It will now be up to a diverse jury of District of Columbia citizens in the coming days to decide whether to uphold the most sacred of American constitutional rights, the First Amendment, in a 12-year-old libel and defamation trial.
The case is between former Penn State professor and celebrity climate scientist Michael E Mann, who claims former National Review commentator Mark Steyn and Competitive Enterprise Institute analyst and part-time blogger Rand Simberg, libeled him in their 2012 blog posts.
What was originally billed to be a Scopes Monkey Trial on climate change – with pro-environment billionaires such as Tom Steyer and Illinois Governor J B Pritzker battling the likes of chemicals and energy tycoon Charles Koch – has instead degenerated the DC Superior Court hearing room of Judge Alfred Irving into a depressing C-list circus.
Thus we have seen TV’s “Science Guy” Bill Nye giving comfort to his old friend Mann and former US congresswoman and original Tea Party firebrand Michele Bachman pushing around the now wheelchair-bound right-wing Canadian political “shock jock” commentator and cruise-ship crooner Mark Steyn.
Mann claims he was libeled and defamed when Simberg and Steyn compared the then Penn State professor to convicted child sex offender Jerry Sandusky, a Penn State football coach.
But Steyn and Simberg only wrote that Penn State carried out a “whitewash” investigation into allegations of scientific misconduct by Mann in creating his trademark “hockey stick” climate-change graph demonstrating the sharp rise in man-made global warming after senior Penn State officials conspired to cover up Sandusky’s predatory acts to safeguard the university’s football program, as detailed in the 2012 investigative report by former FBI director Louis Freeh.
“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,” Steyn wrote in the National Review Online, lifting the most sensational phrase from Simberg’s article.
Mann’s lawyers, John B Williams and Peter Fontaine, have so far failed to make their case proving the climate scientist suffered any damages to his reputation from Steyn’s and Simberg’s musings, with Mann claiming only to have suffered “mean looks” from an unknown person at a local supermarket, and unverifiable claims of lost research grants after their publication.
Williams is best known for his defense of big tobacco (RJ Reynolds/Camel) and Mobil Oil. Williams also represented Watergate figure G Gordon Libby in his libel and defamation suit against Richard Nixon’s White House counsel, John W Dean.
Steyn is acting pro se in his own defense while Simberg is defended by Baker Hostetler’s Mark W DeLaquil, Victoria Weatherford and DC-based free-speech lawyer Mark Bailen.
On the other hand, Mann has exploited the multimillion-dollar libel and defamation lawsuit – underwritten entirely by deep-pocket funding sources yet to be identified – to transform himself as America’s crusader against climate deniers, garnering lucrative speaking fees, book royalties and a paid film consultancy in Netflix’ Don’t Look Up climate satire starring Mann’s “bromance” buddy, Leonardo DiCaprio.
Mann also graduated from Penn State to become a professor at the Ivy League University of Pennsylvania.
The most damning testimony against Mann was by a fellow University of Pennsylvania professor, Wharton School of Business School statistician Abraham Wyner, who testified that Mann manipulated historic climate data (p-hacking) to create a misleading graph based on his own research of statistical data used in Mann’s original paper in 1998.
However, the DC jury is not required to adjudicate a PhD-level debate on the correct application of statistical data but only whether Steyn and Simberg personally believed Mann committed fraud and misconduct in the pursuit of a more sensational graphic “to keep the blade on his famous hockey-stick graph” when they penned their blogs more than a decade ago.
Mann’s 1998/99 paper and its “hockey stick” graph were later included in the United Nations’ Intergovernmental Panel on Climate Change assessment on man-made climate change for which the IPCC and former US vice-president Al Gore were awarded the 2007 Nobel Peace Prize.
Mann was repeatedly humiliated in court for his claims, including in his initial libel and defamation complaint, that he was the recipient of the Nobel Prize when it was awarded to the IPCC as an organization.
The presiding judge, Alfred Irving, on Thursday strongly rebuked Mann and his lawyers for knowingly submitting testimony and exhibits inflating the total sum of potentially lost grants by almost 50% and strongly hinted that he may instruct the jury only to consider nominal and not compensatory or punitive damages if they find for Mann.
Ironically, it is Michael Mann, and not Steyn and Simberg, who directly connects himself to the Jerry Sandusky and the Penn State pedophile scandal, by admitting in open court that he continued to thank and acknowledge Penn State University president Graham Spanier even after Spanier was convicted and jailed for obstruction and child endangerment for his part in not reporting and putting a halt to Sandusky’s evil deeds.
Hachette, the Paris-based publisher of Mann’s latest books, is now concerned over Spanier’s acknowledgements, a sensitive subject for Hachette after it was forced to cancel the publication of a Woody Allen biography during the height of the #metoo sexual-assault controversy. Hachette general counsel Min Lee declined to comment when contacted on Mann’s acknowledgements.
Far from impressing the jury that he is some kind of climate-saving superhero, Mann comes off to many as a balding, middle-aged Internet troll capable of blasting out 44 tweets a day.
First Amendment protections in the District of Columbia and its status as the world’s capital for free speech were gravely undermined after Superior Court Judge Natalia Combs Greene inexplicably failed in late 2012 to recognize hyperbole – a form of fully protected political speech since the time of Thomas Jefferson – in Steyn’s 270-word blog “Football and Hockey” and Simberg’s Competitive Enterprise Institute post “The Other Scandal in Unhappy Valley.”
Under the DC anti-SLAPP (strategic lawsuits against public participation) legislation, Judge Greene had the ability immediately to dismiss Mann’s original libel and defamation suit when Mann first sued in 2012 but inexplicably decided Mann’s complaint against the defendants could “succeed on its own merits.”
In stark contrast, fellow Superior Court Judge Anthony C Epstein used that legislation to dismiss immediately the libel and defamation lawsuit brought by now-sanctioned Russian oligarchs Mikhail Fridman, Peter Aven and German Khan against the Buzzfeed news-media group for publishing the notorious Steele Dossier.
“The public is interested in facts as well as opinions,” and “the First Amendment protects not only statements of pure opinion but also statements of fact and of opinions that imply or rely on provably false facts, unless the plaintiff proves that the statements are false and that the defendant’s fault in publishing the statements met the requisite standard,” Epstein wrote in his special order to dismiss.
However, Judge Greene seemingly allowed personal and political bias against Simberg’s and Steyn’s use of impolitic language and colorful hyperbole in an ongoing debate whether Mann sexed up statistics to create a dramatic graph rather than follow established First Amendment precedents set forth by the US Supreme Court.
In its decision on an interlocutory appeal challenging Greene’s decision, the DC Court of Appeals failed to rectify her misapplication of the DC anti-SLAPP statute, only tossing claims of intentional distress and one defamation charge against National Review.
Superior Court Judge Jennifer Anderson and Alfred Irving Jr later made rulings finding National Review and CEI not liable for articles written by non-employees. Those rulings, while favorable to the publishers, further chill free speech on important issues of public interest, as witnessed by the numerous times US reporters hold their punches when writing on issues involving significant financial interest.
One freelancer covering the trial noted that he pays US$3,000 a year for libel and defamation insurance.
The savior of the First Amendment in the US capital, and the United States in general, is US Supreme Court Justice Samuel Alito, who broke with his fellow justices in wanting to hear the National Review’s and CEI’s appeal of the DC Court of Appeals’ flawed compromise decision on Mann.
“The petition in this case presents questions that go to the very heart of the constitutional guarantee of freedom of speech and freedom of the press: the protection afforded to journalists and others who use harsh language in criticizing opposing advocacy on one of the most important public issues of the day,” Alito wrote in his dissent to the Supreme Court’s denial of writ of certiorari.
“If the Court is serious about protecting freedom of expression, we should grant review.”
He concluded:
“But the standard to be applied in a case like this is immensely important. Political debate frequently involves claims and counterclaims about the validity of academic studies, and today it is something of an understatement to say that our public discourse is often ‘uninhibited, robust, and wide-open.’
“A journalist who prevails after trial in a defamation case will still have been required to shoulder all the burdens of difficult litigation and may be faced with hefty attorney’s fees. Those prospects may deter the uninhibited expression of views that would contribute to healthy public debate.”
The 12-year-old Mann case is now one of the longest, costliest, and pointless libel and defamation cases in American history, constituting such a miscarriage that it rises to the most serious charge of “perverting the course of justice” under Common Law.
Americans can only hope the Supreme Court – which refused to hear the Mann case as it was interlocutory and not a final judgment – can take up Mann and similar cases of lower courts’ abuse of First Amendment protection of free speech to create a federal anti-SLAPP standard and permanently remove the ability of the lower courts to abrogate First Amendment rights on personal whim.
It was by exercising their First Amendment rights that Dr Martin Luther King Jr, the Pullman Porters, and Frederick Douglass led America from its original sin of slavery toward fulfilling the full promise of the constitution for all citizens.
“If I lived in China or even Russia, or any totalitarian country, maybe I could understand some of these illegal injunctions. Maybe I could understand the denial of certain basic First Amendment privileges, because they haven’t committed themselves to that over there.
“But somewhere I read of the freedom of assembly. Somewhere I read of the freedom of speech. Somewhere I read of the freedom of press. Somewhere I read that the greatness of America is the right to protest for right,” King said in his Mountaintop speech, a day prior to his assassination in Memphis on April 4, 1968.