Free speech under attack: the weaponization of defamation law

PART 1: Defamation cases are supposed to be tough to win, for good reason. Having courts police speech should be a last resort. But not when it comes to debates over climate change, apparently.

(PART OF A SERIES ON THE GROWING THREAT TO FREE SPEECH; FOR THE INTRODUCTION, CLICK HERE)

(FIRST OF TWO PARTS: Why winning a defamation case in the United States is so hard, and the background on Michael Mann’s lawsuit against Mark Steyn and Rand Simberg.)

For decades, winning a defamation suit in the United States was almost impossible.

Oxford Language calls defamation the act of “damaging the good reputation of someone.” Reporters damage good reputations all the time, so I learned some defamation law during my decade at the New York Times. Basically, we were safe.

First, the truth is an absolute defense against any libel suit (libel is defamation that’s written, while slander is spoken). If our facts were right, we couldn’t be sued.

Even if we got facts wrong, as long as we’d checked them in good faith, we had a strong defense. Public figures like politicians had even less chance. Unless we’d acted with “actual malice” against them - printing a lie that we knew was a lie or had made no effort to verify - they had little recourse.

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(De-fame, boss! De-fame! Yep, a Fantasy Island joke. I’ll keep my day job. With your help.)

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Further, opinions cannot be defamatory. We could call someone a bad guy endlessly, as long as we didn’t make specific factual assertions.

He’s a terrible chief executive, fine.

He’s a terrible chief executive because he’s screwing his secretary… okay, better have proof.

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(Forbes speaks the truth!)

SOURCE

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In the last 30 years, many states have made defamation suits even harder by passing so-called anti-SLAPP laws.

The letters stand for “strategic lawsuits against public participation,” often meaning defamation suits. “Anti-SLAPP” laws encourage judges to dismiss such cases quickly, even before discovery - the process by which the two sides in a civil lawsuit exchange information under subpoena - begins. And they allow defendants to ask the judge make plaintiffs to pay the cost of their lawyers.

Anti-SLAPP laws were pitched as a way to give struggling news organizations extra protection if they investigated big companies. Ironically, tech giants like Google now frequently use them against anyone who sues them over search results or ban decisions. Individuals can wind up paying attorneys’ fees for corporate defendants.

Still, the anti-SLAPP laws provide yet another defense in defamation cases.

That’s why a verdict last month in a long-running defamation lawsuit in Washington, D.C. came as such an unpleasant surprise, at least to believers in freedom of speech.

The D.C. case began in 2012, when Rand Simberg, a conservative blogger, attacked Michael Mann, a climate scientist and professor at Pennsylvania State University.

Penn State had just gone through scandal involving Jerry Sandusky, a football coach who had molested boys over decades, including in the team’s showers. Evidence showed Graham Spanier, Penn State’s president, hadn’t fully investigated allegations about Sandusky. Spanier later served two months in jail for his dismal response. Sandusky remains in prison over a decade after his conviction.

Meanwhile, Mann had gained fame for his “hockey stick” chart, which showed global temperatures had soared in the 20th century, after declining for hundreds of years.

Mann was, and is, an advocate for aggressive action to reduce carbon emissions. In 2014, he compared its threat to World War 2 and said the world should “quickly transition away from fossil fuels.” In 2021, he demanded the United States go “well beyond” the 2015 Paris climate accord, which set a goal of a roughly 50 percent cut in emissions by 2030.

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(Looks more like a bunch of squiggly lines than a hockey stick to me, but what do I know)

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In 2009, the “hockey stick” chart became the subject of ferocious debate, after the leak of emails from a British university, including one that notoriously mentioned a “trick” that Mann had supposedly used to “hide the decline.”

Investigations in both Britain and the United States followed, largely exonerating Mann and other climate change scientists. The investigations, including one at Penn State, concluded “trick” didn’t mean trick in the ordinary sense, but was more akin to “technique.” Mann had not falsified data, they said.

But conservative skeptics argued the investigations had been rigged to protect Mann and his fellow scientists. So the argument simmered, with the scientific and journalistic consensus on one side, and noisy skeptics who were reviled by the elite media on the other. (A situation with which I am somewhat familiar.)

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(Don’t sue! Subscribe.)

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Then, on June 22, 2012, a Pennsylvania jury found Sandusky guilty of child sex abuse.

Three weeks later, on his blog for the Competitive Enterprise Institute, Simberg wrote a post called The Other Scandal In Unhappy Valley. (Full original text on page 106 of the link.) In it, Simberg explicitly compared Sandusky and Mann, writing that:

Mann could be said to be the Jerry Sandusky of climate science, except for instead of molesting children, he has molested and tortured data in the service of politicized science...

Conservative commentator Mark Steyn reposted part of Simberg’s post in his column on National Review Online, with his own commentary:

Not sure I’d have extended that metaphor all the way into the locker-room showers with quite the zeal Mr Simberg does, but he has a point. Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph… [emphasis added]

To be clear, Simberg’s post was gratuitously nasty. But no one could think Simberg had accused Mann of crimes like those Sandusky had committed. Even in the lawsuit that followed, Mann didn’t go that far. He argued the comparison had defamed him as a scientist (and emotionally damaged him, a claim the court threw out).

In his piece, Steyn explicitly set aside the Sandusky analogy, writing:

Whether or not he’s the ‘Jerry Sandusky of climate change,’ he remains the Michael Mann of climate change, in part because his ‘investigation’ by a deeply corrupt administration was a joke."

In other words, Simberg and Steyn took issue with both Mann himself and the investigations that had exonerated him following the 2009 leak.

Lawyers for Mann demanded Simberg and Steyn, along with National Review and the Competitive Enterprise Institute, retract the posts. Besides the Sandusky reference, Mann was furious about the word “fraudulent.” His lawyers claimed the word referred to “academic fraud” - a serious allegation against any professor.

In August 2012, National Review editor Rich Lowry offered a tart response:

In common polemical usage, “fraudulent” doesn’t mean honest-to-goodness criminal fraud. It means intellectually bogus and wrong. I consider Mann’s prospective lawsuit fraudulent. Uh-oh. I guess he now has another reason to sue us.

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(So sue me!)

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And, on Oct. 22, 2012, Mann took Lowry up on his offer, suing the National Review, the Competitive Enterprise Institute, Simberg, and Steyn.

(END OF PART ONE.

COMING TOMORROW: HOW MANN WON. AND WHAT HIS WIN MAY MEAN FOR FREE SPEECH AND SCIENTIFIC DEBATE.)