Michael Mann's defamation suit chills the free press

Photo by Matt Popovich on Unsplash

When newspapers are under threat of lawsuit for any opinion that a jury might find objectionable, what remains of freedom of the press? How will public pursuit of the truth be advanced if anyone can sue for defamation to shield himself from honest critique?

Monday, November 25, the US Supreme Court denied Certiorari to National Review Inc. (NRO) v. Mann and the parallel case, Competitive Enterprise Institute (CEI) v. Mann. Their decision means that climate scientist, Dr. Michael Mann, can go forward in his defamation lawsuit. He is suing these news outlets for two opinion columns printed on July 13, 2012 and July 15, 2012.

Justice Samuel Alito dissented. He wrote that this case goes “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 supported this statement with two basic arguments. First, he questions whether a jury, untrained in science, is competent to judge “[w]hether an academic’s use and presentation of data falls within the range deemed reasonable by those in the field.” Juries judge matters of justice and common sense, but they should not be expected to judge the validity of data and methods hotly and politically contested.

Second, Alito writes that even the best-case scenario for the accused journalist is a burden that could suppress freedom of expression. “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.”

Alito’s dissent is spot on. In fact, his concerns are not only theoretical possibilities. I recently watched these twin pressures operate in real time to scrub my own true and verifiable words from the public record. This is my story.

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On September 3, 2019, I published an article in the Uinta County Herald titled, “Is man-made global warming Mann-made?” It discussed how Mann’s years-long, multimillion-dollar suit against fellow scientist Dr. Timothy Ball had recently been dismissed with prejudice from the Supreme Court of British Columbia.

Michael Mann

The article described how Mann had drastically rewritten surface temperature data for the past millennia by publishing his “hockey stick graph” in 1998. This became an iconic rallying cry in debates about man-made global warming. The article asserted that Mann has kept some details of his data from public scrutiny by asserting the rights of “intellectual property.”

The central claim of the article was that “In January 2017, a judge agreed that Mann would have to hand over the data and gave him two years to do so... The deadline came and went with no data ever produced. In May, Ball’s legal team asked the judge to throw out the lawsuit based on Mann’s refusal to release the data. On August 23, the judge granted the motion to dismiss. Not only that, but he also took the unusual step of requiring Mann to reimburse all of Dr. Ball’s legal costs.”

A shortened version of that article was subsequently published in the Wyoming Tribune Eagle later that week. That’s when the fireworks began. Hours after the article appeared in Cheyenne, Mann wrote an email to the editor and publicist of the Uinta County Herald which he then copied to Brian Martin, editor of the Wyoming Tribune Eagle: “Your newspaper has just published a commentary that makes false and defamatory statements about me and my research. The claims made in the piece that our data are not available or that we did not provide materials requested by the court are provably false. And they are libelous.”

Mann concluded the email with an implicit threat, “I expect the column to be taken down immediately. I have copied my lawyers John B Williams of Williams Lopatto PLLC, Peter Fontaine of Cozen-O’Connor, and Roger McConchie of McConchie Law.”

Less than an hour and a half after receiving the menacing email, the Cheyenne paper informed me that my article was taken offline. At some point, the Uinta County Herald also took it down. For evidence of error Mann supplied two links. First was an FTP site with reams of numerical data. Second was an article from a fellow scientist who wrote about the “robustness” of Mann’s research.

Robust is not the same as infallible. Nor is a data-dump equivalent to full disclosure. But name recognition and legal threat caused both papers not only to amend some specific point of error, but to quietly scrub an entire published article.

Asked to comment on the publisher’s decision, I sent my sources to Martin with the following note:

Dr. Timothy Ball

I believe that my article accurately represents the data presented above. Specific to Dr. Mann's assertion about data disclosure, Dr. Ball reports, “We agreed to an adjournment with conditions. The major one was that he [Mann] produce all documents including computer codes by February 20th, 2017. He failed to meet the deadline.” If Ball spoke wrongly in this published statement, Dr. Mann has had two years to prove it in open court. He obviously has not proven this before the British Columbia Supreme Court. 

I waited for the paper to weigh the evidence and either repost the article or ask for a correction. After several days, I called Martin directly. He informed me that the newspaper simply did not have either time or manpower to check the sources.

This is precisely Alito’s point. If a capitol newspaper, staffed by investigative reporters with decades of combined experience, does not feel competent to judge the falsifiability of a claim, how can jurors, picked from the untrained public, be expected to do the same?

The Wyoming Tribune Eagle also forward my note to Mann with the following inquiry: “Mr. Mann, The column has been taken down, but here is the columnist’s response. Do you have any response to this? Are his sources all biased against climate change?”

Mann’s reply is telling: “These are a list of right-wing blogs, not a single legitimate media source in that list. The claims made in the piece are, as I explained and demonstrated to you previously, false and defamatory, and would readily be shown as such in court. I trust that is adequate to resolve this matter.”

To a newspaper with the circulation of only 14,000 the words “defamatory” and “court” must be frightening. Martin confirmed this to me by noting that the Tribune Eagle is not in a position to mount legal defense against a libel lawsuit. Alito’s dissent anticipated exactly this response. But what does it matter? After all, it’s only a couple of small newspapers.

Consider that despite Mann’s strong language, he never directly disputed the quote from his adversary. Dr. Timothy Ball was the only other party in the courtroom. His public statement, published over two years ago, is that Mann did not “produce all documents including computer codes by February 20^th, 2016.” At my suggestion, Martin specifically asked Mann about that. He responded, “I’m happy to let things stand where they are.”

Four days later, I wrote Mann directly. I sought to know his specific objections and address them honestly. Then, I concluded, “I am not happy to let things stand as they are. I would rather either retract or clarify my article than to allow false information to stand uncorrected… If Dr. Ball’s statement is untrue, I stand ready to correct or retract the article. I am even willing to issue an apology for the public record.” That email went unanswered. Three days later, I re-sent it—this time with a subject line sure to get Mann’s attention.

As of this writing, Mann has never once disputed Dr. Ball’s published statement. Nor has he ever asked for a retraction or correction. He, rather, ignored my offers to make one. His final word on the matter remains, “I’m happy to let things stand where they are.”

Newseum Washington, D.C. - Closing Dec. 31, 2019

As things are, two “legitimate media sources” have printed over 15,000 copies of a statement that is undisputed by Mann or anyone else present in the courtroom. And yet, nobody could know that fact by executing an internet search.

Without retraction or correction, it has simply disappeared into the memory hole. By threatening to sue a couple of struggling newspapers one party to an important and vigorous debate has succeeded in keeping critical words off established print-news websites. As far as internet users are concerned, this information has never been published in a “legitimate media source,” but only in “right-wing blogs.”

If the US Supreme Court will not deny participants in public discourse this power to silence opponents, it will happen with increasing frequency. Justice Alito was absolutely right to dissent. What he presented as a possible scenario has, in fact, already happened.  

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Published in the 11/29/2019 edition of the Uinta County Herald,

"Alito's dissent is not hypothetical, it's happening"

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Final Unanswered Email

From: Jonathan Lange

Sent: Wednesday, September 18, 2019 5:42 PM
To: Mann, Michael
Subject: Re: Your paper has published a false and defamatory commentary about me

Dear Dr. Mann,

Greetings from Evanston, WY.

After nearly a week of email exchanges, I realized that we are unfairly using Mr. Brian Martin as mediator. This is never the best way to address an issue and it is needlessly costing Mr. Martin time and energy.  On one prior occasion when I committed a factual error in an article, I was contacted directly by the aggrieved person and immediately took numerous steps to correct my error. If I have similarly published something wrong about you, I am eager to make any clarifications or corrections necessary to bring my article in line with the truth.

Toward this end, I am seeking clarification from you so that I can understand more exactly the points that you would like me to correct.

As I understand it, your first communication to Publisher Mark Tessoro and Editor Glathar found two faults with my article:

1. “The claims made in the piece that our data are not available [are provably false]”
2. “that we did not provide materials requested by the court are provably false.”

In support of your first point, you linked them to an FTP site of data that apparently has been available for 15 years. In addition, you supplied an article from the journal “Climatic Change” meant to impeach my assertions. I did not, however, see any material supplied in support of the second statement.

So, let me address the first complaint.

I fully acknowledge that you released a substantial amount of information both at the first publishing of the “hockey stick graph” (the graph, by definition contained many data points.) I, further, accept that you released additional data that has been available for more than 6 years prior to your lawsuit with Dr. Ball.

While my article did, indeed, contain the sentence “Mann still has not released his data to the public.” I did not mean to imply that you have released no data whatsoever. I believe that a fair reading of the article makes it clear from the immediate context and the repeated use of the phrases “the data” and “this data” that I was referring to some very specific intellectual property above and beyond what you have already released.

I even republished your statement that “I have made available all of the research data that I am required to under United States policy as set by the National Science Foundation…. I maintain the right to decline to release any computer codes, which are my intellectual property…” I had hoped that this would stipulate that you have released enough data to satisfy the NSF. However, if you think otherwise, I am willing to clarify the article. Perhaps you would be satisfied by amending the sentence to read, “Mann still has not released enough data to satisfy the skeptics.”

The second piece of evidence that you offer is a journal article that supports the robustness of your claims. My article does not challenge this point. I certainly do not claim to be a climate scientist. While it is easily demonstrated that climate scientists have differing views on the relative robustness of your work, I am a parish pastor and do not claim the ability to enter into that conversation.

The second complaint seems to say that it is provably false that you “did not provide materials requested by the court.” This would, indeed, be significant. Are you asserting that there is absolutely no material that the court requested of you which you did not supply?

Dr. Ball has publicly claimed (and reasserted by personal contact) that “Michael Mann moved for an adjournment of the trial scheduled for February 20, 2017. We had little choice because Canadian courts always grant adjournments before a trial in their belief that an out of court settlement is preferable. We agreed to an adjournment with conditions. The major one was that he [Mann] produce all documents including computer codes by February 20th, 2017. He failed to meet the deadline.” This is the central fact of my article. If this assertion is wrong, I will publicly and humbly retract the entire piece.

I went to press based on my judgement that Dr. Ball would be foolish to publish such a statement if it where false. Additionally, your public rejoinder did not contradict this specific claim.

Because this is so central to the article, I suggested to Mr. Martin that he ask you directly whether you dispute Dr. Ball’s claim. In your response to him, you chose not to directly answer. Instead, you responded “His [Lange’s] claims are demonstrably false and defamatory and I have no interest in providing him any further opportunities to promote them.” But the fundamental question is not about my claims but about Dr. Ball’s claim. So, please clarify for me your answer to Dr. Ball’s statement quoted above.

If there is something false and defamatory in my article, I am not happy to let things stand as they are. I would rather either retract or clarify my article than to allow false information to stand uncorrected.

In sum, I am willing to clarify the extent to which you have already released data. And, if Dr. Ball’s statement is untrue, I stand ready to correct or retract the article. I am even willing to issue an apology for the public record. I have nothing against you, Dr. Mann, and nothing to gain by clinging to even one erroneous statement.

Sdg

Jonathan Lange

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(This was the second time is sent this identical email. The first time was on September 15, 2019 at 3:52 PM. That one had the subject line: "Clarification." The offer still stands.)