Rhetorical hyperbole? Or reckless disregard for truth?

Posted July 28th, 2013 by Sylvia S Tognetti and filed in Paradox

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.

Popcorn anyone?

22 Responses to “Rhetorical hyperbole? Or reckless disregard for truth?”

  1. John Mashey says:

    Of course, it goes further back.
    One of the lingering curiosities was Ebell’s sponsorship of McKitrick to speak in Washington in late 2001. That was a non-obvious connection.

    It turned out Mckitrick was already in contact with Christopher Essex, who helped organize a 03/20/01 Fred Singer lecture at U Western Ontario.

    Essex & McKtirick wrote Taken By Storm, published late 2002. Ebell (CHC/CEI) brought them to Washington, but then McIntyre signed on, and the M&M team became GMI “experts” and were brought to Washington several times 2003-2005.

    Taken By Storm, Revised (2008) added the extra discussion of Essex/McKitrick/Singer connection.

  2. Boy is Mann in for a shock when he gets to court on this one.

  3. Desertphile says:

    “… expressions of opinion and rhetorical hyperbole… not assertions of fact.” Then why did they state their calumny as facts?

  4. Desertphile says:

    “Boy is Mann in for a shock when he gets to court on this one.”

    Why? Do you think the court will award Dr. Mann more than he’s requesting?

  5. Sylvia S Tognetti says:

    Rog – is your statement based in fact, or is it just rhetorical hyperbole?

  6. jsam says:

    Denierdom is shocked. Shocked I tell you. Tallbloke might have to shut up shop. :-)

  7. Jeremy Kemp says:

    “Boy is Mann in for a shock when he gets to court on this one.”

    I assume you’re suggesting it will be shocking how the CEI et al turn out not to have a leg to stand on?

    Like you, I live in hope.

  8. Jeremy Kemp says:

    …. and, just for the record, I have to say that

    “so-called climate “skeptics” are not acting in good faith. Rather, [...] they are engaged in a deceptive parody of science, intended to deceive those least informed, who cannot tell the difference.”

    is the best brief description of the methodology of organised climate denial I’ve yet come across.

  9. John Mashey says:

    Cozen O’Connor is a big US law firm. Peter Fontaine is there, a very sharp, knowledgeable guy who works with Mann and I’ve talked to at AGU, i.e., he knows the turf.

    I don’t know John B. Williams, but people might want to read his bio, which starts:
    “John B. Williams is a member in Cozen O’Connor’s Litigation Department, resident in the Washington, D.C., office. He joined the firm in 2012 and has more than 30 years of trial experience. John has tried cases in 15 states, and has appeared in over 30 federal courts and seven courts of appeal. He is a Fellow of the American College of Trial Lawyers.”

    Good lawyers tell you not to start libel cases unless they think there is a good chance of winning. This is especially true in US, but also in Canada, where another lawyer I know, Roger McConchie is handling Mann’s case against Tim Ball. Roger “wrote the book” on Canadian libel law.

    Tallbloke (Roger Tattersall) is a website developer at U Leeds. He runs a climate blog, and he is at a university that does environmental sciences research, but I can’t find any evidence of him giving lectures on the topic there.
    His blog discussion, Professor Murry Salby who is critical of AGW theory, is being disenfranchised, exiled, from academia in Australia declared strong support for Murry Salby, calling this a “watershed moment.” Of course, as noted <a href="http://www.desmogblog.com/2013/07/12/murry-salby-galileo-bozo-or-p-t-barnum&quot;?here and with <a href="http://www.desmogblog.com/2013/07/29/top-physicist-withdraws-support-climate-sceptic-professor-sacked-australian-university"more, yesterday, OOPS.

    Now, on the surface, it might seem that the Cozen O’Connor lawyers might be experienced and knowledgable experts, but obviously, Tallbloke, in UK, has some inside information/expertise that far outweighs theirs, and perhaps he will share with us.

  10. mpcraig says:

    The outcome of this case on its own merits is really quite minor. Either Mann will win some damages for defamation or there will be no damages.

    However, the real outcome that would matter is regarding credibility and reputation. I would suggest Mann has a lot more to lose in that category than the defense. For example, this article claims that discovery would be out of the question. I think that is a premature claim.

    It’s certainly popcorn-worthy but I think Mann has by far the most to lose.

  11. Neal J. King says:

    mpcraig:

    Of course Mann has more to lose: He still has credibility & reputation. Whereas CEI and NR have ceded that they have none, when they argue that their statements were just rhetorical hyperbole.

    What Rabett and the authors of the article seem to be saying is that, if your defense is that you weren’t asserting facts, there appears to be little reason to apply discovery to find out if you were right or not. The argument makes sense to me; but I don’t know if there is any bar, however low, applied to discovery in any case. So Mann may also be subjected to that painful process as well.

  12. Neal J. King says:

    mpcraig:

    UPDATE:

    Doing a little research-lite on discovery, I get the impression that it is the decision of the trial judge as to whether discovery is permitted. The judge may compel discovery or may protect certain materials against it.

    So an argument could be that discovery of the facts with regard to CEI, NR, et al. is essential to Mann’s case; but the facts with regard to Mann are not relevant to the defense, because the defense is not based on facts but on the claim of intentional non-factuality. If the judge sees it this way, there could be an asymmetrical demand for discovery, as Rabett suggested.

  13. mpcraig says:

    Neal J. King says:

    Perhaps put into other words, the only thing I see Mann “winning” is some cash and perhaps a public apology (either explicit or implied).

    However, I don’t think he is going to “win” any credibility back but has the potential to lose some (and also not win any cash either and be out of pocket some lawyer’s fees).

    The whole thing just seems ill-advised to me. My guess would be he either has a well-funded and placed backer or he has an extremely large and perhaps fragile ego.

  14. mpcraig says:

    Interesting comments on this judge: http://www.therobingroom.com/dc/Judge.aspx?ID=3789

  15. Neal J. King says:

    mpcraig:

    a) At 11:45 am, it looks like you started out to quote me, but didn’t put anything down – from ME, that is!

    b) On the judge: Looking at the ratings of other judges, I notice: 1) She has low scores; and 2) She has a very high number of evaluators. The website looks similar to the “evaluate your professors” websites, and doesn’t seem to have a validation procedure to guarantee that the evaluations are by legitimately involved parties. Indeed, the latest comment on her was by someone complaining about her handling of the Mann case: Evidently not someone involved (it would be very stupid to publicly criticize the judge when the case is still open – even anonymously); so it means that anyone can go in and give a review – just as anyone can write a review of a book in Amazon.com.

  16. Neal J. King says:

    mpcraig:

    You said: “However, I don’t think he is going to “win” any credibility back but has the potential to lose some (and also not win any cash either and be out of pocket some lawyer’s fees).”

    - Based on Mann’s “limited public person” status, it will be harder for him to establish damage; so he may not recover his financial investment.

    - However, it seems clear that this case is about revenge: He wants to do as much damage as he can to the reputations of CEI and NR; and if he can get them to spend a small fortune on discovery, I’m sure he’d be pleased.

    - But win or lose, I don’t see how Mann can lose any credibility: CEI and NR have already backed away from what they wrote about him. Even if he fails to prove actual malice, that doesn’t retroactively justify their admittedly non-factual claims.

  17. Garhighway says:

    Here’s what will make this popcorn-worthy: Mann will get to rummage around in the e-mails and phone records of the people at the CEI and NRO and anyone they chatted with. That will be a series of widening circles that could include McKitrick and other deniers like Marano, Watt, McIntyre, Curry, the Pielkes and many more. This could get VERY interesting.

  18. Neal J. King says:

    Garhighway:

    I hadn’t thought of that, but you’re right:

    Climategategate!

  19. [...] 2013/07/28: PNT: Rhetorical hyperbole? Or reckless disregard for truth? [...]

  20. […] actually consider and respond to evidence, and can even be swayed by it).  As discussed in a subsequent post, when challenged in a court of law, some of those who have made repeated claims that he has been […]

  21. […] background, see my previous post, and updates by Eli Rabett and Climate Science Watch, which has been keeping the closest tabs on […]

  22. […] Excerpt from Sylvia Tognetti at the Post-Normal Times (Rhetorical hyperbole? Or reckless disregard for truth?): […]

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