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.

Walking on Broken Glass

There has been a fair amount of commentary on the decision by the Supreme Court of California denying Stephen Glass's admission to the bar of that state.

Fairly typical is this response, from Slate's David Plotz:

Stephen Glass, the disgraced New Republic journalist, and once my friend, lied to me most of the times we spoke. My wife Hanna Rosin was one of his closest confidantes at the New Republic, and he played her for a fool, too, and even tried to get her to defend his lies to the magazine's editor. In The Fabulist, the dreadful, self-justifying novel Glass wrote a couple of years after his disgrace, he depicted the Hanna-like character as conniving, sleazy, and disloyal, and the Hanna-like character’s husband as even worse.

So, needless to say, I don’t like Steve. And I don’t trust Steve.

Even so, today’s California Supreme Court decision denying him admission to the California bar is misguided and cruel, a verdict that embodies what is wrong with American law. The Supreme Court spends 35 smug, self-righteous pages finding him morally unfit to be a lawyer in California. His “turpitude” required him to show overwhelming evidence of rehabilitation, but the court found his apologies self-interested, his confessions incomplete, and his pro bono work insufficient. Lawyers must be utterly devoted to “honesty,” the justices assert—a claim that only lawyers could make about law with a straight face—and Glass isn’t.

****

Admitting Stephen Glass to the bar would help the people of California who need lawyers. He has proved that for 10 years. But the Supreme Court and the California Committee of Bar Examiners don’t care about that. They care about telling themselves that their profession is saintlier than it is, and they’re superior to the reformed liar who wants to work with them. But law isn’t holy orders. It’s a job.

Andrew Sullivan agrees, and the decision itself quotes former New Republic editor Martin Peretz describing the process as "an act of stalking." (Opinion at p. 20)

Now, I'm equivocal on the appropriate outcome here, but let's just be clear about Plotz's reasoning: He's not actually engaging with the rationale offered by the Court. The Court grounded its reasoning in the fact that the evidence of rehabilitation was severely undercut by the evidence that Glass had given misleading and incomplete information to the New York State Committee on Character and Fitness in his (unsuccessful application for admission to the New York State bar in 2002, and, further, that Glass's testimony at the hearing before the California authorities regarding the New York proceedings and his efforts to redress the harm he had done was likewise evasive and misleading by turn, concluding that "[t]he record also discloses instances of dishonesty and disingenuousness occurring after Glass's exposure,up to and including the [California] State Bar evidentiary hearing in 2010." (Opinion at 28.) Thus, Plotz's condemnation of the California Supreme Court on the basis the evidence established Glass's rehabilitation is at variance with the grounds set forth in the opinion, undermining his rhetorical questions, "Exactly how much longer would he need to work in this dedicated way for the justices to forgive? One more year? Five? Ten? How’s never? In the Bible, Jacob served 14 years: Would that be enough?"

So why am I equivocal?

Well, I believe in forgiveness, and in second chances, and, while Glass has not been (assuming the Court's summary of the record before it is correct) truthful about his past, it is impressive how many people in his new chosen profession believe in him now. (Of course, this may just mean that he's a better con man than those lawyers and other professionals think.)

But on the negative side, look: Lawyers have many, many chances to mess people's lives up, if they go into any of the fields that deal with them. It isn't enough to say, with Plotz, that case citations and record citations can be looked up and verified. Often, yes. But in oral arguments? Or with an overburdened trial part judge who is often hard-pressed for time, or relying on clerks? And factual submissions may not be tested until trial, which doesn't take place in the overwhelming majority of cases in California--95% in 2001. Not to mention Glass's own clients--will their cases be viewed with special skepticism based on the identity of their lawyer, even if they don't know about his past? And, even more mundanely, what about billing? With all the ways attorneys can overcharge clients, either any firm or any client he works with would be at serious risk. So it's not so simple.

I'm not saying the California Supreme Court reached the only reasonable result here. But it is hard, frankly, to see it as unreasonable, either.

My Way or the High (Culture) Way?

One of the big decisions to be made in having written Phineas at Bay--I can say that because the second draft has come back from my peerless editor, Karen Clark--and the end of the drafting is nigh--was how to publish.

Or, shall we say it differently--to seek an agent, and to try to break down doors, and to go through the traditional path with my Victorian novel, or, to take arms against a sea of troubles, and by self-publishing, end them?

My first instinct was: Do it. Cut the Gordian knot, and self-publish.

Now, I'm generally one for believing my gut instinct. But I also hedge my bets and seek advice. I spoke to several friends who are published novelists,met another, and all of them spoke as one: Unless you're a star or the new hot thing, there is almost no support to be had from a publisher. Do it on your own.

Phineas at Bay has been a pleasure to write; did I really want to turn it into a source of anxiety and stress, seeking an agent to get a publisher to maybe get it out in a couple years?

But what of the claims of high culture? The publisher's role as gate-keeper, and all that?

All that, of course, seems to be falling even as I write.

Still, I'm interested in any thoughts, feedback….

And watch this space!

Happy Burns Day!

Today is the birthday of Robert Burns (1759-1796), the national poet of Scotland.

His poem A Man's a Man For A'That was used to open the Scottish Parliament in 1999, and to commemorate that opening:



The poem:

Is there for honest Poverty
That hings his head, an' a' that;
The coward slave-we pass him by,
We dare be poor for a' that!
For a' that, an' a' that.
Our toils obscure an' a' that,
The rank is but the guinea's stamp,
The Man's the gowd for a' that.

What though on hamely fare we dine,
Wear hoddin grey, an' a that;
Gie fools their silks, and knaves their wine;
A Man's a Man for a' that:
For a' that, and a' that,
Their tinsel show, an' a' that;
The honest man, tho' e'er sae poor,
Is king o' men for a' that.

Ye see yon birkie, ca'd a lord,
Wha struts, an' stares, an' a' that;
Tho' hundreds worship at his word,
He's but a coof for a' that:
For a' that, an' a' that,
His ribband, star, an' a' that:
The man o' independent mind
He looks an' laughs at a' that.

A prince can mak a belted knight,
A marquis, duke, an' a' that;
But an honest man's abon his might,
Gude faith, he maunna fa' that!
For a' that, an' a' that,
Their dignities an' a' that;
The pith o' sense, an' pride o' worth,
Are higher rank than a' that.

Then let us pray that come it may,
(As come it will for a' that,)
That Sense and Worth, o'er a' the earth,
Shall bear the gree, an' a' that.
For a' that, an' a' that,
It's coming yet for a' that,
That Man to Man, the world o'er,
Shall brothers be for a' that.

"…And a Wheat Thin the Size of Lake Tahoe…"

As all true fans of The West Wing know:

LEO: Andrew Jackson, in the main foyer of the White House, had a big block of cheese. The block of cheese was huge.... The block of cheese was two-tons, and was there for any and all who might be hungry. It was there for the voiceless, the faceless...



And the line between fantasy and reality is again crossed:



The official poop:

President Obama has always been dedicated to the idea that the White House is truly "The People's House" and has worked to make 1600 Pennsylvania and his administration open and accessible.

This isn't a new idea, the same can be said of President Andrew Jackson. On February 22, 1837, President Jackson hosted an open house featuring a 1,400-pound block of cheese that sat in the main foyer of the White House. This original "Big Block of Cheese Day" opened the doors of the White House to thousands of citizens to interact with cabinet members and White House staff – and carve off a slice of the four foot by two foot thick slab of cheddar.

On Wednesday, January 29th, with a nod to history (and maybe the TV show the West Wing), the Obama Administration is hosting the first-ever virtual "Big Block of Cheese Day," during which dozens of White House officials will take to social media for a day long 'open house' to answers questions from everyday Americans in real-time on Twitter, Facebook, Tumblr, Instagram and via Google+ Hangout.

So be sure to visit WH.gov/SOTU to watch the State of the Union Address live on January 28, 2014 at 9 p.m. ET and stay tuned for a complete schedule of engagement events for virtual "Big Block of Cheese Day." You can start asking questions now using the hashtag #AsktheWH.

Somewhere, John Spencer has big grin on right about now.

Only one criticism--wrong hashtag. It should, of course, have been #CodeGouda

(Hat Tip--old friend Anthony Clark)

D'ough? D'oh!

I admit it; I have cordially disliked Dinesh D'Souza since his nasty screed, The Enemy at Home, in which he argued that the American Left was to blame for 9/11, because, you see, the jihadist critique of the decadence we have fostered was correct. (No, really; that's what he argued.) And his contention that

the anticolonial ideology of Barack Obama Sr. is espoused by his son, the President of the United States….

****

Incredibly, the U.S. is being ruled according to the dreams of a Luo tribesman of the 1950s. This philandering, inebriated African socialist, who raged against the world for denying him the realization of his anticolonial ambitions, is now setting the nation’s agenda through the reincarnation of his dreams in his son. The son makes it happen, but he candidly admits he is only living out his father’s dream. The invisible father provides the inspiration, and the son dutifully gets the job done. America today is governed by a ghost.

So, when D'Souza became the President of a Christian College near my office, I, in the words of Gonzalo in The Tempest, inly wept, but held my peace. Which was just as well, because it didn't take; he resigned "two days after World Magazine, a Christian-oriented publication, reported that he had checked into a Comfort Suites in South Carolina in September with a woman he introduced as his fiancée, despite the fact that he was already married."

Again, I held my peace. Oh, I was tempted, I admit to write a snarky piece about his rather high-handed response (“I had no idea that it is considered wrong in Christian circles to be engaged prior to being divorced,” he said, in one of the only funny lines I have ever heard attributed to him). But, no. I held back.

However, this is worthy of a little analysis:

Dinesh D’Souza, a best-selling conservative author and filmmaker, was indicted on Thursday on charges that he used straw donors to illegally donate to a 2012 Senate campaign.

Mr. D’Souza is an outspoken political commentator who directed “2016: Obama’s America,” a scathing anti-Obama documentary released in the final months of the president’s re-election campaign.

Federal prosecutors in Manhattan said that Mr. D’Souza encouraged others to give $20,000 to a Senate candidate and reimbursed them for the donations. Election law prohibits such arrangements and caps donations at $5,000 per donor to any one candidate.The Senate candidate was not identified in the indictment. Mr. D’Souza donated to only one federal candidate in 2012, giving $5,000 to Wendy Long, a New York Republican who lost her challenge to Senator Kirsten E. Gillibrand, a Democrat.

“Mr. D’Souza did not act with any corrupt or criminal intent whatsoever,” his lawyer, Benjamin Brafman, said in a statement. “He and the candidate have been friends since their college days, and at most, this was an act of misguided friendship by D’Souza.”

Prosecutors also charged Mr. D’Souza with causing the unidentified candidate’s campaign to unwittingly file false campaign documents. He is scheduled to be arraigned on Thursday in federal court in Manhattan.

That's the defense? That he didn't know that it was wrong to, after making the maximum individual contribution to his old friend, fund others' donations? In plain English, his own lawyer is saying that D'Souza "misguidedly" did an end-run around the statute by laundering donations beyond the maximum through other people?

Um, that's perilously close to an admission of guilt.

Meanwhile, Matt Drudge (remember him?) is claiming that this and the indictment of former Governor Bob McDonnell is Obama persecuting his critics.

Yeah. And if Brafman (Or, for that matter, the McDonnells) hadn't essentially conceded the truth of the facts underpinning the indictments, while challenging their interpretation, you could almost, by squinting, and using a prism, see it.

I have to admit it, I find the notion that Obama has been biding his time before the Great Purge of Dissent vaguely hilarious. I think Drudge and his ilk have him confused with someone else:



(At 1:20)

One Final Tale of the City

My copy of The Days of Anna Madrigal by Armistead Maupin arrived Tuesday, and I have already finished it. (For a perceptive and appreciative review, see Laura Miller's). My own critique, in sum: Too short.

No, no; I don't really mean that. It's just that this book concludes the third trilogy in the series that began with Tales of the City, and almost inevitably, ends the series as a whole. This final trilogy is the most shot-through with melancholy underlying the humor of the three--all of our friends from 28 Barbary Lane demonstrably older, mortality knocking at several doors through each of the three books, and yet is also a celebration of life while it goes on. Michael Tolliver Lives begins the trilogy in an affirming way--Michael, well, lives, despite AIDS; former landlady Mrs. Madrigal survives a close call with death, and Mary Ann Singleton (now married, wealthy and bored in Connecticut) returns briefly to her old friends whom she had terribly wounded by her departure in Sure of You, the rather dark ending of the second trilogy--in which the denizens of 28 Barbary Lane are scattered, and Mary Ann herself, from having been our viewpoint character, becomes startlingly, but credibly, unsympathetic.

In Mary Ann in Autumn, Maupin continued Mary Ann's return journey to her friends. It closed a circle with the first volume, and while Mary Ann's innocence is lost, we see that her original self is not. She's glossier and more heavily varnished than she once was, but she has some of that scraped off her in the course of the novel, in part because of her need for her friends, but also by revisiting one of the darker facets of the very first novel. Mary Ann is, by the end of the book, re-integrated into the "logical family" of Mrs. madrigal, although her ex-husband Brian Hawkins, so vital a presence in Michael Tolliver Lives, is marginalized to a cameo.

It's Mary Ann whose appearances in Days amount to a cameo, and Brian's story that moves forward, re-uniting him with an old "almost lover", and with Mrs. Madrigal--whose story moves back and forth in time. At 92, Anna is making up her final accounts with the man she once was, and the conflicted boy Andy Ramsay had been even earlier.

It's tender, funny, and, in places, sad. This book belongs to the core characters who have populated the series, though the younger characters are well used, especially Shawna, Brian's adopted daughter. The fact that the action is set largely outside of San Francisco, that Michael's gardening business is sputtering, and that all of our friends are showing their age, adds a touch of nostalgia to this closing volume of the third trilogy. It's an elegy for the San Francisco that made Anna Madrigal and her "logical family" possible, while noting the the City ain't what it used to be--as witness 28 Barbary Lane itself, now owned by "dot commers" who have "made it look like a five-star B and B."

Even the most wonderful party must, at some point, come to an end.