A Rare Agreement With Michael Mann

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:

  1. The allegation made against Michael Mann was a statement of fact.
  2. The allegation would be defamatory if false.
  3. Mann provides a plausible argument showing the allegation was false.
  4. 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.

Advertisements

29 comments

  1. For the lawyers present, a question:

    Is it possible that Steyn might be found to have acted reasonably, while his co-defendant publishers acted, by contrast, maliciously? Say that Steyn argues he is, like Jonny Carson or John Stewart, a comedian, a purveyor of parody. He intends his writing to be understood figuratively. The jury agrees. However, the editors and publishers and processes of the National Review (online or otherwise) are not either the Tonight Show or the Daily show, but a creditable source. The editors have a higher responsibility, and have — Mann might argue — deliberately chosen to present a joke as if it were fact, with a reckless and malicious disregard of the historical background, and with disregard of the tendency of a casual reader to accept Steyn’s parody with the same respect as an economic review by Thomas Sowell or an electorial prediction by Jonah Goldberg.

    So might NRO be malicious, reckless and guilty of publishing an essay that Steyn was honorably, carefully, and honestly allowed to compose?

  2. Pouncer, something like that can certainly happen in theory. It is easy to use a quote from a person in a different way than they used it. If I say something sarcastically, but you repeat it and portray it seriously, you could be at risk while I am not. Alternatively, if you have knowledge I don’t have, you could be at risk if that knowledge meant you should have been more suspicious than I.

    That latter one is especially important if you repeat something I say a while after I say it when new information has since come to light. Me saying John Smith committed murder because his clothes were bloody might be okay, but you repeating my claim two days later when that “blood” has been shown to actually be paint could get you in trouble.

    Anyway, while that could happen in theory, I don’t think there are any relevant differences in this situation. The biggest differences I see would likely make NRO safer than Steyn. For example, NRO did not use the word fraud. That makes Steyn’s statements stronger than NROs, meaning they’re more likely to be actionable.

  3. Thank you. It occured to me that the Steyn/NRO split might have foundations beyond impatience with the legal process.

  4. I still don’t see that “molested and tortured data” is a factual assertion. The phrases have too imprecise a definition.

    Let’s try an example. Take the inclusion of the Gaspe data. The following facts are, I think, agreed:
    1. In reconstruction steps, only datasets which extend entirely through the period were used.
    2. Data for 1400-1403, which do not exist in the original dataset, were inserted by MBH.
    3. Such addition of data was not performed on any other dataset for any other reconstruction step.
    4. Acknowledgment of this addition was not made until a corrigendum was issued several years later.
    5. Gaspe data for the years 1404-14XX are from fewer trees (5?) than are considered a minimum reliable sampling. [I forget the specific threshold and year.]
    6. MBH98 included the Gaspe dataset in its reconstruction step beginning at 1400.
    7. The inclusion of the Gaspe data makes a material change in the reconstruction result.

    First, let me know whether you think these stipulations are not agreed by MBH98 defenders, e.g. Nick Stokes.

    [Assuming no objections,] Is this data torture? If data torture is a factual assertion, one would expect that the above stipulations either demonstrate it, or do not. However, there is not universal agreement on the point.

    It seems to me that data torture, like beauty, is in the eye of the beholder.

  5. Pouncer, If I remember correctly, Mark Steyn said they split because of differences in strategy. I believe he wanted to take a harder line than NRO and decided to split when they wouldn’t. I might be remembering wrong though.

  6. HaroldW, your 3 is a bit misleading because similar infilling happened in a number of series. It just happened at the other end (such as a series ending in 1974 having data added for 1975-1980). That doesn’t change your point (i.e. Gaspe was the only series extended back in time), but it is the sort of thing someone like Nick Stokes might latch onto. I think your list is fine otherwise.

    As for your question, I think it is misguided. As the judge indicates, the issue is not whether or not Steyn’s comments were factual assertions. The issue is whether or not they could reasonably be taken as such. I know if I hear someone “tortured data,” I take it to mean they manipulated the data to show something it doesn’t actually support. I think a lot of people do the same.

    This is especially true given Steyn didn’t just say Michael Mann tortured the data. He also said Mann molested the data. He also said Mann did these things for a specific reason. Saying Mann tortured and molested data with a goal in mind seems verifiable to me.

    Anyway, to answer your question, I’d say yes. I think Mann’s manipulation of Gaspe was an example of torturing his data. I also think it is highly likely he did it with a specific goal in mind.

  7. Mr. Schollenberger,

    You say, As the judge indicates, the issue is not whether or not Steyn’s comments were factual assertions. The issue is whether or not they could reasonably be taken as such.. But if Steyn’s assertions indeed ARE factual, that makes the issue of whether or not it can be TAKEN as factual to be moot.

    Just sayin’.

  8. Brandon,
    You have confused Mark Steyn with Rand Simberg throughout this post. It was Rand Simberg who said that Mann had “molested and tortured data,” not Mark Steyn. Steyn is being sued by Mann because Steyn called Mann’s hockey stick “fraudulent.” I think it makes a difference.

    As a lay person and opinion writer, it’s perfectly reasonable to conclude that a temperature graph that excludes the Medieval Warm Period and the Little Ice Age to be fraudulent – particularly since respected scientists have been arguing that very point about Mann’s graph for years. Additionally, students who took World History classes in high school and college used to be taught about the Medieval Warm Period when we learned about the Vikings settling Greenland and Newfoundland.

  9. Bill Brent, Steyn’s republication of those remarks makes him a publisher of them. Sometimes being a republisher creates a relevant difference, such as when you publish something false in order to rebut it. Sometimes it doesn’t create a relevant difference. I believe it’s a non-issue in this case because I don’t think even Steyn has suggested it in his defense.

    As for the other part of your comment, I agree. I think we can fairly call Michael Mann’s hockey stick a fraud. I also think we can fairly call Mann a liar, a cheat, a buffoon and about a hundred other things. I just happen to think those comments could possibly be considered defamatory.

    Here’s the way I look at it. If Michael Mann were a great guy who had never done anything wrong, and if he had been cleared by half a dozen legitimate investigations, I’d find Mark Steyn’s comments about him horrible. In that hypothetical scenario, I’d fully support Mann’s lawsuit.

    Given that, I cannot justify saying Mann’s lawsuit should be summarily dismissed at this point. The point of discovery is to allow someone who has a plausible argument to find additional support for his case. I believe Mann should be given that chance. I don’t think he’ll find such support, but I can’t support denying him the opportunity just because I happen to know what kind of person he is.

  10. But Steyn wasn’t the publisher, Brandon, he was the writer. National Review was the publisher, and that’s why Mann was able to include NR in his lawsuit. Were it not for that distinction, National Review would not now be a defendant.

    In his National Review post, Steyn quoted Simberg’s comparison of Mann with the child molester Sandusky, and Simberg’s “tortured and mutilated data” comment, and then wrote that he wouldn’t have gone that far. Steyn has always made a clear distinction between what he said and what Simberg said, as he did in a March 9, 2014 post on his website titled “An Inspiring Day”: “Michael E Mann, the fake Nobel Laureate, is suing me, Rand Simberg and our respective publishers for calling his hockey stick “fraudulent” (that was me) and its creator a man who “tortured data” (that was Simberg).”

    Furthermore, it was because the original judge in the Anti-SLAPP appeal, Combs Greene, continual conflated and confused Simberg’s comments with Steyn’s comments that her ruling was appealed by all four of the defendants – Steyn, Simberg, NR, and CEI. And it’s the reason Steyn has been hammering her relentlessly for being an incompetent jurist. So he most certainly has suggested it in his defense.

    Other than that, I agree with you and very much appreciate the effort you’ve made here to clarify what Mann has done. Sincerely!

  11. Bill Brent, the word “publish” in a legal case is not the same as in common parlance. In the context of libel and slander laws, you “publish” something any time you communicate it to a third party. It can be hand written, e-mailed or even spoken out loud (though that makes it fall under slander, not libel laws). In a legal sense, Mark Steyn published his article the moment he sent it to his editor. He then published it, jointly, with his company when it was published in the normal sense.

    As for the distinction between publishing and republishing material, I think you misunderstood my point. Steyn has always been clear he did not write the quoted material, but as far as I know, he has not argued that makes him non-liable for it. You can quote a person in a way which makes you liable (such as if you say the claims in the quote are true), and you can quote a person in a way which makes you non-liable (such as if you say the claims in the quote are false). Steyn quoting someone does not inherently exempt him from liability for what was said in that quote.

    Anyway, I’m glad to hear you like my posts! I wanted to have the next post uploaded this evening, but I spent most of the day in bed with a migraine. Even now I’m still finding it hard to focus.

  12. Migraine! Yikes! I feel for you. My girlfriend gets them so I kind-of get what you’re going through; though she says she wishes I would have just one so I’d really understand. From what I’ve seen, no thanks! Bet you wish those things had been selected out of the human gene pool eons ago. Thank goodness for drugs like Imitrex.

    Anyway, all the best!

  13. Thanks. Happily, I’m pretty much over it. That means I can write lucidly again. Or at least, I can write however lucidly I normally write.

    Unless something comes up, the next post should be up tonight. It’s a fun one. I get to discuss how Michael Mann adjusted data from 1000-1400 AD for a problem he says exists only in 1800-1900 AD. And that’s the entire basis for his results!

  14. “Michael Mann adjusted data from 1000-1400 AD for a problem he says exists only in 1800-1900 AD. And that’s the entire basis for his results!”

    Refresh my memory: Mann’s results address “unprecedented” 1850-2000 climate behaviors?

  15. @ Pouncer

    Yes, Mann’s ‘unprecedented’ assertion applied to the warming which he ‘found’ from 1850-1998 (or, more precisely, from 1950 to 1998). In order to fabricate the ‘unprecedentedness’ (how’s that for a neologism?!), Mann had to ‘flatten’ out the handle portion of the stick (i.e., make the Medieval Warming Period and the Little Ice Age go away). So, even the though the ‘blade’ is the drama end of the hockey stick (and the blade suffers from its own disputable methodology, e.g., appending instrumental data to proxy data, which Mann says they don’t do, but they do), the handle end of the stick is actually far more controversial, methodologically speaking.

    I’m not a statistician; I’m a historian. I know from history that there indeed was a Medieval Warm Period, and a Little Ice Age. I know – without resorting to paleoclimatic studies – that both of these events were largely global. (VIking settlements buried under the Greenland ice sheet, far more settlement in Tierra del Fuego ca. 1000 A.D. which retreated during LIA, and Maori settlements (a sparsely clothed people if there ever was one) on Auckland Island in NZ ca. 1300, suggest that the Island (which is now uninhabited) was more temperate then — all these point to a global period as warm as – if not warmer – than today.

  16. Dr C, you should be careful saying they appended instrumental data to proxy data. That wasn’t done in Mann’s original reconstruction (except arguably in Figure 7 of MBH98). It was done in his 2008 reconstruction. Mind you, all of Mann’s reconstructions (and pretty much all other reconstructions) have been forced to show modern warming by virtue of being calibrated against the modern temperature record.

    On the issue of the Medieval Warm Period, I’m not convinced it was as warm as current times, much less that it was warmer. The problem with examples like you provide is they are from limited areas. It’s perfectly possible some areas were anomalously warm compared to the rest of the planet. Also, it’s possible signs that appear to indicate hot temperatures really just indicate longer periods of warm temperatures. A small amount of warming over 200 years could melt as much ice as a large amount of warming over 50 years.

    I have no doubt the MWP and Little Ice Age were real. I just don’t think we have the evidence to draw quantitative conclusions about them.

  17. Hi Dr C, Thanks for the clarification.

    I understand that the MWP is somewhat uncertain for both the locality affected and the temperature peaks. But it seems to me that there are certainly comparable uncertainties with regard to the locales available with proxies (strip bark bristlecone tree rings, for example) It’s beyond me how one can say — straightfaced — the sinusoidal MWP/LIA is a local event because it only shows up in Greenland while the flatlined hockey stick is a worldwide measure because 3 heavily weighted proxies cancelled out one another’s noise.

    Is there any chance of historical records of grain yields or date-of-harvest which might have been collected by long-term civilizations outside of Europe? I wonder about various Ottoman or Hindu-India records, tax collection receipts, etc. The sort of thing William Playfair might have analyzed in the 1800’s but of another empire’s archives. One of the major changes in climate analysis from Hubert Lamb to Michael Mann was, it seems to me, the abandonment of humanities’ actual records of the weather. Lamb gathered such records meticulously. Mann can’t even be bothered, it seems to me, to read the textual notes of the researchers whose data he, as Simberg puts it, tortures. Hence: Tijander.

  18. Brandon: I appreciate your series of posts. If I were representing Steyn I would find your explanations to be very helpful.

    From my perspective as a lawyer, I think that the trial judge ruled incorrectly on the motion to dismiss, but I agree with you to the extent that I think the trial judge’s ruling is not unreasonable. It is a decision that a competent jurist could reach.

    It will be interesting to see what the Court of Appeals does with the National Review and CEI appeals. The Court of Appeals first needs to find that the Judge’s ruling is even appealable at this stage of the proceeding. I think it is, but it is not obviously appealable and I would not be shocked if the Court of Appeals held that it is not. Interestingly, a whole slew of organizations have filed friends of court briefs urging a finding that the judge’s interlocutory ruling is appealable. Next, if the COAs gets there, it will need to decide whether the decision not to dismiss is correct. I think that could reasonably go either way.

    Even if the COA affirms the trial court that does not automatically mean that the case will go to the jury. The next major step will be a ruling on a motion for summary judgment. A motion for summary judgment is filed after all discovery has been completed. To prevail on such a motion, Steyn’s attorneys will need to show that based on evidence that could be admitted at trial, the defendant is entitled to a dismissal as a matter of law based on uncontested admissible evidence. That is a difficult, but not impossible burden for Steyn to meet. It is impossible to know how that motion would be argued until we know what is disclosed in discovery.

    In any event, Steyn will present evidence that the hockey stick is indeed fraudulent. In support of a motion for summary judgment, Steyn could cite the type of analysis that you and Steven McIntyre have presented. A common type of legal fraud is the intentional concealment of material facts that one has a duty to disclose. Based on your analysis, I would certainly argue that the hockey stick graph is fraudulent in the legal sense as a matter of law in so far as Mann intentionally concealed facts that if disclosed would have discredited the validity of his work within the scientific community. Unfortunately, I think the question whether a particular fact is “material” is usually one for the jury to resolve.

    Steyn will also present evidence that he did not act with malice; that is he honestly believed that the hockey stick graph was fraudulent and that he was not reckless in holding such a belief. I think this basically requires that he had plausible reasons for believing the hockey stick was fraudulent. He might also cite the opinions of credible persons that he relied upon in forming his belief.

    To defeat his motion, Mann will need to present some admissible evidence that Steyn did not actually believe the hockey stick was fraudulent or that he was reckless in holding such a belief. Based on McIntyre’s analysis of the so-called exonerations of Mann, I don’t think that many of them would be admissible into evidence at this stage of the proceedings. They are simply not probative on the question whether the hockey stick graph is fraudulent.

    Generally, questions of mental state (the presence of malice) are questions for the jury, but there may be unique law that is applicable to cases of libel, particularly with the existence of the anti-slap law. Much will depend on discovery goes. I would love to be a fly on the wall when Steyn’s lawyers depose Mann regarding the screw ups you have listed.

    There are obviously many complicated legal issues to be resolved. I think much will turn on the nuances of language. Was the word, “fraudulent” used and reasonably understood in its legal sense or in a more colloquial sense? What does it mean to say that a graph is fraudulent? Does that simply mean that it is not what it purports to be or does it mean the person who created it engaged in fraud?

    I was thrilled to see the lawyers who are now represented Steyn. There credentials are truly stellar and I am certain that they will be presenting an outstanding defense. If the case goes to the jury, I would predict a win for the defendants.

  19. pauldd, thanks! I’m always glad to hear people get something from them.

    As for this case, I wouldn’t have even written this post except I kept seeing people say the judge was obviously biased/incompetent/whatever based on this ruling. That seems ridiculous. I don’t know the reasoning I’ve offered in this post is right, but I haven’t seen anything which makes me believe it’s wrong. I don’t think the judge, or I, should be ridiculed as ignoring all logic of law and reason (a paraphrase of something actually said) because of it.

    Anyway, your analysis of the legal situation seems correct to me. I think it’d be hard to get the current ruling overturned so I think discovery will happen. I’m not sure whether or not a dismissal would be granted though. I don’t see how Mann will argue malice after discovery unless he finds something incriminating. Given Steyn was anxious to respond to Mann’s discovery request, I don’t think Mann will. It’ll be interesting to see.

    I don’t think “much will turn on the nuances of language” though (for Steyn, I’m not looking at CEI or National Review). Steyn seems willing to forego most legal manuevers where semantics would matter. If it goes to court, those nuances won’t matter. Steyn’s lawyers aren’t going to focus on semantics. They’re just going to tell the jury:

    Steyn believed what he said because of these dozen things Mann did. Whether he was right or wrong about those things, he did believe them.

    And like you predict, it’ll be a winning strategy.

  20. Well, if lawyers are involved, the nuances of language will be important. I ‘ll point you to something steyn has written:

    “Rich notes below Richard Muller’s New York Times piece on how the world “mistakenly took the hockey stick seriously.”. . . what it’s worth, my position is the same as Professor Muller’s: The hockey stick is fraudulent in the sense that what it purports to demonstrate is not so.” http://m.nationalreview.com/corner/359731/times-climbs-hockey-stick-mark-steyn

    In short, he asserting that he used the word fraudulently in a colloquial sense. Mann’s lawyers on the other hand, are arguing that Steyn’s words amount to charging Mann with research misconduct or scientific fraud. My reading of the trial coudts decision is that this is a question for the jury so the complaint survives a motion to dismiss.

    I think your material suggests that Mann may have engaved in research misconduct or, alternatively, that Steyn was not reckless in believing that he did. Honestly I am surprised that Mann is willing to allow all this dirty laundry to be aired in Court.

  21. “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.”

    Actually, he lied to the court in pleadings regarding at least seven of those investigations and exonerations. Information proving he lied is widely available.

  22. Rick Sprung: And Steyn took apart all of those lies at http://www.steynonline.com/6134/every-quote-ever-uttered-by-anyone-exonerates.

    Everyone who suggests Mann has a great case and will proceed through trial had better look real hard at his Canadian lawsuit against Tim Ball. The BC Courts are online and you can review the entire file at https://www.bconline.gov.bc.ca/. Search by name “Michael Mann” to get to
    File Number VLC-S-S-111913.

    Mann has taken no steps, none at all since June 5th, 2012, at which time he amended his claim, an utterly trivial step. Since then responses to his claim have been filed, but nothing from Mann.

    One might ask about proceedings not filed with the court such as oral examinations. Mann is a loudmouth with multiple tweets and similar utterances, often daily, sometimes hourly. Had he traveled to BC to be deposed, or to supervise the deposition of Tim Ball, we would know.

    Mann is terrified, utterly terrified, of being taken apart in person by a tough and well informed lawyer. Any reasonable risk reward analysis shows that Mann has little upside – he’s suing people not real wealthy, and huge downside – he gets utterly discredited, never works again and becomes a pauper. Not gonna happen. His aim is to terrify people with the fear of getting sued. He is indeed a legal terrorist and based on the BC evidence alone a SLAPP remedy should have been given.

  23. Your logic is well reasoned (Kudos) but unfortunately it seems to rest on a couple faulty premises above that are invalidating your final conclusions.

    If we correct those assumptions, I’d be interested to see if your logic stays consistent:

    First you claimed “This is especially true given Steyn didn’t just say Michael Mann tortured the data. He also said Mann molested the data.”

    You acknowledged the correction that this was Simberg, not Steyn, but hedged that republishing made Steyn liable unless the republishing was done to comment on its “falsity” (assuming the statement was even false to begin with)

    You wrote:
    “…you can quote a person in a way which makes you non-liable (such as if you say the claims in the quote are false).”

    You were further informed that “Steyn quoted Simberg’s comparison of Mann with the child molester Sandusky, and Simberg’s “tortured and mutilated data” comment, and then wrote that he wouldn’t have gone that far.”

    I didn’t see your acknowledgment of that key phrase “wrote that he wouldn’t have gone that far” which demonstrated the necessary disagreement with the quote in question.

    Given the above, by your own standard, do you agree that Steyn is non-liable for the “molested and tortured” portion at least?

    Second, as a separate issue, the information that Mann “had been exonerated 8 times” seems to be a key requisite for your conclusion of reckless disregard: Specifically that these exonerations were common public knowledge. Given the ample documentary evidence, even inadvertently provided by Mann himself, that the source of the stories of exoneration came not from the investigations (which didn’t mention him), but only from Mann himself, your metaphor regarding multiple trials returning innocence is wholly inapt.

    I posit a couple of substitute metaphors:

    OJ Simpson, before any verdict was reached, publicly proclaimed his innocence because it must have been racist cops, or a glove didn’t fit, or he didn’t own Bruno-Mali’s or any number of 8 other reasons either unverifiable or outright contradicted by evidence.

    Is it still your contention that widespread awareness of these 8 claims of innocence would make any public citizen’s expression of belief in OJ’s guilt a matter of “reckless disregard?”

    I claim that I was appointed Emperor of Europe by the U.N., NATO, the G-8, the E.U., the Associated Press, my bookie, the Pope and all the various European Monarchs, and by merely listing the varied public bodies listed above, I imply there must exist wide public knowledge of my ascension to the throne.

    Is it your contention that because my bookie will actually confirm he jointly appointed me Emperor of Europe, that all these other entities did so as well, and that this is common public knowledge? Is it your contention that my bookie is a reputable source with no conflict of interest?

    Think on these, and then consider that, if you actually read them rather than taking only Mann’s word for it, the ONLY investigation that actually exonerated Mann by name was the Penn State investigation conducted by a University President now indicted for conspiracy, perjury, and obstruction of justice. How’s that for a reliable source?

    At the end of the day, Steyn’s article was about just that: It’s reasonable to believe Mann is a fraud, as Mann was exonerated by Penn State which had an inherent conflict of interest and 0 credibility. Mann’s response, without a hint of irony, was to claim he wasn’t a liar because Penn State had exonerated him, and also some lies about some others allegedly exonerating him too, when they didn’t. He was such a big “not liar” that everyone under the sun must have known for a fact that he was a “not-liar” and contradiction of that fact could only be reckless disregard for the truth.

    Tell us again, do you still stand by the idea that Mann’s exoneration was such a widely known and undisputable matter of record that Mark Steyn could only have recklessly disregarded it? Because that’s the lynchpin on which the entire suit rests; an absurd, easily disprovable assertion unlikely to survive at trial, let alone “likely to succeed.”

  24. Captain Obvious, thanks. I don’t think the premises you highlight are actually false. The distinction between republishing and publishing the torture/molested remarks is, as far as I can tell, a non-issue. Mark Steyn didn’t contradict the remarks, and he didn’t raise republication as a defense.

    The only disagreement you’ve cited from Steyn to support your argument about the first premise is you say he “he wouldn’t have gone that far,” thus he “demonstrated the necessary disagreement with the quote in question.” That is wrong on two counts. First, expressing reluctance to say something as strongly as another person does not indicate disagreement.

    Second, Steyn did not say that. You are quoting another person’s paraphrase of what Steyn said. That paraphrase is misleading. This is what Steyn actually said:

    Not sure I’d have extended that metaphor all the way into the locker-room showers with quite the zeal Mr Simberg does, but he has a point.

    There are three key differences. 1) Steyn said he was unsure if he’s say the same. That is different from saying “he wouldn’t” have said it. 2) Steyn added a qualifier, suggesting part of his partial reluctance would be due to the “zeal Mr Simberg” had for his metaphor. 3) Steyn specifically said Mr Simberg “has a point.”

    There is no way to interpret that as expressing disagreement with the metaphor. The last phrase implicitly supports what was said. That makes the distinction between the original publication and Steyn’s republication immaterial for this issue.

    As for the second premise, the issue I raised is not what the “investigations” showed. It’s what Michael Mann claimed they showed. It is often the case a judge must assume all facts are in favor of one party when making a ruling. That doesn’t mean anyone actually believes all facts are in favor of that party.

    It may be possible the judge isn’t required to make that assumption in this particular case. I don’t know. The judge said he was required to do that. He could be wrong. However, until I’m shown he is wrong, I will assume he is right.

    Tell us again, do you still stand by the idea that Mann’s exoneration was such a widely known and undisputable matter of record that Mark Steyn could only have recklessly disregarded it? Because that’s the lynchpin on which the entire suit rests; an absurd, easily disprovable assertion unlikely to survive at trial, let alone “likely to succeed.”

    I have never said I think Michael Mann could win this case. In fact, I’ve explicitly said he can’t win it. Many times. I’ve written something like 20 posts explaining why he couldn’t win this case. You can see an index here.

    All I have said is if Michael Mann’s factual claims were true, he would have a legitimate argument for defamation. As such, I believe he should be allowed to take this case to court, where his factual claims would be examined. It may be more clear if you read what I said in a comment upthread:

    I think we can fairly call Michael Mann’s hockey stick a fraud. I also think we can fairly call Mann a liar, a cheat, a buffoon and about a hundred other things. I just happen to think those comments could possibly be considered defamatory.

    Here’s the way I look at it. If Michael Mann were a great guy who had never done anything wrong, and if he had been cleared by half a dozen legitimate investigations, I’d find Mark Steyn’s comments about him horrible. In that hypothetical scenario, I’d fully support Mann’s lawsuit.

    Put simply, all I’ve said is Mann deserves his day in court. I am sure he would lose in court, but I believe he should be allowed to take his case there.

  25. Brandon, I think I understand your impetus regarding the requisite assumption of truth to the plaintiff’s facts. It’s generally true that they must be viewed in the light most favorable to the plaintiff when considering a standard motion to dismiss (Ignoring for the moment that this was an anti-SLAPP motion). That said, a favorable light is not the same as a willful suspension of common sense. A judge is not required to assume 2+2=5 if a plaintiff asserts it. The idea that “it’s common knowledge Mann was exonerated” doesn’t pass the laugh test. Even if the exonerations had been true, what’s completely lacking from Mann’s pleading is any demonstration or example of media coverage that would have reasonably disseminated that information to a broad audience. But, I can respect your opinion on that part.

    However, I still take great issue with your premise regarding some inherent liability in republishing.
    “expressing reluctance to say something as strongly as another person does not indicate disagreement”
    When the issue is explicitly regarding the strength of the comments, then yes, it rather does. It indicates disagreement with the comment in question, regardless of whether it indicates disagreement with the motivation behind the comment. This is no different than disagreement over (to choose a topic at random) capital punishment; there’s no disagreement criminals should be punished, but if you think one person expressing reluctance to punish as strongly as another person is an absence of disagreement, you’re fooling yourself.

    “Steyn said he was unsure if he’s(sic) say the same. That is different from saying “he wouldn’t” have said it.”

    Actually it’s not. I hate to just be contrary, but it’s a fairly common colloquialism to use forms of “I’m not sure I’d have said that,” and it rather definitely does mean “I wouldn’t have used those words.” That’s important because, after all, it’s the word choice that Mann is suing over. If it was “fudged” instead of “molested” and “tweaked” instead of “tortured,” there’d be no doubt Mann has no case on those. In fact, the judge’s ruling against dismissal rather explicitly stated that comparisons to Sandusky (e.g. the metaphor) were non-actionable hyperbole and opinion… only the implications of professional misconduct were at issue.

    But while that matters more to the case, what really matters to your assumption (that there exists some need to disclaim falsity with any quotation that might be defamatory) is that what he said IS different from saying “he WOULD” have said it. I take issue with your assumption, as reporters quote with attribution without endorsing the source all the time. Witnesses to crimes are directly quoted, and the reporters are not required to claim “the opinions of these witnesses are false” to shield themselves from some imagined liability of “defaming” the accused. All the “alleged” caveats are asserted after the fact, not into the original quote, and merely using “allegedly” doesn’t fit your assumed model of requiring a contradiction of the quote. Quoting someone in part for the context of fair comment on the quote does not automatically imply endorsement and therefore the assumption of liability for the whole. Contradiction is not necessary to be non-liable. Explicit endorsement is required to become liable.

    “2) Steyn added a qualifier, suggesting part of his partial reluctance would be due to the “zeal Mr Simberg” had for his metaphor.”
    Exactly. He distanced himself from the metaphor. So I’ll ask again: do you agree it’s obvious that Steyn is non-liable for Simberg’s wholly owned “molested and tortured” portion at least (regardless of whether he’s still on the hook for the word “fraudulent”)?

    3) Steyn specifically said Mr Simberg “has a point.”
    This I have to give a big “So?”. To acknowledging the existence of a point is not equivalent to a full throated verbatim endorsement of the entirety of an argument. If it were, whether you agree with this point or not, if you acknowledged it’s existence you would thereby be endorsing the entirety of my argument. I know that’s a bit tautological, but I think you’ll see my point.

  26. Captain Obvious, your example of a judge not assuming “2+2=5” is off as that’s a logical statement, not a factual statement. That doesn’t change your point, but it’s worth pointing out as it shows the difference in what a judge examines. I’ll reshape it. Suppose someone alleged:

    x = 3
    y = 2

    When making a ruling which must assume the alleged facts to be true, the judge would have to rule x + y = 5. It wouldn’t be his job to investigate whether x really did equal three or if it actually equaled two. Anyway, onto the actual issues:

    That said, a favorable light is not the same as a willful suspension of common sense.

    This is an interesting point. A judge does not have to make a factual assumption simply because someone alleges it. There is some minimum standard of plausibility required. It might be possible Mann’s claims don’t meet it. It’s hard to say because the standard is subjective (judges have quite a bit of leeway in allowing evidence), and there are a lot of factors which can weigh in the decision. For example, a judge might find wide reportings of a factual claim regarding a report as sufficient evidence even if those claims are wrong.

    There might be a plausible argument that Mann’s claims regarding the findings of those “investigations” didn’t meet that standard, but I suspect the judge had enough leeway that he was in his right to allow them.

    The idea that “it’s common knowledge Mann was exonerated” doesn’t pass the laugh test. Even if the exonerations had been true, what’s completely lacking from Mann’s pleading is any demonstration or example of media coverage that would have reasonably disseminated that information to a broad audience. But, I can respect your opinion on that part.

    Mark Steyn never disputed the claim the findings of these “investigations” were common knowledge. As such, I’m not considering it at the moment. I will, however, point out the findings of those “investigations” need not be common knowledge amongst the population for them to be common knowledge amongst those reporting on this topic.

    Actually it’s not. I hate to just be contrary, but it’s a fairly common colloquialism to use forms of “I’m not sure I’d have said that,” and it rather definitely does mean “I wouldn’t have used those words.”

    That may be true of some forms, but it certainly isn’t true of all forms. It certainly isn’t true of all forms in all contexts. Paraphrasing a paraphrase removes far too much information to be a good way of examining this text.

    I take issue with your assumption, as reporters quote with attribution without endorsing the source all the time. Witnesses to crimes are directly quoted, and the reporters are not required to claim “the opinions of these witnesses are false” to shield themselves from some imagined liability of “defaming” the accused.

    You are again relying upon a paraphrase rather than what was actually said. I have never suggested a person needs to claim a quote is false in order to avoid liability for republishing the quote. What I said was:

    You can quote a person in a way which makes you liable (such as if you say the claims in the quote are true), and you can quote a person in a way which makes you non-liable (such as if you say the claims in the quote are false). Steyn quoting someone does not inherently exempt him from liability for what was said in that quote.

    That is a well known truth. I’d wager it’s black letter law. You’re misrepresenting what I said by taking a single example I offered as the only possible thing I could refer to.

    Explicit endorsement is required to become liable.

    No. Explicit endorsement is in no way necessary to become liable. Merely republishing a libelous statement makes one liable. The affirmative defense of neutral reportage can be offered, but that requires the reporting be neutral. Biased reporting removes that defense. It doesn’t matter if the libelous remarks were explicitly endorsed or not.

    Exactly. He distanced himself from the metaphor. So I’ll ask again: do you agree it’s obvious that Steyn is non-liable for Simberg’s wholly owned “molested and tortured” portion at least (regardless of whether he’s still on the hook for the word “fraudulent”)?

    This is a non-sequitur. The issue with that qualifier is the degree to which Mark Steyn shows endorsement for the metaphor. Distancing himself from the “zeal” with which the metaphor was made in no way distances himself from the metaphor itself.

    As for whether or not anything is obvious, the only thing obvious to me at this point is you’re making arguments that fly in the face of well-established case law for the last century. Given that, I don’t know on what basis you’d claim Steyn isn’t liable for that phase.

    If you offer an explanation that doesn’t rest upon a flagrant misrepresentation of the neutral reportage defense, I may be able to answer your question.

    This I have to give a big “So?”. To acknowledging the existence of a point is not equivalent to a full throated verbatim endorsement of the entirety of an argument. If it were, whether you agree with this point or not, if you acknowledged it’s existence you would thereby be endorsing the entirety of my argument. I know that’s a bit tautological, but I think you’ll see my point.

    I do see your “point,” in the sense I see how you’re using misrepresentations to create a ludicrous argument you can tar me with. I pointed out Steyn said Simberg “has a point” because that shows a degree of endorsement. That is nothing like your depiction.

    The simple reality is you cannot assert a defense of neutral reportage while endorsing what you report.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s