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Showing posts with label Barry Bickmore. Show all posts
Showing posts with label Barry Bickmore. Show all posts

Monday, July 21, 2014

Barry Bickmore's hilarious takedown of the Potty Peer's latest rampage, this time on his home away from castle -- WUWT

Readers, have you been finding the summer just a bit too droll?  Well, things are looking up!

For your enjoyment, Dr. Barry Bickmore does another simply marvelous takedown of Monckton's latest antics on WUWT:

by Barry Bickmore, Climate Asylum, July 21, 2014

Hang around the Watt’s Up With That? blog for any length of time, and it will become apparent that His Lordship, Christopher Monckton, 3rd Viscount of Brenchley, is all but worshipped by many of the regulars there.  No matter how absurd Monckton’sintellectual flagellations, Anthony Watts will post them, and hordes of credulous commenters will heap adulation upon His Lordship.  One of Monckton’s long-time fans is Willis Eschenbach–construction manager, climate hobbyist, and frequent contributor to both the blog and the Heartland disinformation conference.  Willis, unfortunately, learned what happens if you express strong disagreement with anything Monckton says, i.e., Monckton threatens to sue you.  Yes, Monckton has turned yet another corner, and has begun threatening his fellow climate change contrarians, in addition to the typical academics and reporters.  Witness poor Willis begging his fallen hero to reconsider!
Christopher, please, I implore you as a friend, cease with the legal threats. Every time you make such a threat of legal action against some scientist that you disagree with, your credibility sinks another notch.
Yes, you have the means and the position and the title and the power and the friends and the money to cause trouble for people … do you truly not understand that your threats to use your power and money and advantages and hereditary title against some poor skeptical shlub like myself because you don’t like his claims just makes you look like an insecure bully? Is there truly no other way to defend yourself? Dang, dude, you can strip the hide off a buffalo with your unmatchable eloquence, or have half the world laughing at someone’s foolishness with your irascible wit … you don’t need legal means to set things straight, your intellect and your words are more than enough to do that.
Alas, Willis’s struggle isn’t merely against a momentary lapse in judgement by his hero.  He is fighting INVIOLATE LAWS OF THE UNIVERSE–Bickmore’s First and Second Laws of Monckton.
Bickmore’s First Law of Monckton 
For every person who publicly endorses Lord Monckton’s climate pronouncements for merely irrational reasons, there exists a threshold in Monckton’s behavior which, if crossed, will cause said person to regret their association.
Bickmore’s Second Law of Monckton
Any behavioral threshold posited by Bickmore’s First Law of Monckton will eventually be crossed by Lord Monckton.
Let’s back up and examine the series of events that led to this curious juncture, so that we might recognize the inexorable march of fate, driven by the Invisible Hand of Bickmore’s Laws of Monckton.
A Pebble in the Pond
Our story begins with Dr. David Evans, an electrical engineer who goes about inexplicably calling himself a “Rocket Scientist”, and a conspiracy theorist who makes Jews uncomfortable by going on and on about an international banking conspiracy involving the Rothschilds.  Evans is in the running for the Next Climate Galileo for his new “theory,” which posits a mysterious “Force X” from the Sun that influences the Earth’s climate with an 11-year delay.  And it involves math.  Jo Nova, Lord Monckton, and some other prominent contrarians immediately jumped on the bandwagon, but others (i.e., the ones who don’t think the Sun can possibly the culprit for recent warming) weren’t so sure.  Among them were Willis Eschenbach and Leif Svalgaard.  Svalgaard appears to be a solar physicist, and doesn’t buy the idea that the Sun explains everything, but I’ve heard he is some kind of “lukewarmer.  He comments regularly at WUWT, to the extent that Anthony Watts calls him “WUWT’s resident solar expert.”
The usual protocol at WUWT is that Anthony will put up a guest post by some wing nut, even if he knows it is utter nonsense.  (Check out some of my favorite examples here.)  Some commenters will jump right on the bandwagon, but others will disagree.  A few hardy souls from Reality might pop in to take a swipe at it, and will get dog-piled.  Watts and all the regulars will pat themselves on the back for being so open-minded, in contrast to the “alarmists” who are always trying to stifle such scintillating intellectual exchanges.  It’s all good, as long as the conclusion to any argument (no matter how ridiculous) is that the scientific consensus on climate change is wrong, or doesn’t exist, etc.
The problem is that some of the contrarians–even the sort who hang about WUWT–still have some minimal intellectual standards.  Both Eschenbach and Svalgaard were able to recognize that much of Evans’s work relied on a bizarre hodgepodge of solar data sets that was apparently corrupted by some improper data processing techniques.  They spoke up, and lots of angry back-and-forth ensued, most notably with the following comment by Svalgaard.
It is worse than I thought. The TSI used by Evans is totally wrong
Apart from the use of the obsolete Lean TSI for the early years, the most blatant error is the statement that TSI has had a sharp unprecedented drop starting in 2003-2005 to now. This is complete nonsense. Here is TSI since 2003
There is no such drop. If anything TSI is now higher than it were in 2003. As far as I am concerned, the model is already falsified. Not by the observations but by the [almost fraudulent - as there clearly is an agenda here] use of invalid input to begin with. This concludes my comments as the prediction is worthless on its face.
Monckton Escalates
The “almost fraudulent” comment angered His Lordship, who called it “libelous.”  Svalgaard returned fire, calling one of Monckton’s comments “outright stupid, and advising, “You do yourself no favours by pretending to be so dumb.”  Monckton insisted he was right, and pronounced Svalgaard’s scientific career to be over.
He is a quack, not a scientist. This was not inadvertence on his part: it was plain wickedness. Nothing he ever says again on any scientific subject can or will be taken seriously. He is finished, dead by his own hand.
Willis Eschenbach was chiming in, meanwhile, and getting a little hot under the collar when Monckton defended Evans’s refusal to make his data and code available to others.  “Ooooh, bad Lord Moncton [sic], no cookies, logical fail.”
Monckton, in his usual fashion, started throwing out threats.
I have given Mr Svalgaard every opportunity to apologize to Dr Evans but he has chosen not to take it. I shall now consult the statistician, verify Mr Svalgaard’s employment status and, if any academic institution is employing him, refer his allegation against Dr Evans to the appropriate authorities as an instance of gross and persisting research misconduct.
Which really ticked off Svalgaard.  “Good luck with that. I can’t wait.”  Monckton thenwent into some detail about his plans.
I do not speak for Dr Evans in any way, and I have no idea of whether he will decide to sue. As a first step, he might request Anthony to allow him to answer the allegations in a head posting, which would go some way towards expunging Mr Svalgaard’s nastly libel of him in his calling as a scientist.
Perhaps in the United States, as one thoughtful commenter has suggested, persistently and falsely calling someone “almost fraudulent” for allegedly “fabricating” scientific data is thought acceptable. Not in Australia. There, as in any British-law jurisdiction, such a libel is taken very seriously indeed. I had hoped I had made that plain to Mr Svalgaard, so as to give him the chance to get himself off the hook.
For my part, I am referring Mr Svalgaard’s long list of malicious comments about Dr Evans (but not about me: I give as good as I get) to his university, which will know best how to handle the matter, for there is a rather delicate aspect that I am not at liberty to discuss here. The university will most certainly realize that the do-nothing option is not an option. The libel is too grave and too persistent. My lawyers are looking at it tomorrow to see whether malice is present, in which case the damages would triple, to say nothing of the costs. Their corresponding lawyers in the U.S. will be giving advice on whether Dr Evans would count in U.S. law as a “public figure,” Probably not, from what I know of the “public-figure” test, in which event, in order to enforce the judgement of the Australian courts in the U.S., it would not be necessary to prove malice (for, though malice seems evident, the test in Australian law is high).
It would also be open to Dr Evans simply to apply to the court for a declaration (in Scotland, declarator) that he had not fabricated anything or engaged in any of the other varieties of scientific misconduct of which Mr Svalgaard has seen fit to accuse him with such vicious and unbecoming persistence. Given the sensitivity to which I shall be drawing the university’s attention, that might be the kindest course.
And there, I think, we had better leave it and let the appropriate authorities take over. I have only been as explicit as this because this posting will also go some little way towards expunging the libel and minimizing the damage to Dr Evans’ reputation that Mr Svalgaard seems to have intended.
What His Lordship forgot to mention was that the 2010 SPEECH Act makes foreign libel judgements unenforceable in the USA, unless they are compliant with the First Amendment.  Oh, and the allegedly libelous statements must be provably false.  Given that Svalgaard only said that Evans’s mistakes were “almost fraudulent,” whatever that means, good luck with that.
The Olive Branch Gets Torched
Willis felt bad that he had let his temper get the best of him, and he regretted Svalgaard’s “almost fraudulent” comment, so he wrote another blog post called “Mending Fences, in which he apologized for any rhetorical excesses, but defended his position.  He also said that, while he disagreed with Svalgaard’s characterization, he thought it was “understandable” that he would float the idea, given the sheer number of mistakes Evans had made.  Monckton showed up in the comments, once again, demanded further apologies, and hinted that he was following through on his threats against Svalgaard.
Mr Eschenbach says it was “understandable” that another contributor had accused Dr Evans of being “almost fraudulent.” It was not “understandable.” It was irresponsible and inappropriate…. There was no basis whatsoever for accusing Dr Evans of being “almost fraudulent,” and the person who made that allegation and regrettably failed to withdraw it is now in considerable trouble over it. There are plenty of fraudsters in the climate scam, but Dr Evans is most certainly not one of them.
Well, Svalgaard wasn’t having any of that, and responded with the Big Guns, namely, my own Lord Monckton’s Rap Sheet!!!!
Monckton of Brenchley says:
July 17, 2014, at 3:56 am
“There are plenty of fraudsters in the climate scam,”
I note that another commenter here has accused me of fraud, and has cited a particular website much of whose contents I had not previously seen. My lawyers will be visiting me early next week to deal with some of the allegations on that website.
So apparently now he’s going to lob some legal threats my way, too, unless he was talking about Gavin Schmidt’s piece at the Realclimate site.  If he wants to threaten me, it won’t be the first time.  I am now opening a betting pool in the comments, so my readers can weigh in about (1) whether Monckton will actually follow through on his threats, and (2) if so, whether his objections will include his oft repeated claim that he is a member of Parliament, no matter what Parliament says.
Willis chastised His Lordship for his hypocritical behavior.
Finally, you advocate “greater civility all around,” while at the same time you said you are paying your lawyers to find out if David and Jo can claim triple monetary damages from Leif and unspecified “others” (perhaps including myself) for some imagined damage to their reputations … perhaps it’s just me, but I find resorting to threats of legal action and triple monetary damages in a scientific discussion, however fractious, to be … well … not all that civil …
Monckton shot back:
That commenter finally presumes to give me legal advice. With respect, that is not a matter for him, nor am I aware that he has legal qualifications. I had not until recently realized the extent to which websites all over the place were accusing me of falsehoods and fabrications of which I was not guilty. One of these accusations was so effective that even our kind host here was initially taken in by it. However, unlike the commenter who has made such an uncommon nuisance of himself here, he quietly investigated the allegation in question, found it to have been entirely unmeritorious, and was good enough to publish the results of his researches. It will now be necessary for me to have that and other libels retracted and apologized for, so that no one else is taken in.
[NOTE:  That's why I'm betting that Monckton might bring up his claim to be a member of Parliament.  Anthony Watts ("our kind host") once posted an explanation by a lawyer Monckton hired, about why he is really a member, no matter what Parliament says.  I responded with a post about how ridiculous the lawyer's claims were. ]
Which brings us back to Willis’s plea to his fallen hero.
Christopher, please, I implore you as a friend, cease with the legal threats. Every time you make such a threat of legal action against some scientist that you disagree with, your credibility sinks another notch.
Yes, you have the means and the position and the title and the power and the friends and the money to cause trouble for people … do you truly not understand that your threats to use your power and money and advantages and hereditary title against some poor skeptical shlub like myself because you don’t like his claims just makes you look like an insecure bully? Is there truly no other way to defend yourself? Dang, dude, you can strip the hide off a buffalo with your unmatchable eloquence, or have half the world laughing at someone’s foolishness with your irascible wit … you don’t need legal means to set things straight, your intellect and your words are more than enough to do that.
Alas, Willis may still fail to realize that every time someone has bothered to look beyond Monckton’s “unmatchable eloquence” (translation:  “bombastic nonsense calculated to impress the credulous”) they have found the “intellect” lacking and the “words” misleading.  And they have very often become the target of his threats.  Lest any of us forget the history, I include here the “Threatening Those Who Disagree With Him” section of Lord Monckton’s Rap Sheet.  I’ll have to update it, now.
1. Monckton has threatened to instigate academic misconduct investigations against several professors who have exposed his misrepresentations.  The list so far includes Naomi Oreskes, John Abraham, and myself.  He has even threatened a libel suit against John Abraham.  UPDATE:  Monckton has now threatened to extend the libel suit to include Scott Mandia.  Here is Scott’s reply.  UPDATE:  John Abraham tells me that Monckton has threatened lawsuits against him several more times, and Monckton has also threatened me, once again.  He also wrote my university administration to tell them I was mentally imbalanced, and that I had been sending him “hate mail.”  Well, at least the second part is false. UPDATE:  He also tried to get Tony Press (U. Tasmania) fired.  UPDATE:  Monckton also lodged a complaint at a New Zealand university against professors Jonathan Boston, David Frame, and Jim Renwick for “academic fraud” and libel.  The university investigated the complaint, then blew it off.  But before the verdict was in, Monckton threatened to sic the police on the university if they were to… you know… blow him off.  I’m sure the police have an entire unit on the case as I write this.
2. He launched a complaint to the Press Complaints Commission in the UK against The Guardian because of a column George Monbiot wrote about Monckton’s antics.  The PCC threw out the complaint. In a bizarre twist, George Monbiot reported that someone claiming to be Monckton and using Monckton’s IP address had tried to edit his Wikipedia page to falsely claim that he had won a £50,000 settlement from The Guardian because of Monbiot’s article.
3. Monckton lobbed threats against Arthur Smith after Arthur objected that Monckton (and the Science and Public Policy Institute) had violated copyright.  Smith had written a rebuttal of one of Monckton’s articles, and was trying to get it published.  Monckton put the entire thing up on the web along with his comments, and altered the article to imply that Smith had written it at the behest of his employer, the American Physical Society, which was not true.  Arthur prevailed after threatening legal action, because he was clearly in the right.
4. John Mashey pointed out an instance where one contrarian had plagiarized from Monckton (and cited papers that had been challenged and withdrawn), and then Monckton turned around and praised the work.  When Richard Littlemore reported this, Monckton left a comment on the page saying that Mashey was “under investigation” for breaching “doctor-patient confidentiality,” and that he was guilty of “interfering in an unlawful manner on the blogosphere.”  To this day, I don’t think anyone has any idea what Monckton was talking about.
5. George Monbiot chronicled how Monckton has threatened several times to sue The Guardian for libel.  The U.K. has libel laws that are absurdly in favor of plaintiffs, and yet, these lawsuits have never materialized.
6. Senators John Rockefeller and Olympia Snowe wrote an open letter to Exxon-Mobil, urging them to stop funding climate-contrarian “think-tanks,” whose tactics resemble those of the tobacco industry, Lord Monckton wrote an open letter to the senators, in which he said, “In the circumstances, your comparison of Exxon’s funding of sceptical scientists and groups with the former antics of the tobacco industry is unjustifiable and unworthy of any credible elected representatives. Either withdraw that monstrous comparison forthwith, or resign so as not to pollute the office you hold.”  Ok, so this isn’t really a threat, but Monckton’s language is so bombastic and filled with fake moral outrage that it almost feels like a threat.  I should note that (1) in his letter, Monckton falsely claimed to be a member of Parliament, and (2) Naomi Oreskes, a prominent science historian, and Erik Conway, have shown that not only do the most prominent organizations fighting mainstream climate science follow the same playbook as the tobacco industry, but it’s often the SAME organizations and people doing the fighting on both fronts!
7. Monckton launched yet another complaint to the Press Complaints Commission against New Scientist magazine, which had the temerity to point out that Monckton’s article on climate sensitivity in an American Physical Society newsletter was not peer-reviewed, among other things.  Of course, the editor had specifically noted that the newsletter is not a peer-reviewed publication, but Monckton said he had the article critiqued by a “Professor of Physics,” i.e., someone who isn’t a climate specialist.   The complaint was not upheld.
8. His Lordship complained to Ofcom, the British regulator for TV and radio programming, that he had been unfairly treated by the producers of the BBC documentary, Earth:  The Climate Wars.  Ofcom found that the show’s producers should have given more information to Monckton upfront about the nature of the program (even though Monckton expressed familiarity with how the BBC had covered the issue in the past).  However, they found that the lack of informed consent did not result in any misrepresentation of Monckton’s views by unfair editing.  The complaint summary linked above is a fascinating read, if you have about 15 minutes.
9. Monckton threatened to have IPCC Chairman Rajendra Pachauri jailed for fraud because he used an IPCC graph that turns out to be correct, but misleading.  In his letter to Pachauri, however, His Lordship used a temperature graph that had already been shown by several scientists to be blatantly fabricated.  I’m sure Monckton is on his way to Scotland Yard right now to give himself up.
10. The BBC aired a documentary called “Meet the Climate Sceptics” which apparently focused largely on Lord Monckton.  (Click here to see the trailer.)  In fact Monckton unsuccessfully attempted to have the courts stop the BBC from airing it unless they allowed him to insert a 3-minute video rebuttal into the program.
11. The ABC (Australia) aired a rather stunning gutting of Monckton and his crowd.  Journalist Wendy Carlisle brought up several instances where Monckton’s sources contradicted him, the fact that he falsely claims to be a member of Parliament, his miracle cure-all, and more.  So of course, Monckton threatened to sue unless given airtime to reply.
http://bbickmore.wordpress.com/2014/07/21/the-monckton-files-a-hero-has-fallen/


Wednesday, January 29, 2014

Barry Bickmore: What Precedent? Why National Review et al. Are Running Scared

by Barry Bickmore, Climate Asylum, January 28, 2014


Whenever there is a big, public legal battle, it seems like the principals spend a lot of time talking about “setting precedents.”  Sometimes this is legitimate, because if you can help it, you don’t want the bad guys to get away with any heinous miscarriages of justice.  But in other cases, all the talk about “setting precedents” is just so much public posturing.  Of course, both sides will accuse the other of posturing, but if you pay attention, sometimes it becomes apparent which is which.  I believe this is now true for the Mann v. National Review et al. case, for instance.  (The defendants are theNational Review, the Competitive Enterprise Institute, Mark Steyn, and Rand Simberg.)
Climate scientist Michael Mann has been hounded for years by ultra-right-wingers who JUST KNOW, based on a single, innocuous phrase taken out of context from a stolen e-mail, that he must have done something fraudulent when preparing his famous “Hockey Stick” paleotemperature reconstructions… even though a number of subsequent studies by other groups, using different data types and different statistical techniques, have essentially confirmed that the “Hockey Stick” was about right.  Some of the crusaders trying to stick it to Mann, such as Virginia AG Ken Cuccinelli and the American Tradition Institute, have tried (without anything approaching “probable cause”) to legally gain access to Mann’s e-mails and other documents, so they can go on a fishing expedition to find anything incriminating (or at least embarrassing), but Mann and the University of Virginia chose to fight this.  Why?  Because it sets a bad precedent to let people (especially those who have demonstrated themselves to be zealots) to go invading your privacy with no cause.  Scientists shouldn’t have to worry about being slapped with some onerous demand for all communications and documents about whatever they have been up to, unless someone has some reasonable cause to think something’s wrong.  Otherwise, it would be too easy to abuse the system to persecute or slow down researchers producing results that are politically unpopular in some quarters.
Naturally, Mann’s enemies have labeled this as posturing.  If he REALLY had nothing to hide, he wouldn’t mind letting barely educated zealots comb through all his documents trying to find anything they can use against him, right?
But then something interesting happened. Writers for a couple of Mann’s most persistent critics, the National Review and the Competitive Enterprise Institutecame right out and called Mann’s work fraudulent, and said that he had manipulated his data for political purposes.  Mann threatened to sue, and they told him to buzz off.  The way Rich Lowry of the National Review did so was interesting, because it brought up the old specter of being able to comb through Mann’s documents, which they KNEW he didn’t want!
Usually, you don’t welcome a nuisance lawsuit, because it’s a nuisance. It consumes time. It costs money. But this is a different matter in light of one word: discovery.
If Mann sues us, the materials we will need to mount a full defense will be extremely wide-ranging. So if he files a complaint, we will be doing more than fighting a nuisance lawsuit; we will be embarking on a journalistic project of great interest to us and our readers.
And this is where you come in. If Mann goes through with it, we’re probably going to call on you to help fund our legal fight and our investigation of Mann through discovery. If it gets that far, we may eventually even want to hire a dedicated reporter to comb through the materials and regularly post stories on Mann.
My advice to poor Michael is to go away and bother someone else. If he doesn’t have the good sense to do that, we look forward to teaching him a thing or two about the law and about how free debate works in a free country.
He’s going to go to great trouble and expense to embark on a losing cause that will expose more of his methods and maneuverings to the world. In short, he risks making an ass of himself. But that hasn’t stopped him before.
The climate change contrarians rejoiced!  Go for it Mike, we all look forward to the enlightenment of discovery!…” chortled Anthony Watts, in a post charmingly entitled, “Yay!  Mike Mann took the bait, intends to file suit against Steyn and NRO.”  ”I think Steyn just went to COSTCO with the NRO credit card to get the industrial strength size can of whupass he’ll be opening.”
But Mann did proceed with the case.  Oh sure, Lowry allowed that Mike Mann might do so, but if Mann were too full of hubris and stupidity to understand the ramifications of a discovery process, why would he have have fought so hard against the Cuccinelli and ATI fishing expeditions, if he really had something to hide?  No, he knows exactly what the discovery process entails, and he doesn’t care.  In other words, all that talk about setting a bad precedent by letting the fishing expeditions proceed was not mere posturing.  Mann meant it, and he really is not afraid of them finding anything too damning.
But wait!  The other side was SURE they would find all kinds of damning material during discovery, and Mann was falling into their carefully crafted trap, right?  Wouldn’t they want to head right into discovery, so they could open that big ‘ol can a’ you-know-what?
The defendants immediately began filing motions to dismiss the case as a frivolous attempt to stifle their free speech.  (The acronym is SLAPP–Strategic Lawsuit Against Public Participation.)
Huh?
Well, you know, because it would set a bad precedent.   Defendant Mark Steyn explained, with respect to one of those motions:
Many “climate skeptics” wonder why the defendants would want to get the complaint dismissed rather than put Mann through a trial in which he would have to take the witness stand and discuss his work under oath. I can understand their enthusiasm for this but for me the priority has always been the broader cause of free speech:
“Defendant Steyn stands by his words and is willing to defend them at trial and before a jury, should it come to that. However, as a noted human-rights activist in Canada and elsewhere, he believes that the cause of freedom of expression in the United States would best be served by dismissing the amended complaint, and that a trial would have a significant ‘chilling effect’ in America of the kind the Anti-SLAPP laws are specifically designed to prevent.”
The “chilling effect” is a bigger threat to civilized society than all Dr Mann’s warming. But the judge chose instead to put us on the road to a full-scale trial. So be it.
Well, that makes sense, I guess.  We wouldn’t want to threaten civilized society by letting this thing go all the way to trial.  Right now,  I understand that most of the defendants are filing an appeal to the judge’s current ruling, in which he refused to throw out the case.  Mark Steyn, acting as his own counsel, has now petitioned the court to remove his name from the appeal, however.
I certainly don’t know all their motivations, but one thing is clear.  All that tough talk about rejoicing at the possibility of sifting through Mann’s documents was just so much public posturing.
Here’s what I think is going on.  (Feel free to attack the following points in the comments.) 

In general, defendants in a slander or libel case have five possible defenses, four of which are summarized in an online legal dictionary like so:
In general, there are four defenses to libel or slander: truth, consent, accident, and privilege. The fact that the allegedly defamatory communication is essentially true is usually an absolute defense; the defendant need not verify every detail of the communication, as long as its substance can be established. If the plaintiff consented to publication of the defamatory material, recovery is barred. Accidental publication of a defamatory statement does not constitute publication. Privilege confers Immunity on a small number of defendants who are directly involved in the furtherance of the public’s business—for example, attorneys, judges, jurors, and witnesses whose statements are protected on public policy grounds.
The fifth defense is to argue that the statements in question were not, by definition, defamatory.
Since Mann didn’t consent, the publication wasn’t an accident, and the defendants are not in categories that receive automatic immunity, only the defense of truth and denial that the statements qualify as defamatory are available to the defendants.  They have at least implied both possibilities, depending on the situation.
When trying to get the case dismissed, the defendants’ arguments have been about how their accusations do not pass the test for being considered defamatory.  As CEI’s attorney put it,
And regardless of how one views Mann’s work, his threatened lawsuit is directly contrary to First Amendment law regarding public debate over controversial issues.  Michael Mann may believe we face a global warming threat, but his actions represent an unfounded attempt to freeze discussion of his views.
The problem with this defense is that the statements in question weren’t just criticizing Mann’s views, or his work.  Rather, they were specifically accusing him of criminal acts, performed using government funds.  That online legal dictionary I mentioned notes that such accusations, if they are false, automatically constitute libel.
libel per se n. broadcast or written publication of a false statement about another which accuses him/her of a crime, immoral acts, inability to perform his/her profession, having a loathsome disease (like syphilis), or dishonesty in business. Such claims are considered so obviously harmful that malice need not be proved to obtain a judgment for “general damages,” and not just specific losses. (See: defamationlibelslander)
Even supposing that Mann’s lawyers can’t get the accusations treated as “libel per se,” and need to prove “actual malice,” that only entails proving that the false statement was made “with knowledge that it was false or with reckless disregard to whether it was false or not.”  (This is exactly what the  judge in the case recently ruled, so it’s not just me and the online legal dictionary making this up.)
I’ll get back to the “actual malice” issue in a moment, but first let’s talk about the defendants’ prospects using the “defense of truth.”  During the initial saber-rattling stage, Myron Ebell (Director of the CEI’s Center for Energy and Environment) said this:
The fact that Professor Mann’s hockey stick research is still taken seriously in the public debate is an indication that people haven’t read the Wegman Report to the House Energy and Commerce Committee, the National Research Council’s report, or the analysis of Stephen McIntyre and Ross McKitrick.
So does this mean they will use the “defense of truth” if the case goes to trial?  One problem with that would be that none of the documents Ebell mentioned accuse Mann of deliberately manipulating his data for political ends.  Oh, you can find a few things to argue that Mann made some minor mistakes that didn’t end up making much difference for his results, or made some data-handling choices that other scientists might not have, but deliberate data tampering is another matter.
But the main problem with the “defense of truth” is that the accusation of deliberate fraud is just stupid.  The basic conclusions of Mann’s Hockey Stick work have been confirmed over and over by other researchers using different kinds of data and statistical techniques, and the data-handling choices some question were openly discussed in the literature.  Mike Mann discusses all this in his book, The Hockey Stick and the Climate Wars, and Myron Ebell mentioned that he was aware of the contents of this book when he made the statement quoted above.
Professor Mann’s political advocacy is no more reliable than his scientific research.  His recent book, The Hockey Stick and the Climate Wars: Dispatches from the Front Lines, repeats numerous factual errors, some of them about CEI.
So if the accusations are stupid on their face, and this had been pointed out to the defendants, it seems to me that it will be hard for the defendants to argue either that the accusation was true, or that they made the accusation against Mann without “reckless disregard to whether it was false or not,” i.e., without “actual malice”.   Maybe they will turn up something in discovery to make the accusation seem less stupid, but Mike Mann doesn’t seem too worried about that possibility.
The above analysis provides at least some of the reasons why I  believe the defendants are feeling little warm trickles down their legs right now.  The judge has already refused to throw out the case, because the defendants’ accusation obviously does qualify as defamation under the law (proving “actual malice” is a matter to be brought to the jury).  They never had anything other than unsubstantiated rumors to base their accusation on, and it had previously been pointed out to them that the accusation was ridiculous on its face.  What’s more, it would be very difficult for any of the defendants to just apologize and settle the case, because their constituency (from which they derive their livelihoods) consists of extreme Libertarian wingnuts, who might abandon the defendants if they appear to compromise with New-World-Order-mandated science.  For instance, yesterday Mark Steyn was busy throwing the ravening wolves a bone, thusly:
On that note, I promise my many kind supporters I will not let you down, I won’t be settling, and the denouement will be way better than “The Good Wife.” It’s time for Michael Mann and the sclerotic DC courts to bring it on or bugger off.
As I see it, the defendants only have four options if (when) their attempts to get the case thrown out fail.  1) They can hope against hope to find any evidence of foul play on Mann’s part during discovery.  2) They can hope against hope that they get a really, really stupid AND Libertarian-leaning jury… in Washington DC.  3) They can hope their wingnut army keeps buying their lines about defending Freedom of Speech long enough to finance all the legal bills and the eventual judgement.  4) In Mark Steyn’s case, he might try what might be a hitherto unknown defense in a libel case.  That is, he could claim that he’s too stupid to even understand anything that has been said about Mann’s work.
No, really.  Mark Steyn recently wrote that he thinks the Hockey Stick is a “climate model” whose predictions have failed to be realized.
In a post at NATIONAL REVIEW’s website, I mocked Dr. Michael Mann, the celebrated global warm-monger, and his ‘hockey stick,’ the most famous of all the late-Nineties global-warming climate models to which dull, uncooperative 21st-century reality has failed to live up. So he sued.
This obviously guts any defense claiming he made the accusation against Mann without “reckless disregard to whether it was false or not,” so what can he do if the flow of wingnut money dries up? So I’m asking you lawyers out there, has this defense ever been tried?  I mean, I sort of doubt Steyn will resort to this, but you know… hypothetically… could he?  That’s a precedent I wouldn’t mind seeing set.
[UPDATE:  Mark Steyn linked to this page with the following comment.  "BONUS! Ever anxious to help, Barry Bickmore (apparently auditioning to be my Javert) suggests that yours truly plead not guilty on grounds of insanity."  No, I suggested he plead not guilty on grounds of… sigh… he's making this way too easy.  It's not even fun, anymore.]

Sunday, January 26, 2014

Barry Bickmore: “How to Manipulate Rubes into Covering Your Legal Bills,” Mark Steyn edition

by Barry Bickmore, "Climate Asylum" blog, January 26, 2014

If you haven’t been following the Michael Mann v. National Review, Inc. et al. case, here’s a quick summary.  Rand Simberg, of the Competitive Enterprise Institute, thought he had a clever way to capitalize on the Jerry Sandusky scandal at Penn State.  Compare Penn State climate scientist Michael Mann to Jerry Sandusky, and accuse him of producing fraudulent scientific data!  This charge was repeated by Mark Steyn, blogging for the National Review magazine, and of course, neither Steyn nor Simberg had the presence of mind to clearly label their accusations as opinion, or provide any caveats whatsoever, or… you know… provide any “evidence” for the accusations.  Having put up with such accusations by wingnuts for a number of years, Mann sued.  Of course, the defendants have been complaining about their “free speech” rights, and trying to get the case thrown out based on certain laws meant to stop people from using defamation/libel suits to stifle legitimate public discourse.  But there are limits on “free speech,” and now two different judges have ruled that they would allow the case to proceed, because it is likely to succeed if presented to a jury.  Meanwhile, Mark Steyn and others at the National Review… well, especially Steyn… can’t seem to keep their pie-holes shut long enough to keep from making their prospects even worse.  For instance, Steyn let loose with some searing remarks about how stupid and incompetent the first judge (who recently retired) was, which appears to have resulted in a parting of the ways between Steyn (and probably the NR) and their lawyers, so that now Steyn is representing himself (badly).  Anyway, if you want to  protect your “right” to publicly throw out baseless accusations of fraud, it’s going to cost you some cabbage, and so lately Steyn has been out begging the rubes to finance his Crusade for Freedom and Justice.  Recently, he did so on Hugh Hewitt’s radio show.  Hewitt was quite supportive of Steyn, but given that he claims to be a Constitutional Law professor (and given Steyn’s comments on the show,) I thought it likely that Steyn might not have been completely forthcoming about the nature of the case.  Here’s the note I sent Hewitt through his Facebook page.  We’ll see if he was really misinformed, or just another rube Steyn is trying to manipulate into paying his bills.
Dear Hugh,
I am an active Republican and a geochemistry professor at Brigham Young University.  I noticed that you had Mark Steyn on your show the other day, complaining about how Michael Mann’s lawsuit against him had not been dismissed, and trying to drum up some donations to help him with his legal defense.  I thought you should know, however, that Steyn wasn’t being completely honest with you about the case.
On your show, Steyn seemed to imply that the case was about his right to disagree with Mann’s “Hockey Stick” reconstructions of paleotemperatures over the last 1000 years or so.  This is not the case.  Steyn is being sued because he made the accusation that Mann “molested and tortured data in the service of politicized science,” and that Mann’s scientific work was “fraudulent.”  Both judges in the case have noted that this accusation was a statement of fact rather than mere opinion, and can hypothetically be proved true or false.  It is therefore grounds for a defamation suit, if it can be shown that (1) the accusation is false, and (2) Steyn made the accusation either knowing it was false, or with reckless disregard for the truth.  
I don’t know whether Mann will win the case, or not, but it is clearly not just some frivolous suit meant to stifle legitimate public discourse.  For one thing, the accusation is clearly false.  The main charge against the “Hockey Stick” work was that Mann and his colleagues had misused principal components analysis (a statistical technique) to obtain a certain outcome.  But when scientific bodies such as the National Research Council reviewed the case, they found that the statistics could have been done better, but the mistakes didn’t change the results much.  They also found no evidence of “fraud.”  Now, if you were going to commit scientific “fraud,” wouldn’t you fudge your data so as to actually obtain substantially different results?  The “fraud” charge is just ridiculous, whether or not you believe the “Hockey Stick” accurately describes the temperature evolution over the last 1,000 years.  For another thing, it seems very likely that Mann’s legal team can show that, at the very least, Steyn made the accusation with “reckless disregard for the truth.”  
Why am I so confident about that?  Because several scientific, academic, and governmental panels had already ruled there was no evidence of fraud, and Steyn knew that.  Second, because Steyn can’t seem to keep his ignorant mouth shut.  On your show, for instance, he claimed that the National Research Council agrees with him.  About what?  Certainly not about the fraud charge, which is what he is actually being sued over.  Also consider this passage from one of Steyn’s recent columns.
“In a post at NATIONAL REVIEW’s website, I mocked Dr. Michael Mann, the celebrated global warm-monger, and his ‘hockey stick,’ the most famous of all the late-Nineties global-warming climate models to which dull, uncooperative 21st-century reality has failed to live up. So he sued.”
Ummm… Aside from the fact that Steyn is once again implying that he is being sued for something other than calling Mann’s work “fraudulent,” I note that Steyn apparently thinks the “Hockey Stick” is a “climate model” that made predictions about the 21st century.  It isn’t.  It didn’t.  So in other words, Steyn is insisting on his right to publicly call a scientist’s work “fraudulent,” when he clearly has made no effort to understand what said scientific work is even about.  So let’s just please ignore all his posturing about his right to his opinion about the matter.  He doesn’t even care what the facts are.
So, Hugh, I believe you said you are a Constitutional Law professor.  Are you still quite so hot to defend Steyn’s foolishness?
Sincerely, 
Barry Bickmore

http://bbickmore.wordpress.com/2014/01/26/how-to-manipulate-rubes-into-covering-your-legal-bills-mark-steyn-edition/