Believe the Government - or Else!

I've been taking a first look at the complaint in Michael Mann's new lawsuit against Mark Steyn, National Review, and others. There's so much that's interesting, but I want to focus on one aspect.

As others have often noted, such a lawsuit runs up against the hardest standard for libel cases - New York Times v. Sullivan. Basically, if a "public figure" (which Mann essentially admits he is in paragraph 14) sues a "media defendant" (which fits most or all of the defendants here), he can't recover a penny of damages unless he proves "actual malice" - that is, he's got to prove that the person who made the statements knew they were false, or acted with "reckless disregard" as to their falsity. (The latter was important in the original case, because at least one statement printed by the Times actually was false.) Naturally, in reading the complaint, I was interested to see how Mann was going to argue that.

The answer is found in paragraph 21:
Following the publication of the CRU emails, Penn State, the University of East Anglia...and five governmental agencies...have conducted separate and independent investigations into the allegations of scientific misconduct against Dr. Mann and his colleagues. Every one of these investigations has reached the same conclusion: there is no basis to any of the allegations of scientific misconduct or manipulation of data.
Paragraph 30 goes on to say that "well-respected journalists," the pop-science magazine Discover, and (drumroll) the Union of Concerned Scientists all said nasty things about Steyn, NRO, and CEI "in the wake of these attacks."

Now, as it happens, Mann attaches the offending articles from CEI and NRO. And both these articles explain briefly why they don't agree with the "independent" investigations exonerating Mann. The CEI article includes links to the sources for their belief, and Steyn makes a pretty obvious reference to the "Mike's nature trick" Climategate email.

So there you have it. If the government conducts a bunch of investigations, and you don't believe them, and you don't believe left-wing advocacy groups and an editorial in a pop-sci magazine, according to Mann you've got "actual malice." Believe the government - or get sued and pay damages. The Green left has wandered into strange territory indeed!

A few other thoughts from me. In exhibit C (NRO's response to Mann's original threat), Rich Lowry comments that discover in this case may discomfit Mann considerably. That may well be true. Truth is a defense to libel claims, so any evidence that shows Mann is a "data manipulator" is relevant, and he can be made to disgorge it.

But the defendants should still try to have this complaint dismissed before discovery begins. The complaint itself and the attached documents, it seems to me, make a good case for that - a complaint has got to state facts which, if true, entitle the plaintiff to relief. "He had actual malice" is a legal conclusion, not a fact; "the government did investigaitons and said I'm innocent" is a fact, but in light of the attachments is a "so-what?" fact. If they can't get it dismissed, they should above all things try to win on summary judgment - show the judge that Mann has no evidence to prove Steyn disbelieved (or didn't care about the truth of) what he was writing - and not be tempted by courtroom glory, that serpent's eye that charms only to destroy.

Experience has taught me to be against using trials for spectacles. If you're suing someone, you're there to get the money. If you're getting sued, you're there to not have to pay. If you're facing possible criminal charges - you're there to avoid the punishment, or as much of it as you can. You are not there to tell the world about something - there are many forums for that. If discovery turns up the kind of data that Mann is wont to refuse, well and good, but that should never become the purpose of defending the lawsuit. Litigation, civil and criminal, goes its own strange ways, and does strange things to people - shrinks them if they are not careful.

The same goes for the discovery process. It occurs to me that Mann may be playing a slightly deeper game here. To be sure, the defendants can demand documents, e-mails, etc. from him to show he manipulated data; but he can insist the defendants themselves submit to depositions. Now, really, all Steyn has to say is "I read this book and I chased links at this website and I believed them over the government" - and if Mann doesn't have proof to the contrary, he is (or ought to be) hosed.

But maybe his lawyer's planning to grill Steyn at deposition (rather than trial) on his lack of science background, to make the deposition testimony itself embarrassing ("So, you didn't graduate college? - So, you're not a statistician? - So, you just believe these guys over those? - Because they fit your ideology...?") - and leak it publicly, to make him look foolish. I haven't had to deal with the issue of whether that's forbidden in civil litigation, but I have a hard time believing a deposition from this case would stay secret if it had polemically useful material.


E Hines said...

[B]the defendants should still try to have this complaint dismissed before discovery begins.

Why, asks the non-lawyer?

Dismissal just lets Mann bring these things up again. If he has no case, he's shown with this suit that he's perfectly willing to pursue such...frivolity...whether for personal ego, or just to run up his enemy's costs, or....

Next, why summary, rather than declaratory judgment (here I'm especially ignorant)? Doesn't summary just say, "You have no case, sit down and shut up," in which case Mann could modify his case and bring it again, while declaratory says "You have no case and here's why," in which case Mann has to gin up a wholly new case?

Especially if Steyn is as clean as your supposition suggests (I read this, chased those links, believed these others). The predicted leaks (and I have no doubt they'll occur) ought to be usable against Mann's case, too, if not as a tactic of legality, then as a demonstration of Mann's credibility. I also don't see Steyn being especially embarrassed by any lack of letters or statistics credentials.

Against this is the risk that Steyn might actually lose the suit. But my move would be not only to go to trial, screaming bloody murder over every delay or attempted delay, but to fight against any subsequent attempt by Mann to withdraw the suit.

Steyn needn't play Mann's gutter ball to do this. In fact, it'll be the high road and the facts that will a) push Mann to try to withdraw his suit, and/or b) to result in a definitive court ruling for Steyn (and so against Mann).

I've also seen quite a bit of the docs that give the lie to the climate "science" and to Mann's role in it. What I've seen leads me to believe that Steyn has nothing to fear but the hassles of this additional incident of this gang's attempts to extort silence by dissenters.

As an aside, the idea of a statistics "trick" in achieving a result is a bogus beef by those disagreeing with AGW. (Say I without having seen this particular "trick.") "Trick" is a standard, humorously used term for legitimately manipulating data for ease of statistical handling or visualization. My econ prof would talk of "cheap tricks" in this context. One such trick is to convert linear data into log data so as to emphasize an exponential growth aspect that the data contain: linear data can follow a curve instead a straight line, but the curve isn't indicative by itself of an exponential curve. A straight line in log space is.

Eric Hines

Grim said...

In general, it's best to stay out of a courtroom in the same way that it's usually best to stay out of a jail or a mausoleum. There are perfectly honorable reasons that might take you to these places, but all the same, it's best to limit the time you spend there.

Joseph W. said...

Grim has the right of it. (Grim is a wise man.) Between the three I'd pick the mausoleum every time. Remember - once you reach the jury, they've got the power to find as they please. Maybe they'll vote according to the law, and maybe they'll vote according to standards of their own. Even in the conservative suburbs where I grew up, and even when I was young, publics schools and public TV would slip you lots of Green doctrine. It's gotten a lot worse since. Heaven only knows what a D.C. jury would do, with a chance to redistribute wealth from dirty, evil conservatives to a noble, heroic Green.

Dismissal just lets Mann bring these things up again. If he has no case, he's shown with this suit that he's perfectly willing to pursue such...frivolity...whether for personal ego, or just to run up his enemy's costs, or....

He can do that anyway, and he does. Freedom of speech and all that. If he loses his case, all it means is "he doesn't get the money" - it doesn't in any way gag him from declaring his opponents to be anti-science liars, the result of trial to be wrong, the courts corrupt, etc. Doesn't stop him bringing future cases either. He can't bring the same case again but he can sue again whenever he thinks the defendants have defamed him again.

This is true even for prisoners who file lots of lawsuits against the government that are not only frivolous, but mentally unbalanced. The courts have found that they have a "right of access to the courts" - on very rare occasions a court will place some kind of limitation on future lawsuits, but never an absolute bar. For a famous (and very funny) example, see Washington v. Alaimo.

Next, why summary, rather than declaratory judgment?

Quite a good question actually. My explanation must needs be short, but I hope it will help. These two things have similar names but are different kinds of things.

"Summary judgment," like dismissal, is an action the court can take before the jury is sworn (if there is to be a jury) and before any evidence is entered in the case. It typically occurs after discovery is over, though technically it can be done much earlier. "Summary judgment" means - your side wins and we don't have to have a trial to determine who wins.

When you move to dismiss (as I hope Steyn et. al will do here), you say, "All right, I've read your complaint. So what? Even if all the facts you stated are true, you're not entitled to relief against me on those facts. Therefore, go away." (Legal conclusions, like "he had actual malice," aren't facts. Statements like "U. Penn. investigated and said I was innocent" are facts.) Typically the dismissal is without prejudice, so the plaintiff can come back with a better complaint, just as you say.

When you move for summary judgment, you've got evidence - deposition transcripts, documents, affidavits, etc. If you're the defendant, you're saying, "...and the plaintiff has no evidence to prove an essential part of his claim. Therefore, there should be no trial; I should just win." If you're right, the court actually enters judgment in your favor - which means the plaintiff cannot bring the same lawsuit anymore.

The plaintiff can answer by presenting evidence (affidavits, deposition testimony, etc.) showing that he does have such evidence, in which case trial will happen. (Actually, parties typically settle after summary judgment is denied, if they didn't settle before the court ruled on summary judgment - but that is another story.)

Joseph W. said...

In this case, I think it would be very hard for Mann to find evidence that Steyn and the others didn't believe what they were writing. Which is something he has to prove to get relief. "The government said something else, and they just have to believe the government" - that's a very odd position to take in this country, yet it is the one implied by the complaint as I read it. Especially in this case, where the defendants already explained in public, in the very documents that are the basis for the lawsuit, why they don't believe.

"Declaratory judgment," by contrast, is a kind of relief that the court can grant at the end of a lawsuit. You see it in constitutional law cases - "I want a declaratory judgment that this statute is unconstitutional." If the court issues that declaration at the end of the case, in practice that means the statute is a dead letter. (Though as we discussed here long ago, in a comment thread that's disappeared, it'll stay on the books until the legislature gets around to repealing it in the normal way.)

Anyway, the only way to get a declaratory judgment (that I know) is to bring a lawsuit and ask for it. Whether Steyn & Co. will file some kind of counterclaim, and ask for any sort of relief, we will see in time.

As an aside, the idea of a statistics "trick" in achieving a result is a bogus beef by those disagreeing with AGW.

I agree that the word "trick" by itself doesn't tell much - but it's the details of this particular trick (and the iconic picture it led to) that make the whole thing smell bad.