Free Speech 101 for Sulky Teenagers

Yea, Michael Mann hath prevailed upon the court to allow his defamation suit to go forward.  And there was weeping, and wailing, and gnashing of teeth.  (The Apocalypse of Barry 62:3)

Ever since climate scientist Mike Mann filed a defamation suit against defendants Mark Steyn, the National Review, the Competitive Enterprise Institute, and Rand Simberg, the reaction among the defendants and their climate contrarian audience has been predictable.  Although the case is REALLY about the fact that the defendants published an accusation that Mike Mann had fraudulently manipulated the data that went into his famous “Hockey Stick” paleotemperature reconstructions, this fact never seems to make it into their public whine-sessions about their “free speech” rights.  Steyn says he is being sued simply because he “mocked” Mann’s Hockey Stick work, or alternatively that he is accused of “the hitherto unknown crime of defaming a Nobel Laureate“.  No, he’s just accused of defamation, which has been on the books for a while, now.  All of this is to be expected, because you see, Steyn and co. want to lead the charge for “First Amendment Rights”, but they don’t want to foot the legal bills, so they are begging the rubes in their target audiences for money to mount their legal defense.  After all, they can’t be seen to back down and apologize, add a caveat or two, or label their accusations as opinion, because then they would lose street-cred with the mouth-breathing conspiracy theorists who read their publications.  Therefore, they publicly pretend that Big Brother is out to quash their right to disagree with New-World-Order-mandated science, so they can get the black-helicopter-watchers to hand over their stashes of gold bullion from their bunker safes.  

Others are playing along.  Conservative pundit and Constitutional Law professor (!!?) Hugh Hewitt asked Steyn, “How can people help you protect the 1st Amendment, because while the intricacies of this buffoonish trial are too impossible to explain, from my perspective as a Con Law professor, it’s outrageous what is going on.”  (It’s not that complicated, Hugh. Keep reading.)  Judith Curry sees “frightening implications of this case for free speech,” and whines that if accusing Mann of fraudulently manipulating his data qualifies as defamation, then so should Mann’s comments that she is “anti-science”, and a “serial climate misinformer”.  (No, Judy, those comments merely indicate that Mann thinks you are pigheadedly wrong on a regular basis. He did not flatly accuse you of criminal conduct, or conduct that could get you fired from your job.) 

All of this reminded me of an experience I had when I was a stupid teenager.  About this time, my parents were cracking down on my curfew, and things like that.  What right did they have?  Ok, I sometimes got up to no good, but they couldn’t prove anything.  I wanted FREEDOM, and to me that meant a lot fewer restrictions.  Well, one day I was watching MTV, which is what stupid teenagers did in the 80’s, when they did a segment in which they asked some teenagers what the greatest problems were in the world.  One skateboarder/stoner replied, “Censorship.”  Within a parade of “Uhhhhs” and “likes” and such, he explained that any sort of limitations of any kind of “free expression” are evil.  Brain-addled as I was, I still snorted and said, “That’s stupid.”  Because, even at that stage, I was capable of recognizing that some forms of “free expression” trample on other people’s rights.  Nowadays, these things are even easier; e.g., if I look up “freedom of speech” on TheFreeDictionary.com, I find that it is “the right of people to express their opinions publicly without governmental interference, subject to the laws against libel, incitement to violence or rebellion, etc.”  Lots of caveats on their Free Legal Dictionary, too.

Now, that isn’t to say that I had any clue about the intricacies of free speech laws when I was a teenager, but I’ll tell you how I got a bit of an education about that when I was almost three decades older.  I had recently provided detailed evidence that His Worship, Christopher Monckton, the 3rd Viscount of Fantasyland, had been telling Congress and anyone else who would listen that the IPCC had made certain temperature projections, which in fact they had not.  Monckton’s predictable response was to explode in a mushroom cloud of bluster to impress his constituency (conspiracy theorists who wouldn’t know how to check his claims even if they wanted to).  Among (a LOT of) other things, he said, 

Some have said that the IPCC projection zone on our graphs should show exactly the values that the IPCC actually projects for the A2 scenario. However, as will soon become apparent, the IPCC’s “global-warming” projections for the early part of the present century appear to have been, in effect, artificially detuned to conform more closely to observation. In compiling our graphs, we decided not merely to accept the IPCC’s projections as being a true representation of the warming that using the IPCC’s own methods for determining climate sensitivity would lead us to expect, but to establish just how much warming the use of the IPCC’s methods would predict, and to take that warming as the basis for the definition of the IPCC projection zone.

So in essence, I had accused him of falsely claiming that the temperature projections he cited were from the IPCC, and he came right out and admitted that I was right (underneath a truckload of gratuitous self-justification).  They weren’t the IPCC’s projections, as he had claimed, but rather the projections Monckton thought the IPCC should have given.  

Shortly thereafter, I discovered that one of my U.S. Senators, Orrin Hatch, was promoting Monckton’s fake IPCC temperature projections to excuse his climate change inaction.  I fired off a couple of op-eds in local newspapers, and in one of them I complained about “Hatch’s use of fraudulent data.” 

Monckton then wrote a letter to my university’s administration, threatening to sue for libel, and I got called down to my dean’s office.  The dean told me that the university legal team didn’t think Monckton had any case, so they were going to ignore him, but they asked that in the future I should avoid using words like “fraud”, which can have some legal implications.  In other words, I was using the word “fraud” with the common definition, “a piece of trickery; a trick,” but the word also has some specific legal definitions, like this one.

A false representation of a matter of fact—whether by words or by conduct, by false or misleading allegations, or by concealment of what should have been disclosed—that deceives and is intended to deceive another so that the individual will act upon it to her or his legal injury.

Now, my pride was telling me not to back down.  Heck, I could represent myself, and my defense would simply be that Monckton had admitted to fudging the facts (TO CONGRESS!!!).  Given the non-legal definition of “fraud,” that is a perfectly reasonable thing to call what he did, I would say.

But the fact is that I’m not some sulky, stupid teenager, anymore.  I didn’t want to drag my university into any row with Monckton, and after all, I didn’t really think I could prove “fraud” by the legal definition above, because for all I know, Monckton really believes in the climate nonsense he peddles… just like he might really believe that he is a member of Parliament and has invented a cure-all for quite a number of serious diseases, including AIDS, multiple sclerosis, Graves’ Disease, influenza, herpes, and the common cold.  How should I know?  Being an adult, since my visit with the dean I have avoided using the words “fraud” and “liar” in connection with Monckton.  I figure that I can still call his fudged data “fabricated,” or call him “truth-challenged,” or a “crackpot,” etc.  I don’t have to know his motives to say any of that, and legally, there is no way to trump up those words into anything actionable, as long as I provide substantial evidence for any factual claims I make.  And I don’t feel like my “free speech” is being trampled upon just because I have to consider how my words might be misinterpreted to be a charge of criminal behavior.  If Monckton had carried it any further (don’t worry–he threatens to sue his critics all the time, but never follows through,) I would have even offered to make this apology:  “I apologize for calling what Lord Monckton claimed to be IPCC temperature predictions ‘fraudulent’.  By that, I meant only that the data was false, and fabricated by him.  Some definitions of the word ‘fraudulent’ imply malicious intent, but I really have no idea why His Lordship fabricated said data.”  

Now let’s take another look at Michael Mann’s case.  I thought the online legal dictionary’s definitions “libel” and “libel per se” were helpful for understanding the issues involved.

libel 1) n. to publish in print (including pictures), writing or broadcast through radio, television or film, an untruth about another which will do harm to that person or his/her reputation, by tending to bring the target into ridicule, hatred, scorn or contempt of others. Libel is the written or broadcast form of defamation, distinguished from slander which is oral defamation. It is a tort (civil wrong) making the person or entity (like a newspaper, magazine or political organization) open to a lawsuit for damages by the person who can prove the statement about him/her was a lie. 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. While it is sometimes said that the person making the libelous statement must have been intentional and malicious, actually it need only be obvious that the statement would do harm and is untrue. Proof of malice, however, does allow a party defamed to sue for “general damages” for damage to reputation, while an inadvertent libel limits the damages to actual harm (such as loss of business) called “special damages.” “Libel per se” involves statements so vicious that malice is assumed and does not require a proof of intent to get an award of general damages. Libel against the reputation of a person who has died will allow surviving members of the family to bring an action for damages. Most states provide for a party defamed by a periodical to demand a published retraction. If the correction is made, then there is no right to file a lawsuit. Governmental bodies are supposedly immune for actions for libel on the basis that there could be no intent by a non-personal entity, and further, public records are exempt from claims of libel. However, there is at least one known case in which there was a financial settlement as well as a published correction when a state government newsletter incorrectly stated that a dentist had been disciplined for illegal conduct. The rules covering libel against a “public figure” (particularly a political or governmental person) are special, based on U. S. Supreme Court decisions. The key is that to uphold the right to express opinions or fair comment on public figures, the libel must be malicious to constitute grounds for a lawsuit for damages. Minor errors in reporting are not libel, such as saying Mrs. Jones was 55 when she was only 48, or getting an address or title incorrect. 2) v. to broadcast or publish a written defamatory statement.

 

libel per se n. broadcast or written publication of a false statement about another which accuses him/her of a crime, immoral acts, inability to perform his/her profession, having a loathsome disease (like syphilis), or dishonesty in business. Such claims are considered so obviously harmful that malice need not be proved to obtain a judgment for “general damages,” and not just specific losses.

Here are a few points I took away from these helpful definitions.

1. If DC is like “most states,” all the defendants had to do was print a retraction (like the apology to Monckton I wrote above), and Mann couldn’t have sued.  But no, they must FIGHT FOR FREEDOM AND JUSTICE!
2. That’s ok, though, because all the defendants have to do is show that Mann really did manipulate his data!  Oh, but since a number of scientific, governmental, and academic panels (including one from the National Research Council) have already examined the charges and found that any mistakes Mann made didn’t affect his results much, maybe that’s sort of unlikely that they can come up with the goods.  And given the fact that Mark Steyn apparently thinks the “Hockey Stick” is a “global-warming climate model,” I would put that probability at exactly zero.  
3. Given that charges of academic fraud could lead to the firing of even tenured professors, Mann can claim “libel per se” and not even have to prove malice.   In fact, the judge in the case has already ruled that he will not dismiss the case because a jury is likely to find that the false accusation “was published with knowledge of its falsity or reckless disregard of whether it was false or not….”  If all Mann has to prove is that the accusation was published with “reckless disregard of whether it was false or not”… did I mention that Steyn thinks the “Hockey Stick” is a climate model?
4. If the defendants had thrown in a few weasel words in the first place, clearly indicating they were providing opinions, rather than factual accusations, they couldn’t have been sued.

So while it’s really entertaining to watch the defendants squirm and posture, I wish they would put on their big-boy pants and admit fault, because even black-helicopter-watchers don’t deserve to be bilked of their money under a false pretenses (i.e., the pretense that the case is really about something other than run-of-the-mill defamation, or the pretense that the defendants even know enough about the “Hockey Stick” controversy to say anything coherent about it).  And if people like Judith Curry and Hugh Hewitt really do want to protect human rights, they should find a better persecuted-poster-boy-for-free-speech than Mark Steyn, for heaven’s sake.