A stunning DC Superior Court decision Friday on behalf of climatologist Michael Mann against the Competitive Enterprise Institute (CEI) found:
There is sufficient evidence presented that is indicative of “actual malice. The CEI Defendants have consistently accused Plaintiff of fraud and inaccurate theories, despite Plaintiff’s work having been investigated several times and found to be proper. The CEI Defendants’ persistence despite the EPA and other investigative bodies’ conclusion that Plaintiff’s work is accurate (or that there is no evidence of data manipulation) is equal to a blatant disregard for the falsity of their statements. Thus, given the evidence presented the Court finds that Plaintiff could prove “actual malice.”
There were actually two decisions handed in DC Superior Court affirming Mann’s right to proceed in his defamation lawsuit against CEI and the National Review Online for their accusations of data manipulation and fraud. The Court eviscerated the Defendants’ arguments (made in their Motion to Dismiss) that their attacks are somehow First Amendment “protected speech” — merely “opinion,” “rhetorical hyperbole,” or “fair comment.”
The determination of “malice” is critical, as the decision explains:
The Court of Appeals has stated that to recover for defamation, a public figure must prove that the defamatory statement was made with “actual malice.” Nader v. de Toledano, 408 A.2d 31, 40 (D.C. 1979); see also, Foretich v. CBS, Inc., 619 A.2d 48, 59 (D.C. 1993) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 297 (1964). This means the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”
In this regard, the Court points out CEI’s “reckless disregard for truth”:
Plaintiff has been investigated several times and his work has been found to be accurate. In fact, some of these investigations have been due to the accusations made by the CEI Defendants. It follows that if anyone should be aware of the accuracy (or findings that the work of Plaintiff is sound), it would be the CEI Defendants. Thus, it is fair to say that the CEI Defendants continue to criticize Plaintiff due to a reckless disregard for truth. Criticism of Plaintiff’s work may be fair and he and his work may be put to the test. Where, however the CEI Defendants consistently claim that Plaintiff’s work is inaccurate (despite being proven as accurate) then there is a strong probability that the CEI Defendants disregarded the falsity of their statements and did so with reckless disregard.”
Mann’s scientific work and professional conduct have been vindicated more than perhaps any other scientist in recent memory (see “Climate Secret: NSF Quietly Closes Out Inspector General Investigation with Complete Vindication of Michael Mann”).
Here are more excerpts from the CEI decision (bold-face added):
“Defendants argue that the accusation that Plaintiff’s work is fraudulent may not necessarily be taken as based in fact because the writers for the publication are tasked with and posed to view work critically and interpose (brutally) honest commentary. In this case, however, the evidence before the Court, at this stage, demonstrates something more and different that honest or even brutally honest commentary.”
“Given the dictionary definition as well as the common readers’ thought about the use of these words (fraud and fraudulent) the Court finds that these statement taken in context must be viewed as more than honest commentary—particularly when investigations have found otherwise. Considering the numerous articles that characterize Plaintiff’s work as fraudulent, combined with the assertions of fraud and data manipulation, the CEI Defendants have essentially made conclusions based on facts.”
The definition of “bogus” in the Merriam-Webster online dictionary, inter alia, is “not genuine . . . sham.” BOGUS, MERRIAM-WEBSTER: ONLINE DICTIONARY AND THESAURUS, http://www.merriam-webster.com/dictionary/bogus. In Plaintiff’s line of work, such an accusation is serious. To call his work a sham or to question his intellect and reasoning is tantamount to an accusation of fraud (taken in the context and knowing that Plaintiff’s work has been investigated and substantiated on numerous occasions).”
“Having been investigated by almost one dozen bodies due to accusations of fraud, and none of those investigations having found Plaintiff’s work to be fraudulent, it must be concluded that the accusations are provably false. Reference to Plaintiff, as a fraud is a misstatement of fact.”
The record demonstrates that the CEI Defendants have criticized Plaintiff harshly for years; some might say, the name calling, accusations and jeering have amounted to a witchhunt, particularly because the CEI Defendants appear to take any opportunity to question Plaintiff’s integrity and the accuracy of his work despite the numerous findings that Plaintiff’s work is sound. At this stage, the evidence before the Court does not amount to a showing of clear and convincing as to “actual malice,” however there is sufficient evidence to find that further discovery may uncover evidence of “actual malice.” It is therefore premature to make a determination as to whether the CEI Defendants did not act with “actual malice.”
Mann has been vindicated yet again!