Posted by: Barry Bickmore | June 3, 2014

Take Notes, Mr. Steyn

Today’s lesson is on How to Float Legally Non-Actionable Accusations.  Mark Steyn should sharpen his pencil and take notes, because he and his co-defendants in Michael Mann’s defamation suit could easily have avoided legal action by following some very simple procedures, which I will illustrate here.

The other day I posted another commentary on the case, in which I brought up the fact that Steyn had explained Mann’s Hockey Stick graph to his readers as a “climate model” whose “predictions” had failed to pan out.  In fact, I think I mention that gaffe in every post I do about this case, because it’s MADE OF AWESOME!  When the standard of proof Mann has to meet is to show that the defendants acted with reckless disregard for the truth or falsity of their accusations against Mann, it’s like manna from heaven when one of the defendants demonstrates that he didn’t have a clue what the Hockey Stick even was before deciding to accuse Mann of producing it via fraudulent data manipulation for political ends.  When I looked up one of my previous posts to get the link to Steyn’s article (called “SLAPPstick Farce”), however, the link kept redirecting my browser to Steyn’s homepage.  This was the broken URL:

http://www.steynonline.com/6017/slappstick-farce

Next, I tried the search engine on Steyn’s site and on Google to search for the quoted phrases, but nothing turned up on Steyn’s site.  Therefore, I next went to The Wayback Machine web archive to see if they had archived that page.  When I entered the URL into The Wayback Machine, I found that this webpage had indeed been archived twice–once on Feb. 9, and once on May 4, of this year.  When I clicked on the first archived version, I got the original article.  When I clicked on the second, I got another redirect to Steyn’s homepage.  (Click on the links, and you will see what I mean.)  So for whatever reason, the page had been unavailable, redirecting traffic to Steyn’s homepage, for at least a month.  It wasn’t just a fluke, evidently.

I thought it would be fun to play this up, because it seemed like this might constitute tenuous evidence that all my teasing about the “climate model” bit had actually convinced Steyn that maybe it wasn’t such a good idea to keep the page up for people like me to wave in front of his coffee-mug-buying fans, who are financing his legal bills.  I said:

Perhaps the mockery struck a nerve with Steyn.  You will note, for instance, that my link to Steyn’s nonsensical explanation does not go to Steyn’s website, but to a web archive.  He apparently took the article down from his site, perhaps belatedly realizing that it made him look like a buffoon… and didn’t exactly help his legal prospects.

TECHNIQUE #1.  The fact is that I didn’t really have any really hard evidence that Steyn had taken the page down on purpose.  I still don’t know whether there is some way this could happen via some software glitch, or whatever.  Therefore, I threw in a couple “perhaps” qualifiers, and an “apparently”.  I could float the idea that Steyn might have been acting like a total weasel, and even call him a “buffoon,” and he can’t do squat!  This is why Steyn’s constant attempts to paint the lawsuit as an attempt to silence dissent are so stupid.  He can dissent all he wants.

Well, yesterday Steyn came back with this rejoinder:

Actually, you can find the column in question here. And here. And in every public library that carries the print edition of National Review (the January 27th 2014 issue). And in a forthcoming anthology of mine due out this fall. If Barry Bickmore sends me his mailing address, I’ll make sure he gets a signed copy.

Horrors!  Could I have been… shudder… WRONG?  Well, maybe so, but let’s see how this plays out.  You will note that the first of Steyn’s links is to:

http://www.steynonline.com/6017/slappstick-farce

Yep, the exact same address that redirected to Steyn’s homepage the day before… and a month before, according to The Wayback Machine.  The second link was to the National Review website, where the article has a different title.  I don’t know if I legitimately missed that one, because it actually has a different title on the NR site (so I might have missed it if I searched for the original title), and it was never archived by The Wayback Machine.

All of this seems rather suspicious to me.  Could it be that Steyn is being a total weasel, and put the page back up again after I mentioned it was down?

TECHNIQUE #2.  Note how I phrased that last sentence as a question, rather than a statement of fact.  If I’m not confident that I have really hard proof, it would be stupid to come right out and accuse Steyn of weaselry.  I’m no Internet guru, after all, so something might be going on that I wouldn’t think of on my own.  But by phrasing it as a question after laying out the evidence, I made it so Steyn has no possible basis for a libel suit, and many readers might consider the evidence strong enough to believe the implied accusation. 

Before I dismiss the class, let me make one last point.  That is, in my opinion Mark Steyn is part of a conspiracy to promote a global, totalitarian government by encouraging Republicans to allow their party to be taken over by extremist ultra-Libertarians who are so obviously intellectually and mentally challenged that moderates and young people will flee to the Democrats.  The subsequent collapse of the party will usher in the New World Order.  Who knows what crimes he has committed to further the goals of the nefarious cabal?  Theft?  Extortion?  Blackmail?  MURDER?!!

POP QUIZ.  In a short essay, explain how I was able to spout utter nonsense that I totally pulled out of you-know-where, accusing Mark Steyn of all kinds of awful things, and yet avoid any legal culpability.  

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Responses

  1. Just for fun, I tried to do a web citation of Steyn’s page – that’s the usual way to snapshot the web (http://www.webcitation.org/). If I do, I get:
    Sorry

    WebCite does not have any valid data for the given query.

    When WebCite tried to archive the page, it found a no-cache tag.

    WebCite tried to retrieve the page at: 2014-06-03 09:55:52

    And if you look at the source of his page, it says:

    Could it possibly be true that he’d rather not have people archive his stuff and know he changes it?

    • Hi William,

      I saw that, too. There are other possible reasons for this (i.e., cutting down bandwidth taken up by crawlers,) but to deter The Wayback Machine, he has to put a couple lines in a robots.txt file at the top level of his site.

  2. […] exactly help his legal prospects.  [UPDATE:  Mark Steyn objects to this bit of speculation.  See my next post for a […]

  3. It is my opinion that this is very funny and might all be true.

  4. This technique belongs to Glen Beck. He wants it back. (http://knowyourmeme.com/memes/glenn-beck-rape-murder-hoax)

    • Beck has been consigned to the 9th circle of TV-Has-Beens. He can’t have it.

  5. Wrong. Just plain wrong.

    The Supreme Court case Milkovich v. Lorain establishes that there is no separate “opinion privilege”. You cannot simply pull accusations out of you-know-where and avoid legal culpability by phrasing it as an opinion.

    http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=497&page=1

    To quote,

    “Simply couching a statement – ‘Jones is a liar’ – in terms of opinion – ‘In my opinion, Jones is a liar’ – does not dispel the factual implications contained in the statement. Pp. 11-21.”

    You can investigate this yourself in just a few minutes by entering “libel”, “defamation” and “in my opinion” into Google.

    • You fail your pop quiz. I never said that inserting an “in my opinion” into the paragraph was the only way I made it legally non-actionable, so how can I be wrong about that? Read the case you linked again.

      • “Before I dismiss the class, let me make one last point. That is, in my opinion Mark Steyn is part of a conspiracy to promote a global, totalitarian government by encouraging Republicans to allow their party to be taken over by extremist ultra-Libertarians who are so obviously intellectually and mentally challenged that moderates and young people will flee to the Democrats. The subsequent collapse of the party will usher in the New World Order.”

        What part of this statement makes it non-actionable other than the “in my opinion”?

      • You should read the case I linked for a better understanding of Mann v Steyn. For example Steyn will not have to prove that his statements were true, instead Mann will be required to prove that Steyn’s statements were false…

        “In other words, the Court fashioned “a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages.” Id., at 776. Although recognizing that ‘requiring the plaintiff to show falsity will insulate from liability some speech that is false, but unprovably so,’ the Court believed that this result was justified on the grounds that “placement by state law of the burden of proving truth upon media defendants who publish speech of public concern deters such speech because of the fear that liability will unjustifiably result.” Id., at 777-778.”

      • You should read the case I linked for a better understanding of Mann v. Steyn. You keep claiming that Steyn’s use of the world “fraudulent” implied a specific crime. Yet in Milkovich v. Lorain the Court said,

        “A local newspaper published certain articles stating that some people had characterized the developer’s negotiating position as ‘blackmail,’ and the developer sued for libel. Rejecting a contention that liability could be premised on the notion that the word ‘blackmail’ implied the developer had committed the actual crime of blackmail, we held that the imposition of [497 U.S. 1, 17] liability on such a basis was constitutionally impermissible – that as a matter of constitutional law, the word “blackmail” in these circumstances was not slander when spoken, and not libel when reported in the Greenbelt News Review. Id., at 13. Noting that the published reports “were accurate and full,” the Court reasoned that even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developer's] negotiating position extremely unreasonable.”

        • Wrong. If you read my posts on the matter, you will see that I do NOT hold that use of the word “fraudulent” necessarily implies a crime. Rather, I hold that saying he “molested and tortured data” specifically for **political ends** clearly implies fudging his data on purpose, which would put Mann in BIG trouble with the NSF and the law. Steyn’s use of the word “fraudulent” was just icing on the cake.

          Just to be clear, I do not think Mann would have a case if it wasn’t completely clear that the defendants had charged him of a specific crime.

      • You should read the case I linked to get a better understanding of how wrong your lesson was.

        The Court clearly did not state or imply that one could couch one’s language in terms of opinion using every rhetorical technique *except* for “in my opinion”.

        “Simply couching such statements in terms of opinion does not dispel these implications; and the statement, “In my opinion Jones is a liar,” can cause as much damage to reputation as the statement, “Jones is a liar.” As Judge Friendly aptly stated: “[It] would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words `I think.'”

        Let me repeat for emphasis,

        “…if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words ‘I think’ “

      • And no you can’t protect yourself from a libel suit merely by posing your accusation in the form of a question.

        There’s a special category called “Defamation by Question”.

        “We note that whether a statement is slanderous is not determined by the form of the language used. Kelly v. Iowa State Educ. Ass’n, 372 N.W.2d 288, 295 (Iowa App. 1985) (statements of any nature may be libelous); see also Gregory G. Sarno, Annotation, Libel & Slander: Defamation by Question, 53 A.L.R.4th 450 (1987). ”

        http://law.justia.com/cases/iowa/supreme-court/1994/92-1936-0.html

        • Again, the implied accusations cannot be proven false.

          And let me ask you–do you think, if the defendants had clearly labeled their accusations as opinion, or couched them as questions, that Mann (a public figure) would have a chance in hell of winning the suit? As you so ably point out over and over (and I agree over and over), the standards are higher for such a suit.

        • Sometimes it’s not clear to me whose side you are arguing.

          • And that’s the difference isn’t it. I’m being objective and arguing the law regardless of whether it supports my personal position or not. Today my arguments could possibly be used in Mr Potato-Head’s favor. So be it.

            • No, you always argue that Mann’s suit should be dismissed, etc., but some of your arguments seem to contradict your other ones.

              And you didn’t answer the question, did you?

              “And let me ask you–do you think, if the defendants had clearly labeled their accusations as opinion, or couched them as questions, that Mann (a public figure) would have a chance in hell of winning the suit? As you so ably point out over and over (and I agree over and over), the standards are higher for such a suit.”

            • Show me where I said that Mann’s suit should be dismissed.

              I’ve always implied, but never predicted, that Steyn would win.

              Actually, come to think of it, I’ve always predicted that Mr. Potato-Head would withdraw his suit at the last moment rather than go to trial.

            • Fair enough. I still find your arguments self-contradictory.

        • You didn’t say anything about “accusations that cannot be proven false” until after I started posting. What you did say was the following…

          “TECHNIQUE #2. Note how I phrased that last sentence as a question, rather than a statement of fact. If I’m not confident that I have really hard proof, it would be stupid to come right out and accuse Steyn of weaselry. I’m no Internet guru, after all, so something might be going on that I wouldn’t think of on my own. But by phrasing it as a question after laying out the evidence, I made it so Steyn has no possible basis for a libel suit, and many readers might consider the evidence strong enough to believe the implied accusation.”

          You clearly state that phrasing as a question protects you from a libel suit and that is clearly wrong.

          • Tut, tut. I said that phrasing it as a question AFTER LAYING OUT THE EVIDENCE protects me. The point is that if there is some actual evidence (and there is), it is not defamatory to raise questions about said evidence.

            In the case of the pop quiz paragraph, the innuendo is so vague and ridiculous that it cannot ever be proven false. Therefore, it cannot be libelous.

            The fact is that Steyn wouldn’t have a prayer of winning a libel suit against me for anything I said in this piece. Admit it.

            • I forgot to add that in the pop quiz paragraph, posing the innuendo in the form of questions and adding an “in my opinion” further insulated me. I never said that either of those was ALL that I needed to do.

              And once again, don’t you agree that, given Mann’s status as a public figure, he would never have a chance to win if Steyn and co. had done these things?

            • Nonsense.

              In your last example where you accused Steyn of “all kinds of awful things” you provided no evidence. It’s clear that you thought that a simple “in my opinion” or phrasing in terms of a question would be sufficient protection.

              And let’s look at what you said in your Flashdance post that started everything,

              “The only losers will be the slack-jawed yokels who threw all their seed money onto the stage over a court case that Steyn could have avoided simply by inserting an “in my opinion” or two into his original, execrable piece.”

              And there it is.

              “…simply by inserting an “in my opinion” or two…”

              The only nuance that you added in your lesson was the Jeopardy phraseology. When researching this topic I found quite a few others like yourself laboring under the same misconceptions.

              Admit it. You really didn’t know what you were talking about until I directed you to do a Google search.

          • You’re not listening. I DO think that Steyn could have avoided the lawsuit by inserting an “in my opinion”.

            Certainly I’m learning about this sort of thing as I go along, but it seems to me that you are hopelessly jumbling various concepts. Libel law is sort of a “sliding scale”. There are general standards, but they become more and more stringent to the degree that the plaintiff is considered a “public figure”. Mann is clearly a public figure (although not on the same level as some other people), and so is Steyn. When you want to say that Mann will definitely lose the case, you apply the most stringent possible standards. When you want to show up poor lil’ ol’ me, you pretend that Steyn is just some plain old Joe who would only be held to the loosest possible standards.

            Do you, or do you not, agree that:

            1. Inserting an “in my opinion” would AT LEAST have made it much, much more difficult for Mann to get this far in the suit?

            One of the defendants’ arguments has been that it should have been obvious from the venues themselves that the statements were meant as opinions. Why are they making such arguments if identifying the statements as opinions doesn’t matter AT ALL? Sliding scale. Public figure.

            Do you, or do you not, agree that:

            2. Inserting an “in my opinion” into the conspiracy paragraph above would make it much, much more difficult for Steyn to win a libel suit against me?

            Not only is he a public figure (which I think is enough), but he can’t prove the charges false, anyway. Sliding scale. Public figure.

            • BTW, I realize all these thoughts aren’t clear in the post above, so I apologize for that.

            • You’re telling me that I’m not listening. OK. What then is the difference between your statements and mine?

              Yours,

              “You’re not listening. I DO think that Steyn could have avoided the lawsuit by inserting an “in my opinion”. ”

              Mine,

              “It’s clear that you thought that a simple “in my opinion” or phrasing in terms of a question would be sufficient protection.”

              In what way does my statement show that I failed to listen to or understand your position?

            • You seemed to be saying that such a position contradicts something else I said. It doesn’t, when taken in context.

            • “Certainly I’m learning about this sort of thing as I go along,…”

              Then maybe you shouldn’t pen blog posts belittling others for their supposed ignorance of libel laws until you get a little further along the learning curve yourself?

            • And maybe you should answer my questions.

            • I believe your view of libel law to be completely wrong.

              There is no sliding scale of standards. A libel case involving a public figure would proceed exactly as that for a private figure using the same legal definitions and standards.

              However, the public figure plaintiff would face the additional hurdle of showing that the defendant acted with “actual malice”, i.e. “reckless disregard for the truth”.

              In other words Mann would have to make his case as if he were a private figure and then also show that Steyn acted with actual malice.

              I didn’t try to claim that opinions don’t matter “at all”. I followed the clear language of the ruling that said that adding an “in my opinion” does not automatically make a statement non-defamatory. Neither does framing a statement in the form of a question as that constitutes “Defamation by Question”.

            • “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.” -Prof. Steven L. Carter

              http://bbickmore.wordpress.com/2014/02/13/free-speech-brigade-suppresses-free-speech/

            • What is the legal definition of “sometimes”? And how does one argue that this case is one of those “sometimes” as oppposed to one of those “other times”. “Sometimes” is a term used for how the law gets applied rather than the law itself. You don’t find “sometimes” in legal statutes or Supreme Court rulings.

              What’s more Prof. Carter seemed to be making the case that this was one of those “sometimes” when the judge should have thrown the case out despite Mann not being as prominent as the President so the “sometimes” works against your argument here.

              You seem to be outraged whenever someone who isn’t a climate scientist questions the experts on Global Warming. But here you are, a non-lawyer, using some rather insulting language to a law professor at Yale,

              “I find your analysis astonishing, and I question whether you actually read the primary documents before writing your column.”

              So no one is allowed to question the professional judgements of your heroes like Mr. Potato-Head, but you get to mouth off all you like to everyone else about their field of expertise.

              Hypocrite much?

              Maybe Prof Carter should consider suing you for posting such defaming material on your blog.

            • The legal definition of “sometimes”:

              “a concept much too difficult for Locus to understand.”

  6. I just tried with archive.today

    https://archive.today/VbJYL

    • Interesting, isn’t it, that it only has archived copies from yesterday and today?

  7. But let us never lose sight of the fact that BB supports Mann’s hockey stick, which deletes the MWP, let alone a MWP warmer than today. And just about every month or so a new study comes out showing a MWP at least as warm as today, eg., the latest from Tibet: http://www.nipccreport.org/articles/2014/jun/3jun2014a3.html
    So that we see once again that BB (and the erstwhile Wikipedia’s WC [top]) have dedicated their careers to upholding junk science, while Mann continues to deny he got the Tiljander series up-side-down. For competent commentary, as always, see “Climate Audit.” –AGF

  8. agfosterjr is being silly: Mann, Bradley & Hughes 1998 was accused of deleting the medieval warm period by the cunning ploy of only covering the period back to 1400. That well known [pseudo]scientific body the George C. Marshall Institute alleged that this was deceptive: “Go back just a few hundred years more to the period 1000–1200 AD and you find that the climate was considerably warmer than now. This era is known as the Medieval Warm Period”

    In an even more dastardly ploy, Mann, Bradley & Hughes 1999 actually showed the Medieval Warm Period: as the press release issued on March 3, 1999, said, “The latest reconstruction supports earlier theories that temperatures in medieval times were relatively warm, but ‘even the warmer intervals in the reconstruction pale in comparison with mid-to-late 20th-century temperatures,’ said Hughes.”

    Oh, maybe agfosterjr just doesn’t like the second point about how the WMP compares to late 20th century temperatures? Even though it’s been confirmed by a couple of dozen subsequent scientific papers. Maybe agfosterjr only reads daft nonsense like the NIPCC or some Climate Fraudit blog…

    • No Dave, you misunderstand completely. I refer to the fact that the hockey stick as generally understood, and as certainly promulgated by Mann, claims modern temperatures far exceed anything in the last 2000 years, as exemplified by UCAR’s version: http://www.ucar.edu/news/releases/2009/images/Fig.final_11.jpg
      And this junk science flies in the face of everything that went before and after the dendromania. Not only was the MWP warmer than the present, but so were the early 40’s once you subtract all the “adjustments.” Funny thing, that–every adjustment made to the raw data increases the warming trend. –AGF

      • Once again agfosterjr gets things completely wrong… the linked graph has nothing to do with Mann, other than providing additional support for the various temperature reconstructions commonly known as “hockey stick graphs”: it’s from Kaufman et al. 2009, “Recent warming reverses long-term arctic cooling”.

        Mann is best known for hemispherical or more recently global reconstructions which at the most cover the past 1,700 years, though with additional strong caveats.
        Kaufman et al. 2009 shows estimates of Arctic summer temperatures over the last 2,000 years, based on proxy records from lake sediments, ice cores and tree rings, and is just one of several studies showing how temperatures during that period relate to recent measured surface temperatures.

        Funny thing, that even the BEST studies show the same warming trend……

        • “dave s” majored in irrelevant trivia, the relevant point being, is the current warming trend unprecedented or isn’t it? Is it warmer than the MWP or not? And is “dave s” naive enough to claim than Mann would say or has ever said no to either question. The abstract of MBH99 claims “moderately high levels of confidence” that 1998 was the warmest year and and the 90’s were the warmest decade of the past millennium, and this paper was the source of the phrase “hockey stick,” which was never used of any climate reconstruction not covering at least part of the MWP. Mann did not name the hockey stick, but he was one of three authors who invented it, and it went back 1000 years. And “dave s” says I’m the one who got it wrong.

          But we are still mired in trivia. The point is, the paper I cited from Tibet is, like I said, one of a stream of papers that debunk the hockey stick or at least the relevance thereof. No, the present is not warmer than the MWP, as Lamb could have told you. Mann’s HS is an anomalous pseudoscientific blip in the history of climatology. –AGF

          • Surprisingly, neither Tibet nor Central England (where Lamb got his temperatures) count as “the Earth” or even “a hemisphere”.

            • Which is why I’m so fond of pointing out the logs recovered from Jorge Montt Glacier in Patagonia, where evidently a forest grew before the advent of the Little Ice Age. And the LIA doesn’t show up on Mann’s HS either. –AGF

            • Which is why you should read a book about glaciology, in which you would find out that glacier response is a function of more than just temperature, and therefore you can get all kinds of LOCAL effects.

  9. BB also specializes in irrelevant trivia, like “LOCAL effects.” But there is considerable ice literature which supports GLOBAL effects, like this from Grove and Switsur, who like so many in their field, are confident of glacial evidence for a MWP:

    http://faculty.fgcu.edu/twimberley/EnviroPol/EnviroPhilo/Glacial.pdf

    There just aren’t many lines of evidence for a hockey stick–none really when you take McIntyre’s criticism into account. –AGF

    • Well, at least the 20-year-old paper you cite isn’t about just one locality! That’s an improvement, at least. If you had read the paper carefully, however, you might have realized that the dating methods used were extremely rough. Even this very rough data doesn’t really indicate complete global synchronism for the MWP, however, and it doesn’t really contradict Mann’s or the PAGES 2K reconstructions, both of which have the MWP a bit warmer than the LIA, and include generous error bars that could accommodate even more of a difference.

      The real difficulty, if you want to put your eggs in that basket, is just what I said before: glacier response isn’t solely a function of temperature. See these papers:

      Koch, J., Clague, J.J. (2011) Extensive glaciers in northwest North America during Medieval time, CLIMATIC CHANGE Volume: 107, 593-613.

      Nesje, A., Dahl, S. O., Thun, T., et al. (2008) The ‘Little Ice Age’ glacial expansion in western Scandinavia: summer temperature or winter precipitation? CLIMATE DYNAMICS Volume: 30, 789-801.

      • One can always count on a believer to spout off 97% BS. Just how were the dating methods “extremely rough”? The authors spent way too much time discussing the shortcomings of methods rejected and accepted.

        Is more than temperature involved with ice response? Of course: even now a small fraction of glaciers all over the world are growing, and of course that means it’s snowing faster than it’s melting for these particular glaciers. And of course nobody is claiming there were no glaciers during the MWP. But what Grove and Switsur wished to show, in response to the CRU crew’s attempt to abolish the LIA, was that from their global glacier experience Bradley and Jones were full of crap. And Rivera would agree–he interprets the general behavior of Patagonian glaciers as LIA recovery, in accord with paleoecologists’ interpretations of sediments from Lake Titicaca and other Andean lakes.

        So maybe you want to argue the LIA was triggered by increased global precipitation, but as always, your belief system flies in the face of the evidence, e.g., Iceland icebergs, frozen lakes in Canada, frozen rivers in England, frozen Vikings in Greenland, cold Mayans in Yucatan, and so on. And the usual claim is that lower temperatures lead to lower precipitation, but of course that would be circular reasoning as far as proving a colder LIA goes. But the believers have to be educated from scratch. All the evidence does suggest a global LIA, defined by T rather than precipitation. And attempts to define it out of existence are purely ideologically driven, based not only on a denial of fields as far flung as nautical and art history, but on a lasting refusal to provide data in response to earnest requests for it. Junk data fed into junk models in order to repudiate mountains of legitimate science, corrupting every journal and institution their influence touches! And then you invite these incompetent lunatics to spout their propaganda locally! BB, you are one deluded son of a gun. Whoever went to the trouble of leaking the CRU emails to expose the perennial chicanery pretty much wasted his efforts on the likes of you. No amount of daylight is sufficient for the gullible. –AGF

  10. Opinions are not perfectly protectable expressions of free speech. Just adding the phrase “in my opinion” is not a guaranteed protection. For example, the statement about hypothetical Pro/Anti Global Warming advocate Mr. X that “In my opinion Mr. X is a child molester who likes 5 year olds” could be actionable because it implies underlying facts exist to support it. If I added “And parents should keep their children away from him, in my opinion” the “in my opinion” phrase will not protect me from a slander /libel lawsuit if I knew that Mr. X is not a child molester and has no such tendencies. Opinions that imply slanderous/libelous facts can become actionable, depending of course on their context. The sentences I just wrote might not be actionable if I posted them on a global warming site and IF it was clear I was just ranting in anger. But if I repeated them to Mr. X’s neighbor in hopes of getting the neighbor to distrust Mr. X, they would be actionable despite the use of the “in my opinion” phrase.

    • I believe you are correct, Kevin. However, when a public figure (like Mann) is the target, I believe an “in my opinion” would almost always get you off the hook.

      • Bickmore,

        Mann’s lawyers say the opposite in their latest brief. And they cite Milkovich, the same case I did.

        “Rather than defending the falsity of their words, because they cannot, Defendants attempt to hide behind the inapposite “opinion defense” and the unsupported position that accusations of fraud are an accepted part of political discourse and thus protected under the First Amendment. Defendants say that their words are “protected speech” because they are “pure opinion and hyperbole” and cannot be construed, by any reasonable reader, to be assertions of fact. Not so, and the U.S. Supreme Court has been clear on this opinion defense. …”

        http://www.climatesciencewatch.org/wp-content/uploads/2014/09/Mann_Appeal_Brief_2014-09-03.pdf

        We can reasonably conclude that Mann would still have filed his suit even if Steyn had taken your “in my opinion” advice.

        • Locus, I don’t think we’re talking about the same thing. The defendants are saying that, because of where the pieces appeared, the defamatory statements should automatically be interpreted as opinions. They never explicitly said they were opinions, however, and that’s what I’m talking about.

          • But my point is that Mann’s counsel has cited a case that specifically addresses statements that explicitly claim to be opinions.

            “Simply couching a statement – ‘Jones is a liar’ – in terms of opinion – ‘In my opinion, Jones is a liar’ – does not dispel the factual implications contained in the statement. Pp. 11-21.”

            Why do you feel that Mann’s counsel would ignore this clear language?

            • Allow me to dazzle you with my legal expertise. ;-) In an online legal dictionary I sometimes use, it has this in the definition of libel. “Publication need only be to one person, but it must be a statement which claims to be fact, and is not clearly identified as an opinion.”

              http://legal-dictionary.thefreedictionary.com/libel

              As I read it, the case you cite modifies that definition, so that a clear identification as opinion would OFTEN disqualify as statement as libelous, but it isn’t an AUTOMATIC disqualifier. Mann’s lawyers are saying, “Look, even if they HAD identified the accusations clearly as opinions, it wouldn’t AUTOMATICALLY disqualify it as libelous… but they didn’t make such an identification.”

              In other words, if saying “in my opinion” doesn’t automatically disqualify a statement from being held libelous, then not saying “in my opinion,” and assuming readers will all assume you are stating an opinion, certainly doesn’t disqualify it, either.

            • “Look, even if they HAD identified the accusations clearly as opinions, it wouldn’t AUTOMATICALLY disqualify it as libelous…”

              I’ll ask the question again.

              Given this sentence why do you believe that Mann’s lawyers would have considered Steyn’s statements automatically disqualified as libelous provided he had clearly identified them as opinions?

            • I didn’t say that.

            • I’m not sure what you’re saying. Your last post seemed to be,

              If adding “in my opinion” does not make a statement an opinion then not adding “in my opinion” does not make a statement an opinion.

              To me that looks kind of obvious.

            • What I’m saying is that I agree adding “in my opinion” wouldn’t **automatically** disqualify a statement from being held libelous. But in a case where the victim is a public figure involved in a politically hot topic, I think adding “in my opinion” **almost certainly** would result in it not being held libelous by a court. Even if “in my opinion” clauses aren’t an **automatic** disqualified, they are still an important consideration.

            • “But in a case where the victim is a public figure involved in a politically hot topic, I think adding “in my opinion” **almost certainly** would result in it not being held libelous by a court.”

              And can I ask why you think this?

            • Because clear identification of a statement as an opinion (especially if it has anything remotely to do with politics) has always been a consideration in libel cases, even if the case you brought up made it so it wasn’t automatic.

            • You’ll forgive me if I don’t accept you as a legal authority. Could you provide a link?

              And how do you get from “a consideration” to “almost certainly”?

            • I already gave you a link to a legal dictionary. That should be good enough to show it has always been a consideration.

              I got from “a consideration” to “almost certainly” thusly. The “public figure” status of the plaintiff is a “consideration”. The relevance of the topic to politics is a “consideration”. So as it is, someone like Mann has a tough row to hoe in any libel suit. In this case, I think he has a solid chance of winning, because there have been so many studies vindicating his basic results and conclusions. Not to mention the NAS inquiry, and so on. However, explicitly labeling a statement an opinion is a “consideration,” too. Personally, I think something like that would have made it all but impossible for a “public figure” like Mann to win a suit that involves such a political hot potato. We would have to basically say it’s against the law to be a moron with a conspiracy theory, and then where would America be?

              As always, you are perfectly free to dismiss me as a legal authority, given that I never claimed to be one. And even if I did claim to be one, you could STILL decide to dismiss me as a legal theory. This is just a blog, after all.

            • Why do you feel that the thefreedictionary.com is a better source than Chief Justice Rehnquist writing for the majority in Milkovich?

              “Simply couching a statement – ‘Jones is a liar’ – in terms of opinion – ‘In my opinion, Jones is a liar’ – does not dispel the factual implications contained in the statement. Pp. 11-21.”

              Can you expand on your confidence that Mann will prevail given that the first judge in the case said that at that point there was only “slight” evidence that the defendants acted with actual malice?

              http://www.volokh.com/2013/08/20/mann-v-steyn-mann-wins-round-one/

              “Personally, I think something like that would have made it all but impossible for a “public figure” like Mann to win a suit that involves such a political hot potato.”

              Again I’m curious as to what lead you to think that. Is it all just conjecture on your part?

              You acknowledge that you are not a legal authority and yet I didn’t see a lot of qualification in this blog post. You seemed to be quite sure of yourself.

              “…could easily have avoided legal action by following some very simple procedures, which I will illustrate here.”

              Why didn’t you add an “in my opinion” to that statement? I’m not suggesting that you need fear legal action. I’m just wondering about the source of your self-confidence when you author your blog posts.

            • Well, obviously, my massive ego allows me to speak so confidently. Thank you for bringing that up. Oh, don’t worry–pointing out my massive ego doesn’t hurt my feelings. Rather, it gives me a chance to ponder anew the myriad reasons I have for thinking I’m so brilliant.

              And then there was the conversation I had with Prof. Stephen L. Carter, of the Yale Law School, in which he said,

              “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.”

              http://bbickmore.wordpress.com/2014/02/13/free-speech-brigade-suppresses-free-speech/

            • Yes, but the question at hand is whether or not Steyn could have avoided a lawsuit by prepending an “in my opinion” to his blog post.

              He could not if his statements were “obviously false” and to contemplate a Steyn victory was “absurd” as you wrote in your e-mail to Prof Carter

              So you have a bit of a choice to make. If you want to criticize Steyn for not having the sense to include “in my opinion” then you have to concede that Steyn’s comments were not completely baseless. Or you have to accept that adding an “in my opinion” to “obviously false” statements wouldn’t have kept him out of hot water. I don’t care which you choose, it just can’t be both.

              With regards to your ego, I’ll just quote you directly from your e-mail to Prof Carter, a Yale law professor.

              “I find your analysis astonishing, and I question whether you actually read the primary documents before writing your column.”

              Res ipsa loquitur

            • Well, I actually regretted the tone of that particular comment to Prof. Carter afterward, but I posted it, anyway, in the interest of full disclosure. Don’t worry, my ego has survived intact. I just use it as an example to illustrate what a paragon of humility I am.

              Anyway, you misread some of what I said. I didn’t say it was “absurd” to “contemplate a Steyn victory”. I said it was absurd to think it is a “close case” that Mann “should” lose. “Should” and “will” are two different things, especially when juries are involved, and when it is a libel suit involving a public figure as the plaintiff.

              As Prof. Carter noted, a public figure like the President would have a very, very hard time winning a libel suit, no matter how stupid and baseless the charges. Carter said the courts sometimes employ a “sliding scale” about such things, and while Mann isn’t a “public figure” to the same degree as the President, his “public figure” status certainly presents some kind of barrier.

              So no, when “sliding scales” are involved, I don’t think I have to accept your dichotomy. I think this is a clearcut example of defamatory speech. The statements in question were clearly false. The defendants (especially Steyn) clearly showed “reckless disregard” for the truth or falsity of their statements. This does not mean Mann is absolutely assured of victory, however. His “public figure” status, as well as the highly technical nature of the subject, are wildcards in play. Adding an “in my opinion” or two, while not an absolute guarantee, is certainly always going to be an important consideration. Carter says it would “usually” protect “even harsher views.” So am I completely out to lunch to think that employing a strategy that would “usually” work, in a case where Mann already has the “public figure” card stacked against him, would “almost certainly” protected the defendants? I don’t think so.

              That said, I didn’t understand the case you cited until you brought it up, and it did somewhat modify my views. Whereas I used to think that saying “in my opinion” was a sure thing, now I only think it would “usually” work. However, in a case like this I do think it would “almost certainly” work. See what a paragon of humility I am? ;-)

            • Agreed, you did change your view.

              However, in their latest brief Mann’s attorneys cited yet another case, Afro-American Publishing Co vs Jaffe (1965)

              “Where readers would understand a defamatory meaning, liability cannot be avoided merely because the publication was cast in the form of an opinion, belief, insinuation or even a question”.

              So I think it reasonable to assume that Mann still would have filed suit even if an “in my opinion” had been added.

              Would a D.C. court have blocked Mann’s suit in that circumstance? On that I cannot comment. Perhaps.

              But I still contend that an “in my opinion” does not immunize a defendant if their statements were “clearly false”. There’s too much certainty in that phrase.

              I also won’t try and predict the judgment of a jury. But I have a hard time imagining Mann sitting in a courtroom listening to Steyn’s attorneys rattle off the ClimateGate II e-mails, as I assume they will.

              I therefore predict that Mann will settle with NRO and CEI. However, I don’t see Steyn settling. Instead Mann will drop his suit under the pretext that settling with NRO and CEI was sufficient to preserve his reputation and that another suit would distract him from his day job of saving all of Humanity.

  11. Locus, sorry to hear you have a hard time with your imagination. Your assumption that “the ClimateGate II e-mails” would present an insuperable difficulty for Mann is absurd: the second batch was a damp squib, even less open to mischievous misinterpretation than the emails selected for the initial fake controversy. Mann and his attorney would no doubt welcome the opportunity to show in detail how mendacious the denier narrative about the emails really is.

    While Steyn is no doubt dedicated to “his day job of saving all of Humanity” from the assumed economic dangers of doing anything about global warming, it seems unlikely that he’ll have much option to settle.

    As for Mann’s day job, no doubt he’ll continue to analyse patterns in palaeoclimate, publish scientific papers, lecture on the topic and give tutorials to his students. One would hope that his opponents would be deterred by the outcome of the trial from libelling scientists, and that there will be no need for another suit.

    • Dave,

      • Richard “Oh, I guess they were right all along” Muller?

        • “Oh, I guess they were right all along”

          What makes you say that?

          And can we infer from your ad hominem that you don’t have a defense for Mann’s data manipulation and deceit?


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