Sunday, August 4, 2013

Defamation Lawsuit Filed by Global Warming Alarmist Professor Is Allowed to Proceed

Last year Michael Mann, a meteorology professor at Penn State University, filed in the District of Columbia a defamation lawsuit against National Review and the Competitive Enterprises Institute over criticism of his work.  Before providing recent developments in that case, let me give some background.

In addition to his work with the United Nations International Panel on Climate Change, Mann is the author of the infamous hockey stick temperature graph.  In 2009, emails in which Mann criticized the University of East Anglia’s Climate Research Unit, which unit's scientists were not supportive of Mann's conclusions, were hacked and made public.  Phil Jones, a CRU scientist,stated "I’ve just completed Mike’s Nature trick of adding in the real temps to each series for the last 20 years (i.e. from 1981 onwards) [and] from 1961 for Keith’s to hide the decline..”  A subsequent investigation by the University of East Anglia found that the "rigor and honesty of the The CRU scientists was not in doubt" but also concluded that Jones' emailed criticism of Mann's "nature trick" was "misleading."  A subsequent investigation by Penn State University with respect to the emails and cleared him of three of the four charges.  (The one he apparently wasn't cleared of was that Mann's work "deviated from accepted research norms.")  A subsequent investigation by the Environmental Protection Agency at the request of CEI and others found that Mann's work showed "no evidence of scientific misconduct."

Professor Michael Mann
The basis of Mann's defamation lawsuit, filed last year, is criticism by CEI officials and inthe National Review.  In particular, Mann was accused of engaging in "data manipulation" and "scientific misconduct."  Referred to as the “posterboy of the corrupt and disgraced climate science echo chamber," Manning was identified as "the man behind the fraudulent climate change ‘hockey stick’ graph" and his work described as "intellectually bogus."  An article in the National Review described the similarities Penn State's handling of the Mann investigation to how the university handled the Jerry Sandusky matter, including the commentary that Mann "molested" data to reach his conclusions.

Fast forward to this summer's developments.  The Defendants filed a motion to dismiss the Mann lawsuit under the D.C.'s anti-SLAPP statute, i.e. that the lawsuit was intended to stifle protected free speech on an issue of public concern, and Rule 12(b)(6), i.e. that Mann had failed to state a claim upon which relief might be granted.

On July 19, 2013, the Superior Court of the District of Columbia (which is not a federal court), issued an opinion denying the Defendant's Motion to Dismiss, finding that DC's anti-SLAPP statute did not apply and that Mann had stated a sufficient case to overcome the 12(b)(6) motion.

One problem I have with the court's 26 page decision is that the court appears to have gone way beyond summary review in order to make several evidentiary conclusions.  The court's job on a motion to dismiss is to simply look at the complaint and determine whether it presents sufficient facts so as to provide the plaintiff with a basis upon which relief can be granted if those facts are proved to be true.

The problem though is that DC's anti-SLAPP statute, while treated as a Motion to Dismiss, does require some level of evidentiary review in order to judge the merits of the motion:
(a) A party may file a special motion to dismiss to any claim arising from an act in furtherance of the right of advocacy on issues of public interest within 45 days after service of the claim.

(b)If a party filing a special motion to dismiss under this section makes a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest, then the motion shall be granted unless the responding party demonstrates that the claim is likely to succeed on the merits, in which case the motion shall be denied.

(c) (1)Except as provided in paragraph (2) of this subsection, upon the filing of a special motion to dismiss, discovery proceedings on the claim shall be stayed until the motion has been disposed of

(2) When it appears likely that targeted discovery will enable the plaintiff to defeat the motion and that the discovery will not be unduly burdensome, the court may order that specified discovery be conducted. Such an order may be conditioned upon the plaintiff paying any expenses incurred by the defendant in responding to such discovery.

(d)The court shall hold an expedited hearing on the special motion to dismiss, and issue a ruling as soon as practicable after the hearing. If the special motion to dismiss is granted, dismissal shall be with prejudice.
The D.C. court spends a considerable amount of the opinion reviewing the various approaches to interpreting the likely to succeed on the merits" language of the statute.  The court and the parties point out that this is the same language used with respect to obtaining a temporary injunction.  The Defendants insist "likely" should be interpreted as requiring a plaintiff to have a "high probability" of succeeding on the merits.  Mann argues that he only need show a "possibility" of succeeding on the merits in order to overcome the anti-SLAPP motion.  They both have case law backing up their position.  The court also cites case law suggesting the language means "probability" of success, sans the "high" the Defendants wish to be employed.  The court adopts that approach which is a preponderance of the evidence standard.

While I have zero sympathy for Mann and his lawsuit, I think he's a lot closer to being right about how to interpret the statute.  Employing a preponderance of the evidence standard turns the the anti-SLAPP motion to dismiss into a summary judgment-type proceeding in which both sides have to conduct considerable discovery in order to set forth volumes of evidence to try to tip the scale in their favor.  By using the language "prima facie showing" and providing for limited discovery on the topic, I highly doubt the authors of the anti-SLAPP law intended the the court's interpretation of the law.

I would suggest that "likely to succeed on the merits" language is the statute should be interpreted the same way it is interpreted in countless, but not all, temporary injunction matters - that "likely" means a "better than negligible" chance of winning.  (Personally I wish courts would stop using "likely" in injunction proceedings when they don't actually mean better than 50%.)  Mann goes too far though interpreting "likely" as "possibility."  Well, it is indeed "possible" that the Cincinnati Reds might draft me to play professional baseball next year, but given my age and inability to hit a curve ball, there is certainly not a "better than negligible" chance of that happening.

Regardless of this esoteric discussion, the case proceeds on. Given the court's harsh review of what must have been considerable evidence introduced at this early stage, National Review and CEI have reason to be concerned.  Hopefully though the defendants asked for a jury trial.  The only good thing in the decision for the Defendants is the observation by the trial judge that Mann had not yet put forth sufficient evidence that the criticism of him was done with "actual malice."   Having read the court's stinging rebuke of the criticism of Mann and his work though, I have little doubt that judge would reach that conclusion should this case be tried to the bench.


Pete Boggs said...

Apparently, this guy would be right at home in Muncie at BSU where they can't talk about the origins of human nature:

Brad said...

Have you seen the Reds play lately? They very well may draft you.

TMLutas said...

People keep telling Mann not to use compromised data sets like Tiljander and he keeps stubbornly refusing, though others have conceded that the same data is not actually useful. Occasionally hilarity ensues such as when Raymond Bradley, Mann coauthor and coauthor elsewhere was put in the position of supporting a correction (a corigendum they call it) on the non-Mann paper and opposing it for exactly the same error on the paper he coauthored with Mann.