In my last post a couple of days ago, I referred to the defamation lawsuit brought by Michael Mann against Mark Steyn as an example of abusive litigation seeking to use the expense of the legal process to suppress public debate on an important subject. The lawsuit was originally brought in October 2012. Other defendants in the case include National Review (where Steyn published the blog post that is the subject of the lawsuit), Competitive Enterprise Insititute (which published another blog post which Steyn used as a basis for his own post) and Rand Simberg (author of the CEI blog post).

The tortured history of this case very well illustrates the difficulty of trying to strike a good balance between, on the one hand, having libel law as a mechanism for people to defend themselves against false statements that could ruin their reputations and, on the other hand, having a wildly expensive litigation process that can be wielded as a weapon by the powerful to threaten to bankrupt political opponents and thereby silence debate on important topics of public interest.

To refresh your recollection, here is the key quote from the Steyn 2012 blog post that Mann claims was defamatory:

Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph, the very ringmaster of the tree-ring circus. And, when the East Anglia emails came out, Penn State felt obliged to “investigate” Professor Mann. Graham Spanier, the Penn State president forced to resign over Sandusky, was the same cove who investigated Mann. And, as with Sandusky and Paterno, the college declined to find one of its star names guilty of any wrongdoing. If an institution is prepared to cover up systemic statutory rape of minors, what won’t it cover up? Whether or not he’s “the Jerry Sandusky of climate change”, he remains the Michael Mann of climate change, in part because his “investigation” by a deeply corrupt administration was a joke.

Mann’s central allegation in his case against Steyn is that this passage is defamatory because the “hockey stick” graph is not “fraudulent”; and therefore Steyn’s statement that the graph is “fraudulent” is false.

Remarkably, eight and a half years into this case, only now is the truth or falsity of the claim that the “hockey stick” graph is fraudulent being addressed. The issue was finally raised in a motion for summary judgement filed by Steyn on January 22 — although almost as an aside, in a motion dealing with many other issues; and then the issue was much more squarely addressed in a response by Steyn to a motion for summary judgment by Mann, filed by Steyn on March 3. I have been sent a copy of the March 3 filing, but I have not been able to find a link for it online.

The Steyn motion papers point to three ways in which the Hockey Stick graph is fraudulent. Of the three, the most compelling is the deletion by Mann of certain adverse data that would have destroyed the neat “hockey stick” shape of the graph. The graph shows a reconstruction of world atmospheric temperatures from about the year 1050 to 2000, where the first 900 years have temperatures flat or slightly declining, followed by a sharp upward move in the last 50 or so years. The 900 year flat period was derived from several collections of data from tree rings, one of which was provided by a Mann colleague named Keith Briffa. However, in the most recent years (post-1960) the Briffa series showed a decline in temperatures — an inconvenient fact that would have greatly undermined the intended visual impact of the graphic. Mann then decided simply to delete the portion of the Briffa data post-1960, while still using the rest. From the Steyn March 3 submission:

The [Hockey Stick graph as published in the IPCC’s Third Assessment Report in 2001, in a portion written by lead author Mann] omitted tree ring proxy data collected by climate scientist Keith Briffa that showed a decline in temperatures after 1960, a message inconsistent with the prized hockey stick shape. . . . The IPCC TAR did not disclose the deletion of this data. . . . As lead author, Mann decided to omit the Briffa data without the input of his other lead authors.. . . Mann’s own collaborators cautioned him against the deletion. IPCC TAR Coordinating Lead Author Chris Folland wrote to Mann that Briffa’s data “contradicts the multiproxy curve and dilutes the message rather significantly.”. . . Briffa himself urged Mann not to succumb to “pressure to present a nice tidy story” by “ignor[ing]” his post-1960 results. . . . Mann agreed with them on the merits but bemoaned the data’s political impact: “[I]f we show Keith’s series . . . skeptics [will] have a field day.” . . . To prevent a “skeptics’ field day,” he chose to delete the data.

One would think that this is about as clear a demonstration of scientific fraud as it is possible to have. And as indicated, this is just one of three instances of fraud in the Hockey Stick graph that are set forth in detail in Steyn’s March 3 submission. The other two involve: (1) “cherry picking” of data, in the selection of proxy data series to show a flat-to-declining temperature trend from 1050 to 1950, by simply omitting to use any of the many available series that show the existence of a “medieval warm period” warmer than the present, and (2) misinterpreting one series to use the results upside down and then, when the error was pointed out, continuing to use the series in that way because it supported the desired visual presentation.

Anyway, Mann gets to throw at least one more brief into this mix, and then we will await the court’s decision. As clear-cut as this may appear from the excerpt I provided, the court’s decision could well not come out until late in the year. If summary judgment is denied, there will then be a trial. Another possibility is that the court grants summary judgment to Mann as plaintiff. I find that possibility almost too ridiculous to contemplate, but the fact is that when things get as politicized as the “climate change” thing has become, the human mind loses almost all rational capability.

And then there is one more question: Where has this case been for the last eight years? The answer is that National Review and CEI (but not Steyn) tried to get it dismissed under the District of Columbia “anti-SLAPP” statute. (“SLAPP” stands for Strategic Lawsuit Against Public Participation.). Readers may be interested in learning what this is and how it could sidetrack a case like this for so long, without ever resolving anything.

Anti-SLAPP statutes are a state-level response to perceived misuse of libel litigation by the powerful to suppress public debate. Twenty-eight states have them, including all the big states; plus of course, the District of Columbia. The DC statute was only enacted in 2012, just months before Mann brought his claim. Although the anti-SLAPP statutes vary substantially from state to state, the DC statute is fairly typical in seeking to protect the “right of advocacy on issues of public interest.” Here is the relevant text:

A party may file a special motion to dismiss any claim arising from an act in furtherance of the right of advocacy on issues of public interest. . . . 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.

It certainly would seem from the text that this statute was precisely intended to block what Mann is trying to accomplish in this case. And yet, the motions of NR and CEI did not succeed. The trial court denied the motions, and the DC Court of Appeals affirmed. There then was an attempt by NR and CEI to get the Supreme Court to hear the case, but that was also turned down, over a dissent by Justice Alito. By the time that request was turned down, we were in 2019. The explanation — if you want to call it that — of why the anti-SLAPP statute motions were lost can be found in the 2016 decision from the DC Court of Appeals. The opinion goes on and on (and on and on), but mostly gets totally tied up in knots trying to distinguish between statements of opinion (which are not actionable) and statements of fact (which might be actionable), and mixed statements of opinion and fact, and trying to figure out which category we are dealing with here. It’s all extremely unenlightening. If your hypothesis were that this is just the DC Court of Appeals providing a cover of dense verbiage for what is really a completely political decision, I could not prove you wrong.

To his credit, Steyn never participated in the motions under the anti-SLAPP statute. His position always has been that he wants to get to the merits because the Hockey Stick graph is fraudulent and he intends to prove it.