Is Mark Steyn Being Willful Obtuse?

Nobody who knows anything about me could believe I am a defender of Michael Mann. I’ve criticized him on more issues than most people know exist. I’ve written tens of thousands of words condemning his work and criticizing him as a person. I even wrote a ~20 post series explaining why it is reasonable for people to believe he is guilty of fraud to show he cannot win a lawsuit against people describing his work as fraudulent.

Why then, did Mark Steyn just say:

I said that you think “Michael E Mann has a case against me and the case ought to be permitted to got to trial”. You’ve just confirmed that


Claiming someone has a case means you believe has a significant amount of evidence. What evidence could I possibly believe Mann actually has? More importantly, I’ve repeatedly said Mann cannot win this case. How could I believe he has a case? In what world does, “Obviously, he’ll lose” translate into, “He has a case”?

And why does Mark Steyn say he is not sure what I think he has misunderstood while completely ignoring my direct statement of one thing he got wrong? I quoted his text and responded:

‘(Shollenberger rests this belief on the quaint assumption that Mann has been “cleared” by “eight different investigations”.)’

I neither assume nor believe Michael Mann has been cleared by those investigations.

Does Steyn want us to believe he doesn’t understand when someone directly tells him he misrepresented their beliefs? Does he want us to believe he can’t understanding the meaning of quoting a sentence and explicitly saying it is wrong?

Maybe. Maybe Steyn’s incessant use of bombastic rhetoric has rendered him incapable of understanding simple, straightforward sentences. Maybe he’s being willfully obtuse. Maybe there’s some other explanation. I don’t know. What I do know is paragraphs filled with comments like this:

You appear to understand all the finer points of the science, but you don’t grasp what Fontaine and Ms Malloch and Mann are doing in a cruder sense – attempting to make the price of questioning Big Climate too high. Whatever happens when Mann eventually gets “a day in court”, I’ve already lost.

Are pathetic. I’ve never said what Michael Mann is doing is right. I’ve never suggested I think his behavior with these lawsuits is remotely reasonable. All I did was attempt to examine the legal standards as they apply to this case. I didn’t say a word about my thoughts on anything beyond that.*

You can disagree with my analysis of the law. You can disagree with the law itself. Those are both reasonable reactions. What isn’t reasonable is painting gross caricatures of my views, especially when doing so requires ignoring direct statements of what my views are.


Dear Mark Steyn, it appears simple statements regarding views and disagreements don’t work with you. As such, I’m going to attempt to use your language of over-the-top rhetoric. I’m afraid I possess neither your flair nor audacity, but if you believe your depictions of me in these two articles you wrote are accurate, much less fair, you’re an idiot. You’re either willfully obtuse, grossly incompetent or just plain illiterate.

Seriously. Emotional appeals laced with gross misrepresentations of people’s views written because somebody happened to say something that bothered you?

I can’t imagine where I’ve seen that before.

*In that particular post. I’ve expressed views radically different than Steyn portrays on many other occasions.

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113 comments

  1. Brandon:

    Perhaps I shouldn’t enter into this dispute – but I read your post and did have some thoughts.

    In the first post of yours you linked to, you said “As I said at The Blackboard, I’m inclined to believe the judge ruled properly in not dismissing Michael Mann’s lawsuit.”

    My guess (I have not communicated with Mark Steyn) is that Mr. Steyn disagrees with you about your belief that the judge ruled properly on his motion to dismiss. My guess is that Mr. Steyn believes that because you don’t think the case should have been dismissed, that you think there is enough of a case to avoid dismissal and therefore that the case should go to trial. Here I think Steyn is simply reacting to your agreement with the Judge – not with your nuanced argument about the standard for deciding a motion to dismiss.

    And from reviewing your rare agreement post – it does seem like you think the Judge decided the motion to dismiss correctly (given the standard) – which means (absent summary judgment or an interlocutory appeal) that there will be a trial. So I don’t find what Steyn wrote in the first piece you linked to that in your face contradictory as you do.

    As to the 8 investigations quote –

    You quote the 8 investigations in the context that on a motion to dismiss we have to take everything said by the Plaintiff as true – Styen quotes your 8 investigation section as support for your view that the Judge properly denied dismissal.

    I have no opinion on what is going on in the last quote of Steyn you quoted above. It may just be as simple as Steyn really thinks he should have won on the motion to dismiss – and having to pay to go through trial is a loss – in the sense that Mann won by making what Steyn said really expensive. But I am just guessing.

    So it all boils down to you think it is ok that Steyn lost the motion to dismiss and Steyn disagrees.

    Anyway – those are my thoughts and that is how I see it.

  2. I’m 99.94% sure you two are misunderstanding each other. If I knew Steyn and we could get together over beer or wine, I might explain what you meant to him.

    I think you are being to “boolean”– in the sense that engineers and programmers working on control structures become accustomed to. I think he is somehow intepreting “if X then Y” to mean you think X is true, and or that you think Y ought to be true. In this particular case, you don’t really mean either. I don’t know how this can be cleared up. I was tempted to drop a note to Steyn, but I suspect I’d make matters worse, not better.

    OTOH: If Steyn wrote me and ask for a “Brandon to Steyn translation” I’d give it a go. But it might take careful handling as a guy embroiled in a lawsuit might not have much patience for someone explaining that he should focus on the boolean logic here 🙂

    FWIW: I think Steyn should have won the motion to dismiss. I think Mann’s side advanced zero evidence of the sort required to overcome the “Sullivan” rules. Mann’s side needs some to win– and they’ve advanced none. So with respect to what is required under that rule, this isn’t a matter of “If that evidence still stands after rebuttal Mann wins”. It’s “there is no evidence at all” situation. I don’t understand the ANTI-SLAPP law fully, so I can’t actually say whether Steyn “should” have won that. It’s possible the wording of the ANTI-SLAPP law is virtually useless.

  3. From the tweets earlier: Your Mar 8 post allows Mann to sue.

    In suing, part of Mann’s strategy is to argue his reputation is a well-established, immutable entity. The reputation is established by his credentials and slurs against it are mitigated by the investigations. Therefore Mr Steyn’s criticism of Mann is a statement pertaining to a fact. If the fact is proven true, Steyn’s criticism would be shown to be false. And therefore he would have committed libel.

    In reality however, Mann’s reputation is not a matter of fact and Steyn’s criticism is not a statement of fact. No reputation is a matter of fact.

    The rhetorical trickery in Mann’s argument lies in shifting the grounds of contestation to the question of Mann’s reputation and contending if said reputation is shown to be unimpeachable, the attacks against it must be false and therefore libelous.

    All criticism is capable of being defamatory. Not all of them should end up in court.

  4. RickA, I accept my first post could confuse people. I didn’t like that Mark Steyn claimed I believe something because I assume certain claims by Michael Mann are true, but I wasn’t upset about it.

    What bugs me is Steyn’s reaction to me telling him he was wrong about what I believe. If somebody says you’re wrong about what they believe, the natural reaction is to ask what they believe. Failing that, you might reexamine what they said. Failing that, you might offer an explanation for your claim. Failing that, you might just ignore it.

    What I can’t imagine any reasonable person doing is quoting it then making new claims about other points as though that rebuts it, all while refusing to actually address it.

  5. lucia, I get some things might be confusing, but there is at least one point which could easily be resolved. Mark Steyn said I believe and assume something. I directly told him I don’t believe or assume it. That’s a simple point to resolve.

    He could have said he made a mistake on that point. He could have just said it sounded like I believe/assume it. He could have said he doesn’t believe me when I say I don’t believe/assume it. Heck, he could have just not responded to my e-mail in any way. I wouldn’t have responded to any of that in public, if at all.

    The fact he didn’t even attempt to address that point is what bugs me. Despite quoting it, and despite it being my central point, he didn’t say a word about it. Also, he didn’t try to clarify anything in private before writing another post painting me as a buffoon.

    Anyway, as for that motion to dismiss, I think it’s true “Mann’s side advanced zero evidence of the sort required” if we examine the “evidence” he offered. I don’t think it’s true if we assume Mann’s depiction of the evidence is completely accurate. If we make that assumption, I believe the evidence would be sufficient. As far as I know, that’s what the judge did, and he was right to do it.

    Which part of that you disagree about? Do you think the alleged evidence is insufficient to support a case under any assumptions; the judge was obligated to examine the evidence more than he did, or something else?

    Shub Niggurath, I’ve read Michael Mann’s complaints, and I didn’t see any argument like what you describe.

  6. A suit like Mann’s should not even go to trial. You argued that it should. Mann certainly believes it deserves to. You agree with him, Steyn points out the practicalities of adopting your position. I point out the absurdity.

    If you weren’t as intent on carrying out death-by-explanation, Steyn would have understood your point. Instead, you are now in the unenviable position of having actually spent the past half-a-decade that Steyn anticipates he will waste, understanding and dissecting Mann’s follies, only to be characterized as a sympathizer of Mann himself.

    It is the Pielke Jr conundrum. You believe there are actually sustainable positions that could be taken and maintained against Mann while standing as close to him as possible. In truth however, the territory for miles and miles around him are toxic. I can concede that as a citizen who feels wronged by a columnist, Mann has a right to get the justice system to address his grievance. But saying so on my part requires me to go over none of the details of his case. On the other hand, you tried to say Mann might have a leg to stand on in his specifics, if some hypotheticals are admitted.

  7. Lucia:

    FWIW I agree with you.

    I also think the motion to dismiss should have been granted.

    The three most important reasons to me are that:

    1) The graph is fraudulent because instrument data was tacked onto proxy data to avoid showing the decline of the proxy data – and truth is a complete defense to defamation.

    2) The Steyn piece was clearly opinion – and opinion is protected speech.

    3) Mann is a public figure and there is zero evidence of malice.

  8. Shub Niggurath, I get that, for whatever reason, you don’t want to continue discussing the topic you brought up. However, I must ask you not to defend Mark Steyn’s misrepresentations of my views by making things up about my views:

    A suit like Mann’s should not even go to trial. You argued that it should. Mann certainly believes it deserves to. You agree with him, Steyn points out the practicalities of adopting your position. I point out the absurdity.

    I don’t think Michael Mann should have ever filed this lawsuit. I think everyone should have laughed at him when he did. I think it’s a stupid lawsuit that serves no good purpose and can’t be won. I just also happen to think an analysis of the legal situation shows Mann has the right to pursue this. That’s true of a lot of bad and stupid lawsuits that should have never been filed.

    If you weren’t as intent on carrying out death-by-explanation, Steyn would have understood your point. Instead, you are now in the unenviable position of having actually spent the past half-a-decade that Steyn anticipates he will waste, understanding and dissecting Mann’s follies, only to be characterized as a sympathizer of Mann himself.

    It’s interesting you only discuss my blame, not even commenting on the fact Steyn ignored a clear and direct statement of an error. It’s also interesting you ignore the fact I tried to resolve this disagreement with direct (and private) communication Steyn decided to not attempt to communicate with me in any way, but instead released a public smear.

    And while I can say things like that are interesting because I’m a charitable person, this:

    It is the Pielke Jr conundrum. You believe there are actually sustainable positions that could be taken and maintained against Mann while standing as close to him as possible.

    Is insane. There is absolutely no basis for this remark.

  9. RickA, your 1 wasn’t an issue for the motion as it’s a matter of fact to be determined in court. Your 2 is misguided as an opinion piece can make factual claims.

    Your 3 is where the issue lies. There are two questions for it. One, did the facts Michael Mann allege allow for a successful lawsuit. Two, did the facts hold up to whatever scrutiny the judge was required to apply. I think I’ve explained why the answer to the first point is yes. The second point is more difficult to answer as it revolves around a fine point of law.

    I’m inclined to trust the judge’s decision on such a point, but I’d be willing to listen to people who have an argument against it.

  10. I don’t understand what you’re objecting to at all. Mark has accurately summarized exactly what you wrote and provided a link so people could read the entire post. I clicked the link and read your original post which is a much longer explanation, but says, in essence, exactly what Mark Steyn summarized.

    Yeah, you’ve written lots of other stuff, but that post linked by Steyn says effectively what he claims it says. Perhaps it’s you being obtuse?

  11. Brandon, obviously we agree on the science issues in respect to Mann. However, I do not agree with your legal analysis (https://hiizuru.wordpress.com/2014/03/08/a-rare-agreement-with-michael-mann/) with which Steyn takes exception. In particular, your understanding of “reckless disregard” as interpreted in U.S. libel law is almost certainly incorrect.

    I don’t have time right now to parse your post, but, as you observe from time to time, you are not a lawyer. Neither am I, but I have a fair bit of experience and think that I have pretty good understanding of the legal principles here and have read the case law. I think that you need to dial back your rhetoric on this.

    Steyn’s easiest defence is with Mann’s false assertions to have been “exonerated” by multiple inquiries. These assertions are absurd. Without these false claims, Mann cannot possibly establish “actual malice” (in legal terms). Nor is there any “evidence” that Mann was exonerated by (say) Muir Russell, Oxburgh, NOAA etc. Mann made assertions but there is no “evidence” supporting these assertions and considerable evidence against. The standard in an anti-SLAPP hearing is not totally clear, but it seems more likely that a plaintiff needs more than bald untrue assertions. I suggest that you look more closely at the cases and reconsider your earlier post.
    Regards,
    Steve Mc

  12. Brandon, in your earlier post, you quote the following from Combs Greene: “Viewing the alleged facts in the light most favorable to plaintiff, as the court must on a motion to dismiss…”

    But in a case involving free speech, the plaintiff has more onerous requirements. See http://www.strasburger.com/blogs/885/anti-slapp-statute-changes-slap-back-with-an-interlocutory-appeal-when-you-get-slapped-down for a discussion under Texas law which says: “clear and convincing evidence a prima facie case for each element of its claim”. I don’t have time to locate something from DC but it has the same idea.

    Mann cannot provide prima facie evidence to have been exonerated by Muir Russell, Oxburgh, NOAA OIG etc because there is none.

  13. Kevin Jaeger, let’s start with a simple example. I explicitly pointed out to Mark Steyn he was wrong when he said:

    (Shollenberger rests this belief on the quaint assumption that Mann has been “cleared” by “eight different investigations”.)

    Do you acknowledge that statement was untrue? Following from that, do you believe his new post in any way retracts or supports that statement?

    Assuming the answer to each question is no, would you agree Steyn’s original statement and how he addressed my response merits criticism?

  14. Steve McIntyre, I’m afraid your call for toning down rhetoric has no logical connection to the argument you’ve offered. The statements I took issue with have no dependence upon the legal analysis I did. Whether I was right or wrong on my analysis has no bearing on what I’ve complained about. My post could have been absolutely wrong about the law, and Mark Steyn’s posts would still have been inaccurate (and the second post inappropriate).

    The strange part to all this is while people have disagreed with what I believe, nobody has actually tried to ascertain what I believe. If they had, they would have found out my views on the legal issues have evolved since I wrote that post. That, of course, was the reason for writing the post. I wanted people to be able to explain why that argument was wrong so I could figure out what the right answer was.

    That didn’t work. Nobody was willing to offer a clear standard with which the one I described could be replaced. Judging there to be too little interest, I decided to stop talking to others about it and only seek answers on my own. I didn’t post any updated thoughts because nobody had seemed interested.

    TL;DR: Mark Steyn was told he was wrong about a fact. Instead of doing anything to investigate that claim, he did the exact opposite, ultimately exaggerating his initial error. That deserves criticism.

  15. Brandon:

    I am going to take one more crack at this topic and then I am going to bed.

    1. You said some stuff in your Rare Agreement post.

    2. Steyn read what you wrote and interprets what you said, then writes about it.

    3. You think he has misinterpreted what you wrote, and you email Steyn to bring your opinion of his misinterpretation to his attention.

    4. Steyn writes another post and basically doesn’t buy that he misinterpreted what you originally wrote.

    Now – here is my point.

    You have no control over how someone interprets what you write.

    You put your words out there and some people are going to read what you wrote and interpret it differently than what you think you said (and meant) when you wrote it.

    It seems that you are irritated that Steyn won’t agree with your interpretation of what you wrote.

    He doesn’t agree with your interpretation, and instead prefers his own interpretation.

    This is to be expected – because we are all entitled to our own interpretation of what we read.

    So it is perfectly ok (in my opinion) for Steyn to criticize you and for you to criticize Steyn.

    It is perfectly ok to agree to disagree over each others interpretation of what you wrote.

    So I don’t see this issue as a big deal – but I have said my piece.

    Now – I actually do not agree with Steyn’s interpretation of what you wrote.

    But that is because I am a lawyer and fully understand what you mean when you said that IF what Mann said was TRUE then . . . (I think you actually phrased it . . .if true . . . in your rare agreement post).

    And I really do get that you have never said you actually agree that what Mann said IS TRUE.

    So for what it is worth, I don’t think Steyn is paying any attention to the “if true” part of your analysis.

    I believe he misinterpreted this language twice – once in your original post and then in your email to him when you said:

    “The point I was trying to make there (and have made elsewhere) is I believe if everything Mann said were true, he would deserve to win his lawsuit.”

    Again – you said IF everything Mann said were TRUE . . . – and Steyn is paying no attention to the IF.

    That is the heart of your disagreement over interpretation – the “if true”.

    But I don’t control how Steyn is interpreting your text and I am ok with that.

    Good night.

  16. I am a lawyer, albeit not a US one, nor an expert in defamation law. However, the principles are sufficiently similar across all Anglo-legal jurisdictions to make some general observations.

    We have three separate legislative elements in play in the Mann v Steyn case: First Amendment free speech rights; defamation prohibitions; and Anti-SLAPP laws. Whilst they may co-exist uneasily at their boundaries, they each exist for very good reasons and the moral and ethical reasons for their existence are – to my mind, at least – sound.

    First, one hardly needs to defend the First Amendment’s right to freedom of speech. It is a fundamental human right which is one of the quickest and most thoroughly suppressed by brutal and wicked regimes.

    However, in any civilised society one cannot condone the use of this right to spread vicious and malicious lies and untruths about a person, which could do real and serious damage to that person’s reputation, career and personal relationships. Hence, the law which states in most common law jurisdictions that a person who publishes either verbally (slander) or in written form (libel) a statement which is false and which a reasonable person would consider to cause harm (including reputational harm) to a person, is guilty of defamation of character. It is, of course, a defence to such a charge to prove that the statement was true. Often, it can also be either a full or a partial defence to show that the person made the statement in the genuine belief that the statement was true, even if it subsequently proves not to be so.

    So, the First Amendment does not protect a person who makes defamatory statements against another. However, both the government and the courts were becoming concerned that people were using “lawfare” to chill free speech in the US. That is, people who had the financial capacity were launching legal actions against their critics for defamation, causing them to incur legal fees and potentially causing them to stop publishing their criticisms while the court case was ongoing. The advantages to a well-funded litigant versus their critics are obvious and far from trivial.

    As a result, the Anti-SLAPP laws were passed which were designed to stop these kinds of lawsuits. Without getting too technical, the law basically modified the traditional defamation principles to weigh the scales towards free speech by giving judges a capacity to summarily dismiss defamation lawsuits unless they believe that the plantiff would have a good chance of succeeding.

    All of this introductory context is long, perhaps boring, but necessary. When Brandon first started commenting on the Steyn v Mann case, I went off and had a look at the judge’s reasons for allowing Mann’s suit to proceed, even though the defendants had brought a motion to dismiss under the Anti-SLAPP principles. Here’s what he said:

    Opinions and rhetorical hyperbole are protected speech under the First Amendment. Arguably, several of defendants’ statements fall into these protected categories. Some of defendants’ statements, however, contain what could reasonably be understood as assertions of fact. Accusing a scientist of conducting his research fraudulently, manipulating his data to achieve a predetermined or political outcome, or purposefully distorting the scientific truth are factual allegations. They go to the heart of scientific integrity. They can be proven true or false. If false, they are defamatory. If made with actual malice, they are actionable.”

    I have no objection to this at all. There is no question that what Steyn and the National Review have published – if true – could easily be defamatory and not protected by the First Amendment rights. Of course, knowing what we know about Mann’s behaviour allows us to form an opinion about these things, however a judge knows nothing about what Mann has done. And even if he was an avid follower of the climate science debate. he wouldn’t be allowed to let his knowledge of these things decide the Anti-SLAPP application – such conclusions would be for a jury to make, after both Steyn and Mann had made their arguments.

    He then states:

    “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 a defamatory meaning, which means the questions of whether it was false and made with “actual malice” are questions of fact for the jury.”

    I cannot find any fault in the judge’s reasoning. To summarise:

    * The First Amendment protects an individual’s right to speak freely, regardless of whether that speech might be hurtful, nasty, untruthful or plain crazy.

    * However, the First Amendment does not give you the right to publish an untruth which is designed to damage a person’s reputation or character.

    * Nevertheless, experience has shown that well-heeled plantiffs have previously filed defamation suits against their critics, simply with the objective of shutting them up and causing them to spend large amounts of money on legal fees, and that is not on. Therefore, judges have the capacity to summarily dismiss lawsuits if they believe there is no reasonable prospect that they will succeed.

    * However, the Anti-SLAPP laws are not to be used as a means for judges to decide what is defamatory, or not. That is the jury’s job. These laws are simply designed to filter out cases which are patently not defamatory and which could never succeed on their merits.

    So, in my opinion, there is no doubt that what Steyn and the National Review (and Simberg) have said about Mann could be defamatory. Indeed, unless the defendants can show that either Mann was being fraudulent, or that the conclusion that he was being fraudulent was an opinion which a reasonable person could draw from the circumstances, then Mann might well win his case.

    Either way, the judge in this instance is merely deciding whether or not there is sufficient grounds for the case to go to trial, not whether there has actually been a defamation. I can’t fault his conclusions, even though (having investigated the circumstances for a number of years) I personally cannot see any way in which Mann has been truthful, ethical, moral or competent.

    There is no doubt that he is a fraud, however that is not for a judge in interlocutory proceedings to decide – it’s for a jury of his peers to render their verdict. Hopefully, Steyn will be able to mount a case which shows just how deceitful Mann has been.

    If he can do so, it will be in no small part due to the forensic efforts of people like McIntyre, McKitrick, Watts, Climategate whistleblower (Anon.), and numerous bloggers, including Brandon Shollenberger, who have spent large amounts of their time for no reward, other than a desire to ferret out the truth.

    I trust that Steyn is mann enough to apologise when he makes a mistake.

  17. Hi,

    Speaking with true respect and sympathy Brandon, I tell you that you share with my daughter a trait for EXTREMELY literal interpretation of all conversation. The mainstream, for good or ill, treats most conversation more loosely; expecting and accepting more slack. I define conversational slack to include ambiguity, misinterpretation, tone, figures of speech, and the required repetition of one idea in several slightly conflicting fashions that bracket the idea rather than striking with pin-point precision directly on target.

    Steyn makes his living by exploiting that slack. He is a humorist. He intentionally speaks or writes just slightly off from the direct point in order to convey an idea that, presented directly, much of his audience would reject. “Master of the Tree Ring Circus” is an example of Steyn, describing Mann, that is not literally accurate. Mann is not the master of that proxy (Mann is an opportunistic exploiter of dendrochronologists’ work). The study of tree rings — for some purposes — is not a circus, by which most of us mean a collection of showy stunts that look impressive but are generally within the ability of ordinary, if well trained, humanity. But the phrase, slack as it is, conveys Steyn’s lack of awe for Mann as a scientist and dendroclimatology as a science, in a shorter pithier fashion than a more precise, accurate, and direct phrase.

    Your statements about Mann’s case have provided Steyn an environment of slack to exploit. Steyn is attributing to you beliefs about the dispute that SOME OF HIS AUDIENCE, which does NOT write as you have, nevertheless hold. He addresses those beliefs and that audience using excerpts from your writings that can be exploited to represent those beliefs.

    And you are reacting to the sting of being misinterpreted. So, should you sue for the pain?

    Steyn is a pain. He is deliberately misinterpreting you. He’s holding up your work for critical review. He’s treating you very similarly to the way he treats Mann.

    And his larger point is not aimed at you, but at everybody who might object to ANY critical review. “Free Speech” means that any yahoo, disk-jockey, or blogger can misquote, misinterpret, and mis-infer the beliefs of peers, — and that peers are any other free citizens, of whatever (or no) credentials, all without recourse to the court system.

    Free Speech means that conversational slack is built-in to the legal system. We design with expansion and contraction and contradiction and refutation anticipated.

    There’s room in the overall system, too, for the most rigid members. You’re very rigid. So is my daughter. I love my daughter. I admire you, for your work with all its attentive detail. But you write exhibiting anger about many very many a whole lot of people in this conversation who are NOT as rigid, rigorous, and attentive as you are. You really don’t benefit yourself, or your targets, or me, with your anger. Expressing it, as here with Steyn, separates you from the larger group. If that’s what you want, fine. But if you want to “move” the conversation and shared perception of reality from where it now lies to a perception closer to, if not identical to, your own — a perception you call “objective reality” — you might do better to design in a little more slack.

  18. Shorter Pouncer: to your question. Yes, Steyn _IS_ being willfully obtuse. He is using rhetorical devices to advance a point and exploiting ambiguities in your presented position that you did not intend in order to refute readers, (other than you) who hold, but have not published, a different position than yours. He is intentionally insulting. That’s his job.

  19. Pouncer

    He intentionally speaks or writes just slightly off from the direct point in order to convey an idea that, presented directly, much of his audience would reject. …

    This is both the reason Steyn has such a wide audience and why his words have put him in a ‘sueable’ position. I think the judge should have granted dismissal because of the “Sullivan” issue. But with respect to the other stuff, Steyn tries to walk a line and stay just on the ‘hyperbole/metaphor/ambiguity’ side of a fuzzy line when providing negative characterizations of behaviors. People do disagree which statements cross to the “actual accusation of malfeasance” from “flowery rhetoric that either is either an opinions, or doesn’t quite say someone did a bad, immoral, or illegal thing, but insunuates it.”

    This time, a very touchy person sued. When these statements get to court, with respect to dismissal the judge tends to put on his “looking at it in the way most favorable to the plaintiff” way, and now Steyn is in cort.

    Now– as I said, I think dismissal should have happened on “Sullivan” grounds. But to some extent, Steyn played a dangerous game. And the danger is he’d get sued and the case would go do far that he would have to defend in court. That’s expensive.

  20. Procedural question @ Lucia: when does the Sullivan standard get assessed in this type of case? Would that be something that the judge would consider as part of the determination of whether the case should go to trial? Or, is it usual that the issues raised by Sullivan would be assessed as part of the trial? If I’m reading your comments correctly, it appears that you believe the judge has a duty to assess the implications of Sullivan prior to cases ever getting to trial. It appears in this case that the judge did not consider the standard at all… that the judge reviewed the material presented by Mann and determined that there COULD be cause for a trial. It appears that the judge determined that the process of having a trial would work out the details of whether Sullivan (and other issues) had been addressed.

    If that’s the case, how does the judge resolve the implications of that procedural decision with those of anti-SLAPP law?

    Bruce

  21. I feel sorry for Steyn’s legal expense, but feel he brought much of it on himself.

    Especially if he really wanted to have the issue resolved at trial and “win”.

    It is all the motions (and the appeal) which are driving the expense up, and he has wasted a lot of money on motion practice.

    If Steyn would just respond to discovery and spend his money on conducting discovery of Mann – I am sure his expenses would be 1/2 of what he spent or even less.

    In patent litigation (which is what I practice) Federal Judges seem to use expense as a tool to force the sides to settle.

    I have had Judges insist that the client show up for multiple dates, requiring clients to fly in – seemingly to drive up expenses.

    95% of cases settle short of trial – in large part to stop the legal expenses.

    So Judges use legal cost to trim their judicial calendar.

    They don’t care about who is legally correct until the actual trial itself (at least most of the time).

    So Steyn is probably going to spend double what he already spent to get to trial and then 1/3 of that for trial (and if he loses he will spend more on an appeal).

    I hope he has the staying power – but based on his recent blog posts it seems the cost is getting to him.

    Clearly USA justice is much more expensive than Canadian justice.

  22. Steyn said:
    I’m not sure what it is you think I “misunderstood”. I said that you think “Michael E Mann has a case against me and the case ought to be permitted to got to trial”. You’ve just confirmed that: “All I was trying to say is the arguments Mann makes are sufficient that they could win a case, thus he deserves a day in court to make them.”

    But it isn’t a day in court, is it? It’s half-a-decade of my life, and a seven-figure sum – even if I “win”. Because, as I’ve said since this thing started, “the process is the punishment”.

    Which is entirely true, and which the Anti-SLAPP laws were designed to stop. However, if you choose to call a world-renowned “scientist” (and, yes, Mann is that – regardless of how farcial we might think such a status is) a fraud and accuse him of molesting the data in the course of an article which also mentions Jerry Sandusky, what in the hell do you expect?

    If someone published those kinds of statements about me, I’d be outraged. I think that anyone would be. If you choose to publish accusations like that against a person, then you do so knowing full-well that you are attacking their character in the most pointed fashion imaginable.

    Steyn goes on to say:
    That’s why Mann does it. He doesn’t want “a day in court”, even If the choked, toxic dungheap of DC justice were capable of giving him one in a timely manner.

    I don’t doubt that Mann is a cynical creep. However, the law has no capacity ex ante to determine who is a scumbag intent on abusing the legal process, and who is a legitimate victim of nasty and vicious libel. The well known principle which applies not just in science, but in life as well is that, if you make a bold statement, then you’d better be prepared to defend it. If the statement is outrageous enough, then you’d better be prepared to defend it in court.

    And it’s not as if Steyn is some young, naive victim in all of this. He’s been sued before, so he knows what can happen. He could, if he’d wished, have used that experience to avoid this action altogether, However, he chose to court the controversy knowing what might happen.

    His actions can be contrasted with the example he gives – a true scientist, who never experienced and never thought his criticisms would lead to such lawfare against him:

    In his case against Dr Tim Ball, he has no intention of ever going to court and taking the witness stand, but his three years of process-punishment have blown through Dr Ball’s life savings – which was the point all along.

    Ball never expected this. Steyn did (or should have). I have the utmost sympathy for Tim Ball, not the least because what he said was far less pointed and obviously intended to be humorous.

    Steyn says:

    It’s awfully sporting of you to say that I “of course, would be there to respond, pointing out his arguments are all wrong”. Has the court given you a heads-up as to when that might be? This year? Next year?

    Well,once again, Steyn is a journalist; he’s been sued before; he knows how this all works; he’s fully aware of the risks involved in calling somebody a fraud. If he wasn’t prepared to deal with the consequences of his actions in the first place, then he shouldn’t have said what he did.

    In fact, there is copious evidence on his website that, not only did he know what he was getting himself into, but that he can’t wait to have his day in court. He’s adopted a “Bring it on” attitude throughout the entire saga. For him to now cry victim when Brandon has simply argued that Mann should also be allowed his day in court is totally disingenuous.

    I disagree with Pouncer’s interpretation that Steyn is just being purposely obtuse here. I’ve read what Steyn wrote and he is arguing that Mann should not have taken him to court and should not have had a right to do so. Yet, Steyn has called Mann a fraud.

    If I run a business which deals in peoples’ investment and retirement savings, and somebody publishes an article in the local newspaper accusing me of defrauding my clients, is Steyn arguing that this is protected speech? Let us say that I advised my clients badly and they lost 20% of their money and the author of the article uses that as evidence that it wasn’t a bad investment decision, but a case of me siphoning off their funds.

    Should I have a right to my day in court to prove that his publication was a lie? Or should he have an unfettered First Amendment right to accuse me of defrauding my clients, which would destroy my reputation and my business?

    Mann’s situation is no different, as far as the law is concerned. We might “know”, from all of the analysis and evidence produced over the years than Mann is a liar and a fraud, however the law cannot presume such things. It recognises that accusing someone of such a thing is one of the most serious charges which can be made. Not only can it result in reputational damage, but it could actually result in police investigation and jail time.

    So, yes – Mann has a perfect right to bring an action against somebody who calls him a fraud. And it is only proper that the accuser has to prove that what he said was true, or that he had reasonable grounds to believe it was true when he made that accusation.

    I recognise that Steyn must be emotional about this entire situation. After all, as he says, it’s been an ongoing noose around his neck for years and years. I tympathise with him. For that reason, I would also encourage Brandon to not make a big deal about this. No doubt Steyn is in a bad place because of Mann at the moment, and it’s only human of him to lash out, from time to time.

  23. “I feel sorry for Steyn’s legal expense, but feel he brought much of it on himself. Especially if he really wanted to have the issue resolved at trial and “win”.

    You don’t understand, he didn’t want to go to trial in the first place because it sets a dangerous precedent.

    Steyn: So I’m not doing this for any “rational” reason – other than that, if Mann were to prevail, it would be the biggest setback for the First Amendment in the half-century since New York Times vs Sullivan. And the “climate of fear” he and his other thuggish enforcers have created would have been given sanction of law, and rendered your own critical posts on Mann unpublishable in the American media. So I have no choice but to slog on and see that he is thoroughly, comprehensively and finally defeated. http://www.steynonline.com/6360/the-tree-rings-of-pyongyang

    “Mark Steyn was told he was wrong about a fact. Instead of doing anything to investigate that claim, he did the exact opposite, ultimately exaggerating his initial error. That deserves criticism.”

    Maybe you should really be worrying about something bigger than Steyn?

    Steyn: It’s awfully sporting of you to say that I “of course, would be there to respond, pointing out his arguments are all wrong”. Has the court given you a heads-up as to when that might be? This year? Next year?

    That’s what Jane Malloch of the University of Queensland is threatening you with,
    http://www.steynonline.com/6360/the-tree-rings-of-pyongyang

  24. That’s what Jane Malloch of the University of Queensland is threatening you with,

    No, Liontooth. What Jane Malloch is doing is something completely different. She is beclowning herself and her University in a way that makes me embarrassed for my old alma mater.

    When I undertook my law degree at UQ 25 years ago, anyone who wrote such unmitigated effulent as represented in her letter would not have lasted first semester of year one. I can only hope that they employed her from Griffith University, because if she actually completed and passed a law degree at UQ, then they may as well start offering hairdressing and barrista training as optional subjects, because their graduates won’t survive in a real law firm if they no nothing about the law.

  25. You say you don’t think Mann should have bought the case. However, Mann did bring the case, and at that point you agreed that the case should not have been dismissed. Mark Steyn objects to that and accurately pointed out that you think the case should go to trial, which is similar to saying ‘Mann has a case’ with regards to motion to dismiss. The misinterpretation is over the ‘quaint notion that he has been exonerated.’

  26. RickA:

    It seems that you are irritated that Steyn won’t agree with your interpretation of what you wrote.

    He doesn’t agree with your interpretation, and instead prefers his own interpretation.

    Mark Steyn did not simply interpret what I said. He made explicit claims about what I believe, assume and know. These claims were wrong. They aren’t supportable interpretations of what I’ve written. They aren’t supportable even if we do what you think Steyn is doing:

    So for what it is worth, I don’t think Steyn is paying any attention to the “if true” part of your analysis.

    Which is already wrong. But even if we do that wrong thing, it is still requires jumping to conclusions to conclude I believe/assume/know the things Steyn attributes to me. I won’t disagree when you say:

    You have no control over how someone interprets what you write.

    But I will point out I have the right to be irritated and respond.

  27. Anto, be careful. You wrote basically the same thing I wrote. People might start saying you’re a Michael Mann fanboy!

    Pouncer, the possibility your interpretation is true is the primary reason I wrote this post. I find it offensive someone would publicly smear another person with deliberate misrepresentations. I find it especially troubling given he made factual statements which were verifably false, and he did it to make me look bad. That’s not how a person seeking to defend himself against charges of libel should behave. (Well, it’s not how anyone should behave.)

    On the issue of anger, I rarely get angry. I was only mildly annoyed when I wrote this post. People often read more emotion into my writing than there is. I’m okay with that though. I care about how people interpret my points, not how about how they view me. I’m not going to worry about being distanced from people because I criticize bad behavior in direct and pointed ways.

    RickA, Steyn now says he’s anxious to just take this to trial. He’s not attempting to delay things any further. That’s good. He should have done that sooner. He spent something like a year on procedural matters which had some value, but ultimately just drove up his costs. That makes me less sympathetic on the matter of costs.

    But what really got rid of any sympathy I had for him is his ridiculous misrepresentations of me. It isn’t even personal. I’m just offended he seems to think he should be allowed to write anything he wants about anyone, no matter how baseless it is, and people should just be cool with it. Where I come from, that’s called being a bully.

  28. Brandon – if you’re right, you’re right.

    [BTW, I hope you also read my bit about cutting Steyn a break. Being the victim of years of lawfare can cause you to let loose unfairly, from time to time.]

  29. In a comment above, Anto sensibly observes that a right to free speech does not give a licence to libel. Brandon argues that accusations of fraud are defamatory and that Mann is therefore entitled to his “day in court”.

    On the other hand, Mann’s pleadings made false and even fantastic claims about “exonerations” of Mann personally by the inquiries in order to meet the Sullivan hurdle. Without these untrue claims, Mann would not have had a prayer on anti-SLAPP, where Steyn has argued that the purpose of Mann’s lawsuit is to chill dissent, not because he was actually damaged by the articles. In support, he has provided Mann’s own statements.

    Is Mann entitled to a “day in court” if one of the essential elements depends on unsupportable claims about the “exonerations”? This is an entirely different question than whether Mann was fraudulent or not.

    It appears to me that Brandon’s understanding of this hurdle is different than Steyn’s.

    In Brandon’s earlier post, he said that the SLAPP judge was required to take Mann’s allegations as true for the purposes of the SLAPP decision i.e. that the inquiries actually did “exonerate” Mann personally. On the other hand, many commentators have observed that SLAPP requires a judge to not merely take Mann’s allegations as true (ie. COmbs Greene erred on her criteria) and consider whether there is prima facie evidence for Mann’s assertions about the inquiries. If this more searching standard had been applied, I don’t see how any reasonable judge could conclude that all eight (or nine) inquiries had “exonerated” Mann, as Mann had claimed. (As an aside, it is not clear to me that any of the inquiries carried out the sort of thorough and impartial investigation that put the matters to rest. If a judge had applied the (seemingly required) prima facie standard, then this proceeding would have ended there.

    It is my understanding that successful U.S. defendants are poorly compensated for legal costs. If Mann can put Steyn and others to hundreds of thousands in legal costs as a result of his flagrantly false assertions about the inquiries, then surely there ought to be some sort of downside.

  30. Liontooth:

    Maybe you should really be worrying about something bigger than Steyn?

    I wrote one e-mail, one blog post and a few tweets. That’s hardly much of an investment on my time.

    Anto:

    I recognise that Steyn must be emotional about this entire situation. After all, as he says, it’s been an ongoing noose around his neck for years and years. I tympathise with him. For that reason, I would also encourage Brandon to not make a big deal about this. No doubt Steyn is in a bad place because of Mann at the moment, and it’s only human of him to lash out, from time to time.

    I have no intention of making anything more of this than I have thus far. If Mark Steyn pursues this by misrepresenting me further, I might respond again, but even that’s not guaranteed. It has nothing to do with sympathy though. I just don’t find it very interesting.

    It’s worth remembering the tagline to this blog. I genuinely believe this world is insane. Everything I write on this blog stems from that. This blog exists so I can highlight random things which bother me because I’d go insane if I had to simply accept them.

    But there’s some emphasis on “random.” I believe the entire world is insane. That means there’s a lot of I could write about. What I select just depends on what happens to catch my interest.

  31. This post has confirmed what I have suspected for a while, your 5 minutes of fame are just about up Brandon.

  32. See, this is the sort of thing that baffles me. Steve McIntyre just said:

    In Brandon’s earlier post, he said that the SLAPP judge was required to take Mann’s allegations as true for the purposes of the SLAPP decision i.e. that the inquiries actually did “exonerate” Mann personally.

    But I distanced myself from that position, concluding with two highly relevant paragraphs. First:

    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.

    There is no way to take me saying, “I am not convinced” the judged is required to make certain assumptions as me saying “the SLAPP judge was required to take Mann’s allegations as true.” One certainly can’t get that conclusion from me specifically saying my “instinct is to believe… the judge [must] actually examine the evidence.”

    The next paragraph makes my view perfectly clear:

    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.

    The reason I applied the standard I applied is the judge said that was the right standard, I had no clear evidence showing the judge was wrong. That’s not saying “the SLAPP judge was required” to do anything. It’s saying until I’m given a clear reason to believe otherwise, I’ll accept the judge’s statements about what he is required to do.

    Earlier McIntyre made a point that neither of us are lawyers, but he has “a fair bit of experience.” I’d say his experience has little weight when compared to a ruling by a judge. If I have to weigh the two without any evidence, I should obviously favor the judge’s ruling.

    I provided an easy opportunity to show my analysis was wrong. Instead of people providing evidence to do so, I’ve mostly just gotten my views mischaracterized.

  33. Brandon, you said: “But what really got rid of any sympathy I had for him {Steyn} is his ridiculous misrepresentations of me. It isn’t even personal. I’m just offended he seems to think he should be allowed to write anything he wants about anyone, no matter how baseless it is, and people should just be cool with it. Where I come from, that’s called being a bully.”

    You are interpreting him correctly. And you are certainly not alone in interpreting his attitude, and calling him out, as a “bully.”

    But that’s not the same as suing him.

    Call names, sure. Identify his errors, biases, carelessnesses, misdirected ire…

    Speak back.

  34. Speak up. Speak loud. Use metaphor. Use other rhetorical tropes. Appeal to authority. Deus ex machina. Post hoc ergo prompter hoc, et cetera, ceteris parabus, and other fancy fallacious speech. Speak.

    Freely.

    THAT is what Steyn believes he’s fighting for. He fights dirty. He’ll kick an ally in the nuts if the falling body clears a path to his adversary. Facts are useful to him, but optional.

    I hope he wins.

  35. Pouncer, the problem with the view you interpret him as having is it it’s hypocritical. It doesn’t give people freedom. It gives Mark Steyn freedom. It gives people with microphones freedom. It screws everyone else.

    If Steyn truly believes that, I hope he loses. I hope Michael Mann loses too. I hope they waste a ton of money, make fools of themselves and reach a settlement that resolves nothing. It’s a fitting fate for bratty bullies.

    I’m a big supporter of free speech, but I don’t feel obliged to support what basically amounts to yellow journalism.

  36. Shub Niggurath, I hope someday you deign to address anything I say in a direct manner free of derogatory remarks. It’s tedious to have someone constantly jump into discussions to say things then refuse to address any sincere attempts at responding to them while repeatedly putting down the respondents.

    I’m afraid I might have been too subtle there.

  37. Steyn is not being willfully obtuse. He is trying to get people to contribute to his legal defense, so he wouldn’t put your whole e-mail up for everyone to see how dumb is Steyn.

    And Steyn’s idea is that everyone has a microphone. You are responding to a blog post. It was a blog post, albeit for a larger media blog, that got Steyn sued. And it is blog posts that have Queensland threatening legal action against you. Plus, your previous posts about Steyn v Mann could get you sued by Mann.

  38. Dear MikeN,

    In fact, I published Brandon Shollenberger’s “whole e-mail” (here: http://www.steynonline.com/6360/the-tree-rings-of-pyongyang) except for the first sentence.

    For the record, Brandon Shollenberger’s first sentence is:

    “My name is Brandon Shollenberger.”

    Given that he signed it “Brandon Shollenberger”, I thought the first sentence somewhat superfluous.

    However, I am happy to correct the record here.

    Mark Steyn

    PS My name is Mark Steyn.

  39. Mark Steyn, it’s interesting you say:

    However, I am happy to correct the record here.

    One would think if you’re “happy to correct the record here” on one point, you might be happy to acknowledge your mistakes about what I assume, believe and know. For example, you might acknowledge I do not assume or believe Michael Mann was “cleared” by “eight different investigations.”

    Because it’d seem really for you to come here, respond to one comment from one user and just ignore everything else.

  40. Steyn doesn’t know Brandon Shollendar from Adam. All Steyn knows is that
    Brandon finds a recent legal threat as funny as Steyn and Tim Ball found
    theirs. He probably thinks it’s a little ironic that Brandon is on record
    saying that Mann should have his day in court vs Steyn. Brandon is
    probably safe from Queensland carrying out their threat because he
    resides in a country that allegedly takes free speech seriously, and
    any legal action would be prohibitively expensive. If Queensland does
    get a hold of Mann’s legal defense fund, however, Brandon might find
    himself in the same legal hell as Steyn. And if that should happen, be
    assured that some nauseatingly nuanced armchair blog lawyers will be on here
    makinge a compelling case that Brandon should have known better than
    to publish the email, and a few judges will be more than happy to agree.
    After all, it’s not as if he wasn’t warned and, of course, copyright
    law should cover every stupid little thing that occurs to your average
    lawyer.

    I’ll bet you anything, Brandon, that if that should happen, and
    I sincerly hope it doesn’t, Steyn will step up for you and push back
    against the real bullies in all of this. Because, in Steyn’s view,
    justice is more than a parlor game for bloggers: just as he should be
    able to call a guy’s hockey-stick ‘fraudulent’ in a free society without
    having it automatically expanded to ‘Michael E. Mann committed scientific
    fraud and manipulated data’ by thugs determined to drag him through the
    sludge of American Justice, you should be able to publish a legal threat
    without the thugs dressing it up as copyright infringement and dragging
    you through the same sludge. That’s what Steyn believes. It seems you’d
    rather slog through the minutiae of ‘the law’.

  41. Ics, your comment here makes you appear incredibly uninformed. That’s the only explanation I can come up with for your silly depiction of me. I don’t see how you could have even read my e-mail to Mark Steyn and come up with something so wrong.

    I find it amazing how little what I write has to do with what people respond to. I get I can’t control how people interpret what I write, but I’d like to think logic and reality might.

  42. “I wrote one e-mail, one blog post and a few tweets. That’s hardly much of an investment on my time.”

    Steyn wrote ONE column and made one assertion and he’s entered the US legal limbo/hell. You were SPECIFICALLY told not to publish the Queensland letter and were also told by Queensland they consider you broke the law and hacked their system.

    How much of an investment of time will you be making IF Queensland pursues legal action against you regarding the letter and US authorities investigate you for hacking?

  43. Come on, Brandon. You had a disagreement. S**t happens!
    Get over it, keep up the good work and look forward to the day that you and Mark raise your glasses in a joint celebration of victories over UQ, Mann in support of freedom.
    PS My name is Spartacus:)

  44. Brandon – Re “assumption”. To me, Steyn’s original piece clearly meant “assumption [by the court]”. He wasn’t claiming that you assumed Mann had been cleared by investigations.

    His point is simply that there’s something broken in a jurisdiction which can allow Mann to inflict long & expensive litigation on him by getting up in court and flagrantly lying. To the extent that Mann demanded his day in court, it should have been a very short & expensive day for him.

  45. Hey Brandon, just wanted to apologize for spelling your last name wrong. I meant to check it before posting but forgot. Keep fighting the good fight.

  46. Brandon, Mark Steyn is the one being sued at a cost of millions of dollars and years of his life yet you have managed to make it about you.

    It’s possible to pick the people that the spotlight naturally shines on, and those that go searching for that spotlight as a desparate play for relevance. Don’t be the latter.

  47. Giving the judge the benefit of the doubt despite your ignorance was exactly what Steyn was talking about.

    As a matter of judgement, you should have simply shut up.

    Or agree with Steyn about the bizarre injustice.

    Oh, I forgot. You are a scientist.

  48. Dedicated to all the smart people who love showing how smart they are:

    Oh what a tangled web we weave
    Arguing over what we believe
    Egos clash, oh fiery youth
    I am right, so **** the truth.

  49. Mr. Schollenberg, FYI Mr. Steyn being from Canada and being one among among a group of defendants in this libel case acted on advice of counsel prior to this year. He has stated that upon the topic of billing rates for 2015 being brought forward by the defendants’ legal team last year he struck out on his own (indeed it appears that the other defendants have also retained other counsel). Therefore the delay in bringing the case to trial would be attributable to American lawyers doing their thing in the American ‘justice’ system in conjunction with a plaintiff with a history of filing suit then delaying action.

    Not that Mr. Steyn particularly needs defense in this matter, but as someone who has invested significant time and energy in uncovering the peccadilloes of Mann, Cook, et al, you appear to have not done your homework on Mr. Steyn.

    Be as it may, I do find Mr. Steyn’s comments with respect to you a bit harsh, however I believe that his ire is particularly directed at what is a broken justice system. Based on the stated costs for just one side in the current matter it appears that regardless of the ultimate outcome of the case the lawyers won.

    P.S. The case you made at Climate, Etc. for throwing Dr. Tol under the bus did not reflect well on you. Apparently everyone has flaws.

    P.P.S. As a engineer and surveyor (and skeptic) who happens to follow various climate and conservative blogs I have no dog in this fight other than a desire to correct a perceived misconception. Do keep up your good work.

  50. Schollenberg: All this back and forth to prove you are right is just a waste of time. You seem to like to argue just for the sake of argument. You are wrong and Steyn is right. Get over it!!!

  51. Steve M says:
    On the other hand, Mann’s pleadings made false and even fantastic claims about “exonerations” of Mann personally by the inquiries in order to meet the Sullivan hurdle. Without these untrue claims, Mann would not have had a prayer on anti-SLAPP

    This may well be the case. In her judgment, Coombs Green J spent a large part of the first two pages reciting Mann’s claims to have been exonerated by the various reviews. In the actual reasons for her decision, she included the following:
    …the assertions of fraud “rely upon facts that are provably false” particularly in light of the fact that Plantiff has been investigated by several bodies (including the EPA) and determined that Plantiff’s research and conclusions are sound and not based on misleading information.

    And:
    Having been investigated by almost one dozen bodies due to acusations of fraud, and none of those investigations having found Plantiff’s work to be fraudulent, it must be concluded that the accusations are provably false.”

    As Steve M has forensically demonstrated, this is most assuredly as untrue as his Nobel laureate claims. The defendants’ reply to Mann’s complaint did not flesh out the fact that these investigations did not, in fact, involve Mann’s work (with the exception of the Penn State investigation).

  52. liontooth, I’m afraid I don’t understand your response. You suggested I should perhaps focus on something other than Mark Steyn. I pointed out I had devoted little attention or effort to Steyn. You quoted that, yet you asked about an entirely different issue. I don’t follow that.

    lcs, no prob. Nobody needs to apologize for misspelling my name. If they did, half the people who ever write/type it would.

    Joe Goodacre, I contacted Steyn privately. He chose to make my communication public without me doing anything to indicate I wanted that. I struggle to imagine how you could see that as me “searching for that spotlight.”

    143915171905go, I find it fascinating you suggest a person who is ignorant should not give the benefit of the doubt to experts. It makes me wonder on what basis you conclude Steyn is right “about the bizarre injustice.”

    PeterK, I like to argue to learn and resolve points. I get you may prefer to try to resolve disagreements by going around yelling things like, “You are wrong and Steyn is right. Get over it!!!” I just don’t why you would.

  53. James Pierce, Jr., you claim I “appear not to have done [my] homework on Mr. Steyn,” yet nothing you said about him contradicted anything I said. As for this:

    P.S. The case you made at Climate, Etc. for throwing Dr. Tol under the bus did not reflect well on you. Apparently everyone has flaws.

    Everyone has flaws. Richard Tol just happens to have flaws which are indistinguishable from rampant dishonesty. I made a well-documented case that Tol abused the IPCC process to distort its results in a blatant display of self-promotion. Not a single fact I offered was challenged. Not a single alternative explanation for the facts was offered.

    I can’t imagine how me criticizing inexcusable behavior “did not reflect well on” me. I get it may be unpopular to criticize someone who says things people like, but it’s my understanding calling people on the same “side” as you out on their bad behavior is a good thing.

  54. Szilard, I cannot see any way to justify your interpretation:

    Brandon – Re “assumption”. To me, Steyn’s original piece clearly meant “assumption [by the court]“. He wasn’t claiming that you assumed Mann had been cleared by investigations.

    Mark Steyn brought my name up in a paragraph which never mentioned the court. He specifically discussed my beliefs, claiming they rested upon an assumption. There is no way to reason to think he was saying I rest my beliefs upon the assumption of somebody else, somebody he wasn’t even talking about.

  55. WILLFUL OBTUSE
    pathetic
    an idiot
    willfully obtuse
    grossly incompetent
    plain illiterate
    insane
    baseless
    bully
    incredibly uninformed
    silly
    rampant dishonesty

  56. Challenge from Shollenberger:
    Kevin Jaeger, let’s start with a simple example. I explicitly pointed out to Mark Steyn he was wrong when he said:

    (Shollenberger rests this belief on the quaint assumption that Mann has been “cleared” by “eight different investigations”.)

    Do you acknowledge that statement was untrue?

    I’ll bite: No, I believe this statement is true.

    Shollenberger (original):
    I believe his claims, if true, would permit the conclusion Mark Steyn entertained serious doubts about what he published.
    Shollenberger (follow-up):
    I believe if everything Mann said were true, he would deserve to win his lawsuit.

    Observer:
    Steyn is almost rewriting your words:
    “Shollenberger rests this belief” equals “I believe” / “I believe”
    “quaint assumption” equals “if true” / “if everything Mann said were true”

    You are literally writing that you rest your belief on an assumption.

    And for good measure, he clarifies that he understands that you don’t think Mann has been cleared by the investigations saying “You appear to understand all the finer points of the science”.

  57. Dear Mr Shollenberger,

    You say that you “contacted Steyn privately. He chose to make my communication public without me doing anything to indicate I wanted that”.

    Just for the record, you sent your letter to the email address of my “Mark’s Mailbox” page for readers’ letters with no indication that it was of a private nature. I published it in a post shortly after 7am US Eastern on Thursday May 22nd.

    Why did I do that?

    Well, the previous day, May 21st, you Tweeted – or, if you prefer, “made public” – the following (https://twitter.com/Corpus_no_Logos/status/469320365835960321):

    “It appears @MarkSteynOnline still believes I support @MichaelEMann. I’d like him to fix that mistake: http://www.steynonline.com/6354/saving-planet-suit-by-suit …”

    I took that as you “indicating” you “wanted” your “communication” “made public”, as you were already making public your dissatisfaction with my unresponsiveness to you. So I published your communication in full.

    Thus I am surprised to find you are now claiming the same copyright in your letter to me as the University of Queensland does in cease-and-desist letters to you. Have you retained Dame Jane Malloch, QC as your solicitor?

    Putting aside our own dispute, I would suggest you read, for example, your hijacking of this thread over a man you have just accused of “rampant dishonesty” – http://judithcurry.com/2014/04/26/stavins-and-tol-on-ipcc-wg3/ – and try to imagine for a moment how you come across to someone who isn’t you.

    All best,

    Mark Steyn

  58. @Mark Steyn

    Thus I am surprised to find you are now claiming the same copyright in your letter to me as the University of Queensland does in cease-and-desist letters to you.

    I may be out of place here, chipping in amid all the umbrage taking fun, but the “contacted Steyn privately…” phrase from Mr Shollenberger was in response to to someone else who implied Mr Shollenberger was “searching for that spotlight”.

    I don’t read into that anything else. Just thought that seemed obvious. Maybe wrong. 🙂

  59. Brandon,

    you say here
    “Joe Goodacre, I contacted Steyn privately. He chose to make my communication public without me doing anything to indicate I wanted that. I struggle to imagine how you could see that as me “searching for that spotlight.””

    I find this statement extremely ironic, given that you just made a private letter public. That letter not only did nothing to indicate they wanted that, but specifically requested you not to do that. Yet you just went ahead and made it pubic.

    Now, I personally see nothing wrong with you publishing that letter. I just a bit confused over your apparent annoyance when someone else does that exact thing.

  60. Mark Steyn, I suppose this is a pointlesss thing to ask, but would you please not post more misrepresentations of what I say?

    Thus I am surprised to find you are now claiming the same copyright in your letter to me as the University of Queensland does in cease-and-desist letters to you. Have you retained Dame Jane Malloch, QC as your solicitor?

    I never said a word about my e-mail being copyrighted. I never said I told you I wanted the e-mail kept private. I never even said I thought you were wrong to publish the e-mail. All I said is I contacted you privately, having made no effort to get the e-mail I sent to you published.

    Contacting you privately does not mean I wanted or expected you to keep the communication private. All it means is I contacted you one-on-one. In other words, I sent you an e-mail; I didn’t post an open letter.

    As for the link you suggested I read, I don’t have much interest in ideas if people aren’t willing to state those ideas. If you have something to say about my comments in the link, you’re welcome to say it. I’ll discuss it.

    I’m not going to waste my time trying to guess what you might have in mind though.

  61. James Bailey, I would be very surprised to learn that Brandon thought the eight investigations all exonerated Stein. Perhaps he will comment on this too.

    If i understand his point (I admit since Brandon’s not a trained lawyer, I’ve spent a limited amount of time understand his legal theories), it’s limited to: “based on how the Judge interpreted the law, the claim by Mann’s legal team of eight exonerating investigations were assumed to have merit, and based on that, the case could not be dismissed.”

    That does seem to be a reasonable premise for explain the judge’s ruling, without assuming nefarious intent on the part of the judge.

  62. Brandon, it would appear you are now arguing just to stretch out your 15 minutes of fame. I don’t really care what you believe or don’t believe.

    Steyn accurately summarized your post. Since he is a skilled writer he wrote in very few words what the post said in many more words:

    1. You believe the judge was right not to dismiss Mann’s case against Steyn, that is, Mann has a case and should have his say in court. Whether that’s what you believe or not is immaterial, that’s what you wrote.
    2. Part of the reasoning that supports this belief and ruling is that the legal argument submitted by Mann contained statements of several exonerations. Again, this is what you wrote and what Steyn said you wrote.

    I am way past caring if you believe anything you wrote in that post as it’s immaterial. As far as I’m concerned your 15 minutes are up. I hope you don’t get subjected to the legal hell Steyn has experienced these last many years.

  63. Carrick, I’m guessnig you meant “Mann” not “Stein.” If so, I’ve explicitly said I don’t think the “investigations” cleared him on a number of occasions. I’ve also condemned the “investigations” as not being investigations in any meaningful sense many times (hence why I’ve usually used scare quotes when referring to them).

    I didn’t bother pointing this out to James Bailey because I find his argument incoherent,* but I’ve made this point several times in the last few days. I even made it in my e-mail to Mark Steyn. Heck, this post quotes me explicitly saying:

    I neither assume nor believe Michael Mann has been cleared by those investigations.

    I’m not sure how I could be more clear than that.

    *I think he’s somehow morphed me discussing a hypothetical into me stating that hypothetical is what I believe. I’m not sure though. As I said, I find what he said incoherent.

  64. Antos,

    I hope you are still reading. I am an American lawyer looking for the opinion of an Australian lawyer on Malloch’s claim that she could copyright a cease and desist letter. I found Australia’s Solicitor’s Conduct Rules, and assuming that her claim of copyright is ridiculous, I consider her claim of copyright to be highly abusive. I wonder whether you believe Malloch’s letter violates the Conduct Rules. I describe the rules I found in detail at 9:43 p.m. (Comment #129542) on this thread at Lucia’s. http://rankexploits.com/musings/2014/eugene-volokh-on-brandon-and-u-queensland/

    JD Ohio

    PS Brandon, I hope you don’t mind this slightly off topic post.

  65. Kevin Jaeger, I cannot imagine how you came up with the impression you have. I do find it funny you’ve extended the “5 minutes of fame” BC attributed to me to “15 minutes” though. I also find it funny you say:

    1. You believe the judge was right not to dismiss Mann’s case against Steyn, that is, Mann has a case and should have his say in court. Whether that’s what you believe or not is immaterial, that’s what you wrote.

    2. Part of the reasoning that supports this belief and ruling is that the legal argument submitted by Mann contained statements of several exonerations. Again, this is what you wrote and what Steyn said you wrote.

    Leaving aside the fact you’ve given an incredibly misleading description of what Mark Steyn said, I find it hilarious you say it doesn’t matter what I actually believe. I think its hilarious you’d suggest it’s okay to let false claims stand even if they’re based upon something like a person misspeaking.

    Heaven forbid someone ever type, “I support genocide” instead of, “I don’t support genocide.” People like you would stand right beside Mark Steyn when he called that person a genocidal maniac.

    I wonder if it says anything that nearly everyone disagreeing with me in this topic keeps getting basic things wrong.

  66. JD Ohio, I don’t mind at all. I would like to point out being able to copyright a cease and desist letter isn’t remarkable though. Nearly anything you write is protected by copyright.

    The issue isn’t whether or not a copyright exists. A copyright existing doesn’t automatically mean copying isn’t allowed. There are plenty of reasons copyrighted material can be copied (think Fair Use). That means the issue isn’t whether or not the letter is copyrighted, but whether or not that copyright is relevant.

    Imagine if I published and sold a book of nothing but cease and desist letters one company sent me. A lawsuit wouldn’t be inappropriate. I have no inherent right to make a business out of publishing material other people write, even if they happen to send it (or a copy of it) to me.

    But the idea I wouldn’t even be able to make a copy for a lawyer or something like that is certainly ridiculous.

  67. You find it incoherent that the “if” portion of an “if – then” statement is an assumption? That hypothetical if-clause is the assumption that makes Steyn’s statement true.

    And to clarify, I was well aware of the fact that you think Mann has not been cleared by the 8 investigations.

  68. James Bailey, no. I think I’ve figured out what you’ve said now. If so, it’s not incoherent anymore. It’s just incredibly irrational.

    I discussed a hypothetical. As a hypothetical, it contained an assumption. That assumption was, “If what Mann said were true.” It seems you’re claiming expressing that assumption in a hypothetical means it was correct for Mark Styen to say I rest a belief upon that assumption. That is, examining an assumption means it’s right to say I hold a belief based upon that assumption.

    Similarly, you seem to be claiming my examining the conclusions reached in a hypothetical means it is right to say I believe those conclusions. Based upon these two claims, you tell me:

    You are literally writing that you rest your belief on an assumption.

    When referring to my discussion of a hypothetical.

    If I’m interpreting you correctly, that’s not incoherent. It’s just ludicrous. You can’t say a person believes and assumes things are true every time they examine a hypothetical. They don’t. They just consider what would happen if they assumed and believed the things given by that hypothetical.

  69. Brandon, yes I meant to say:

    James Bailey, I would be very surprised to learn that Brandon thought the eight investigations all exonerated [Mann]. Perhaps [Brandon] will comment on this too.

    In fact, I’d be surprised if Mann thought all eight investigations exonerated him and probably wishes he’d taken a more careful look at that legal brief.

    When you know you’re going to get scrutinized is the time to be really careful with the facts…

  70. James Bailey, you are failing to be coherent now. Earlier you stated that:

    (Shollenberger rests this belief on the quaint assumption that Mann has been “cleared” by “eight different investigations”.)

    Do you acknowledge that statement was untrue?

    I’ll bite: No, I believe this statement is true.<

    [Emphasis mine.]

    Now you are saying

    And to clarify, I was well aware of the fact that you think Mann has not been cleared by the 8 investigations.

    Did you misstate the first time?

    Or are you somehow having trouble working that Steyn thinks he is stating a belief that Brandon holds?

    [Because that is exactly what Steyn is doing.]

  71. Shollenberger:
    You can’t say a person believes and assumes things are true every time they examine a hypothetical. They don’t. They just consider what would happen if they assumed and believed the things given by that hypothetical.

    Agreed, and that wasn’t my point. I have stated my understanding that you do not think Mann was cleared by the investigations, so clearly I don’t think you believe the if-clause in the hypothetical is true.

    I am merely arguing that you believe, for this case, the assumption that Mann’s claim is true must be determined in a court to be correct or incorrect. You said that assumption is the foundation of his case. Therefore, you belive this case must go to trial to determine if the assumption (not your assumption) of being cleared is correct.

  72. No mis-stating, though my argument may be coming across as incoherent.

    Carrick:
    [Because that is exactly what Steyn is doing.]

    I don’t know how you know that unless you have a window into Steyn’s soul.

    Steyn writes, “(Shollenberger rests this belief on the quaint assumption that Mann has been “cleared” by “eight different investigations”.)”

    “The quaint assumption” doesn’t neccessarily mean Shollenberger’s assumption. Steyn doesn’t say “on his quaint assumption” or “on Stollenberger’s quaint assumption”. It could just as easily mean the assumption of the judge that refused to dismiss the case before it went to trial. But it is that assumption that Shollenberger believes needs to be examined in a trial (if he were on the jury he would find it untrue). If the assumption were clearly false, the case would have been dismissed.

  73. Is James Bailey suggesting I rest a “belief on a quaint assumption” I don’t make? How would that work? The belief is question is “Michael E Mann has a case against” Mark Steyn. How would I say Mann has a case because of an assumption I not only don’t make, but explicitly say is false?

    I’m imagining a conversation like:

    Brandon Shollenberger: If X is true, Michael Mann has a case. X is false.
    Mark Steyn: You believe Mann has a case based upon the quaint assumption X.
    Brandon Shollenberger: No I don’t. I say X is false, and Mann has no case.
    James Bailey: Steyn is right because you said we should assume X when you said, “If X is true.”

    And all I can think is I’d probably get half a dozen people telling me how horrible I am for it.

  74. “Brandon Shollenberger: If X is true, Michael Mann has a case. X is false.”

    If X is false by your estimation, why should a libel case based on X go to court?

  75. Brandon,

    You’re trying too hard – It’s that simple.

    Mark Steyn published your letter (as he commonly does in Mark’s mailbox). His major point of publishing – to argue that the process is the punishment. You were a little nobody – Mark Steyn could have made that point referencing anyone else. What followed – you metaphorically clapped your hands with glee – ‘oh goody, someone’s noticing me’ and wrote a grossly exaggerated piece on how Mark Steyn was being wilfully obtuse. Your comments are then littered with claims of how reasonable you are, and how you just don’t understand why anyone would misrepresent you and Mark Steyn must have some ulterior agenda. This puts your hatchet jobs on Michael Mann in perspective. I happen to agree with your comments on Mann, but it’s apparent that the real reason you wrote your articles on both Mann and Steyn is out of a desperate claim for relevance. Well you’ve got your 15 seconds of fame off the back of Steyn. After that 15 seconds you’ll go back to tilting at windmills and Steyn will still be getting screwed by a process you apparently agree with.

  76. I agree with your belief in question being “Michael E Mann has a case against” Mark Steyn. But what do you think “has a case against Mark Steyn” means?

    Steyn isn’t saying you think Mann “has a case against” him in the colloquial sense of your believing Mann’s claim to be true, but in the legal sense that you believe Mann’s claim creates a case for a legal action to be decided by a court of law.

    I’m not quite sure how that the fact you believe that is in is in dispute since you say it multiple times (several references to this case and why it should go to court, several mentions of the assumption “if the claim is true” being the reason why it should go to court, as well as a couple of “I believes” thrown in for clarity):

    1) All I was trying to say is the arguments Mann makes are sufficient that they could win a case, thus he deserves a day in court to make them.

    2) The point of my post was to examine the structure of Mann’s legal argument, not the validity of his claims. The point I was trying to make there (and have made elsewhere) is I believe if everything Mann said were true, he would deserve to win his lawsuit.

    3) 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.

    Reimagining your conversation:

    Brandon Shollenberger: Michael Mann has a case to be heard in court because X could be proven true (though I think the court will find X false).
    Mark Steyn: You believe Mann has a case based upon the quaint assumption X.
    Brandon Shollenberger: I don’t think the judge found X to be quaint enough to dismiss, so the case should go to trial.
    James Bailey: Steyn is right because you said we should go to trial under the (judge’s) assumption that X is either true or in doubt, because if X was plainly false then there wouldn’t be a case (for court).

  77. “JD Ohio, I don’t mind at all. I would like to point out being able to copyright a cease and desist letter isn’t remarkable though. Nearly anything you write is protected by copyright.”

    My thought is that the only purpose of copyright is to protect one’s commercial interests. Thus, if someone repeatedly copied someone else;s letter for profit, or someone wrote a letter intending to profit from it, I would agree that the letter is subject to copyright protection. However, if someone claims copyright in a letter as a technique of intimidation or to keep the contents of the letter secret (the exact opposite usage of that which copyright is intended to protect), then I believe there is no copyright protection. As a lawyer, I don’t practice copyright law, but I did research it once for a family member. My instincts could be wrong, but I see a clear difference in copyright to protect commercial republication rights and using copyright to keep a threat secret. I hope to find time to ask this question on Volokh blog.

    JD

  78. JD Ohio,

    In Australia, copyright is governed at a national level by the Copyright Act 1968 (Cth).
    http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/index.html

    Copyright may subsist only in literary, dramatic, musical or artistic work. While one might think that her letter is a melodramatic piece of fiction, thus covered under two separate heads, removing my tongue from my cheek it is possible that an email is encompassed under the “literary work” definition (Sec.10). However, that is far from clear.

    Even if a legal letter was considered to be a literary work, the Act only extends to breaches of copyright which occur because of a republication in Australia (Sec. 36).

    Additionally, a “fair dealing” with an otherwise copyrighted work is allowable. For example, it could be said that the reproduction of Malloch’s letter was for the purpose of criticism or review (Sec. 41), or for parody or satire (Sec. 41A).

    I still find it hard to believe that somebody thought it was a good idea to write that letter and that someone of Vice Chancellor level approved it. It shows a worryingly poor lack of judgment.

  79. Some peripheral comments to add to the discussion:

    For a scientist/specialist to go to court and defend a position can be very problematic. To understand the particulars can require a sophisticated level of knowledge in the specific area of science or profession. It can be a very scary scenario because neither the judge nor the jury will be capable of fully understanding some of the basic issues involved, and both parties will present their side of the case with eminent expert consultants to back up their arguments. I would not want to go to court if I were Steyn, simply because the ruling will be made by a judge or jury who will not be capable of fully comprehending the science issues. Those with knowledge/experience/training in the subject area will conclude it is a simple black versus white determination, but to the judge or jury it will be shades of gray.

    For a portion of my adult life I practiced medicine in a narrow hospital specialty while in the military. Once a ‘colleague’ filed a major ethics complaint against me with implications of medical malpractice. It was a very elaborate and detailed treatise, incorporating fragments of multiple existing settings, and highly convincing…except that the events portrayed were totally fabricated. When the legal authorities delivered the paperwork to me, I was dumbfounded while I perused the complaint because the whole thing was so ridiculous and untrue. Much to my chagrin, I was immediately treated as though I was guilty by the military JAGs as well as the hospital commander. Physicians in other specialties and practices thought that the claims made by the plaintiff seemed a little odd, but it was only those in my narrow specialty who recognized that the complaint was absurd. Well, it was a messy, time consuming scene and bordering on a court martial offense, and it was evident that the decisions were going to be made by persons not capable of fully understanding the issues. Although the plaintiff was a highly intelligent individual with unblemished credentials, it was fortunate for me that he was also an undiagnosed paranoid schizophrenic, and within a month after filing the complaint he began to decompensate and soon ended up in psychiatric care. His behavior in filing the complaint had been a manifestation of paranoid ideation and delusions. To this day I cannot imagine how this affair would have ended had not his disease fully manifested itself and ‘exposed’ him in a timely manner. I still have a brief case in my closet containing all the particulars as I fear he will show up on my doorstep someday.

  80. James Bailey – it does seem hard to believe that he’s still claiming that Steyn is misrepresenting anything when all he has to to is go back and read the original post. Steyn wrote what – maybe 50 words? And provided a link to the full post that anyone can read for themselves in case there’s any doubt about the summary he provided. And he’s still going on about it?

    No wonder he gets banned from other comment forums.

  81. Kevin Jaeger – Agreed. When I read Steyn’s first reference to IZURU I came here and read some interesting posts and understood immediately where Shollenberger stood re. Mann. I also read the post about the University of Queensland and the cease and desist letter with interest and sent the info to some friends in Brisbane, and was also glad Mark posted the “copyrighted” letter in solidarity. I was subsequently dumfounded when I read about the clarification letter sent to Steyn and this Willful Obtuse post. I continue to think Steyn addressed Shollenberger’s concerns about misrepresentaion adequately and posted the full letter so there would be no confusion as to what Shollenberger believes. I am not sure why I continue to engage in such a trivial debate, but it seems like such a simple misunderstanding I can’t help myself.

  82. I guess I also wanted to make the point to Shollenberger that Steyn’s brief summary was a reasonable synopsis of his original post from the perspective of a dis-interested blog reader, though maybe it could have been worded a bit more precisely. I didn’t feel like Steyn was having a go at Shollenberger initially, so when he turned it to 11 and started demanding apologies and calling Steyn an idiot I was a bit taken aback.

  83. Shub Niggurath, you just asked a question which has been addressed, time and time again. I struggle to see a point in addressing it again since you’ll probably disregard the response as you have every other response on this page. Just in case though, the answer is simple.

    I support legal requirements being enforced. Judges are often required to assume certain things are true when making rulings. If a judge is required to assume X is true even though I know X is false, I’ll support the judge’s decision to assume X is true. That’s because I like judges to follow the law.

    Joe Goodacre, Kevin Jaeger, I don’t see any point in you repeatedly making derogatory remarks while I repeatedly say you’re pulling things out of thin air. I think it’d be best if we just let people judge for themselves whether what you say is true or not.

    James Bailey, your interpretation of Mark Steyn’s post seems to require interpreting every phrase in some strange way while disregarding the simple and obvious meaning. You may think there is “a simple misunderstanding,” but I suspect I’m not the only person incapable of following the contortions you go through.

    JD Ohio, I think our disagreement is mostly a semantic one. Where you say you “believe there is no copyright protection,” I’d say there is copyright protection, but it’s not enforceable because an exception applies. The end effect is basically the same, but the legal distinctions are relevant.

    Interestingly, this topic has been discussed on the Volokh blog. I’m not sure if you’ve seen the post or not. If not, you can find it here.

  84. Dr. L., I’m sorry to hear what you went through. I’m glad it sort of worked out okay though. In a lot of ways, your situation would have been worse than Mark Steyn’s. Steyn’s case is easy to win (even disregarding free speech issues) because there are a lot of easy to understand facts he can point to. While some of the details to Mann’s work are difficult to understand (especially certain, nonsensical steps he uses), the overall processes are pretty simple. Things would be a lot worse if that weren’t true. Also, you couldn’t appeal to many people for support. Mann’s work is so publicly discussed Steyn can.

    Sadly, plenty of people are subjected to legal abuses like yours while lacking the advantages Steyn has. Legal systems tend to leave a lot to be desired. I wish there was more that could be done about it.

  85. “I support legal requirements being enforced. Judges are often required to assume certain things are true when making rulings. If a judge is required to assume X is true even though I know X is false, I’ll support the judge’s decision to assume X is true. That’s because I like judges to follow the law.”

    This has been pointed out to you several times. You are applying principles from criminal law to libel. In effect, you are arrogating liberties afforded to a defendant, to a complainant in a libel case.

    The complainant has a high bar to clear. The judge is not required to assume his representations to be materially true.

  86. Shub, again, like I suspect all three of us, I am no lawyer, but I’d be really surprised to learn that judge is expected to perform a review of the veracity of facts presented by litigants, unless those facts were disputed at the time the judgement is made.

    Given that the defendants can point to the non-legtimacy of the original claim of eight exonerations, this judgment has a good chance of being overturned on appeal.

    But perhaps if people didn’t want to be sued, they wouldn’t make thuggish comments comparing people to sex offenders. While this comparison is legally protected speech, it does rather give one the motivation to pursue his legal options.

    I don’t like Mann very much, but whether I like him shouldn’t be the basis of whether I treat him decently or not.

  87. Carrick, the original criticism/satire, i.e., the thuggish comment, was directed at the Mann in context of his university exonerating him after investigation just as it did sex offender Jerry Sandusky. I see ‘thuggishness’ directed more at the absurdity of this university and its prized leaders rather than against the person of Mann. The analogy drawn is valid and it still stands. Secondly, it was owing to this circumstance that Mann wanted to stack up an impressive pile of ‘exonerations’ independent of PSU.

    My larger point however is that thresholds of pursuit of redress in cases of defamation are high, in the sense that they are grounded in specifics. Otherwise, any noted figure – scientist, politician or actor – could simply assemble an array of generalized praise and support into a compendium and throw the book at anyone seeking to criticize them. Mockery of the famous would become impossible.

    Consider this: “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…”

    This is nonsense because the capacity for defamation is not established on any specifics.

    To give an example, if journalist says “famous politician X, cowardly buffoon” he does not deserve to be sued.

    What if politician X pursues this to court with fake photographs of his valour as ‘evidence’ of his bravery, photographs which were splashed all over the news and therefore journalist ought to have known he was established publicly to be a brave man, i.e., the opposite of a coward?

  88. Brandon, You say that your view has “evolved”. Doesn’t that mean you used to believe that Mann’s case should not have been thrown out, and now you think it should have been? If so, then you should have said that more explicitly to Mark… Something along the lines of ‘I thought, as a point of law that the case may havefit the standard for going forward, much as I disagreed with Mann personally, but since then I’ve thought about it and the case should have been dismissed after all’. If that is not how your views evolved, then Mark was correct in his interpretation.

  89. Shub given how thin skinned you are over relatively innocuous remarks, I’d be very surprised if you weren’t extremely outraged if somebody started describing you as the Sandusky of climate science. Given Mann’s proximity to Penn State, and his undoubted anger over Sandusky’s behavior and the University cover-up over it, I don’t blame Mann for popping a fuse over the comparison. That crass comment on Steyn’s part and Steyn’s refusal to issue a non-pology has cost him big, and I would even say “predictably so.”

    I would also predict that Mann thinks that the University investigation of him returned the proper judgement, even if he probably thinks the investigation process was a joke, which I can’t see how he couldn’t think that.

    But I think you’ve side-stepped the point that’s being addressed here. But regarding the statement that “plaintiff distorted, manipulated, or misrepresented his data”, isn’t that what Steyn meant?

    If there aren’t examples of Mann distorting, manipulating and misrepresenting his data, and if the eight investigations, for example, are viewed as exonerating Mann of “distorting, manipulating and misrepresenting his data”, then there does seem to be a factual basis for a lawsuit.

    Whether it meets the legal standards for going forward to trial, well I think I agree with Brandon on that one: The judge is obviously more legally competent about the law in his jurisdiction than either you or I. Even if it gets overturned and returned to the judge to reconsider, that doesn’t transform either of us suddenly into competent lawyers.

  90. Brandon,

    IMHO, Dr. Mann’s case has no merit and is a poster child for the anti-SLAPP law. It has no merit and should have been dismissed on first request.

  91. Shub Niggurath:

    This has been pointed out to you several times. You are applying principles from criminal law to libel. In effect, you are arrogating liberties afforded to a defendant, to a complainant in a libel case.

    The complainant has a high bar to clear. The judge is not required to assume his representations to be materially true.

    Do you have some evidence to support this? Can you, perhaps, point to case law to support this claim? If not, why are you stating it as a fact?

    richb, no. Saying my views evolved in no way implies my views have become completely inverted. And no, Mark Steyn was not “correct in his interpretation.”

    RobertInAz, do you have some legal argument for that view? For all the people who’ve said my analysis of the situation was wrong, I can’t recall a single one offering an alternative analysis. I don’t know how so many people can be so sure I’m wrong if none of them can actually explain why.

  92. Carrick, thin-skinned eh? I give offense when I choose to. How it may appear, there is little control one has over it, isn’t it? Moreover, I comment anonymously. How does the notion of skin even apply to me?

    PSU’s investigation of the Climategate emails as they related to Mann were inadequate. In one instance, relating to the files Mann was asked by one his colleagues to be deleted, the panel chose to examine it by requesting Mann to show he still had said files in his possession. Mann reportedly showed them a folder “full of files” relating to AR4. The people at PSU must assume the rest of the world to be mentally retarded to have carried out such a charade. It is like asking a person who swipes a precious vase from the museum to show his hands: “The alleged thief’s hands were empty thereby proving he hadn’t taken the vase”.

    Institutional failure on the part of PSU perpetrated the Sandusky scandal. “I know they’ve taken the time and spent hundreds of hours studying documents and interviewing people and looking at issues from all sides” – Graham Spanier, erstwhile PSU president who was fired from his job, on Mann’s investigation. Comparisons such as Steyn’s and Simberg’s were begging to be made.

    Brandon,
    “Do you have some evidence to support this? Can you, perhaps, point to case law to support this claim? If not, why are you stating it as a fact?”

    Point out case law and evidence on the basis of which you concluded all a plaintiff has to do is allege defamation and a judge would have to accept it.

    Mann is a self-declared “reluctant public figure”. Post-2010, he is a full-fledged public figure. The basis for defamation of public figures rests on materially false representation. Mann’s claim that he did not “molest and torture” data *because* eight investigations proved them to be so (and therefore statements to the contrary would become materially false), would still not exempt him from colourful criticism. ‘Torturing data in the service of politicized science’ – to me, such an idiom has a wholly harmless connotation.

    But, as I mentioned above, I sympathize with Mann on this matter. If he had merely stated that an unfortunate and undeserving parallel was drawn sexual predation and his science methods by individuals in their zeal to criticize the university investigations, I would have been with him 100%. Instead he enlarged the scope of the trial to a level where it deserves to be defeated. It deserves to be thrown out in its current shape.

  93. Brandon,
    Mann’s day in court should have been a single day: dismissal with prejudice of his contrived faux claim.
    That is Mann’s point.
    My hope is that if UQ decides to seek legal redress against you that they get the same sort of day in court.

  94. Shub Niggurath, you made a bold claim about the legal standard the judge is expected to follow. I asked for evidence. Your response amounts to nothing more than, “Prove me wrong.”

    That’s not how this works. You don’t get to just state things as fact and expect people to assume you’re right. You certainly don’t get to when I’ve provided an argument for believing the judge applied the standard he was supposed to apply.

    If you want to participate in a discussion, participate. If what you actually want is to spout off whatever you feel like with complete disregard for everybody else, you’re just an egotistical prick.

    By the way, I have to make a request. Would you please try to make misrepresentations less obvious? I never said, or even suggested, “all a plaintiff has to do is allege defamation and a judge would have to accept it.”

  95. You don’t get to just state things as fact and expect people to assume you’re right

    That is exactly what you did in your “I support Mann” post.

  96. The font is going to be all small and screwy:

    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.

    This is you agreeing with the judge that Steyn’s post is capable of being considered defamatory.

    The judge came to such a conclusion on the broadest of possible grounds:

    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, …

    This is my basis for saying you think “all a plaintiff has to do is allege defamation and a judge would have to accept it.”

  97. Shub Niggurath, that is not what I did in that post. At all. I laid out an argument in a clear manner with all the reasoning explained, and I included a number of caveats. Not only did I not merely stating something as fact and expect people to assume I’m right, I openly invited people to explain how I was wrong.

    As for your example, it’s difficult to imagine how you could be more misleading. The issue being discussed was the degree of factual support necessary for one’s claims when filing a libel lawsuit. The quotes you offered had nothing to do with that. They dealt with a different issue, the issue of whether or not certain remarks could be taken as having a defamatory meaning.

    As I said before, please try to make your misrepresentations less obvious. It’s offensive you think people would actually believe what you just said, especially the part where you claim my post was written to say, “I support Mann.”

  98. Brandon,

    I love you, but if you say…

    “I’m a big supporter of free speech, but I don’t feel obliged to support what basically amounts to yellow journalism”

    … then you don’t understand the concept of “Free Speech”. You are not a big supporter of free speech if you limit your support to speech that is not racist, vulgar, profane, yellow, etc, etc,

    As I said; I love you. Lighten up, just a little bit.

    Jim Zuccaro

  99. Mann in his book mentions Graham Spanier as someone whose note of support strengthened him.

  100. Jim Zuccaro, I didn’t call for yellow journalism to be made illegal. I didn’t say anyone should be prevented from engaging in it. Supporting a person’s right to do something does not require you support them when they do it.

    I support anyone’s right to engage in yellow journalism, but I’ll condemn anyone who does.

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