Mann v. Steyn , Free-Speech Travesty

The headlines say Michael Mann has won his defamation case and was awarded one million dollars in punitive damages. This suggests that the jury found he did not manipulate the data in his hockey stick graph which asserts that global warming is anthropogenic—that is, caused by man— is so frequently cited by "climate change" proponents. That’s not quite the whole story.

The jury seems to have focused on the fact that the writers compared his work to another Penn State employee who had engaged in child molestation which the university had covered up. The defamation the jury found was not in the critique of his research and the amount awarded seems unlikely to be received, but in the language used.

Some have questioned why this case even went to trial; after all there’s nothing inherently defamatory about questioning a scientist’s findings. That’s a feature of good science: the ability to dispute and make the proponent of an issue defend his work. And certainly the First Amendment doesn’t bar criticism, even of the work of those currently in favor.  The answer, sadly, is this is the District of Columbia where judges seem to have lost their way once again. Robert Tracinskiat Real Clear Politics writes:

The global warming hysteria is disastrous enough in its intended goal, which is to ban the use of our cheapest and most abundant fuels and force us to limp along on "alternative energy" sources that are insufficient to support an industrial civilization. But along the way, the global warming campaign is already wrecking our science and politics by seeking to establish a dogma that cannot legally be questioned.  The D.C. Superior Court, which let the suit proceed, embraced this reasoning in its ruling.

In other words, Steyn's evaluation of Mann's scientific claims can be legally suppressed because Steyn dares to question the conclusions of established scientific institutions connected to the government. On this basis, the D.C. Superior Court arrives at the preposterous conclusion that it is a violation of Mann's rights to "question his intellect and reasoning." That's an awfully nice prerogative to be granted by government: an exemption against any challenge to your reasoning.

Awarded the sum of one dollar in compensatory damages, Mann couldn't point to any real injury. But the D.C. jury found that the pair made their statements with “maliciousness, spite, ill will, vengeance or deliberate intent to harm,” and on that basis awarded punitive damages of one thousand dollars from Simberg and one million dollars from Steyn.

The punitive damages, however, seems to be contrary to the Supreme Court ruling in State Farm Mutual Automobile Insurance Co. v. Campbell, which held that the due process clause generally limits punitive damage awards to less than ten times the size of the compensatory damages awarded and that punitive damage awards of four times the compensatory damage award is "close to the line of constitutional impropriety." On his own, the judge could enter a judgment notwithstanding verdict to align the award with the State Farm ruling. In any event, the defendants have expressed an intent to appeal.

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They have solid grounds. In his 2019 dissent from the Supreme Court's rejection of the petition for certiorari, Justice Alito noted:

This question — whether the courts or juries should decide whether an allegedly defamatory statement can be shown to be untrue — is delicate and sensitive and has serious implications for the right to freedom of expression. And two factors make the question especially important in the present case...

First, the question that the jury will apparently be asked to decide—whether petitioners' assertions about Mann's use of scientific data can be shown to be factually false — is highly technical.

Second, the controversial nature of the whole subject of climate change exacerbates the risk that the jurors' determination will be colored by their preconceptions on the matter. When allegedly defamatory speech concerns a political or social issue that arouses intense feelings, selecting an impartial jury presents special difficulties. And when, as is often the case, allegedly defamatory speech is disseminated nationally, a plaintiff may be able to bring suit in whichever jurisdiction seems likely to have the highest percentage of jurors who are sympathetic to the plaintiff 's point of view...

The second question may be even more important. The constitutional guarantee of freedom of expression serves many purposes, but its most important role is protection of robust and uninhibited debate on important political and social issues... If citizens cannot speak freely and without fear about the most important issues of the day, real self government is not possible.

Over to you, Supreme Court.