Part 4 of 4
3. Actual Malice
An essential safeguard of First Amendment rights is the “breathing space” for uninhibited expression, NAACP v. Button, 371 U.S. 415, 433 (1963), afforded by the heightened showing of fault — actual malice — that must be proved in defamation cases that rely on statements made about public figures concerning matters of public concern,51 see N.Y. Times Co., 376 U.S. at 279-80 (imposing heightened standard to defamation action brought by a state official); Curtis Publ’g Co. v. Butts, 388 U.S. 130 (1967) (plurality opinion), 164 (Warren, C.J., concurring), 170 (Black, J., concurring in part and dissenting in part), 172-73 (Brennan, J., concurring in part and dissenting in part) (extending the actual malice standard to public figures). Moreover, to prevail, the plaintiff in such a lawsuit bears a higher burden of proof than the preponderance of the evidence standard usually applicable in civil cases; the plaintiff must persuade the fact-finder that the defendant acted with actual malice in publishing the defamatory statements by clear and convincing evidence. See N.Y. Times Co., 376 U.S. at 285-86 (referring to the “convincing clarity which the constitutional standard demands”).
A plaintiff may prove actual malice by showing that the defendant either (1) had “subjective knowledge of the statement’s falsity,” or (2) acted with “reckless disregard for whether or not the statement was false.” Burke I, 91 A.3d at 1044. The “subjective” measure of the actual malice test requires the plaintiff to prove that the defendant actually knew that the statement was false. See N.Y. Times Co., 376 U.S. at 280. The “reckless disregard” measure requires a showing higher than mere negligence; the plaintiff must prove that “the defendant in fact entertained serious doubts as to the truth of [the] publication.” St. Amant v. Thompson, 390 U.S. 727, 731 (1968) (“[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.”). The plaintiff may show that the defendant had such serious doubts about the truth of the statement inferentially, by proof that the defendant had a “high degree of awareness of [the statement’s] probable falsity.” Harte-Hanks Commc’ns, Inc., 491 U.S. at 688 (quoting Garrison v. Louisiana, 379 U.S. 64, 74 (1964)). A showing of reckless disregard is not automatically defeated by the defendant’s testimony that he believed the statements were true when published; the fact-finder must consider assertions of good faith in view of all the circumstances. St. Amant, 390 U.S. at 732 (“[R]ecklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.”). Thus, in considering the evidentiary sufficiency of the plaintiff’s response to a special motion to dismiss filed under D.C. Code § 16-5502 (b), the question for the court is whether the evidence suffices to permit a reasonable jury to find actual malice with convincing clarity.52
There is a hefty volume of evidence in the record. Appellants’ special motions to dismiss were accompanied by various investigatory reports cited in Dr. Mann’s complaint and several articles by third parties that criticize the investigations underlying the reports. In his response, Dr. Mann also submitted extensive documentation from eight separate inquiries that either found no evidence supporting allegations that he engaged in fraud or misconduct or concluded that the methodology used to generate the data that resulted in the hockey stick graph is valid and that the data were not fabricated or wrongly manipulated.
Not all the evidence before the court was relevant to the question of whether appellants acted with the requisite malice in accusing Dr. Mann of engaging in deceptive behavior and misconduct. We set aside the reports and articles that deal with the validity of the hockey stick graph representation of global warming and its underlying scientific methodology. The University of East Anglia, the U.S. Environmental Protection Agency, and the U.S. Department of Commerce issued reports that concluded that the CRU emails did not compromise the validity of the science underlying the hockey stick graph. As we have explained, the expression of scientific and policy opinions in the debate over global warming that the hockey stick illustrates is speech protected by the First Amendment. Much as Dr. Mann’s pride in his work may be wounded by criticisms of the hockey stick graph, appellants are entitled to their opinions on the subject and to express them without risk of incurring liability for defamation. The proper place for the discussion is the scientific community and the public sphere of policy prescriptions.
The reports that are relevant to the defamation claims are those that concern appellants’ statements that Dr. Mann engaged in “dishonesty,” “fraud,” and “misconduct.” The University of East Anglia Independent Climate Change E-mails Review, Penn State University, the United Kingdom House of Commons, and the Office of the Inspector General of the U.S. National Science Foundation, all conducted investigations and issued reports that concluded that the scientists’ correspondence in the 1,075 CRU emails that were reviewed did not reveal research or scientific misconduct. Appellants do not counter any of these reports with other investigations into the CRU emails that reach a contrary conclusion about Dr. Mann’s integrity.
The issue for the court at this juncture is to determine whether the conclusions reached by these various investigations, when considered in view of all the evidence before the court, permit a jury to find, by clear and convincing evidence, that appellants either knew their accusations of misconduct were false or made those accusations with reckless disregard for their truth.
We begin our examination by noting that the results of the investigations that Dr. Mann says exonerate him of wrongdoing were made public; appellants do not claim they were unaware of them when they made the challenged statements. In assessing whether these reports provided appellants with “obvious reasons to doubt the veracity,” St. Amant, 390 U.S at 732, of their subsequent statements that Dr. Mann engaged in misconduct, we consider (as would a jury) the source of the reports, the thoroughness of the investigations, and the conclusions reached. As the reports are extensive, we summarize the relevant portions in this opinion.
We are struck by the number, extent, and specificity of the investigations, and by the composition of the investigatory bodies. We believe that a jury would conclude that they may not be dismissed out of hand. Although we do not comment on the weight to be given to the various investigations and reports, which is a question for the jury, what is evident from our review is that they were conducted by credentialed academics and professionals.53 The investigations considered, and expressly rejected, the claim that the CRU emails substantiated charges of misconduct, fraud, and deception. The investigations posed their questions in slightly different ways and conducted their analyses in accordance with their own procedures and standards, a mark of the cumulative strength of the conclusion each reached unanimously and without equivocation: that the CRU emails did not support the conclusion that the scientists engaged in fabricating or deceptively manipulating data, or in scientific misconduct, fraud or dishonesty in their reporting and presentation of research results.
The Penn State investigation report looked into “research misconduct” such as “manipulating data, destroying records and colluding to hamper the progress of scientific discourse”54 the National Science Foundation considered “allegations of research misconduct” the University of East Anglia investigated “whether data had been manipulated or suppressed” the U.K. House of Commons considered whether the scientists had “deliberately misrepresented the data.” These reports expressly disclaimed that their purpose or conclusions were concerned with the validity of the underlying statistical methodology, or its representation in the hockey stick graph.55
Appellants offer several reasons why the reports do not supply sufficient evidence for the jury to find that they acted with actual malice.
1. Appellants’ Honest Belief
Appellants contend that because the challenged statements reflect their subjective and honest belief in the truth of their statements, actual malice cannot be proven. This argument, however, presupposes what the jury will find on the facts of this case. The issue for the court is whether, taking into account the substantive conclusions of investigatory bodies constituted to look into the very evidence — the CRU emails — that appellants’ statements claimed as factual proof of Dr. Mann’s deception and misconduct, a jury could find, by clear and convincing evidence, that appellants acted with “actual malice.” This is a determination the jury could reach by finding either that appellants knew their defamatory statements were false, or that appellants acted with reckless disregard for the truth of their statements. It is for the jury to determine the credibility of appellants’ protestations of honest belief in the truth of their statements, and to decide whether such a belief, assuming it was held, was maintained in reckless disregard of its probable falsity.56
2. Unreliability of Reports
As Mr. Simberg and Mr. Steyn make clear in their articles, they dismiss the Penn State investigation as biased, conducted by insiders with a vested interest in upholding Dr. Mann’s reputation as a leading climate scientist. The articles describe the Penn State investigation as a “cover-up” and a “whitewash,” and argue they have a good basis for believing so in light of Penn State’s shoddy investigation of Jerry Sandusky, in which he was cleared in the face of multiple allegations of sexually abusing children for which he was subsequently charged and convicted. Even if appellants’ skepticism of the Penn State report were to be credited by a jury as a valid reason for not taking its conclusions seriously, that leaves three other reports, from separate investigatory bodies in academia and government, on both sides of the Atlantic, that also found no wrongdoing.57
Appellants argue that the investigatory reports could not be relied upon by a jury because the investigations Dr. Mann claims exonerate him of misconduct “take no ultimate position,” but only indicate that there was “no evidence” of fraud. This is a quibble about wording that does not call into question the import of the investigations’ conclusions. An investigatory body can report only on what it has found; a determination that there is “no evidence” of fraud is an ultimate conclusion that investigation has not turned up any evidence of misconduct.
Appellants also contend that the investigatory reports cannot be relied upon to find that they purposely avoided the truth because the investigations do not, in fact, “exonerate” Dr. Mann. They point to the report of the University of East Anglia, which states that the hockey stick graph that was submitted for inclusion in the 1999 WMO Report and IPCC Third Assessment Report was “misleading.” The UEA report does use the word “misleading.” As that report makes clear, however, what it meant is not that the statistical procedures used to generate the hockey stick graph — which involved reconstructions of temperature through the use of proxies (such as tree rings) or splicing data from different sources — are themselves misleading, but that an explanation of those procedures should have been included in the graph itself or in immediately accompanying text. It is not an indictment of the deceptive use of data, but a comment on how the graph could and should have been presented to be more transparent to the readers of the WMO and IPCC Reports. With respect to the allegations of misconduct it investigated, the report of the University of East Anglia is unequivocal in its conclusion:
Climate science is a matter of such global importance, that the highest standards of honesty, rigour and openness are needed in its conduct. On the specific allegations made against the behaviour of CRU scientists, we find that their rigour and honesty as scientists are not in doubt.[58]
Appellants argue that the investigations of the University of East Anglia and the U.K. House of Commons also cannot be said to have exonerated Dr. Mann because they were primarily focused on the conduct of the scientists in the U.K., at the University of East Anglia’s Climate Research Unit. The CRU emails at the core of those investigations, however, contained exchanges between these scientists, specifically, the CRU’s head, Philip Jones, and Dr. Mann or referred to Dr. Mann. See supra note 9. The National Science Foundation Report was specifically focused on Dr. Mann and similarly concluded that there was “no specific evidence that [Dr. Mann] falsified or fabricated any data and no evidence that his actions amounted to research misconduct.” The Penn State investigations also were specifically directed at Dr. Mann’s conduct.
3. Subjectivity of Reports
Appellants contend that the investigations’ conclusions need not have alerted them to the probable falsity of their beliefs because the reports reflected no more than subjective and standardless opinions on the manner in which Dr. Mann and the other scientists conducted their work. A jury could well think otherwise. Each of the reports cites to specific standards for assessing the allegations of misconduct. The Penn State investigation refers to the University’s Research Administration Policy No. 10; the National Science Foundation Office of Inspector General conducted a de novo review of the CRU emails and relevant documents against NSF Research Misconduct Regulation, 45 C.F.R. § 689.1 (plagiarism, fabrication, falsification), and other requirements applicable to federal awardees under federal statutes, such as the False Claims Act, 18 U.S.C. § 287, and False Statements Act, 18 U.S.C. § 1001; and the U.K. House of Commons investigation specifically inquired into charges of “dishonesty” and falsification of data for the purpose of exaggerating global warming arising out of the scientists’ use of the phrases “trick” and “hide the decline” in the most-quoted CRU email referring to Dr. Mann’s statistical technique; the University of East Anglia’s investigation set out its analytic parameters for assessing the “honesty, rigour and openness” of the CRU scientists’ handling of data as follows:
In making its analysis and conclusions, the Team [of investigators] will test the relevant work against pertinent standards at the time it was done, recognizing that such standards will have changed. It will also test them against current best practice, particularly statements of the ethics and norms such as those produced by the UK Government Office for Science and by the US National Academy of Sciences. These identify principles relating to rigour, respect and responsibility in scientific ethics and to integrity, accessibility and stewardship in relation to research data.
The fact that the standards applied to charges of scientific and research misconduct are primarily professional or ethical, not criminal, and that their application requires the exercise of judgment does not mean that they lack substantive content, real-life consequences, or make them incapable of verification.59 These standards do not suffer from the defect we identified in Rosen, that “no threshold showing of falsity is possible” where there were no standards of “a particular kind identifiable in writing,” and thus the challenged statement was “too subjective, too amorphous, [and] too susceptible of multiple interpretations.” 44 A.3d at 1255, 1260 (noting statement’s reference to unspecified “standards [the employer] expected of its employees”).
As the preceding discussion demonstrates, appellants’ objections to the reports can fairly be characterized as arguments that could be made to a jury as to why the reports’ conclusions should not be credited or given much weight. We do not judge whether appellants’ arguments will persuade a jury. Our task now is not to anticipate whether the jury will decide in favor of appellants or Dr. Mann, but to assess whether, on the evidence of record in connection with the special motion to dismiss, a jury could find for Dr. Mann.
We reviewed a comparable constellation of facts in Nader v. de Toledano, the first case considered by this court following the Supreme Court’s adoption of the actual malice standard for defamation actions by public figures. 408 A.2d 31 (D.C. 1979). The case involved Ralph Nader, the well-known consumer advocate, who sued a journalist who wrote a newspaper column criticizing Nader, saying that it had been “demonstrate[d] conclusively that Nader falsified and distorted evidence” during hearings before a Senate subcommittee. Id. at 37-38. In support of this assertion, the column referred to a Senate Report, issued after an extensive investigation, that rejected the thrust of Nader’s testimony as unsubstantiated. Id. at 37. The Report also stated, however, that the testimony had been presented “in good faith based on the information available” to Nader at the time. Id. On appeal of the trial court’s grant of summary judgment to the journalist, the court reversed and remanded the case for trial. The court dismissed the argument that a finding of malice would be impermissible because the journalist asserted that he “honestly believed in the truth of his statement when he published it,” concluding that the Report’s “explicit, unambiguous finding” that Nader had acted in good faith afforded “a sufficient evidentiary basis from which a reasonable inference” could be drawn that the statement that Nader “falsified and distorted evidence” had been made with actual malice. Id. at 53.
We come to the same conclusion as in Nader. In the case before us now, not one but four separate investigations were undertaken by different bodies following accusations, based on the CRU emails, that Dr. Mann had engaged in deceptive practices and scientific and academic misconduct. Each investigation unanimously concluded that there was no misconduct. Reports of those investigations were published and were known to appellants prior to Mr. Simberg’s and Mr. Steyn’s articles continuing to accuse Dr. Mann of misconduct based on the emails that were the subject of the investigations. Applying the reasoning in Nader to the evidence now of record in this case, we conclude that a jury could find that appellants’ defamatory statements were made with actual malice.60
There is, in this case, another factor that a jury could take into account in evaluating appellants’ state of mind in publishing the statements accusing Dr. Mann of misconduct and deception. As the articles that form the basis of Dr. Mann’s complaint make clear, appellants and Mr. Steyn are deeply invested in one side of the global warming debate that is opposed to the view supported by Dr. Mann’s research. Although animus against Dr. Mann and his research is by itself insufficient to support a finding of actual malice where First Amendment rights are implicated, bias providing a motive to defame by making a false statement may be a relevant consideration in evaluating other evidence to determine whether a statement was made with reckless disregard for its truth. See Harte-Hanks Commc’ns, Inc., 491 U.S. at 664-65, 667-68, 689 n.36 (stating that “it cannot be said that evidence concerning motive or care never bears any relation to the actual malice inquiry,” and noting that jury could have found actual malice on the basis, inter alia, that publisher was biased against plaintiff and in a “bitter rivalry” with another newspaper that would be impugned by discrediting the plaintiff); see also Payne v. Clark, 25 A.3d 918, 925 (D.C. 2011) (distinguishing between common law malice, for which “ill will” or bad faith is sufficient, and “actual malice” required by the First Amendment). In evaluating the evidence in this case, for example, the jury could consider that appellants’ zeal in advancing their cause against the hockey stick graph’s depiction of a warming global climate led them to accuse Dr. Mann, one of its most prominent proponents, of deception and misconduct in producing the graph with reckless disregard of their knowledge that several investigations had discredited those accusations. See Tavoulareas, 817 F.2d at 796 (noting that evidence of ill will or bad motive, if probative of a “willingness to publish unsupported allegations,” may be suggestive of actual malice).
Just as this court’s decision in Nader provides a useful comparison with the facts of this case, the D.C. Circuit’s recent opinion in Jankovic v. Int’l Crisis Grp. (Jankovic III), 822 F.3d 576 (D.C. Cir. 2016), provides a useful contrast. After deciding in two previous appeals, during the twelve-year course of litigation, that a report stating that a Serbian businessman had supported the Milosevic regime in exchange for favorable treatment for his businesses was capable of conveying a defamatory meaning, see supra at 60, and that the statement was actionable because it was not purely an opinion but asserted a false fact as justification, see supra note 39, the court addressed the element of actual malice. The court evaluated the evidence to determine whether it would allow a jury to find, by clear and convincing evidence, that the International Crisis Group’s (ICG) publication of the statement was made with actual malice. Concluding that the evidence was insufficient as a matter of law, the court noted the following facts: ICG considered that the writer of the report was an able analyst and expert on the Balkans; the writer had conducted research of published reports and Serbian press accounts, and had interviewed a number of confidential sources in government, business, and NATO embassies, before writing the report; and the report was reviewed and edited by the writer’s supervisor, the head of research, and ultimately approved by ICG’s president. Id. at 591-92.
The court stressed that because the plaintiff had not produced evidence that the writer had reason to doubt his research and sources, his failure to investigate further or question his sources did not show actual malice or a reckless disregard for the truth. “[I]t is only when a plaintiff offers evidence that ‘a defendant has reason to doubt the veracity of its source’ does its ‘utter failure to examine evidence within easy reach or to make obvious contacts in an effort to confirm a story’ demonstrate reckless disregard.” Id. at 590 (quoting McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501, 1510 (D.C. Cir. 1996)). “Absent such evidence . . . [the writer’s] extensive background research and reporting on the Balkans, his understanding of the Serbian press, and his good faith belief that the frozen assets list implied more than it actually did, belies actual malice.” Id. at 597. In sum, the court concluded, what was missing was evidence that the publisher had “serious doubt” or had “a high degree of awareness” of the statement’s probable falsity, and thereby “acted with reckless disregard” for the truth of the defamatory statement. Id.
What was present in Jankovic III that lent support to the claim of good faith belief is missing here. Unlike in Jankovic III, where the court noted that ICG had relied on an able analyst who had researched, reviewed and edited the report prior to publication, in this case there is, at this point, no similar evidence that Mr. Simberg, Mr. Steyn, CEI, or National Review conducted research or investigation that provided support for their defamatory statements that Dr. Mann engaged in deception and misconduct. The only support cited in the articles are the CRU emails, with primary reliance on the language in one email that referred to “Mike’s Nature trick.” But what the court noted was missing in Jankovic III to support a finding of actual malice is present here: evidence that there was reason to doubt the emails as a reliable source for the belief that Dr. Mann had engaged in misconduct. That evidence has been presented in the form of reports from four separate investigations that debunked the notion that the emails and, specifically the reference to Dr. Mann’s “trick,” revealed deception in the presentation of data and scientific misconduct.
On the current record, where the notion that the emails support that Dr. Mann has engaged in misconduct has been so definitively discredited, a reasonable jury could, if it so chooses, doubt the veracity of appellants’ claimed honest belief in that very notion. A jury could find, by clear and convincing evidence, that appellants “in fact entertained serious doubts” or had a “high degree of awareness” that the accusations that Dr. Mann engaged in scientific misconduct, fraud, and deception, were false, and, as a result, acted “with reckless disregard” for the statements’ truth when they were published. Nader, 408 A.2d at 41, 50-53.
B. Intentional Infliction of Emotional Distress
The complaint’s claim for intentional infliction of emotional distress was based on the statement that compared Dr. Mann to Jerry Sandusky.61 To establish a prima facie case of intentional infliction of emotional distress, a plaintiff must show “(1) extreme and outrageous conduct on the part of the defendants, which (2) intentionally or recklessly (3) causes the plaintiff severe emotional distress.” Williams v. District of Columbia, 9 A.3d 484, 493-94 (D.C. 2010) (quoting Futrell v. Dep’t of Labor Fed. Credit Union, 816 A.2d 793, 808 (D.C. 2003)). The conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. at 494 (quoting Bernstein v. Fernandez, 649 A.2d 1064, 1075 (D.C. 1991)). As a constitutional matter, a public figure “may not recover for the tort of intentional infliction of emotional distress by reason of publication[] . . . without showing in addition that the publication contains a false statement of fact which was made with ‘actual malice.’” Hustler Magazine, Inc., 485 U.S. at 56.
Our conclusion that the evidence presented suffices to permit a jury to find the constitutional requirement of actual malice also satisfies the mens rea element of the tort of intentional infliction of emotional distress. Arguably, appellants’ statement comparing Dr. Mann to a convicted child sexual abuser could be considered to be not simply a serious departure from journalistic standards, but also “outrageous” and “extreme in degree,” particularly where there was no legitimate need or urgency that might excuse it. Cf. Minch v. District of Columbia, 952 A.2d 929, 941 (D.C. 2008) (noting the pressure on police officers who publicly and prematurely identified a student as suspect in one murder as they confronted murder of a second student at undergraduate campus). We need not decide whether the statement permits a finding that appellants’ conduct was “extreme and outrageous,” because we conclude that Dr. Mann has not demonstrated that he is likely to succeed in proving that he suffered the severe emotional distress required to prevail on a claim for intentional infliction of emotional distress.
The complaint alleges that as a result of the defamatory statements “besmirching Dr. Mann’s reputation and comparing him to a convicted child molester,” Dr. Mann has suffered “extreme emotional distress,” “mental anguish,” and “personal humiliation.” From the statement itself, a jury could infer that the comparison to Sandusky was particularly hurtful. Dr. Mann’s requests for an apology and retraction, and his undertaking this litigation, would allow a jury to infer that he was so deeply aggrieved that he deemed it necessary to restore his public reputation. Dr. Mann has presented no evidence, however, that his understandable consternation met the high bar of “severe emotional distress,” which requires a showing beyond mere “mental anguish and stress” and must be “of so acute a nature that harmful physical consequences are likely to result.” Armstrong v. Thompson, 80 A.3d 177, 189-90 (D.C. 2013) (quoting Futrell, 816 A.2d at 808); see also Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 81 (D.C. 2011) (en banc) (noting that claim of negligent infliction of emotional distress requires showing of emotional distress that is “acute, enduring or life-altering”). We, therefore, conclude that, on the record before us, the evidence is insufficient to support a finding that Dr. Mann suffered “severe” emotional distress. See id. at 182, 189 (noting that plaintiff’s “strong distress” resulting from false statements to prospective employer that plaintiff was under investigation “for suspected violations of both a criminal and administrative nature” that led to rescission of employment offer was insufficient to show “severe emotional distress”). As Dr. Mann has not produced or proffered evidence that he is likely to succeed in proving that he suffered severe emotional distress, appellants’ special motions to dismiss the claim of intentional infliction of emotional distress should have been granted.
***
Concluding that we have jurisdiction pursuant to the collateral order doctrine to hear appellants’ interlocutory appeal of the trial court’s denial of their special motions to dismiss under the District’s Anti-SLAPP Act, we hold that the Act’s “likely to succeed on the merits” standard for overcoming a special motion to dismiss filed under D.C. Code § 16-5502 (b) requires that the plaintiff present an evidentiary basis that would permit a reasonable, properly instructed jury to find in the plaintiff’s favor. Dr. Mann has supplied sufficient evidence for a reasonable jury to find, by a preponderance of the evidence, that statements in the articles written by Mr. Simberg and Mr. Steyn were false, defamatory, and published by appellants to third parties, and, by clear and convincing evidence, that appellants did so with actual malice. We, therefore, affirm the trial court’s denial of the special motions to dismiss the defamation claims based on those articles and remand the case for additional proceedings in the trial court with respect to these claims. Id. We reverse the trial court’s denial of the special motions to dismiss with respect to Dr. Mann’s defamation claims based on Mr. Lowry’s editorial and the claim for intentional infliction of emotional distress. On remand, the court shall dismiss these claims with prejudice. Id. § 16-5502 (d).
So ordered.
APPENDIX
The Other Scandal In Unhappy Valley62
by Rand Simberg on July 13, 2012
in Global Warming, Transparency
So it turns out that Penn State has covered up wrongdoing by one of its
employees to avoid bad publicity.
But I’m not talking about the appalling behavior uncovered this week by the Freeh
report. No, I’m referring to another cover up and whitewash that occurred there
two years ago, before we learned how rotten and corrupt the culture at the
university was. But now that we know how bad it was, perhaps it’s time that we
revisit the Michael Mann affair, particularly given how much we’ve also learned
about his and others’ hockey-stick deceptions since. 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 that could have dire
economic consequences for the nation and planet.
To review, when the emails and computer models were leaked from the Climate
Research Unit at the University of East Anglia two and a half years ago, many
of the luminaries of the “climate science” community were shown to have been
behaving in a most unscientific manner. Among them were Michael Mann,
Professor of Meteorology at Penn State, whom the emails revealed had been
engaging in data manipulation to keep the blade on his famous hockey-stick
graph, which had become an icon for those determined to reduce human carbon
emissions by any means necessary.
As a result, in November of 2009, the university issued a press release that it was
going to undertake its own investigation, independently of one that had been
launched by the National Academy of Sciences (NAS) in response to a demand from Congressman Sherwood Boehlert (R- N.Y.). In July of the next year, the panel set up to investigate declared him innocent of any wrongdoing:
Penn State Professor Michael Mann has been cleared of any wrongdoing,
according to a report of the investigation that was released today (July 1).
Mann was under investigation for allegations of research impropriety that
surfaced last year after thousands of stolen e-mails were published online.
The e-mails were obtained from computer servers at the Climatic Research
Unit of the University of East Anglia in England, one of the main repositories of information about climate change.
The panel of leading scholars from various research fields, all tenured professors at Penn State, began its work on March 4 to look at whether Mann had “engaged in, directly or indirectly, any actions that seriously deviated from accepted practices within the academic community for proposing, conducting or reporting research or other scholarly activities.”
My emphasis.
Despite the fact that it was completely internal to Penn State, and they didn’t
bother to interview anyone except Mann himself, and seemingly ignored the
contents of the emails, the warm mongers declared him exonerated (and the
biggest victim in the history of the world). But many in the skeptic community
called it a whitewash:
This is not surprising that Mann’s own university circled the wagons and
narrowed the focus of its own investigation to declare him ethical.
The fact that the investigation cited Mann’s ‘level of success in proposing
research and obtaining funding’ as some sort of proof that he was meeting
the ‘highest standards’, tells you that Mann is considered a sacred funding
cash cow. At the height of his financial career, similar sentiments could have
been said about Bernie Madoff.
Mann has become the posterboy of the corrupt and disgraced climate science
echo chamber. No university whitewash investigation will change that simple reality.
Richard Lindzen of MIT weighed in as well:
“Penn State has clearly demonstrated that it is incapable of monitoring
violations of scientific standards of behavior internally,” Lindzen said in an
e-mail from France.
But their criticism was ignored, particularly after the release of the NAS report,
which was also purported to exonerate him. But in rereading the NAS
“exoneration,” some words stand out now. First, he was criticized for his
statistical techniques (which was the basis of the criticism that resulted in his
unscientific behavior). But more importantly:
The OIG also independently reviewed Mann’s emails and PSU’s inquiry
into whether or not Mann deleted emails as requested by Phil Jones in the
“Climategate” emails (aka Allegation 2). The OIG concluded after reviewing the published CRU emails and the additional information provided by PSU that “nothing in [the emails] evidenced research misconduct within the definition of the NSF Research Misconduct Regulation.” Furthermore, the OIG accepted the conclusions of the PSU inquiry regarding whether Mann deleted emails and agreed with PSU’s conclusion that Mann had not.
Again, my emphasis. In other words, the NAS investigation relied on the integrity
of the university to provide them with all relevant material, and was thus not truly
independent. We now know in hindsight that it could not do so. Beyond that, there
are still relevant emails that we haven’t seen, two years later, because the
University of Virginia continues to stonewall on a FOIA request, and it’s heading to the Supreme Court of the Commonwealth of Virginia.
Michael Mann, like Joe Paterno, was a rock star in the context of Penn State
University, bringing in millions in research funding. The same university
president who resigned in the wake of the Sandusky scandal was also the
president when Mann was being whitewashed investigated. We saw what the
university administration was willing to do to cover up heinous crimes, and even
let them continue, rather than expose them. Should we suppose, in light of what
we now know, they would do any less to hide academic and scientific misconduct,
with so much at stake?
It’s time for a fresh, truly independent investigation.
***
NATIONAL REVIEW
Football and Hockey
By Mark Steyn — July 15, 2012
In the wake of Louis Freeh’s report on Penn State’s complicity in serial rape, Rand Simberg writes of Unhappy Valley’s other scandal:
I’m referring to another cover up and whitewash that occurred there two years ago, before we learned how rotten and corrupt the culture at the university was. But now that we know how bad it was, perhaps it’s time that we revisit the Michael Mann affair, particularly given how much we’ve also learned about his and others’ hockey-stick deceptions since. Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.
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, the very ringmaster of the tree-ring circus. And, when the East Anglia emails came out, Penn State felt obliged to “investigate” Professor Mann. Graham Spanier, the Penn State president forced to resign over Sandusky, was the same cove who investigated Mann. And, as with Sandusky and Paterno, the college declined to find one of its star names guilty of any wrongdoing.
If an institution is prepared to cover up systemic statutory rape of minors, what won’t it cover up? 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.
***
NATIONAL REVIEW
Get Lost
My response to Michael Mann.
By Rich Lowry — August 22, 2012
So, as you might have heard, Michael Mann of Climategate infamy is threatening to sue us.
Mann is upset — very, very upset — with this Mark Steyn Corner post, which had the temerity to call Mann’s hockey stick “fraudulent.” The Steyn post was mild compared with other things that have been said about the notorious hockey stick, and, in fact, it fell considerably short of an item about Mann published elsewhere that Steyn quoted in his post.
So why threaten to sue us? I rather suspect it is because the Steyn post was savagely witty and stung poor Michael.
Possessing not an ounce of Steyn’s wit or eloquence, poor Michael didn’t try to engage him in a debate. He sent a laughably threatening letter and proceeded to write pathetically lame chest-thumping posts on his Facebook page. (Is it too much to ask that world-renowned climate scientists spend less time on Facebook?)
All of this is transparent nonsense, as our letter of response outlines.
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.
Usually, you don’t welcome a nuisance lawsuit, because it’s a nuisance. It consumes time. It costs money. But this is a different matter in light of one word: discovery.
If Mann sues us, the materials we will need to mount a full defense will be extremely wide-ranging. So if he files a complaint, we will be doing more than fighting a nuisance lawsuit; we will be embarking on a journalistic project of great interest to us and our readers.
And this is where you come in. If Mann goes through with it, we’re probably going
to call on you to help fund our legal fight and our investigation of Mann through discovery. If it gets that far, we may eventually even want to hire a dedicated reporter to comb through the materials and regularly post stories on Mann.
My advice to poor Michael is to go away and bother someone else. If he doesn’t have the good sense to do that, we look forward to teaching him a thing or two about the law and about how free debate works in a free country.
He’s going to go to great trouble and expense to embark on a losing cause that will expose more of his methods and maneuverings to the world. In short, he risks making an ass of himself. But that hasn’t stopped him before.
— Rich Lowry is the editor of NATIONAL REVIEW.
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Notes:51 The parties agree, as do we, that Dr. Mann is a limited public figure with respect to statements about global warming because he has assumed a role in “the forefront of particular public controversies in order to influence the resolution of the issues involved.” Gertz, 418 U.S. at 345.
52 In this case, the trial court characterized the evidence of actual malice as “slight” and as not amounting to a showing by clear and convincing evidence, but stated that it was “sufficient to find that further discovery may uncover evidence of ‘actual malice.’” We are not constrained by the trial court’s conclusion in this regard, as the sufficiency of the evidence to support a finding of actual malice is a question of law that we review de novo. See Harte-Hanks Commc’ns, Inc., 491 U.S. at 685. We note, however, that if the trial court considers that the evidence presented in opposition to a special motion to dismiss is not sufficient to go to a jury, the court must grant the motion to dismiss as the opponent has the burden to demonstrate a sufficient evidentiary basis for his claim. See D.C. Code § 16-5502 (b). The court is not at liberty to dispense with this statutory burden. The Anti-SLAPP Act authorizes the court to permit targeted discovery for the purpose of responding to a special motion to dismiss. Granting a request for such discovery was the proper way to proceed, if it “appear[ed] likely that targeted discovery [would] enable the plaintiff” to shoulder his evidentiary burden to overcome the special motion to dismiss and would not be “unduly burdensome” to the defendants. Id. § 16-5502 (c)(2).
53 The first Penn State investigation, into allegations of research misconduct, was directed Henry C. Foley, Ph.D, Vice President for Research and Dean of the Graduate School; Alan W. Scaroni, Ph.D., Associate Dean for Graduate Education and Research, College of Earth and Mineral Sciences; and Ms. Candice A. Yekel, M.S., CIM, Director of the Office for Research Protections and Research Integrity Officer. A second Penn State investigation, into compliance with accepted academic practices, was conducted by Sarah M. Assmann, Waller Professor, Department of Biology; Welford Castleman, Evan Pugh Professor and Eberly Distinguished Chair in Science, Department of Chemistry and Department of Physics; Mary Jane Irwin, Evan Pugh Professor, Department of Computer Science and Electrical Engineering; Nina G. Jablonski, Department Head and Professor, Department of Anthropology; Fred W. Vondracek, Professor, Department of Human Development and Family Studies; with Candice Yekel, Director of the Office for Research Protections. The National Science Foundation’s investigation was conducted by its Office of Inspector General. The University of East Anglia’s Independent Climate Change E-mails Review was led by Sir Muir Russell, a former professor and Vice Chancellor for the University of Glasgow, and current chair of the Judicial Appointments Board for Scotland. He was assisted by Professor Geoffrey Boulton, Regius Professor Emeritus of Geology and former Vice Principal of the University of Edinburgh; Professor Peter Clarke, Professor of Physics at the University of Edinburgh; Mr. David Eyton, Head of Research & Technology at British Petroleum; and Professor James Norton, an independent policy advisor from the U.K. Parliament’s Office of Science & Technology. The United Kingdom’s investigation was conducted by the House of Commons’ Science and Technology Committee, comprised of fourteen members of the House of Commons from the Labour Party, the Conservative Party, the Liberal Democrats Party, and an independent.
54 Penn State conducted two separate investigations by two different investigatory bodies. The first was into research misconduct; after the first investigation found no research misconduct, the second took a broader view and considered whether Dr. Mann had “engaged in, or participated in, directly or indirectly, any actions that seriously deviated from accepted practices within the academic community for proposing, conducting, or reporting research or other scholarly activities.”
55 For example, the report commissioned by the University of East Anglia states: “The Review examines the honesty, rigour and openness with which the CRU scientists have acted. It is important to note that we offer no opinion on the validity of their scientific work. Such an outcome could only come through the normal processes of scientific debate and not from the examination of e-mails or from a series of interviews about conduct.”
From the Penn State report: “[R]esearch misconduct does not include disputes regarding honest error or honest differences in interpretations or judgments of data, and is not intended to resolve bona fide scientific disagreement or debate.” “We are aware that some may seek to use the debate over Dr. Mann’s research conduct and that of his colleagues as a proxy for the larger and more substantive debate over the science of anthropogenic global warming and its societal (political and economic) ramifications. We have kept the two debates separate by only considering Dr. Mann’s conduct.”
From the report of the U.K. House of Commons, Science and Technology Committee: “The complaints and accusations made against CRU in relation to the scientific process come under two broad headings. The first is transparency . . . . The second is honesty: that CRU has deliberately misrepresented the data, in order to produce results that fit its preconceived views about the anthropogenic warming of the climate.” “If there had been more time available before the end of this Parliament we would have preferred to carry out a wider inquiry into the science of global warming itself.”
From the report of the National Science Foundation, Office of Inspector General: “Although [Dr. Mann’s] data is still available and still the focus of significant critical examination, no direct evidence has been presented that indicates the Subject fabricated the raw data he used for his research or falsified his results. . . . Such scientific debate is ongoing but does not, in itself, constitute evidence of research misconduct.”
56 Appellants have made representations in their briefs about their subjective belief, but there is no evidence in the record (beyond the articles that are the subject of the defamation action) in the form of affidavits or depositions attesting to the personal beliefs of Mr. Simberg, Mr. Steyn, or the responsible personnel at CEI and National Review, and how they came to have such beliefs in light of the reports that had been issued before the statements were made.
57 Of particular relevance to appellants’ criticism of the Penn State investigation is the report of the National Science Foundation, an independent federal agency that funded Dr. Mann’s scientific research, and therefore had a responsibility to monitor and ensure compliance with required standards. As the NSF report states, it examined “de novo” each of three allegations of misconduct leveled against Dr. Mann that were dismissed by the Penn State report. As part of that review, NSF “reviewed the emails and concluded that nothing contained in them evidenced research misconduct.” The NSF found that Penn State had adequately addressed those three allegations. However, the NSF found the Penn State investigation deficient concerning the allegation concerning data fabrication or falsification because the University had not interviewed experts critical of Dr. Mann’s research. The NSF Office of Inspector General then undertook its own independent investigation of this allegation, broadened it beyond data falsification, and interviewed Dr. Mann, his critics, and disciplinary experts. After concluding its independent investigation, the NSF found “no evidence” that data had been fabricated or falsified or that Dr. Mann had engaged in any other types of research misconduct. The NSF closed its investigation “with no further action.” Thus, even if appellants initially had reason to be skeptical of Penn State’s motivations and thoroughness, a jury could find that the independent, de novo investigation by the NSF corroborated the Penn State findings, as did the investigations conducted by the University of East Anglia and the U.K. House of Commons.
58 The report did criticize the CRU scientists for their “unhelpfulness” in responding to FOIA requests and for deleting emails that may be requested.
59 See Jankovic II, 593 F.3d at 28 (noting that a proposition is “verifiable in the practical sense that our legal system is ready to make decisions on the basis of how such issues are resolved — decisions profoundly affecting people’s lives”). As an example, the conduct of lawyers is evaluated against professional and ethical standards, and civil liability and disciplinary sanctions can be imposed based on findings that those standards have been violated.
60 Our legal conclusion is based on the evidence that has been presented at this juncture, in connection with the special motion to dismiss. Once discovery is completed, the legal conclusion that the evidence is sufficient to go to trial could change.
61 “Dr. 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 that could have dire consequences for the nation and planet.”
62 The underlining in the articles in the Appendix indicate a hyperlink.
