How a 2016 ruling defined the issues in climate scientist Michael Mann’s libel suit

Michael Mann. Photo (cc) 2020 by Oregon State University.

Media coverage of climate scientist Michael Mann’s victory in a libel case against two right-wing commentators might lead you to believe he won at least in part because those commentators, Rand Simberg and Mark Steyn, compared him to a convicted child molester. For instance, here’s The Washington Post’s lead:

Michael Mann, a prominent climate scientist, won his long-standing legal battle against two right-wing bloggers who claimed that he manipulated data in his research and compared him to convicted child molester Jerry Sandusky, a major victory for the outspoken researcher.

And here’s a paragraph from The New York Times’ account:

In 2012, Mr. Simberg and Mr. Steyn drew parallels between controversy over Dr. Mann’s research and the scandal around Jerry Sandusky, the former football coach at Pennsylvania State University who was convicted of sexually assaulting children. Dr. Mann was a professor at Penn State at the time.

I was alarmed because the statement at the heart of the Sandusky comparison, written by Simberg in a blog post for the Competitive Enterprise Institute and repeated by Steyn (with reservations) in National Review, speaks of Mann’s alleged “abuse” of data, comparing him to Sandusky only tangentially. Here’s what Simberg wrote:

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.

This is pretty rough stuff; even Steyn writes, “Not sure I’d have extended that metaphor all the way into the locker-room showers with quite the zeal Mr Simberg does.” But it does not actually compare Mann to a child molester. I was taken aback when I read accounts of the verdict because, on the face of it, it didn’t strike me as libelous to reach for an admittedly horrendous metaphor in describing what you regard as someone’s scientific misconduct.

Fortunately, I discovered that a 2016 ruling by a three-judge panel of the U.S. Court of Appeals for the District of Columbia, which allowed Mann’s suit to move forward, made clear that the case hinged on a straightforward distinction between assertions labeled as fact versus opinion. (Both the Simberg and Steyn pieces are reproduced in full in that ruling.) In that regard, Thursday’s verdict did no damage to the protections that the press enjoys against meritless libel suits.

I want to emphasize here that I’m basing my analysis on the 2016 appeals court ruling. It’s certainly possible that the trial and the just-rendered verdict raise their own issues regarding the state of libel law. I also want to point out that I’m not a lawyer — just a First Amendment geek who teaches this stuff to journalism students. So please read this post in that light. The court’s 2016 decision is 111 pages long, so I’ll just hit a few highlights. You can read it for yourself if you want to pore over the entire ruling. But I’ll start with this vitally important passage (p. 57):

As we have discussed, the law distinguishes between statements expressing ideas and false statements of fact. To the extent statements in appellants’ articles take issue with the soundness of Dr. Mann’s methodology and conclusions — i.e., with ideas in a scientific or political debate — they are protected by the First Amendment. But defamatory statements that are personal attacks on an individual’s honesty and integrity and assert or imply as fact that Dr. Mann engaged in professional misconduct and deceit to manufacture the results he desired, if false, do not enjoy constitutional protection and may be actionable.

In other words, “Mann is wrong” is protected speech. “Mann’s data is wrong” is protected speech. “Mann didn’t understand his data” is protected speech. But “Mann manipulated the data” is not protected speech because it’s a factual assertion that could be true or false. If it’s true, then Simberg and Steyn are in the clear. If it’s false, then they may have defamed Mann. The Sandusky comparison is just an offensive add-on and doesn’t speak to the heart of the defamation claim.

Now, in order to win a libel suit, a plaintiff must show that the offending statements are false, defamatory and made with some degree of fault. In the case of a public figure such as Mann, that means the standard of “actual malice” applies — that is, Mann had to prove that Simberg and Steyn knew what they were writing was false or that they acted with “reckless disregard” for the truth, which the courts have defined as harboring a strong suspicion that a statement is false and publishing it anyway. Here’s what the Court of Appeals has to say about that (pp. 88-89):

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 … 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.

Finally, there is the matter of comparing Mann to a convicted child molester, something that Mann himself has said he found reprehensible and for which he sued Simberg and Steyn by claiming the intentional infliction of emotional distress. I thought that claim was especially troubling, and fortunately the Court of Appeals set it aside in its 2016 decision. Here’s what the court said (pp. 103-104):

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.”

I wish the language were even stronger, as the court left open the possibility that Mann could have proceeded if he’d been able to show that his emotional distress was severe enough to meet certain legal standards. It would have been better if the court had acknowledged that Simberg and Steyn had not actually compared Mann to child molester but had simply reached for an extreme, offensive metaphor in describing what they claimed he had done to the data in developing his climate change theories. But at least Mann’s claim was thrown out.

Whenever a plaintiff wins a high-profile libel suit, we ought to be concerned. But based on the issues in Mann’s case, as defined by the Court of Appeals in 2016, it appears that the vitally important protections that the press enjoys remain intact. I’ll be watching to see what happens as this case moves into the inevitable appeals process.

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