Superior Court of the District of Columbia
In the Michael Mann v. National Review et al. defamation lawsuit, Mann has filed a "Motion to Dismiss Counterclaims of Counter-Plaintiff Mark Steyn Pursuant to the D.C. Anti-SLAPP Act". A memorandum in support of Mann's motion says: "Steyn's counterclaims lack any merit whatsoever, and his assertion of these claims in the face of the Court's previous rulings is yet another manifestation of his disdain for this Court and its processes. ... not to mention the stream of invective that he has hurled at this Court..."
Mann's filing of this motion is understandable.
Accusing a scientist of conducting his research fraudulently is a factual allegation that can be proven true or false, not mere hyperbolic opinionating. If it is false it is defamatory, and if it is made with actual malice it is actionable. So said DC Superior Court Frederick Weisberg in tossing out motions by defendants National Review et al. to dismiss Prof. Michael Mann's defamation complaint.
In counterclaims filed by Mark Steyn, a defendant in Mann's defamation lawsuit against National Review and the Competitive Enterprise Institute, basically Steyn contends that his freedom of speech is being stifled and that therefore he is suffering damages that should be compensated. But his response to Mann's complaint appear to be essentially a rehashing of the same arguments that have already been rejected by two different DC Superior Court judges.
Dr. Mann brought this lawsuit based upon what he charges are certain defamatory statements made by Mark Steyn and the National Review, the Competitive Enterprise Institute, and Rand Simberg. Steyn's counterclaims purport to seek $30 million in damages plus attorney's fees for having to defend this lawsuit.
Mann's memorandum in support of his motion to dismiss Steyn's counterclaims includes this:
Steyn's counterclaims lack any merit whatsoever, and his assertion of these claims in the face of the Court's previous rulings is yet another manifestation of his disdain for this Court and its processes. Shortly before this Court denied the defendants' motions to dismiss the amended complaint, Steyn filed a motion to vacate the Court's July 19 orders -- which was nothing other than an extended diatribe against this Court, accusing it of "improper", "grotesque", and "zombie-like" behavior. See Mot. to Vacate Order, dated January 21, 2014 at ¶ 8, 10, 12. This conduct should not be sanctioned, and attorneys' fees should be awarded.
The key arguments laid out in Mann's memorandum:
I. Steyn's Counterclaims are Subject to an Anti-SLAPP Motion As Well As A Motion To Dismiss For Failure To State A Claim.
I I . Steyn Cannot State A Claim For Abuse Of Process, Let Alone Demonstrate That He Is Likely To Succeed On The Merits Of An Abuse Of Process Claim.
III. Steyn Cannot State A Claim For Malicious Prosecution Let Alone Demonstrate He Is Likely To Succeed On The Merits Of A Malicious Prosecution Claim.
I V . The Court Should Award Mann Attorneys' Fees And Costs
The award of attorneys' fees and costs is especially warranted here because Steyns' counterclaims are plainly without merit and fly in the face of this Court's previous rulings on his motions to dismiss. Steyn's counterclaims amount to nothing more than a complaint against Mann for filing this lawsuit and unsubstantiated allegations that the purpose of Mann's lawsuit was to stifle Steyn's and other freedom of expression. ... not to mention the stream of invective that he has hurled at this Court, Steyn has shown a disregard for this Court and the governing law...
We'll see who ends up having to pay attorneys' fees. And perhaps some day this case will finally be adjudicated on the merits. Stay tuned.
* * *
Most recent earlier posts in our series on this case:
More on Mann v. National Review et al. (March 3)
Setting the record straight on misleading claims against Michael Mann (February 25)
Defendants' appeal in Michael Mann defamation case further delays discovery process (January 25)
DC judge denies defendants' motion to dismiss Michael Mann's defamation complaint (January 23)
Note on comment moderation policy: comments on this post, other posts on this case, and on our posts in general, are moderated based on our judgment with regard to relevance, respect for climate science and scientists, and trolling.
Why is Mann fighting the release of emails from his time at public institutions?http://www.cjr.org/the_observatory/michael_mann_versus_the_press.php
We have discussed and explained this in multiple earlier posts. See:
Court rules for Univ. of Virginia and Michael Mann against denialist inquisition - scholarly e-mail and documents are protected communication
http://www.climatesciencewatch.org/2012/09/17/court-rules-for-michael-mann-against-denialist-inquisition/
Virginia Supreme Court tosses out AG Cuccinelli inquisition on Michael Mann
http://www.climatesciencewatch.org/2012/03/02/virginia-supreme-court-tosses-out-ag-cuccinelli-inquisition-on-michael-mann/
Letter calling on Univ. of Virginia to prevent inappropriate open records disclosure of climate scientists' exempt emails and documents [Union of Concerned Scientists, American Association of University Professors, American Geophysical Union, Climate Science Watch]
http://www.climatesciencewatch.org/2011/08/12/letter-calling-on-univ-of-virginia-to-prevent-inappropriate-open-records-disclosure/
In defense of academic freedom against denialist FOIA inquisition tactics [Letter to University of Virginia President Sullivan from American Association of University professors, Virginia ACLU, Union of Concerned Scientists, and nine other groups, including Climate Science Watch]
http://www.climatesciencewatch.org/2011/04/15/in-defense-of-academic-freedom-against-denialist-foia-inquisition-tactics/
Also, see the Washington Post editorials cited in the Columbia Journalism Review article:
"Harassing Climate Change Researchers"
http://www.washingtonpost.com/opinions/harassing-climate-change-researchers/2011/05/27/AG1xJMEH_story.html
U-Va. should fight Cuccinelli's faulty investigation of Michael Mann
http://www.washingtonpost.com/wp-dyn/content/article/2010/05/06/AR2010050605936.html
The CJR article concludes with this:
Peter J. Fontaine, the Philadelphia-based attorney representing Mann, argues that a sweepingly broad interpretation of FOIA doesn’t consider the “need for a zone of privacy” in academia.” Written debate between researchers, says Fontaine, isn’t data, but is crucial to pursuing scientific inquiry. If their correspondence isn’t protected, researchers will self-censor, and perhaps even be hesitant to work with those subject to the increased scrutiny. “Who in a private university is going to want to correspond with a colleague at a public university if they know that their correspondence could be posted on the Web?” says Fontaine.
I understand there has been a lot of legal wrangling about protecting academic emails from public scrutiny. I also understand that it is very controversial, to the extent that an impressive list of the most well-known main stream media organizations recently filed amicus briefs in support of disclosure (please see Main Stream Media now want to see UVA emails).
What I don't understand is why university scientists, private or public, would care if their email correspondence was subject to scrutiny via the Freedom of Information Act? Certainly the need for privacy might override the need for scrutiny on topics of national security. But does climate science merit that standing? I think not! The weather (sorry: the climate) is everybody's business.
I am a professional software developer currently working for a large privately-held company. I have worked for publicly-held companies as well. Some of my earliest corporate training included the awareness that my emails may be examined by anyone at any time. There are many reasons this could happen, including managerial oversight, transmission across insecure connections monitored by hackers, propagation to mobile devices and perhaps even a court ruling to subpoena information. Therefore, I comport my communications so that I have nothing to hide and can justify my actions within the context of my work. Doing so does not in any way impede my ability to advance my work.
Regardless of the merits of any particular legal opinion (and we should reaffirm that court rulings, like scientific advancement, are never settled, merely reflect a current collective consensus, and in a healthy society are always subject to open debate and change), one has to wonder why all the fuss to prevent public scrutiny? If I were trying that hard to keep people from seeing my correspondence, it would be natural for others to suspect that I might be hiding something.
Not intending to make a flippant comparison, but the argument reminds me somewhat of the imbroglio over automated cameras at traffic signals, that capture license plate numbers from cars caught in the intersection when the light turns red. Certainly there are legal issues to be examined, such as whether computers should do the jobs of police officers or whether a given city reduces the yellow light duration below standard as a means of catching more drivers for the purpose of creating a revenue stream. But when I examined the record of debate, I found that those most vociferous in opposition to the cameras were the ones who habitually ran yellow lights.
The Columbia Journalism Review article that references the amicus brief by press organizations suggests that their concern is not specifically about the email of a particular professor, which can be legitimately proprietary, but about the broad scope of the language in the court’s ruling, which they argue would have implications that are too restrictive of Freedom of Information requests:
“Mann argues that his emails constitute ‘proprietary information,’ a special exemption granted to research institutions under Virginia state law. But after an appellate court issued a strong finding, broadly defining ‘proprietary information’ in a way that would make almost any university document—and potentially government documents—exempt from public release, the press took notice.
“Organized by the Reporters Committee for Freedom of the Press, 17 news organizations, including National Public Radio, Dow Jones, and The Washington Post, submitted an amicus brief in November, supporting the group’s rights to Mann’s emails.
“’By defining an exemption to the Virginia Freedom of Information Act (‘VFOIA’) as broadly as the lower court has done, this Court Would be, in effect, removing almost all public documents from the ambit of the records law,’ reads the brief.”
I am well-aware of and strongly supportive of the need for effectively implemented Freedom of Information laws in dealing with government agencies, in order to foster open government and the public’s need to know. On the other hand, generally Freedom of Information advocates recognize there is a balance to be struck when it comes to protecting academic freedom and the confidentiality of communications among university scholars. See my response to Aaron J. Hill and the letters to the University of Virginia linked there.
There are other considerations as well, in response to these complex issues and the concerns you express, which I’ll deal with in a follow-up.
Chris--
As I see it, in the 21st century email can be like a form of conversation among conversants who are separated geographically. Think: suppose you were a group of academics sitting at a table, over coffee or a beer, candidly discussing, say, colleagues and their work, appraising graduate students, criticizing university administrators, perhaps sharing personal information including perhaps medically related information that might be impacting your work schedule, trying out very tentative hypotheses or brainstorming about new lines of research, discussing the status of your grant proposals -- you get the idea. So, should just anyone who is not part of your group, including those with a predatory interest in using or misusing anything that could be construed to make you look bad, be allowed to sit at your table and listen in, record your conversation, and publish whatever pieces of it they chose to extract? Why would you think this was OK?
On the question of why academics might be legitimately concerned about the potential for abuse and misuse of having everyone, including those with a predatory interest, allowed to read and post their email conversations with each other, the Columbia Journalism Review “Strange Bedfellows” article
http://www.cjr.org/the_observatory/michael_mann_versus_the_press.php?page=1 has this, following a reference to the abusive, trumped-up, so-called 'Climategate scandal':
"Researchers say they are increasingly subject to freedom of information requests that, rather than gathering data for public disclosure, take the form of fishing expeditions for smear campaigns. In a two-part series in Climate Wire, Stephanie Paige Ogburn reports that the deluge has grown such that that researchers are increasingly turning to organizations like the Climate Science Legal Defense Fund, the Union of Concerned Scientists, and Public Employees for Environmental Responsibility, all designed to support scientists managing the onslaught. In March of 2012, The Washington Post ran an editorial criticizing this particular usage of FOIA, arguing that allowing records requests to be used as harassment needlessly hinders science.
“'Academics must feel comfortable sharing research, disagreeing with colleagues and proposing conclusions — not all of which will be correct,' wrote the Post, adding that making correspondence subject to public scrutiny 'discourages the sort of scientific inquiry that, over time, sorts out fact from speculation, good science from bad.' (The Post has also run two other editorials criticizing former Virginia State Attorney General Ken Cuccinelli’s attempts to investigate Michael Mann for fraud.)
"The Post’s editorial board operates independently from the newspaper’s legal team. But, since the editorials came out, the ramifications of the case on freedom of information laws have become worrying. The lower court '[interpreted] the exemption so broadly that arguably almost no academic records would ever be available. That wasn’t the result we had advocated in our 2012 editorial,' wrote Fred Hiatt, editorial page editor at The Washington Post, in an email.
"'That does not change our original position that the exemption, properly interpreted, does protect some research and scientific working papers,' he continued. 'Nor would our lawyers disagree with that editorial position.'
"Using FOIA as a tool for harassment gives pause to those who advocate for broad and strong legislation for public access. …"
I have considered your points below:
On discussing colleagues and other people: Going back to my training on corporate communication: If you don't want it read, then don't write it. In other words, if making comments about someone, perhaps in the heat of the moment that might be considered sensitive or otherwise negative, it's best to do so interactively with a trusted listener instead of writing them into the electronic record where they can propagate (or be intercepted as I commented above).
Otherwise, I reiterate my previous position that professional discourse within legitimate lines of inquiry should not fear censure. People are "wrong" much of the time, myself included, what with the world being as complex as it has become. The best policy is to simply admit it and move on.
I see your point on people using Freedom of Information inquiries as a form of harassment, and I do not condone it. To be balanced, though, the deliberate withholding of valid data is going to attract a backlash. If what Dr. Mann is accused of has any merit (such as withholding hockey stick metadata) then people will do what they feel they must to work around the perceived lack of cooperation.
Also, circumstances can change the scope of justified inquiry. While I see the wisdom in protecting works in progress and the electronic correspondence that accompanies them on a routine basis, demonstrated need or court order should be able to target them when need arises.
There are many who are watching the lawsuits that Dr. Mann has initiated in anticipation of the discovery phase, where the information at the center of the controversy will likely be needed for him to prove his case. It will be interesting indeed to see what transpires.
"perhaps some day this case will finally be adjudicated on the merits."
Well qualified - "perhaps"
Unfortunately the way the US legal system works that day may be five years from now.
I think Steyn is pretty confident he can win this case. He also believes Mann only initiated proceedings in order to punish Steyn (hoping that Steyn would capitulate and settle rather than fight a protracted and expensive legal battle) and indirectly warn off any other would-be political / scientific detractors. So Steyn's defensive strategy is to reduce his legal costs to near-zero, whilst counter-claiming and dragging the process out as long as humanly possible (perhaps eventually appointing a lawyer for the trial), and thereby inflicting the maximum financial harm to Mann in precisely the same way that Mann intended to hurt Steyn. The question is whether Mann's backers be willing to pursue a 5-year case with millions of dollars of fees outstanding and with an uncertain trial verdict at the end of it all?
Best wishes to CSW readers,
James
Bath (UK)
Agreed. Though this was not his initial plan. He tried the conventional way and after 18 months was back where he started. I think he is also making a statement about the US justice system in general by refusing to play by the standard rules.
I guess my biggest issue(s) with this case:
1- The investigation into the 'climategate' emails was focused on East Angelia, not Mann. Meaning, he was never directly investigated nor cleared.
2- Allowing scientific consensus to squash debate on a topic is a slippery slope, and potentially deprives the world of the next Copernicus or Galileo simply because they question the consensus.
3- Allowing a government body to sanction speech or research and declare it truthful seems akin to allowing the Roman Church in the Middle Ages to squash all questioning, and highly anti-scientific.
Basically.. I would rather have the scientific reputation of someone who has willingly placed himself in front of the public on an issue tarnished and destroyed than to take the risk that in defending his or her reputation we would be setting a precedent that allows for the silencing of those raising questions that the powers-that-be do not wished to be asked.
Andy, even if this case is decided in Mann's favor, that does not prevent dissent or establish an unquestionable, government-sanctioned hegemony. The issue is that you simply cannot accuse a person of acting in bad faith if there's no evidence that they did so. It's defamatory, and if done with malice libellous. If someone in the future actually does falsify data in the way that Mann was accused of, then this case will not prevent that from coming out because truth is an absolute defense against a charge of libel.
If Steyn actually had solid evidence that Mann had engaged in scientific misconduct, he'd be trying to hurry this case along to the trial phase. But he doesn't because he's a blowhard and an ignoramus who doesn't know anything about climate science, computer modeling, or statistical analysis. Steyn's best bet would be to stand up in court and say that he's so obviously a blithering idiot that only a fool would take what he says about anything seriously. That might actually work, and as a defense it's consistent with the evidence of his current behavior.
Basically, this case represents the distinction between saying that, for example, a politician is a scum-sucking SOB (which is mere vulgar abuse) and saying that this politician is on the take. Steyn doesn't have to pretend to like Mann, he doesn't have to treat him with respect in the pages of the National Review, and he doesn't have to believe that climate change is occurring even if it is. But if you make specific charges of professional malpractice, you have to have some sort of evidence to back it up. How is that a problem?
Isn't the purpose of scientific research to publish findings? And when a work is published isn't an author of such a work now a public figure? And aren't public figures subject to media scrutiny, and the media that makes such claims protected? Why is it that a scientist that receives public funding can have special first ammendment protection that a police officer or celebrity would not? Have damages been proven?
Publishing a scientific paper does not make one a public figure.
Being attacked by deniers does.