The Blind Justice of Defamation

Yesterday a Washington, D.C. ,jury found for the plaintiff in a defamation trial that had bounced around the D.C. court system for an extraordinary twelve years and that is rooted even earlier in the so-called “Climategate”  controversy of 2009 over scientific and statistical methods employed by among others the plaintiff, climate scientist Michael Mann, to estimate whether and/or how fast the world’s climate is warming and whether human activity is decisive in this increase.

That’s quite a mouthful. And as the final three weeks of the trial wound down in Washington, it gave the media a rich smorgasbord of issues to highlight or play down. So how did the morning’s Associated Press trailer prepare us for the jury’s verdict in the legal battle between climate scientist Michael Mann and conservative writers Mark Steyn and Rand Simberg who had criticized his work in 2012?

The winner.

Well, the AP headline ran: Jury to Decide on Climate Scientist Michael Mann's Defamation Suit Over Comparison to Molester. The story continued: ”It's been 12 years since a pair of conservative writers compared a prominent climate scientist to a convicted child molester for his depiction of global warming.” So the main message is that two conservative hacks attack a prominent scientist as the equal of a child molester because they want to discredit his research on global warming.

There was the awkward detail that in 2009 Professor Mann had faced some criticism from other scientists. The AP handles that by a brief recapitulation of the Climategate controversy with reassuring editorial commentary to show us that there’s nothing to see here:

Mann’s research was investigated after his and other scientists’ emails were leaked in 2009 in an incident known as “Climategate” that brought further scrutiny of the “hockey stick” graph, with skeptics claiming Mann manipulated data. Investigations by Penn State and others, including The Associated Press' examination of the emails, found no misuse of data by Mann, but his work continued to draw attacks, particularly from conservatives.

Except that when you go back to read the original 2009 AP account, you discover that the AP’s verdict at the time was much more—what’s the word?—nuanced. For instance:

The 1,073 e-mails examined by the AP show that scientists harbored private doubts, however slight and fleeting, even as they told the world they were certain about climate change.

And:

Frankel—Mark Frankel, an expert retained by the AP for advice—saw no evidence of falsification or fabrication of data, although concerns could be raised about some instances of very "generous interpretations."

And:

Some e-mails expressed doubts about the quality of individual temperature records or why models and data didn’t quite match. Part of this is the normal give-and-take of research, but skeptics challenged how reliable certain data was.

Moreover, it seems that in some of these cases, the skeptics weren’t even guilty of being conservative but merely scientists worried by the failure of their Climategate colleagues to preserve and share data in accordance with normal scientific protocols. The AP even acknowledges a suspicion that they deliberately sought to destroy the data supporting their claims such as the "hockey stick.” Again, the AP in 2009:

One of the most disturbing elements suggests an effort to avoid sharing scientific data with critics skeptical of global warming. It is not clear if any data was destroyed; two U.S. researchers denied it. The e-mails show that several mainstream scientists repeatedly suggested keeping their research materials away from opponents who sought it under American and British public records law. It raises a science ethics question because free access to data is important so others can repeat experiments as part of the scientific method. The University of East Anglia is investigating the blocking of information requests.

But the ”hockey stick” had by then solved a key problem in the overall climate argument by eliminating the medieval warming period (i.e., "hiding the decline") that otherwise created complications, even doubts, for the theory that post-industrial warming was a unique development in human history requiring a unique emergency response. It had been embraced by the United Nations IPCC process, made Dr. Mann an academic superstar, and tied the credibility of climate change to his personal credibility.

Hence the nervous tone of the 2009 AP story—almost absent from the AP 2024 version—that stressed the ”give and take” of research and the risks of matching data from several sources. Similarly, a blizzard of scientific inquiries on both sides of the Atlantic descended that unanimously endorsed the theory of anthropogenic climate change (AGW), denounced suspicions of scientific impropriety, and added sotto voce that climate scientists should perhaps be more open about sharing data. All of which made clear that AGW was that extraordinary paradox: a scientific conclusion that couldn’t be questioned.

Edited by Mark Steyn.

But where did child molestation come into this trial? It did so in 2012 because dissident experts from various disciplines—science, economics, and statistics—kept questioning the hockey stick anyway. And they did so sufficiently persuasively that Rand Simberg and Mark Steyn, the defendants in the suit, combined a common metaphor in academic disputes with a Penn State child sexual abuse scandal to highlight its flaws.

It is an absurd stretch to suggest that these metaphors were comparing Mann and the Penn State perpetrator Jerry Sandusky in any general way. Children and statistics are very different victims. The metaphors merely dramatized the contortions that Mann forced the statistical evidence to perform in order—as the metaphor conventionally ends—to ”get the data to confess” to AGW. All the same it did impose an obligation on both writers to justify their claims in court.

That was not a difficult task in the case of deconstructing the hockey stick. The defense lawyers produced at least three distinguished statisticians who testified that the data had been massaged in order to produce Mann’s required result but that the same data differently arranged could have produced contrary results many more times. Was that fraud, asked one? No, but it was ”misleading,” so that the hockey stick theory seemed less robust.

Justifying the claims of cover-up by the president of Penn State looked like a more difficult task. The defense concentrated on arguing with apparent success that the Mann had demonstrated neither the defendants' "malice" -- the critical factor in any successful libel suit -- nor the harm to his own reputation needed to make the case for severe financial penalties. In particular, the testimony revealed, he had given greatly exaggerated estimates of the losses he had sustained in winning research grants as a result of the criticisms of Steyn and Simberg. He had to apologize for this, and even then his lawyers accepted that they could not prove that their criticisms had "caused" the presumed (smaller) loss in grants. The plaintiff’s case did not look to be in great shape.

And then in last stages of the trial a Penn State administrator appeared to provide unexpected evidence for Steyn’s claim of a cover-up. He had been a member of the Penn State committee investigating whether the Climategate allegations of data misuse and deletion were serious and worthy of criticism. The committee, he said, was leaning towards the idea of a censure of Mann on such grounds. Then—though he did not learn of this intervention until later—the Penn State president intervened to propose that the committee provide Mann with what amounted to a complete exoneration, which the president personally dictated, and that was the conclusion the committee duly reached.

The jury, however, was not convinced by this witness, nor by the arguments of the statisticians, nor by the strong performances of the defense lawyers, including a sustained and brilliant personal defense by Steyn himself. They found for Mann, giving him the exceptional damages he sought of one million dollars. Mann can claim a legal victory in a hugely expensive case to which, as he told the court, he had no knowledge of whether or not he would be personally contributing any money at all. He is being funded by either an institution or by some admiring billionaire.

Steyn must now pick up the costs of 12 years of litigation on both sides, together with the million dollar penalty. It’s a crushing defeat for him but also for the First Amendment, and for the prospect of any real debate on public policies when lawfare can roll over the protections of free speech that the Constitution provides but that increasingly the courts ignore.