The Free Speech Brigade Suppresses Free Speech

The Mann v. National Review et al. case (which I have previously written about here, here, and here) has the Free Speech Brigade out in force.  These people have, or at least pretend to have, such extreme views about “free speech” that they will spout reams of dissembling nonsense to convince unsuspecting readers that they should be up in arms about the most pedestrian defamation case imaginable.  The irony is that if they succeed at convincing their target audiences, but not at convincing judges and others who aren’t too lazy to read a couple legal documents, they might actually persuade some people to suppress their own Constitutionally protected speech.

EXHIBIT A is Professor Stephen L. Carter, of the Yale Law School, who recently wrote an opinion piece on Bloomberg entitled, “Climate-Change Skeptics Have a Right To Free Speech, Too“.  First, he gives a fairly competent rundown of what the case is all about, correctly noting that it really isn’t about the right for climate-change “skeptics” to criticize consensus scientific positions.  Rather it’s about whether they can falsely accuse a scientist of fraudulently manipulating data.  Oh, there’s more to it than that, but instead of filling in his readers on a few more pertinent details, Prof. Carter decided to launch into an impassioned Defense of Free Speech.

My sympathies as a fellow academic lie with Mann. And yet, as a believer in the First Amendment, I am troubled. I would rather that name-calling weren’t a regular part of our public debate, but it is. Indeed, I should note for the uninitiated that “molested and tortured data” is the sort of molested and tortured prose that academics commonly inflict on each other (and the great unwashed beyond the campus) in this unenlightened era of discourse.

I myself have been accused from time to time of lying about the evidence or reasons for my views on a variety of subjects. Ad-hominem charges have no legitimate place in the academy — always be wary of the scholar who attributes motive to another! — but I’m uneasy at the thought that even so scurrilous a claim should be actionable.

Of course we need defamation law. But our constitutional tradition correctly makes it difficult for public figures to prevail. Close cases should go to the critic, no matter how nasty or uninformed. The preservation of robust dissent allows no other result, and robust dissent is at the heart of what it means to be America.

I am old-fashioned enough to believe that the cure for bad speech is good speech. Yes, it’s a cliche. But it’s also a useful reminder. Nobody is forced to enter public debate. Once you’re there, it’s rough and tumble. Unfair attacks are as common as dew and sunshine, and everybody’s reputation takes a beating. That’s the price of freedom.

So, wait–Prof. Carter said that “we need defamation law,” but that when “public figures” like Mike Mann are defamed, “close cases” should go to the critic, “no matter how nasty or uninformed.”  Ok, does that mean Mann v. National Review et al. is a “close case” that Mann should lose?  From what I knew about the case, such a conclusion seemed absurd, so I fired off the following in an e-mail to Prof. Carter.

Dear Prof. Carter,

I thought your article on Bloomberg today left out critical information about the case.  The defendants didn’t just accuse Mann of “molesting and torturing data,” which might be interpreted in multiple ways.  They said Mann did it to further certain political goals, so it was clear that they were accusing Prof. Mann of fudging the data with criminal intent.  And this after the CEI and NR were among the principal players instigating the umpteen official investigations of Mann’s work that all concluded there was no evidence of any wrongdoing.  What’s more, the defendants could have thrown in a couple weasel words when Mann threatened action, and he would have had no grounds to sue, but they chose to hold fast to their “right” to make bold-faced false accusations.

If public figures can’t bring a libel case when someone directly accuses them of a crime, of which they have been exonerated by multiple official inquiries, then on what grounds could a public figure possibly ever sue for libel?  I find your analysis astonishing, and I question whether you actually read the primary documents before writing your column.

My understanding, lawyer though I am not, is that Mann merely needs to show 1) that the accusation of criminal activity is false (and if the umpteen inquiries don’t do that, then what ever would?) and 2) prove that the defendants made the accusation knowing it was false, or with reckless disregard for whether it was true [or] false.  The lower standard shouldn’t be hard to prove.  At least in Mark Steyn’s case, he recently wrote a column for his minions in which he explained that the Hockey Stick is a “climate model” whose predictions have failed to pan out.  If accusing Mann of fraudulently cooking the Hockey Stick data, without even bothering to find out what the Hockey Stick is, doesn’t qualify as reckless disregard for whether the accusation is true or false, I can’t imagine what ever would.

Please tell me… under what conditions might a public figure have grounds to sue for libel, in your view?  Should they have any protection at all?  I would love to hear some examples of behavior that would rise to your high standard.

Prof. Carter was kind enough to reply, as follows.

Dear Professor Bickmore:

Thanks for your very thoughtful note.  I do agree that the accusations at issue were heinous, and I am most certainly aware of the details of the charges, at least as alleged in the complaint.  I am not suggesting that Dr. Mann can’t win;  I am suggesting that this sort of lawsuit makes me uneasy.

Here’s an analogy:  Presidents Obama and Bush have each been accused by political opponents of lying — Obama about the Affordable Care Act, Bush about weapons of mass destruction.  Should they sue their critics?  Of course not.  The hard knocks come with the job.

You’ll object that the analogy isn’t an identity, and of course you’re right.  The difference in Dr. Mann’s case is that although he might be a public figure, he isn’t in the same vicinity as a President.  Sometimes the courts follow a sort of sliding scale — the more prominent you are, the narrower your protection.  This intuitively makes sense.

The trouble is (to put on my lawyer’s hat), the judge didn’t hold that the charges against Dr. Mann were libelous per se.  He ruled that a jury could reasonably find them to be so.  That’s where the danger arises.  The exceptions the Supreme Court has carved out for commentary about public figures is intended to keep such questions from the jury in cases touching the public interest.

None of this means that Dr. Mann shouldn’t prevail.  I think the court’s ruling is defensible.  It nevertheless leaves me uneasy.  Lawsuits over charges made in public debate have an effect (as we’ve seen in some other countries) of stifling public debate.  There is a chilling effect beyond the particular charges at issue.  For me as perhaps the closest thing to a First Amendment absolutist you will find on an American law faculty today, that’s a risk I’m uneasy about taking.

You asked what else Dr. Mann is supposed to do to protect his reputation.  There precisely you have hit on the problem of debate today.  Destroying reputations is what much of politics today revolves around.  I find it every bit as hateful as you do, and I would rather we lived in a world in which a different mood suffused our politics.  But we live where we live, and I am skeptical that lawsuits will improve it.

Thanks so much for writing, even if we don’t agree on every jot and tittle;  and thanks for reading the piece.

Now, wait a second.  Now he was saying that the court’s ruling to let the lawsuit proceed was defensible?  And nothing he said “means that Dr. Mann shouldn’t prevail”?  I thought it sure would have been nice if Prof. Carter had bothered to say that in his original article, because it sure sounded like he was saying Mann shouldn’t prevail.  Note also that he didn’t really answer my request for examples of the kind of defamation case involving a public figure that would NOT leave him “uneasy.”  Instead, he gave me another example (involving the President) of a case that he thought should not go against the critics.  I shot off another e-mail.

Dear Prof. Carter,

Thanks for writing back.  If you don’t mind, I still would like to press a couple points, however.

I noted before that the word “fraud” can be construed multiple ways.  One dictionary definition, for example, is “something false or spurious,” which does not necessarily imply nefarious intent.  The example you presented was an accusation that the President lied, but once again, there are dictionary definitions of “lie” such as “To convey a false image or impression.”  So really, the example you gave is of the same type you gave before.  People fling about accusations of “lying” and “fraud” all the time, but there usually isn’t any way to prove that they meant to imply intent to deceive.

In this case, there is a way to prove the defendants meant to imply intent to deceive on Mann’s part.  I understand that you said that you didn’t think the judges’ rulings were indefensible, although I think you should have stated that more clearly in your article.  However, I don’t really think you answered my original question.  That is, if a public figure shouldn’t be able to sue for libel when they’ve clearly been accused of committing a crime with intent, multiple official inquiries (some instigated by the defendants) have exonerated them, and at least some of the defendants clearly didn’t even know what it was they were talking about, is there any circumstance in which you think he ought to be able to win a libel case?  Do you think we should get rid of the “reckless disregard for the truth/falsity of the accusation” clause, or what?

I really would like to hear about such a hypothetical case.  For me, there is a large grey area that smart people avoid, but then there is a steep cliff.  The defendants in this case have moved out of the grey area and right over the edge of the cliff.  If your standard is so high that the plaintiff can’t even use the “reckless disregard” clause, then that opens the door to the defense that one is, as the Catholics say, “invincibly ignorant”.  I’m curious whether you think that’s a reasonable defense.

Once again, Prof. Carter was kind enough to reply, although I got the impression he was tiring of my legal naiveté.

Dear Professor Bickmore:

Thanks for continuing to share your very thoughtful commentary.  It may be that I am trying too hard to be nuanced.  I don’t see a problem with the law — I don’t think the judge is wrong — and I thought I made that clear in the piece.  I’m worried more about the implications.  The accusations made by Dr. Mann’s critics in this case seem to me ridiculous, and perhaps they are actionable, but I don’t like cluttering public debate with defamation suits, even if the law is on the side of the plaintiff.  You ask how it is possible to protect one’s reputation.  The answer is, it isn’t.  Horrific, but true.  That’s the great problem with political debate today:  smearing and trashing is pretty much what we’re reduced to.

That’s the difficulty I don’t think the law can fix.  Even if Dr. Mann wins the case (and I’m quite confident it will be settled;  nobody wants to put it in front of a jury), the tenor of debate won’t change.(By the way, the irony of such a lawsuit is that even harsher views than those expressed here are often protected as long as the critic begins with “In my opinion” or similar language.  So it’s easy to see why the lawsuit can’t possibly solve the problem.)

This reply seemed the oddest of the bunch to me, but finally I felt I had achieved clarity.  He doesn’t think the judge was necessarily wrong about whether Mann has a legitimate case, and he predicts the defendants will eventually settle.  But he doesn’t like “cluttering public debate with defamation suits,” because doing so won’t change “the tenor of debate.”  (Civility in public debate seems to be one of his major concerns.  He once wrote a book called Civility: Manners, Morals, and the Etiquette of Democracy.)  So really, Prof. Carter’s Bloomberg piece wasn’t so much about whether Mann’s case is legitimate under current case law, or whether Mann is likely to prevail, or even whether Carter’s interpretation of the Constitution demands that this specific case should go to the defendants.  No, the piece was REALLY about how if Mike Mann wants to improve “the tenor of debate” about climate change, he should voluntarily give up his right to protect his reputation through legal means against blatantly false accusations of criminal activities.  Because “that’s the price of freedom.”

Did you get that out of his Bloomberg piece?  Neither did I, so I quickly fired off a couple more e-mails, because I thought Prof. Carter owed it to his readers to clarify, as he had done with me.  Alas, he did not reply to these, but here are a couple excerpts from my e-mails that I think make clear the main problems with Carter’s reasoning.

But if the lawsuit won’t solve the problem of nastiness in the public debate, is it fair to ask what other kind of problem it might help?  It seems to me that if you clearly label some awful accusation as an opinion, your audience is duly notified that the charges have not necessarily been proven.  If you instead make a clear, specific accusation of criminal acts committed with intent, the audience is not duly notified.  Therefore, don’t you think a lawsuit like this might help the public debate by discouraging people to make such accusations without having the goods to back them up?  What’s wrong with that outcome?…

From my point of view, it seems unlikely that a case like this would stifle free debate, UNLESS people misunderstand the true nature of the case.  If Yale law professors are going about saying this is a case about the right to vigorously dissent from particular scientific views, maybe a win by Mann **would** deter people who don’t know any better from dissenting publicly from consensus scientific views.

I’m actually serious about this.  If people were to really understand this case, they would realize (as Prof. Carter mentioned to me) that all they have to do to avoid such a lawsuit is a) put an “I think,” or an “in my opinion,” or an “allegedly,” or whatever, in front of their accusations, or b) change the wording in such a way after they have been threatened with lawsuit, and then they can make their accusations as patently false and vile as they want.

But the problem is that many, many people don’t know enough to understand this distinction without a little help, and Prof. Carter certainly didn’t help.  Mark Steyn and the other defendants in the Mann case are feverishly trying to convince anyone who will listen that this is some monumental Attack On Free Speech… and so people should give them money to pay their legal bills.  The rubes are lining up.

Which brings me to EXHIBIT B, one Robert Tracinski, who wrote an article called “Mann vs. Steyn:  The Trial of the Century” on Real Clear Politics.  Really?  It’s “The Trial of the Century” when Mark Steyn and the other defendants are fighting for their right to make obviously false accusations without putting so much as an “in our opinion” in front of them?  Well actually, Tracinski apparently didn’t bother to read much about the case before going on another Free Speech Crusade, as evidenced by the following quotations.

But along the way, the global warming campaign is already wrecking our science and politics by seeking to establish a dogma that cannot legally be questioned….

Steyn and the others are being sued for criticizing Mann’s scientific arguments….

Here is the point at which we need a little primer on libel laws, which hinge on the differentiation between facts and opinion. It is libel to maliciously fabricate facts about someone. (It is not libel to erroneously report a false fact, so long as you did so with good faith reason to believe that it was true, though you are required to issue a correction.) But you are free to give whatever evaluation of the facts you like, including a negative evaluation of another person’s ideas, thinking method, and character. It is legal for me, for example, to say that Michael Mann is a liar, if I don’t believe that his erroneous scientific conclusions are the product of honest error. It is also legal for me to say that he is a coward and a liar, for hiding behind libel laws in an attempt to suppress criticism….

In other words, Steyn’s evaluation of Mann’s scientific claims can be legally suppressed because Steyn dares to question the conclusions of established scientific institutions connected to the government….

Nowhere in his stump speech did Tracinski acknowledge that the case was brought because the defendants refused to retract statements that directly accused Mann of specific criminal activities committed with the intent to further certain political goals.  It’s all about suppressing any dissenting opinions for Tracinski.

And his bit about daring “to question the conclusions of established scientific institutions connected to the government” is sheer lunacy.  Consider this analogy.  Suppose someone, even a “public figure,” is accused of a crime, and is exonerated by the courts–not on some technicality, but on the basis that there is no evidence for the charge.  Then a newspaper prints an article in which they say this person is guilty of the crime, without giving any indication that this is the author’s opinion?  Should the newspaper be protected from having to issue a retraction in which they make clear that they were expressing an opinion?  I think not.  Otherwise, nobody has any protection from being subjected to baseless public accusations.

What will the result of all this be?  Mann will very likely win in court, and it’s even more likely that the defendants will settle out of court.  The Steyns and Tracinskis, and even the Prof. Carters, of the world will convince some of their readers that this case is really some Free Speech “Trial of the Century,” and so when Mann wins, these people might be afraid to voice their ignorant opinions about climate change or climate scientists.  Ok, maybe that’s not all bad, but for people who actually do care about preserving free speech and unhampered debate, this is not a good outcome.  What’s certain is that it won’t be Mike Mann’s fault.  The fault will lie squarely on the shoulders of the Free Speech Brigade.