Free speech under attack: the weaponization of defamation law vs. climate change skeptics

PART 2: The Catch-22 that paved the way for a stunning defamation verdict

(PART 1 of this article explained the background of climate scientist Michael Mann’s defamation lawsuit against commentators Mark Steyn and Rand Simberg - and the fact the United States has usually set a high bar for such cases, part of our commitment to free speech.

Today: What happened after Mann sued - and the left’s new threats to use similar suits in the future to chill free speech and scientific debate.)

SECOND OF TWO PARTS

On Oct. 22, 2012, Michael Mann, a prominent and controversial climate scientist, sued two of his most vocal critics for defamation in Washington, D.C.

Mann was angry over two blog posts that claimed he had “molested” data and that a well-known graph he had authored was “fraudulent.”

His suit looked like a long shot. Like many states, Washington has a special law meant to discourage defamation suits, a so-called anti-SLAPP law. (For details on anti-SLAPP laws, see part 1 of this article.)

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Further, Mann was a public figure, and climate change is an issue of deep public interest. So the suit faced a very high bar. Mann had to prove the writers had acted with “actual malice,” meaning they had knowingly lied about him, or at a minimum, did not care or check if what they were saying was true.

Independent observers mostly agreed the case would likely be dismissed. As a 2014 Washington Post piece explained:

The offending blog comments, however tasteless or mistaken, represented the sincerely held beliefs of the authors, and the First Amendment protects even wrong-headed opinions.  This is even true when individuals wish to disagree with — or criticize — expert opinion.

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(The PhD at the end is a nice touch.)

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Instead, in 2013 and 2014, trial courts allowed Mann’s claim to proceed. The defendants then made an unusual pre-trial appeal to the District of Columbia Court of Appeals, the top local court in D.C., asking it to step in and dismiss the case.

The higher court heard the appeal - and in a 111-page ruling in December 2016, allowed the suit to go ahead.

The 2016 decision marked a critical turn in the case, because the appellate court’s imprimatur all-but-ensured the suit would eventually reach trial. And in the ruling the appeals judges undercut what was arguably Simberg and Steyn’s best defense.

The two writers had harshly criticized Mann over emails that leaked in 2009 and referred to a “trick” used in presenting climate change data. (Again, you can read the details of the posts in Part 1.)

Investigations after the 2009 leaks had largely exonerated Mann. But Simberg and Steyn said those investigations were flawed and biased. They argued they had the right to judge the meaning of the word “trick” in the 2009 leaked email for themselves.

The appeals judges disagreed.

They found the fact that the writers disagreed with and had criticized the later inquiries could be used as evidence of their malice against Mann. As a trial judge later summarized the 2016 ruling:

[The appeals court] found the existence of the various investigatory reports enough to give rise to an inference of actual malice… [the court] concluded that they were not unreliable or inherently subjective such that Mr. Simberg’s accusations could be made in flagrant disregard of their findings. [emphasis added, see pages 24-25]

In other words, the appeals court essentially decided Simberg and Steyn were not allowed to form their own opinions on whether the investigations exonerating Mann were a whitewash.

They could not “disregard” the findings - and by doing so, they had simply shown bias against Mann, the court said.

Hello, Catch-22.

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(Heads I’m exonerated, tails you defame me)

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So the case ground on. In 2021, D.C. judges dismissed the National Review and the Competitive Enterprise Institute from the suit. But they let it proceed against the two individual defendants.

Still another hurdle Mann faced was showing the articles could possibly have harmed him in a way that required money damages to fix.

In general, conservative attacks aren’t exactly poison for scientists on the left. Mann’s own resume shows his career and the honors he received accelerated after 2012.

In articles about the case, Mann sometimes recounted the time an envelope filled with white powder was sent to his home. A scary moment, no doubt, though investigators found the material was cornstarch, not anthrax.

But the blog posts could not have provoked the mock attack. Not unless the attacker had a time machine. Mann received the envelope in 2010, two years before Simberg and Steyn wrote about him.

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(I know, these two articles are a full meal. Thanks for giving me the time to cook them.)

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No matter.

In January 2024, the suit reached trial - in Washington, a city that makes San Francisco look bipartisan. (Donald Trump won 5 percent of the vote in D.C. in 2020, compared to 13 percent in San Francisco.)

And on Feb. 8, a jury found that Simberg and Steyn had defamed Mann.

Jurors awarded Mann only $1 in compensatory damages from each writer. But the jury also awarded $1,000 in punitive damages from Simberg and $1 million from Steyn. Punitive damages are meant to punish extreme wrongdoing, as a way to show the jury’s outrage at the behavior of a defendant. They are meant to discourage similar behavior in the future.

In this case, that behavior consisted of writing something that a prominent scientist did not like and felt harmed him - though he suffered no actual damages (okay, $2 in actual damages, by the jury’s own calculation) from it.

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In the wake of this stunning ruling, journalists - whose jobs depend on their ability to write aggressively on controversial topics - defended Steyn and Simberg and sharply criticized the $1 million-plus verdict.

Kidding! Of course they didn’t.

The general attitude seemed to be that climate change is too important a subject to let anyone criticize. The Washington Post headlined its article about the verdict:

Famed climate scientist wins million-dollar verdict against right-wing bloggers

“Famed” and “right-wing” are the key adjectives, telling even the most oblivious Post readers which side they should be on.

The prestigious scientific journal Nature went even further, describing the verdict as “raising hopes for scientists who are attacked politically because of their work.”

A week after the verdict, The New York Times let Mann and his lawyer take a victory lap on its opinion pages. In the (paywalled) piece, Mann wrote he hoped the verdict would not be a one-off but would send “a broader message” about what speech was allowable.

“[D]efamatory attacks on scientists go beyond the bounds of protected speech and have consequences,” Mann wrote. (Apparently, defamatory attacks on non-scientists are fine.)

If anyone had missed his point, Mann made the threat explicit a few paragraphs later, arguing that climate change is not the only part of science where debate and criticism have gone too far and now must be chilled:

It is in the context of this broader war on science that our recent trial victory may have wider implications. It has drawn a line in the sand. Scientists now know that they can respond to attacks by suing for defamation.

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You will be shocked, shocked to hear that Mann included “the doctors Anthony Fauci and Peter Hotez, who have sought to address the Covid-19 pandemic,” as victims of the broader “war on science.”

So what happens now?

At the least, the Mann verdict - and the $83.3 million defamation verdict that the writer E. Jean Carroll won against Donald Trump in Manhattan after he denied her claim he had raped her - will encourage plantiffs’ lawyers to look for potential defamation cases against conservatives in deep blue cities and states.

It will be years before we know whether or not these suits succeed.

But even if they don’t, they are likely to chill criticism, especially from writers who do not work for powerful media companies or academic institutions and do not have libel insurance or lawyers to make sure they’re not treading too close to “actual malice.”

In other words, they will make dissent from orthodoxy - on climate change, mRNA jabs, or anything else, even riskier.

You won, Michael Mann.

Congratulations.

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