Rather than stand behind their allegations – that Michael Mann has been engaged in fraud and scientific misconduct, the Competitive Enterprise Institute (CEI) and the National Review (NR) along with two of their journalists. now argue that these were merely “expressions of opinion and rhetorical hyperbole… not assertions of fact”.
These arguments were made in their Motion(s) to Dismiss a Complaint brought against them by Michael Mann for “utterly false and defamatory statements” with regard to the falsely debunked hockey stick. On July 19, that motion was denied by the DC Circuit Court, which held that the statements were based on “provably false facts”, and thus not protected under the constitution. (unless indicated otherwise, quoted text in this post is from the legal documents available through the above link)
As a public figure, the challenge for Mann and his legal team will now be to show that there was “actual malice.” In this case, that the statements are not merely false, but that they were “made with knowledge of their falsity”, i.e., “with reckless disregard for their truth.” Given that there have been at least six investigations of Mann’s research activities that have found no evidence of data manipulation or other scientific wrongdoing, which were at least partly a result of calls for investigation by CEI itself, this case should not be a difficult one to make. (Those six investigations do not include all of the peer-reviewed studies confirming Mann’s work.) Although Judge Green found it likely that Mann “could prove actual malice”, she also considers it a potentially close case.
So unless the defendants find other ways to have the case dismissed, it looks like a jury will get to decide whether they were making good faith arguments, or not. In a few previous posts, I reviewed some of the hockey stick allegations to make that case that these so-called climate “skeptics” are not acting in good faith. Rather, that they are engaged in a deceptive parody of science, intended to deceive those least informed, who cannot tell the difference. It starts with the act of calling themselves “skeptics”. Given that the “defendants contend that any reasonable reader would interpret their statements as rhetorical hyperbole,” it might be interesting to hear from their readers (or maybe not). In those previous posts, I neglected to discuss the role of certain think tanks, such as CEI, who played a lead role in publicizing if not actually fabricating these unsubstantiated claims, and in calling for investigations. However, much of what is known is well chronicled in Michael Mann’s book, and by John Mashey. Revisiting these…
It also looks like Myron Ebell (one of the ringleaders at CEI) will get what he once wished for. According to some of the Mashey Chronicles, back, in 2005, when Congressman Joe Barton sent letters to Mann and his co-authors, essentially initiating a witch hunt, Ebell very promptly circulated those letters to an undisclosed email list – possibly before they were even seen by those to whom they were addressed. Ebell was also quoted in a BBC article saying “We’ve always wanted to get the science on trial” and “we would like to figure out a way to get this into a court of law.”
So one would have expected at least CEI to welcome the opportunity to make their case, and to hear something more from them than the chirping of crickets. However, as Eli has pointed out, the arguments in their Motion to Dismiss, that the statements were “not assertions of fact” is “going to make it tough for them to argue that they were telling the truth about him and askin for discovery to dig dirt.” Mann will be under no such limitations.