the statements by Ms. Nazari were posted on opinion websites; therefore, the natural tendency would be to infer that they are opinion.

    Dr. Loftus’s proffer of medical experts rebutting Ms. Nazari’s assertions is irrelevant; her statements are still protected opinion.

  44. HandOfGod137 says:

    @MJW

    In an e-mail to a NYT reporter, Mann called McIntyre's valid criticisms "pure scientific fraud." Mann can dish it out, but he can't take it.

    If you mean the email hacked during the "climategate" event, surely communication presumed to be private has slightly different standards than a publicly disseminated blog post? To put it in context, the email in question actually reads:

    Date: Fri, 04 Feb 2005 15:52:53 -0500 To: Andy Revkin From: "Michael E. Mann" Subject: Re: FW: "hockey stock" methodology misleading Hi Andy, The McIntyre and McKitrick paper is pure scientific fraud. I think you'll find this reinforced by just about any legitimate scientist in our field you discuss this with. Please see the RealClimate response: [1]http://www.realclimate.org/index.php?p=111 and also: [2]http://www.realclimate.org/index.php?p=114 The Moberg et al paper is at least real science. But there are some real problems with it (you'll want to followup w/ people like Phil Jones for a 2nd opinion). …To recap, I hope you don't mention MM at all. It really doesn't deserve any additional publicity.

    Moreover, Mann is actually describing the paper by McIntyre as fraud (which is generally accepted as being the case). If this were not a publicly viewable forum, one could argue that it is slightly fraudulent to present Mann's issue with Steyn et al in the same light as Mann's comment about McIntyre and McKitrick. However, as it is, I won't. However, for further information on McIntyre's scientific status, please look at the citations for the included link:

    http://rationalwiki.org/wiki/Steve_McIntyre

  45. David C says:

    Moreover, Mann is actually describing the paper by McIntyre as fraud

    Are you saying that matters? Because Steyn actually called a graph fraudulent.

    surely communication presumed to be private has slightly different standards than a publicly disseminated blog post?

    It matters as far as showing injury, anyway, since a falsehood said to one person is generally going to injure you less than a falsehood said to the world. But remember that this "private" communication was with a reporter, and he sent that email with the intent to lower their reputation with that reporter, which could then influence further reporting on the issue.

    But would you read "pure scientific fraud" as meaning that not only was the science wrong, but it was done intentionally? Not just in this case, but in any case where that phrase was used?

    As far as I can tell, Judge Weisberg agrees that it could be read as a factual claim, and it's worth having a jury look at it.

    Yes, he does. He is, of course, reading all facts in the light most favorable to the plaintiff, and even then I'm not sure he got it right. Also, Steyn is currently representing himself, so he may or may not not be making all of the proper arguments or citing the proper authorities to make his case.

    I'm still not entirely certain why it matters that you can't literally molest data. The implication that Mann's manipulation was improper was pretty clear.

    I'll agree that the implication was clear, but it was a conclusion based on evidence provided to the reader via links, so I think what I posted before applies: "The bottom line is protected opinion exists if '[t]he reader is in as good a position as the author to judge whether the conclusion . . .[i]s correct.'" I think the judge here erred in declaring it to be a fact in and of itself, rather than a conclusion based on provided facts.

  46. HandOfGod137 says:

    @David C

    Moreover, Mann is actually describing the paper by McIntyre as fraud

    Are you saying that matters? Because Steyn actually called a graph fraudulent.

    surely communication presumed to be private has slightly different standards than a publicly disseminated blog post?

    It matters as far as showing injury, anyway, since a falsehood said to one person is generally going to injure you less than a falsehood said to the world. But remember that this "private" communication was with a reporter, and he sent that email with the intent to lower their reputation with that reporter, which could then influence further reporting on the issue.

    But would you read "pure scientific fraud" as meaning that not only was the science wrong, but it was done intentionally? Not just in this case, but in any case where that phrase was used?

    In the context of MJW's original comment, I'd say it is important, as Steyn went much further than just suggesting a paper was fraudulent. Also, I dispute that what Mann said about McIntyre's paper was false (an opinion shared by the vast majority of experts in the field), and lest we forget, the private communication was exactly that until it was stolen from the CRU

    As regards “pure scientific fraud”, I can't really speak to every case, but in this instance, and based on McIntyre's documented behaviour, I'd say that he's clearly and intentionally attempting to deceive. See for yourself:

    https://www.google.com/search?sourceid=chrome&ie=UTF-8&q=skeptical+science+steve+mcintyre&gws_rd=ssl#hl=en&prmd=ivnsb&q=site%3Arealclimate.org+McIntyre&safe=off&start=0

  47. MJW says:

    HandOfGod137 • Jun 18, 2014 @3:48 am

    If you mean the email hacked during the "climategate" event, surely communication presumed to be private has slightly different standards than a publicly disseminated blog post?

    In some cases the standard is different, but not necessarily in the direction you think. In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., the SCOTUS included the the limited distribution of the communication in question as a factor counting against its First Amendment protection:

    Moreover, since the credit report was made available to only five subscribers, who, under the terms of the subscription agreement, could not disseminate it further, it cannot be said that the report involves any "strong interest in the free flow of commercial information." There is simply no credible argument that this type of credit reporting requires special protection to ensure that "debate on public issues [will] be uninhibited, robust, and wide-open."

  48. MJW says:

    HandOfGod137 • Jun 18, 2014 @11:26 am

    In the context of MJW's original comment, I'd say it is important, as Steyn went much further than just suggesting a paper was fraudulent. Also, I dispute that what Mann said about McIntyre's paper was false (an opinion shared by the vast majority of experts in the field), and lest we forget, the private communication was exactly that until it was stolen from the CRU

    McIntyre's paper was not false. Essentially every criticism in the paper has been confirmed. Even it it were false, that wouldn't make it "pure scientific fraud." The e-mail to Revkin was "published" within the meaning of defamation law at the moment Mann pressed "Send."

  49. HandOfGod137 says:

    @MJW

    McIntyre's paper was not false. Essentially every criticism in the paper has been confirmed.

    Do you have any citations for that claim, as my understanding is that McIntyre's only success was in identifying a Y2K error that made no real difference. I've posted a few links above that list McIntyre's errors (deliberate or not), so some verifiable sources that support your position would be helpful.

    Although not strictly relevant in the context of legal argument, it is interesting to note that we have just recorded the hottest May in recorded history, suggesting reality agrees with Mann.

    http://data.giss.nasa.gov/gistemp/tabledata_v3/GLB.Ts+dSST.txt

  50. MJW says:

    HandOfGod137 • Jun 18, 2014 @2:15 pm

    Do you have any citations for that claim, as my understanding is that McIntyre's only success was in identifying a Y2K error that made no real difference. I've posted a few links above that list McIntyre's errors (deliberate or not), so some verifiable sources that support your position would be helpful.

    You know about as much about McIntyre's paper as you know about the law; which is to say, hardly anything. McIntyre said that, contrary to Mann's claim in the original Nature paper that he used standard PCA, Mann actually used an entirely non-standard method that de-centers the proxy series, resulting in greater weights for hockey-stick shaped series. That Mann used a non-standard PCA method is indisputable; that the non-standard method preferentially selects hockey-stick stick shaped series is obvious in theory and confirmed by simulations.

    Whether or not last month was the hottest May ever in the relatively short "historical record" has little to do with Mann's claim. Mann claimed the current period is unique compared to the climate prior to the historical record. Showing it was hot last month compared to other Mays in the historical record says nothing about the temperatures in, for instance, the Medieval Warm Period.

  51. James Picone says:

    That Mann used a non-standard PCA method is indisputable; that the non-standard method preferentially selects hockey-stick stick shaped series is obvious in theory and confirmed by simulations.

    I've already linked to a very, very in-depth analysis of that set of claims that takes it down substantially. In brief, yes decentered PCA can exaggerate hockey-stick shapes in data because red noise is very rarely stationary at the end of time series. But the /magnitude/ of the effect is very relevant – and it's demonstrably not enough to cause the size of the hockey stick in MBH98, which is why further research that doesn't use decentered PCA, or uses different methods altogether, agrees with it pretty well.

    McIntyre, of course, tried to demonstrate that it does matter practically. The problem is that he didn't use noise to demonstrate it. He calculated the autocorrelation structure of the actual proxies and then generated 'pseudo-proxies' following that structure. That assumes that the autocorrelation structure is all noise, no signal, which can't possibly be right. In other words, McIntyre mined hockey sticks because the 'noise' he generated was hockey-stick shaped.

    This has been well-covered in the literature. Short-centered PCA was a mistake, definitely. It's been corrected, and it didn't have a significant effect on the outcome. See, for example, Wahl and Ammann, "Robustness of the Mann, Bradley, Hughes reconstruction of Northern Hemisphere surface temperatures" in Climatic Change, 2007

  52. David C says:

    Also, I dispute that what Mann said about McIntyre's paper was false

    I didn't mean to imply that it was; I was answering a question about the implications of the privateness of the communication as it relates to defamation, and defamation obviously requires a false statement. I did not read McIntyre's paper and have no opinion on whether it or anything said about it is true or false.

    In the context of MJW's original comment, I'd say it is important, as Steyn went much further than just suggesting a paper was fraudulent.

    If there is a distinction to be made about papers being fraudulent vs people being fraudulent, then it follows that that particular statement of Steyn's is not defamatory because it referenced Mann's paper and not Mann (although there may be other statements where this does not apply.) If there is not a distinction, then I fail to see the purpose of saying that Mann only said McIntyre's paper was fraudulent. On balance, probably in either case the statements ostensibly about the papers could be considered "of and concerning" their authors, but I'm not sure.

    Steyn's article was actually rather short; if indeed that statement wasn't defamatory, then all that's really left that could be defamatory to Mann in that particular article is the "molested and tortured data" statement, and that was merely quoted from Simberg's article.

  53. HandOfGod137 says:

    @MJW

    So that would be you have no verifiable sources that support your claim, then? I make no claim to understanding the American legal system, but I do know enough about the science behind AGW to recognise the high proportion of error in McIntyre's work. James Picone explains it better than I could above, although you really should try some of the links I have provided, as your use of the MWP suggests you are getting your information from some very poor sources.

    @David C

    Fair enough. I suppose my perspective is biased by my incomprehension as to the level of stupidity (or mendacity) that leads to denial of the weight of evidence and theory that supports AGW, but I accept that this has little bearing on the legal interpretation of the situation. Thanks for explaining.

  54. J.P. says:

    So let's say an individual makes a claim publicly in writing about a "public figure" knowing that claim is not 100% true and twisting existing information to create a false narrative to paint the subject in a negative light.

    Then uses that false narrative to actively contact an individuals clients, business partners, and media. Specifically spreading said false narrative for the publicly stated express purpose of damaging someone's business, reputation, and income. Which directly and ultimately results in lost revenue, public damage to reputation, etc. of the "public" individual.

    Not protected speech right?

  55. Will J. Richardson says:

    HandOfGod137 • Jun 19, 2014 @12:10 am

    I suggest you read the Wegman Report which agreed with McIntyre's criticism of MBH '98 and '99, and then consider this:

    But at the July 19 hearing, Barton asked North very precisely whether he disagreed with any Wegman's findings and North (under oath) said no as follows:

    CHAIRMAN BARTON. I understand that. It looks like my time is expired, so I want to ask one more question. Dr. North, do you dispute the conclusions or the methodology of Dr. Wegman's report?

    DR. NORTH. No, we don't. We don't disagree with their criticism. In fact, pretty much the same thing is said in our report. But again, just because the claims are made, doesn't mean they are false.

    CHAIRMAN BARTON. I understand that you can have the right conclusion and that it not be–

    DR. NORTH. It happens all the time in science.

    CHAIRMAN BARTON. Yes, and not be substantiated by what you purport to be the facts but have we established–we know that Dr. Wegman has said that Dr. Mann's methodology is incorrect. Do you agree with that? I mean, it doesn't mean Dr. Mann's conclusions are wrong, but we can stipulate now that we have–and if you want to ask your statistician expert from North Carolina that Dr. Mann's methodology cannot be documented and cannot be verified by independent review.

    DR. NORTH. Do you mind if he speaks?

    CHAIRMAN BARTON. Yes, if he would like to come to the microphone.

    MR. BLOOMFIELD. Thank you. Yes, Peter Bloomfield. Our committee reviewed the methodology used by Dr. Mann and his coworkers and we felt that some of the choices they made were inappropriate. We had much the same misgivings about his work that was documented at much greater length by Dr. Wegman.

    Link to Quote

  56. James Picone says:

    How many times do I have to link to this?

    The Wegman report was a mechanical duplication of McIntyre's results – criticisms of the maths in one apply to criticisms of the maths in the other. That deepclimate post analyses the maths at length, and concludes that decentered PCA was a mistake, but it didn't have a substantive effect on the reconstruction, and that McIntyre/Wegman's work has serious flaws – like the previously-mentioned using the entire autocorrelation structure of the proxies, and using red noise with far, far too much persistence.

    Keep in mind that this is a paper from 1998. It was one of the first multiproxy reconstructions of global temperature. Mistakes are to be expected when you're treading new ground. Later multiproxy reconstructions don't make the same mistake, and they still have a hockey stick. That tells you something about how much decentered PCA affected the output.

  57. HandOfGod137 says:

    @Will J. Richardson

    Wegman? One takes it you are still citing the Inquisition in your objections to heliocentrism if you think Wegman is an authority worth referencing.

  58. Will J. Richardson says:

    James Picone • Jun 19, 2014 @8:01 pm
    HandOfGod137 • Jun 21, 2014 @12:05 am

    You are citing DeepClimate as an authority on Statistics? I have no other comment on that.

    As for Wegman's and McIntyre's criticisms, it was not only de-centered PCA which was a problem. The hockey stick shape of Mann's reconstructions in his '95 and '98 papers were the result of an algorithm which most heavily weighted the proxies which correlated best with the modern temperature record. That algorithm selected one proxy series, the Bristlecone Pines, as the most influential proxy. If the Bristlecone Pine proxy is removed from the reconstruction, the Hockey Stick shape disappears.

    Mann actually did a reconstruction without the Bristlecone Pine proxy, and hid the result in a computer directory named "Censored". Therefore, Mann knew that the Hockey Stick shape of his Northern Hemisphere temperature reconstruction was wholly caused by one proxy series. There are other issues as well, but I am sure you are well aware of those.

  59. HandOfGod137 says:

    @Will J. Richardson

    For all that Mann's initial work was not perfect (because, gosh, it was initial work), his findings have been substantiated by at least 24 further reconstructions (Ljungqvist 2010, Ljungqvist et al. 2012 and Marcott et al. 2013 being some of the most recent and comprehensive), whereas McIntyre and Wegman are pretty much regarded as garbage . If you choose not to believe the basic science and supporting evidence that indicate continued increases in GHGs are risking major impacts on global climate, I'm not going to waste my time discussing it further with you. But do try and get better sources, as this denial of what is becoming increasingly obvious just looking out of the window is starting to get tedious.

    Ljungqvist, F. C. (September 2010), "A New Reconstruction of Temperature Variability in the Extra-Tropical Northern Hemisphere During the Last Two Millennia"

    Ljungqvist, F. C.; Krusic, P. J.; Brattström, G.; Sundqvist, H. S. (3 February 2012), "Northern Hemisphere temperature patterns in the last 12 centuries"

    Marcott, S. A.; Shakun, J. D.; Clark, P. U.; Mix, A. C. (8 March 2013), "A Reconstruction of Regional and Global Temperature for the Past 11,300 Years"

  60. David C says:

    So let's say an individual makes a claim publicly in writing about a "public figure" knowing that claim is not 100% true and twisting existing information to create a false narrative to paint the subject in a negative light.

    Then uses that false narrative to actively contact an individuals clients, business partners, and media. Specifically spreading said false narrative for the publicly stated express purpose of damaging someone's business, reputation, and income. Which directly and ultimately results in lost revenue, public damage to reputation, etc. of the "public" individual.

    Not protected speech right?

    If the statement is not "100%" true but is substantially true, it's probably protected. Like if you say someone robbed a bank for $500 but they only robbed it for $400. Other than that detail, what you describe is not protected; it would meet the "actual malice" standard.

  61. The Engineer says:

    iI've never understood why so many people seem to still take the "journalist" Mark Steyn seriously. In his book of Eurabia fairy tales he even claimed that Sweden had a higher murder rate than the united states by comparing murder and attempted murder in Sweden to an american statistic which, if you looked at the numbers, while saying murder and attempted murder, was equal to the number of murders in the united states.

    He must have looked through hundreds of comparisons before he found that one which "proved" his points, after that I can't understand why anyone still considers him a journalist.

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