First Amendment to the Constitution of the United States of America

First Amendment to the Constitution of the United States of America:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Monday, July 22, 2013

Climate change on trial in a defamation case

A modern-day Scopes Monkey Trial is unfolding in a District of Columbia defamation case.

In 1925, two of the most famous lawyers of the time, Clarence Darrow and William Jennings Bryan, argued over whether John T. Scopes should have been prosecuted for teaching evolution in public school.  Scopes was convicted and fined $100, although the conviction was later overturned on a technicality.

Now, Pennsylvania State University climatology professor Michael Mann, a prominent researcher in the study of global warming, is in a legal fight with the Competitive Enterprise Institute (CEI) over his climate change research.  As today's article from Onward State explains, CEI accused Mann of manipulating data regarding the connection between human behavior and global warming.  Penn State investigated the allegations and exonerated Mann, as did British authorities and the EPA.

In an editorial published just after the release of the Freeh report on the Sandusky sexual abuse scandal at Penn State, CEI labeled Penn State's internal investigation of the Mann issue "hogwash," called for a new investigation, and stated that "Mann could be said to be the Jerry Sandusky of climate science, except for instead of molesting children, he molested and tortured data."

Then, an online National Review piece by Mark Steyn, linked to the CEI editorial and wrote that he was "not sure" he would have "extended that metaphor all the way into the locker-room showers with quite the zeal" as the CEI editorial, but that the CEI piece "has a point" as Penn State's internal investigation was a "joke."  The National Review post also states that Mann "was the man behind the fraudulent climate-change 'hockey-stick' graph, the very ringmaster of the tree-ring circus."  (The "hockey stick" refers to the sharp rise in global temperatures, when represented on a graph, over the past 150 years.)

Mann sued CEI and National Review for defamation in the District of Columbia.

On Friday, July 19, the Court denied National Review's special motion to dismiss Mann's case under D.C.'s anti-SLAPP statute.  In its ruling, the Court rejected arguments that the National Review piece was constitutionally protected opinion, rhetorical hyperbole or fair comment because, according to the Court, it was "something more than brutally honest commentary." 

The Court held that "to call [Mann's] work a sham or to question his intellect and reasoning is tantamount to an accusation of fraud (taken in the context and knowing that Plaintiff's work has been investigated and substantiated on numerous occasions)."

The Court went on to hold that National Review's statements were "based on provably false facts," which means Mann's case must proceed, presumably so the truth or falsity of the facts can be "proven."

Setting aside that the text and tenor of the National Review article smells strongly of opinion (i.e., that the Court's decision was simply wrong), the ruling begs the question:  is the evidence supporting climate change going to get its day in court?  And, is this how it happens ... in a defamation case?  Yes, that's what we're looking at.

In 2009, the US Chamber of Commerce demanded that the EPA hold a "trial" on climate change,  conjuring up the ghost of Mr. Scopes by labeling it, "the Scopes monkey trial of the 21st century."  The EPA didn't bite; but, the Chamber may now get its wish.

The case could be narrowed to whether National Review and CEI falsely stated that Mann distorted data and their respective states of mind at the time of the purportedly defamatory publications, but both sides seem poised to tackle the broader issues of climate change in order to bolster their positions.

That's what happened in 1925:  it wasn't simply whether Scopes taught evolution, it was whether there was a real basis for doing so.

This could be a lot more than just a run-of-the-mill defamation case ...

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