This is about the law suit filed by Michael Mann against the Competitive Enterprise Institute, the National Review, Mark Steyn, and Rand Simberg because of accusations they made that were actionable. Michael Halpern summarized:
Competitive Enterprise Institute’s space technology and policy analyst, Rand Simberg, recently wrote a blog post in which he compared Penn State climate scientist Michael Mann to former university football coach and convicted child molester Jerry Sandusky. CEI published the post on its own blog, and the National Review decided it was appropriate to pass along. Michael Mann has rightly demanded that the National Review retract the blog post and issue a public apology.
The most offensive section of the CEI post, which has since been scrubbed:
“Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science.”
The latest round of legal briefs have been filed in climate scientist Michael Mann’s lawsuit against the National Review (NRO) and Competitive Enterprise Institute (CEI). …
NRO makes a distinction between calling Dr. Mann’s work “fraudulent” and alleging that he had, for instance, embezzled funds or fabricated raw data.
Indeed, there are gradations of accusations one can make against a researcher. Stating that a scientist is wrong in their analysis is a far cry from saying their work is shoddy, but both are normal parts of public discourse about science. It’s another thing entirely to accuse a scientist of manipulating data or knowingly using faulty methods to reach a pre-determined conclusion. …
The worst thing one can do to a scientist professionally is to accuse him or her of fraud. More commonly, scientists refer to fraud as “scientific misconduct” or “research misconduct.” …
While the original research Dr. Mann’s and his colleagues conducted 15 years ago was certainly subject to criticisms and scrutiny, it held up to that scrutiny, and nobody ever made the case that it was fraudulent.
CEI’s legal brief rehashes investigations of scientists after a hacker (or hackers) stole emails from them in 2009. …
Dr. Mann’s lawyers cite all the investigations in their brief. That makes sense since all the investigations are related and none found that Dr. Mann—or his colleagues—were guilty of scientific misconduct or fraud.
But CEI attempts to argue that these investigations were somehow insufficient. Regarding the two investigations that did focus specifically on Dr. Mann, CEI tries to downplay how serious they were. They write that Penn State’s committee looked at whether or not Dr. Mann “falsified data” and claimed that the “inquiry committee simply reviewed some of the [stolen] emails, spoke with Mann, and then dismissed it.” They also write the National Science Foundation “did not conduct an investigation of Mann’s data practices or research because it determined that ‘no direct evidence has been presented that indicates the Subject fabricated the raw data he used for his research or falsified his results.’”
…In reality, these investigations were far more thorough than CEI suggests. …These latest filings only reinforce my view that attacks against Dr. Mann are ideological and political in nature, not based on an actual assessment of his work.
As you may know, we have been having a lengthy discussion here about the original work done by Mann and his colleagues. Feel free to join in! Regarding the research itself, this is very simple. Mann and his colleagues attempted to look simultaneously at some “paleorecords” … indications from ancient sources of temperature … and the modern “instrumental record” (i.e., from thermometers) to see if the already observed increase in temperatures thought to be linked to anthropogenic global warming really does stick out like a sore thumb among temperatures going back longer in time. The result of that study was, essentially, a graph combining ancient data and modern data that looked like a hockey stick laying on its back:
There are three ways in which this research could be questioned. First, it was only of the Northern Hemisphere, not global. Second, it is possible that the particular observations of modern temperature, the instrumental record, was somehow incorrect or biased. Third, it is possible that even though this graph shows the modern increase in temperatures as extreme, maybe the older data is bad, or maybe if you went back further in time (and globally) you’d find pre-industrial (prior to the release of so much carbon dioxide into the atmosphere) periods that are warmer than today, suggesting that the underlying assumption of how greenhouse gases might be wrong.
Even at the time, though, these objections were weak. While the Norther and Southern Hemispheres may (and do) act somewhat differently from each other, they are not as out of sync as they would have to be for the basic hockey stick graph to be wrong. The instrumental data was certainly not as perfect as one might like, but it was pretty darn good data. For the last few million years, during the course of human evolution and the evolution of our current ecology, there was no reason to believe that there were periods much warmer than today, if at all.
But subsequent research was done, of course, and several findings support, refine, and expand on the hockey stick model. Additional studies of modern temperatures showed results very similar to the data used by Mann and colleagues. At least two studies look at biases (one looked at the possibility of false warming caused by urban heat island effects, another looked at areas of the Earth that are under-sampled by direct observation). Both found that the hockey stick curve was either pretty much correct for instrumental data, or actually possibly a bit lower in temperature than reality.
Of course, the entire study was extended globally, confirming this as a global pattern.
Work on paleo information extended the range of the hockey stick graph way back in time, and showed that during the Holocene (last 10,000 years) there was not a period warmer than today. Further work seems to indicate that even during among interglacial periods (we are in an interglacial now) things are warmer now than usual. It turns out that you almost certaily have to go back in time several hundred thousand years, possibly several million years, to get a time period as warm as today.
Most importantly, per has, as time has passed since the original hockey stick curve was produced, the globe has gotten warmer. The air and sea surface are warmer, though the amount of warming has been modest compared to what we would expect for a simple model where greenhouse gasses only warm the atmosphere. But a lot of heat is being absorbed by the ocean, it turns out. The true surface temperature of the planet has to include both the atmosphere and the ocean (both surface and at depth) and we think over 95% of the extra heat from global warming goes into the deep ocean, but it is not well measured.
Meanwhile the whole “Hockey Stick” controversy continued and developed. This isn’t just a couple of people and a major conservative publication falsely accusing Michael Mann of fraudulent behavior (scientific misconduct). Anti-science forces have spent millions of dollars attempting, usually very clumsily, climate science, and one or more individuals went so far as to steal emails among climate scientist, falsifying using cherry picking what was said in those emails. It is an all out war between anti-science and anti-environment groups and individuals on one hand vs. scientists and rightfully concerned citizens on the other. A great description of how these “Hockey Stick Wars” played out can be found in this book.
I just realized that the Electronic Frontier Foundation has filed a brief with the court in relation to Mann vs. the Competitive Enterprise Institute, the National Review, Mark Steyn, and Rand Simberg (variously). This is disappointing and will probably color my opinion of EFF going forward on whatever else they do. Their brief isn’t just ethically wrong, or something I disagree with. It is unintelligent and poorly considered. They simply got it wrong, as though they did not know anything about the law suit. It is embarrassing.
I wonder how they got talked/roped into this? I would really like to know that.
Anyway, I wrote them a letter and here it is:
To whom it may concern,
I’m generally a supporter of the things Electronic Frontier Foundation (EFF) stands for, but I object strenuously to your amicus brief and it’s meaning in relation to the suit brought by Michael Mann against the Competitive Enterprise Institute, the National Review, Mark Steyn, and Rand Simberg.
Your brief makes the argument that open discussion of important public issues should not be fettered by law suits of this type. You are correct in principle but you have erred in this case. Mann’s suit is not about open public debate, and he has as a scientist been involved in open public debate in far more ways than most individuals have ever been. I’ll add that Mann’s research is all open source or open access with respect to data, methods, software, and results.
The suit is not about debate. It is about defamation. This is not a matter of interpretation. While one might (incorrectly) feel defamed when someone disagrees, Mann’s suit is not about that sort of reaction. It is about actual defamation.
Perhaps Mann is wrong. Perhaps the Competitive Enterprise Institute, the National Review, Mark Steyn, and Rand Simberg have not engaged in defamation with specific statements they have made. But that can be determined in court. Mann has the right to sue for this. The Competitive Enterprise Institute, the National Review, Mark Steyn, and Rand Simberg have engaged in plenty of other forms of debate and public discourse regarding climate change and Mann’s research, but that is not at issue in this suit. You have failed to make that important distinction.
And please don’t make the mistake, or should I say, perpetuate the mistake you have already made (collectively with others), that opposition to Mann’s science is part of that defamation. It is not. Nor is science denialism or the seemingly nefarious distribution of false information about climate change by science skeptics or supporters of the fossil fuel industry part of this defamation. The National Review and other parties in this suit have lied, misrepresented, and also, simply gotten the science wrong. That is not what this is about, that is not the subject of Mann’s suit. This suit is about specific defamatory statements made as a much smaller subset of the communication and rhetoric among these parties.
It is a little embarrassing that EFF, usually much more thoughtful and intelligent about its decisions and activism, has somehow been roped into signing on to essentially support this defamatory practice. Shame on you.
I urge you do withdraw your support of the appeal as soon as possible.
“The Court finds that there is sufficient evidence in the record to demonstrate that Plaintiff is likely to succeed on the merits,” said a DC Superior Court judge in her latest procedural ruling in the defamation case of Michael Mann v. National Review, et al. “The evidence before the Court indicates the likelihood that ‘actual malice’ is present in the [National Review’s] conduct.”
The Court clearly recognizes that some members involved in the climate-change discussions and debates employ harsh words. The NR Defendants are reputed to use this manner of speech; however there is a line between rhetorical hyperbole and defamation. In this case, the evidence before the Court demonstrates that something more than mere rhetorical hyperbole is, at least at this stage present. Accusations of fraud, especially where such accusations are made frequently through the continuous usage of words such as “whitewashed,” “intellectually bogus,” “ringmaster of the tree-ring circus” and “cover-up” amount to more than rhetorical hyperbole. …
The evidence before the Court indicates the likelihood that “actual malice” is present in the NR Defendants’ conduct. …
The court clearly understands the difference between people whinging about science details, science denialism, etc. on one hand and what may be categorized as defamation.
The National Review is a political magazine, and Mark Steyn, I think, writes for them (I really don’t keep track). A while back Steyn and/or the National Review made some seemingly very defamatory statements about Michael Mann, the climate scientist. Career-damaging really icky accusations of fraud and such. They were bogus accusations, but they were also not just trollish yammering of the type we see all the time from the science denialist gaggle. So, Mann sued them.
I prefer the Law and Order version of law. Something happens on Monday, on Tuesday everything is confusing, on Wednesday there is a car chase or something, on Thursday everyone is in court and on Friday the whole maneno is done with and everyone is back to eating donuts. Real legal stuff drags on forever. If you want to catch up, here are a few blog posts and other items that might help. (That was a search using the Climate Science Search Engine, which is on the right side bar of my blog!)
Anyway, there is a new development. National Review has filed a long and boring legal document that appears to be some kind of whinging about how the case against them should go away. Eli Rabbit has made two comments about it that I agree with. First, he notes that the document states that the prior yammering by National Review is not officially “malice” because they really believe the things they say. But, in the same document, they claim that “Read in context, Steyn’s commentary was protected rhetorical hyperbole, not a literal accusation of fraud or data falsification.” See meme.
The second point also stuck out as a sore thumb when I looked at it, and it is so obvious that I assumed I was reading the legal document incorrectly. But Eli confirms. From the legal document:
…critics have argued that the hockey stick is misleading because it splices together two different types of data without highlighting the change: For roughly the first nine centuries after the year 1000 A.D., the graph shows temperature levels that have been inferred solely from tree-ring samples and other “proxy” data. But from about 1900 onward, the graph relies on readings from modern instruments such as thermometers.
I’m pretty sure the technical legal term for this is taurus craps puris*. The hockey stick graph in its original form and most early incarnations has color coding or other appropriate line style differences to distinguish between the records. Some people have taken both the hockey stick graph and other similar graphics and merged the data into a single squiggle for presentation purposes, an acceptable if not always wise method. The National Review legal document also makes mention of shifting between proxies and instrumental data. They suggest that a broken instrumental record should have been used instead of simple temperature measurements with thermometers and stuff. This harks back to the time the climate science denialists stole a bunch of scientists’ email and made stuff up about it (a complicated story but one you can read about in detail in Mann’s book).
This filing by the National Review is a lame defense against a very well argued and appropriate law suit. I’m sure this won’t last until Wednesday in court. (Law and Order time.) Not only are their claims wrong, but they have been known to be long for a very long time.
*Translates roughly as Complete and Utter Bullshit.