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Climate Scientist Mann Faces Obstacles to Winning Libel Lawsuit, Legal Experts Say
26 October 2012 3:12 pm
Climate scientist Michael Mann is hoping for yet another court victory in his battle with climate skeptics. Earlier this week, the Pennsylvania State University researcher filed a libel lawsuit in the Superior Court of the District of Columbia against two conservative commentators and their respective publications over their attacks on his research. Legal experts say he stands a shot at getting at least part of his libel case heard by a judge and jury, but he is likely to face an uphill battle if the case ever makes it to trial.
Mann's suit targets blog posts in July from Mark Steyn of the National Review, a self-described conservative magazine, and Rand Simberg of the Competitive Enterprise Institute (CEI), a free-market think tank that has questioned humans' role in climate change. Simberg wrote that Mann "could be said to be the Jerry Sandusky of climate science," referring to the former Penn State assistant football coach who was convicted of child sexual abuse. Steyn called Mann "the man behind the fraudulent climate-change 'hockey-stick' graph"—the moniker for the graph that shows a spike in average global temperatures in the past 1000 years.
In his complaint, Mann claims that the statements harmed his personal and professional reputation. "Recognizing that they cannot contest the science behind Dr. Mann's work, the defendants, contrary to known and clear fact, and intending to impose vicious injury, have nevertheless maliciously accused him of academic fraud, the most fundamental defamation that can be levied against a scientist and a professor," the complaint says. "Unsatisfied with their lacerations of his professional reputation, defendants have also maliciously attacked Dr. Mann's personal reputation with the knowingly false comparison to a child molester."
Mann has also claimed, most recently in a statement on his Facebook page, that the defendants made the libelous statements "[d]espite their knowledge of the results of" investigations that have cleared him of academic fraud. Those probes were conducted by bodies such as the U.S. National Science Foundation, the U.S. Environmental Protection Agency, the U.K. secretary of state for climate and energy, and Penn State.
In a letter to defendants in August, Mann threatened to sue if they didn't retract the blog posts.
CEI has removed the Sandusky comparison from Simberg's post, calling it "inappropriate." But the National Review has maintained Steyn's post, which excerpts some of Simberg's blog post, including the statements mentioning Sandusky. Steyn does distance himself from that comparison, writing: "Not sure I'd have extended that metaphor all the way into the locker-room showers."
The battle over the blog posts has attracted widespread attention, with Columbia Journalism Review writer Curtis Brainard calling Simberg and Steyn's claims "deplorable, if not unlawful."
But a number of legal experts say Mann's suit faces some obstacles.
"Libel lawsuits are not about whether journalism or commentary is misleading or irresponsible," says Peter Canfield, a partner at the Atlanta office of national law firm Dow Lohnes, who has counseled newspapers and other media outlets. "What the lawsuit is about is whether it contains false statements of facts that the authors knew to be false or seriously doubted to be true. That is a very high burden for a plaintiff to bear, particularly with respect to an issue such as this one that is such a hot topic of public debate."
It's unclear whether Mann's case will go to trial. Robert Drechsel, a journalism professor at the University of Wisconsin, Madison, who focuses on media law, notes that most libel suits never make it to trial, either because the courts dismiss them or the parties settle. If these parties don't settle, then the court must decide whether to hear all or parts of the case.
Mann's complaint about the Sandusky comparison stands little chance of making it in to court, says David Anderson, a professor of media law at the University of Texas, Austin. "The question in these cases of metaphor is whether a reasonable reader could understand it in a literal sense, and I don't believe they could," he says. In other words, readers are unlikely to believe that Mann is a convicted child abuser.
The claim involving academic fraud has a better shot at making it into court, other lawyers say, because Mann could argue that a reader could interpret "fraudulent" and similar terms to imply that he had broken the law, and not just as a strongly worded opinion. Mann's court filing makes that very argument, saying the claims of academic fraud "falsely impute to Dr. Mann academic corruption, fraud, and deceit."
But National Review Editor Rich Lowry has taken the opposite view, writing on the publication's Web site in August that the use of the word "fraud" in this case "doesn't mean … criminal fraud. It means intellectually bogus and wrong."
Mann faces a second barrier because a court is likely to determine that he is a "public figure" and not a private citizen, some experts say. It is more difficult for public figures to win libel suits because courts have ruled that they have to show that defendants acted with "actual malice"—publishing information that they know is false or with "reckless disregard" for whether it's true or false.
Overcoming that second barrier will be especially difficult, the experts say, unless Mann can point to evidence, such as correspondence or statements, that shows that the writers or their publications acted with actual malice. Barring the appearance of such evidence, Mann is "going to have to get inside [the defendants'] minds, basically, inside their heads, to make this determination," Drechsel says. "He's going to have to do that in very convincing fashion."
Mann's complaint argues that the defendants acted with actual malice because they allegedly read and rejected the investigations that cleared him of wrongdoing. Simberg and Steyn have questioned the investigators' independence and findings, with Steyn calling the Penn State investigation a "joke" in his blog. But it's unclear whether Steyn and Simberg and their publications had to accept the investigations as true, Anderson says: "I think that's a remaining question to be decided."
So far, there is no schedule for resolving the legal conflict.
This isn't Mann's first brush with the courts. Earlier this year, he prevailed in several lawsuits in Virginia that sought to force the release of e-mails and correspondence that he wrote while on the faculty of the University of Virginia in Charlottesville.