Nobody believes I support Michael Mann in his lawsuit against Mark Steyn. I’ve been writing a series of posts with a stated intention of showing Steyn’s remarks were justifiable, if not correct. However, unlike Steyn and most of his supporters, I believe this case ought to go to trial.
I’ve discussed this case at The Blackboard (recently expressing my view here). Were I to only discuss it there, my views would be buried amongst many comments on another site. People reading my posts are unlikely to find those comments. As such, I am going to try to lay my views out here.
As I said at The Blackboard, I’m inclined to believe the judge ruled properly in not dismissing Michael Mann’s lawsuit. The relevant standard for libel in this case is “reckless disregard.” From the St. Amant ruling, we know a finding this standard was met requires:
There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.
Michael Mann’s lawsuit claims eight different investigations by legitimate bodies of authority found he had behaved properly. That claim, plus the idea his work is widely accepted and replicated, provides the foundation for his case. I believe his claims, if true, would permit the conclusion Mark Steyn entertained serious doubts about what he published.
My reasoning is simple. Imagine a person were tried for the same crime eight times (double jepardy not existing), and he was found innocent (as opposed to not guilty) all eight times. Given seven failed attempts at prosecuting the person for the same crime with the same evidence, it’s difficult to believe the prosecutor would expect that eighth attempt to produce a different result.
In a situtaion like that, it would appear no results could change the person’s behavior. In Michael Mann’s case, if every scientific body supports his work and tons of investigations into it say it was good, what could make his critics change their behavior? What more could they possibly ask for? Nothing.
In effect, this would mean Mark Steyn wrote what he wrote despite all possible evidence contradicting him. The only way he could be unaware of that is if he purposefully avoided the truth. That would show reckless disregard. That means, if we assume all points of dispute in Michael Mann’s favor, he would win his case. Or as the judge put it:
Viewing the alleged facts in the light most favorable to plaintiff, as the court must on a motion to dismiss, a reasonable jury is likely to find the statement that Dr. Mann “molested and tortured data” was false, was published with knowledge of its falsity or reckless disregard of whether it was false or not, and is actionable as a matter of law irrespective of special harm.
However, this quote shows there’s an additional issue to this issue. In addition to having shown “reckless disregard,” Mark Steyn must have published assertions of fact which were defamatory. Mere opinion would not be actionable, nor would factual statements which were not defamatory.
First we’ll consider whether or not Mann “molested and tortured data” is a factual assertion. The answer to this is yes if you pick any definition for the words “molested” and “tortured.” Do that, and it’ll be possible to see if Mann’s actions fit them. The only way to claim it isn’t an assertion of fact is to say the phrase is vague as to what qualifies.
I think that’s an incredibly weak argument, especially given the qualifier after the phrase said Mann did those things “in the service of politicized science.” That makes it clear the assertion is Mann manipulated data to tailor his results to a preconceived goal. I don’t think the fact the phrase is unclear as to just what sort of manipulation was done is relevant.
Next we’ll consider whether or not the phrase is defamatory. People have argued it isn’t based on the notion those words can be used in non-defamatory ways. As I’ve pointed out before, that’s a non-sequitur. The judge’s ruling does not examine whether or not the phrase is defamatory. It examines whether or not the phrase could reasonably be interpreted as defamatory. As the judge says:
The statement “he has molested and tortured data” could easily be interpreted to mean that the plaintiff distorted, manipulated, or misrepresented his data. Certainly the statement is capable of defamatory meaning, which means the questions of whether it was false and made with “actual malice” are questions of fact for the jury.
The reasonableness of such an interpretation is enhanced by the context of the phrase (such as claiming it was done with a specific goal in mind). As the judge puts it:
In context, it would not be unreasonable for the reader to interpret the comment… as an allegation that Dr. Mann had committed fraud
I agree. While the allegation was not one of a criminal offense, it was certainly one which could damage a scientist’s career. That means that statement is defamatory if false. Given the first part of this post showed Mann has made an argument those claims must be false, that final requirement is met.
That leaves me with these conclusions:
- The allegation made against Michael Mann was a statement of fact.
- The allegation would be defamatory if false.
- Mann provides a plausible argument showing the allegation was false.
- Mann provides a plausible argument showing Steyn knew the allegation was false or showed reckless disregard to its falsity.
Based upon those conclusions, I support the judge’s ruling.
One issue I have with this position is the Anti-SLAPP law under which the motion to dismiss was filed requires the plaintiff show his “claim is likely to succeed on the merits.” This means Mann must show he is likely to succeed based upon the evidence.
I am not convinced this standard requires the judge assume all points of dispute in favor of the plaintiff. It seems to me that would make the law superfluous (as I believe the same standard would apply without the Anti-SLAPP law). My instinct is to believe this standard requires the judge actually examine the evidence.
That said, I am not a lawyer. I have no relevant experience on such an issue of technical legal issues. As such, I am inclined to give the judge the benefit of the doubt. It is possible he has applied the wrong standard in his ruling, but until that is conclusively demonstrated, I won’t assume so.