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Friday, January 31, 2014

Fall of the House of Buckley?

We are seeing some speculation that the defamation action brought by climate scientist Michael Mann against National Review and conservative gadfly Mark Steyn may end the magazine's existence. From The Week:
Climate scientist Michael Mann is suing National Review and Mark Steyn, one of its leading writers, for defamation. It's a charge that's notoriously hard to prove, which is no doubt why the magazine initially refused to apologize for an item on its blog in which Steyn accused Mann of fraud. Steyn also quoted a line by another conservative writer (Rand Simberg) that called Mann "the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data." (Simberg and the free market think tank for which he works, the Competitive Enterprise Institute, are also named in the suit.)

The lawsuit has not been going well for the magazine. In July, Judge Natalia Combs Greene rejected a motion to dismiss the suit. The defendants appealed, and last week D.C. Superior Court Judge Frederick Weisberg rejected the motion again, opening the door for the discovery phase of the lawsuit to begin.

That's not all. On Christmas Eve, Steyn (who regularly guest hosts Rush Limbaugh's radio show) wrote a blog post in which he excoriated Greene, accusing her of incompetence, stupidity, and obtuseness. As a result of this outburst, the law firm that had been representing National Review and Steyn (Steptoe & Johnson) has dropped Steyn as a client and reportedly has plans to withdraw as counsel for the magazine as well. (Now representing himself in the lawsuit, non-lawyer Steyn continues on the attack here and here.)

[Update: National Review publisher Jack Fowler says that it was Mark Steyn who initiated the break with the law firm of Steptoe & Johnson, not the other way around.]

Now, the lawsuit may well be dismissed down the road. But the longer it continues, the more likely it becomes that Mann will eventually prevail, either by forcing an expensive settlement or by prevailing in court and winning a substantial penalty from the

So, let's see. Steyn has posted the most recent ruling from the court on his website, and the Court's reasoning is fairly straightforward:
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. Viewing the allegations of the amended complaint in the light most favorable to the plaintiff, a reasonable finder of fact is likely to find in favor of the plaintiff on Counts I-VI, including the Intentional Infliction of Emotional Distress alleged in Count VI...
Now, I'm not an expert on the law within the District of Columbia, but the only count as to which the court's analysis seems even potentially open to question, on a motion to dismiss, is intentional infliction of emotional distress. As is the case in New York State, where I have handled several cases alleging that cause of action, that claim requires a showing of "[e]xtreme or outrageous conduct [which] is that which is intolerable to society." In my experience, that is a very heavy burden to lift.

However, that is pretty much all the comfort I have to offer National Review or Steyn. The court's reasoning on defamation is sound, as far as it goes.

The principal difficulty from the defendants' perspective is, according to Newsweek, multiple investigations and reviews of Mann's "hockey stick" graph showing a sudden spike in recent years of global temperature, have concluded that Mann's findings were in no way faked. Unless Steyn has something pretty weighty to establish that these reviews and investigations are wrong, that's the first prong of defamation established.

The Supreme Court has just this week reaffirmed the actual malice requirement in the context of defamation, particularly its prior holdings that a statement is made with actual malice if it is made with "knowledge that it is false or with reckless disregard of whether it was false or not."

Timing is important here; as the first order denying the motion to dismiss makes clear, the series of six investigations which cleared Mann of any inappropriate behavior took place in 2009-2010. (pp. 2-3) Steyn, in 2012, published his blog post accusing Mann of scientific fraud and comparing him to Jerry Sandusky (a piece of hyperbole the court did not find to be potentially defamatory).

The fact that, to quote Newsweek, "multiple investigations - at Penn State, the University of East Anglia, the United Kingdom's House of Commons Science and Technology Committee, the U.K. Secretary of State for Energy and Climate Change, the Environmental Protection Agency (EPA), the National Academy of Science - have independently concluded that there was no basis for claims that the emails show Mann and the other climatologists had engaged in misconduct or fudged the data," is going to go a long way toward establishing that Steyn made his statements with reckless disregard for their falsity. He either did not read these reports, despite the considerable publicity they received, or disregarded them, or--and here's the potential joker in the pack--has some evidence to the contrary upon which he could found a reasonable belief that his allegations were true, and thus did not act recklessly in ignoring the plethora of reports to the contrary.

National Review's response to the demand for a retraction and an apology was a column by editor Rich Lowry, which brushed the whole thing off as a "nuisance lawsuit," stating that "In common polemical usage, “fraudulent” doesn’t mean honest-to-goodness criminal fraud. It means intellectually bogus and wrong. I consider Mann’s prospective lawsuit fraudulent. Uh-oh. I guess he now has another reason to sue us." (However, it is interesting to note that Lowry's column contained links to copies of Mann's attorney's letter, and NRO's response, neither of which is functioning as of this writing.) NRO must be concerned that its main defense in Lowry's column, that the statements could not be considered factual, have been rejected by not one but two courts.

Of course, all of this is at the motion to dismiss stage, and discovery (zestfully threatened in Lowry's column) may well turn up facts that weaken Mann's case or strengthen Steyn's and/or that of NRO. Still, for the moment, it looks grim for the House that Buckley Built.

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