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DC Court Bluntly Affirms Michael Mann’s Right To Proceed In Defamation Lawsuit Against National Review And CEI

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"DC Court Bluntly Affirms Michael Mann’s Right To Proceed In Defamation Lawsuit Against National Review And CEI"

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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!

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48 Responses to DC Court Bluntly Affirms Michael Mann’s Right To Proceed In Defamation Lawsuit Against National Review And CEI

  1. Chris Winter says:

    One word: Probity.

    Michael Mann has it; the CEI does not.

  2. Russ Blinch says:

    This is a really good decision. It’s about time the climate deniers be taken to task for their libel and defamation of climate scientists. Canada’s natural resources minister, Joe Oliver, who is part of the problem, accused Jim Hansen of talking ‘nonsense’ because he dared to speak against Keystone. I wrote about that here: http://copycarbon.com/2013/04/28/should-joe-oliver-just-stay-home/#more-225. But this decision, will make the deniers think twice before spewing their special ‘nonsense.’

  3. john atcheson says:

    This is a really big deal. Until now, deniers could assume there was no consequence to their willful disregard for evidence. But with a precedent — even in a civil case — they can’t do that any more.

    The court has given lie to the “on-the-one-hand” reporting that has dominated this issue.

    Good for Dr. Mann for pursuing this.

    • Mulga Mumblebrain says:

      Absolutely! We ought to set up some sort of fund in order to finance defamation cases against the denialists, and to finance cases seeking compensation for damage wrought by events caused by denialist obstruction and lies. And it is good to see the ‘Free Speech’ cant dismissed as a defence. In Australia the Right, led, as ever in all things vile, by the Murdoch excrescence, has been running a furious campaign against the prosecution under various anti-vilification laws of the habitual hate speech and hatemongering that they favour as tactics to mobilise their racist support base amongst the worst in society. For the Right, hate speech is the very essence of ‘Free Speech’, another symptom of the moral sewer into which one falls when the Right totally and utterly dominate a society.

    • geromimo says:

      As Phyrrus famously said:

      “If we are victorious in one more battle with the Romans, we shall be utterly ruined”.

      This decision gives the CEI the right to ask for the emails currently being held back by the UVa under rules of discovery. It will also allow them to challenge the inquiries before a judge.

      It is a Phyrric victory.

  4. Daniel Coffey says:

    One of the key features of this decision is the ability to perform discovery on the defendant organizations, a circumstance, which if done correctly, will yield a gold mine of connections and directions as to those also involved. Might we assume that there are 1000 Doe defendants also listed in the suit?

    • Greatgrandma Kat says:

      We can Hope!! Mr Mann you are the man.

    • Mulga Mumblebrain says:

      Discovery worked wonders against tobacco, yet they are still there, controlling Rightwing regimes, bullying and threatening sovereign countries, and making mega-profits out of knowingly and willingly killing millions of people, and making life a living hell for millions more. They are the very apotheosis of capitalist malevolence, in my opinion at least, but they have lots of competition from their ‘peers’.

  5. David Mac says:

    Wonderful news, at last these shills will face the the consequences of their Lies, My only Hope (slim one at that)is that the MSM make a big deal out of This, but more likely it will be left to the likes of The Daily Show to make some light entertainment from it and garner a few cheap laughs.

  6. Joan Savage says:

    The short-hand of the law sometimes baffles me. The court wrote, “…essentially made conclusions based on facts.”

    In this context I would have been more comfortable with something like, “essentially made conclusions that diverged from known facts,” but perhaps that would have been too clear in suggesting an outcome for Dr. Mann’s case against CEI.

    • Wes says:

      I had the same question about this statement:
      “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.”
      That appears to be a misprint, unless it’s funny legal language.

      • Bloix says:

        Your suspicion is correct: it’s funny legal language.

        The law of defamation distinguishes between statements of opinion and statements of fact. A statement of opinion does not expose the person making the statement to legal liability, no matter how offensive or damaging it may be. A statement of fact, if false, can be the basis of a valid claim resulting in liability and damages.

        So, I can write that the food at a certain restaurant is “disgusting,” or that a businessman’s practices are “sleazy,” without fear of legal liability, because “disgusting” and “sleazy” are words of opinion as to which people may differ. But if I write that the beef I was served at a given meal was “rotten,” or that a specific business transaction was “fraudulent,” then I have made statements of fact that are either true or false, and the restaurant or the businessman has the right to sue me.

        Typically in a defamation lawsuit, the defendant will seek at an early stage to have the suit dismissed on the ground that what s/he said was merely opinion, and therefore that no matter what the facts are, the defendant can’t be liable. Defendants do this even when their position is weak, because motions to dismiss are cheap to write and, if they are successful, put an end to the case.

        But sometimes, the motions are meritorious. Suppose, in the restaurant example, I wrote that the restaurant’s service was “rotten,” and the restaurant sued me, claiming I had written that the restaurant serves spoiled food. I would file a motion to dismiss, and the lawsuit would be thrown out because clearly I was using the word “rotten” metaphorically in reference to the service, not literally in reference to the food. Therefore I was merely expressing an opinion, not a statement of fact.

        In Mann’s case, as in virtually all defamation cases, the defendants moved to dismiss on the grounds that their statements were merely statements of opinion and that their words were merely metaphoric hyperbole. The court disagreed, and held that the statements were statements of fact that objectively can either be true or false.

        Mann’s lawsuit is at an early stage, and therefore the time to decide what the facts really are has not yet arrived. At this stage in litigation, it’s common for courts to refer to “facts” when what they mean is “alleged facts.” They do this because they assume that the reader understands that the case is at the early stage of a motion to dismiss, when the time to determine truth or falsity has not yet arrived.

        So, when the court says that the defendants’ statements are based on facts, it only means that they are assertions of fact and not assertions of opinion. The court is making no findings that any assertion of fact is either true or false. Such determinations are for the next stage of the proceeding.

      • Jim Jenal says:

        In libel, opinions are not actionable, only statements of fact. The court was trying to draw that distinction – defendants argued their statements were just commentary, that is, opinions, and thus could not support a libel claim. The court was reaching the opposite conclusion, saying that they were statements of fact and thus actionable. The court, in that sentence, is not commenting on the accuracy of the statements, just their nature.

  7. Millicent says:

    I have a defence the CEI might use:

    We bear no actual malice towards Michael Mann, our intention being to cast doubt on a central pillar of climate theory despite its scientific rigor: this being what we do in return for trousering large amounts of money from the fossil fuel industry.

    • Dennis Tomlinson says:

      Brilliant! And “trousering”… a verb I’d not seen used before. Can I call this a “Maxim of Millicent”?

      • Mulga Mumblebrain says:

        In Sydney, and no doubt other outposts of Old Blighty, ‘trousering’ is most often used where the money is handed over for nefarious purposes, as in the coppers trousering a bribe. Politicians, too, of course. One infamous former Premier had his driver do the rounds, picking up the payola, which the Premier then ‘trousered’. This in the 1960s and 1970s. These days it is more discreet.

        • Dennis Tomlinson says:

          Thanks Mulga. After some thought I was able to divine “trousering”. Trousers was common usage 50+ years ago for what we now refer to as “pants”. So, like any good engineer (or moose who’s best friend is a flying squirrel) I was able to put 2 and 2 together and come up with 22.
          Next on the list is “Maxims of Millicent”. I can’t be the only one old enough to remember the comic strip, am I?

        • Millicent says:

          The word ‘trousering’ is also used in the works of the Immortal Bard, Mr Wodehouse.

  8. caerbannog says:

    Wow — the DC Superior Court went full “Judge Judy” on the defendants.

    Oh, to be a fly on the wall in the NR/CEI attorneys’ offices!

    • Mark E says:

      I’m as elated as everyone else, but remember….

      This was only a pretrial procedure. The main event is still to come.

      • Barry says:

        “I’m as elated as everyone else, but remember….

        This was only a pretrial procedure. The main event is still to come.”

        As pointed out, the trick is to get to deposition, to subpoena every record possible, and to make these people testify under oath.

        • Mark E says:

          Well, of course the entire process known as “pretrial discovery” is important. Along those lines, I have long advocated using denialist strategy against the denialists.

          Specifically, citizens could read up on FOIA and then try to probe the emails of the deniers’ various “experts” who happen to get taxpayer dollars.

  9. kca says:

    That CEI / NR accused Mann of fraud “with reckless disregard of whether it [the charge] was false or not” is an understatement. “Reckless disregard of the truth” is an accurate characterization of the modus operandi of all the denialists involved in the energy-industry-sponsored disinformation campaign. “Reckless disregard of the truth is what we DO!”

  10. Mike Roddy says:

    With all the gloomy news we’ve heard this year, this victory gives many of us a big lift. Thanks for fighting, Dr. Mann, and let’s hope that this vindication will clear a path for truth to finally triumph.

    • John McCormick says:

      Dr. Mann, you are a person of great value and worthy of high honors the White House bestows on notable Americans.

      And, show Fred Smith no mercy whatsoever. Take everything he has and shut CEI down.

  11. Sasparilla says:

    Excellent to see – great post Joe. I hope they take CEI and co. to the cleaners.

  12. chessmen says:

    I have a very basic understanding of jurisprudence. I learned how to write a legal brief in college in the process of exploring law…

    Can I redirect this? In my opinion, the mere fact that the “Defendants” in this case pushed [and financed a public relations campaign] until this became a legal proceeding, won a successful “Information Warfare” battle… [regardless if the Defendants win or lose].

    I hesitant to use the term “Information Warfare” [military term], but I think it applies to the case.

    [I propose] There is reasonable ground to say they [the Defendants] were successful in castigating Dr. Mann’s research. And by extension…shrouded Climate Science in doubt, controversy, and fear for the general public during a critical time of consensus building. Maybe, that was the whole point.

    I have great respect for those who fought the critical battles to shine a light on Climate Science accuracy, meta data, and methodology…

    I am curious and think the Defendants, and by extension its funders, were willing to engage in this behavior for short term goals…

    • John McCormick says:

      You made a good case for the reckless behavior of CEI. Sabotage and to hell with the costs. They did give deniers a couple of years to feed those lies into the ears of lazy listeners. They achieved what they set out to do.

  13. Jay Alt says:

    Great news for Michael Mann. And hats off to Scott Mandia.
    All that is missing is a link to the Climate Science Legal Defense Fund.

  14. Jack says:

    I can just see the legal costs for deniers going through the roof as they scramble to check what this means for them!

    I hope he wins and a precedent is set via which the likes of the Anthony Wattss and Novas of this world are sued out of existence…

  15. Bart Flaster says:

    Dang! Nothing up at WWUT yet.

    Can’t wait for the article.

    • Bart Flaster says:

      This post needs to be made a sticky post WWUT style.

      Imagine a email-gate involving CEI et al establishing malice!

      Imagine all the people….

    • wili says:

      I haven’t seen much of anything in response to this great news from anywhere in the denialosphere, even in comments sections, where they usually swarm.

      Was this all it takes to put the fear of the Lord in ‘em. They really are as cowardly as we always thought, in spite of all of their huffing and puffing.

  16. adelady says:

    As for this being a pre-trial procedural matter only …..

    If I were a legal adviser to these people, I’d be telling them that the Court’s language is a clear, unmistakable indication. They’re telling you in no uncertain terms to Stop!

    Settle now or be done like a dinner.

  17. Good, good, good! Malfeasance finally gets its just deserts. More important, these brutes and bullies will now be on the defensive — and may many more climate scientists join the fray.

  18. Brett says:

    Let’s not get too over-excited about this. There is still a long way to go. All that’s happened so far is a confirmation that there is enough evidence to proceed which isn’t a huge legal benchmark.

    • John McCormick says:

      Its all in the discovery part of the proceedings.

      Demanding access the emails is the starting point to crushing CEI as a conspirator, then you go after the co-conspirators.

  19. Spec says:

    This is pretty amazing actually. NYT v. Sullivan pretty much precludes slander suits against public officials. But they can go forward when people are over-the-top with their lies. And that is exactly what the deniers are doing here.

  20. Dugger says:

    Now we need to recall the role that Cuccinelli played in this drama as the AG in Virginia when he tried to polish his anti-science credentials by attacking Michael Mann and slandering the University of Virginia. He is running for Governor and needs to be held accountable.

  21. Buzz B says:

    Much admiration for Michael Mann. Just wish his attorneys had included Ken Cuccinelli as a defendant in this action, and/or that more Virginians understood what the state AG did against Mann.

  22. Buzz B says:

    As a law professor, I’m sure Mann and his lawyers know that they have very little chance of actually prevailing with a monetary judgment against NRO and CEI. This denial of the motion to dismiss may be the high point for them. But it is a very big high point. I don’t think Mann is in this for the money, and think he’ll have a hard time proving actual monetary damages (not because he asn’t professionally villified, but because there are so many skeptics who have villified him that it will be hard to trace to one actor).

    In my opinion, now is the time to extract an exruciatingly submissive retraction and public apology from these folks together with some donation to charity as a way to settle the lawsuits.

    • chessmen says:

      (Unrelated speculation)
      Meanwhile….the Earth burns.

      All hail the mighty capitalist system. We should tremble and feel unworthy of the inherited wealthy. They are gods among mortals. The hidden hand of the market will balance all.

      When the public decides to hold someone/something accountable for their soon-to-be misery who/what will it be?

      What system, government, or official is going to say “It was my/our fault,” and take responsibility?

      Who will run away with the power and wealth?

      Who will stay and fight to save lives and cultures?

      I think…a grand drama is in the making. The beginning of the climate wars.