Science By Jury: Michael Mann’s Defamation Case Sets Alarming Precedent

Settling scientific debates in court is a grave threat to free speech.

Image by squarefrog. Credit: Pixabay

A well-worn set of arguments underscoring the urgency of addressing climate change is familiar to any consumer of mainstream media. Less ubiquitous is the dissenting view: climate change is not the catastrophe activists have warned about for decades. While earth has warmed about one degree Celsius over the last 50 years, this counterargument goes, weather-related disasters have declined, food production has exploded, and living standards around the globe have never been higher.

Those developments are good news on their own. They’re also important context for public debates over what, if anything, governments and other institutions should “do about” climate change. Pointing out holes in climate disaster scenarios, even stridently or mockingly or rudely, should not put anyone on the wrong end of a defamation lawsuit. But a recent D.C. Superior Court case in which two political commentators were fined more than $1 million for challenging the conclusions of Penn State climate scientist Michael Mann has set that alarming precedent.

Not only has the verdict emboldened those who would happily dismantle the First Amendment, the inevitable chilling of speech that will accompany it threatens the progress of science that makes modern life possible.

Settling science in court

Michael Mann is perhaps the most well known climate researcher in the world. Creator of the infamous “hockey stick” graph depicting (misleadingly, by some accounts) global temperature increases after the industrial revolution, Mann is a prominent advocate for maximalist climate policies—including “laws that force special interest money” (i.e. his opponents) out of energy policy debates.

Though Mann is widely cited in media reports, his work has generated fierce criticism from other scientists and some journalists and commentators, such as former Competitive Enterprise Institute (CEI) scholar Rand Simberg and National Review (NR) contributor Mark Steyn. On separate occasions, the two writers accused Mann of committing outright fraud when building his temperature reconstruction.

Subsequently, Mann sued Simberg, Steyn, CEI and NR for libel. His 2012 complaint against the two organizations was thrown out in 2021, though a jury ruled in his favor this February against Simberg and Steyn as individuals, finding that they made defamatory statements with “maliciousness, spite, ill will, vengeance or deliberate intent to harm.” The jury awarded Mann $1 in compensatory damages against both defendants and $1 million in punitive damages against Steyn and $1,000 against Simberg. 

“We hope this sends a broader message that defamatory attacks on scientists go beyond the bounds of protected speech and have consequences,” Mann and his attorney wrote in the New York Times on February 15.

Open debate not welcome

Mann is correct that the verdict sends a message. But contrary to his celebratory rhetoric, it’s not a positive one. Rather, the decision signals that activists can manipulate the courts to silence their critics, no matter the consequences to open debate. This is evident from Mann’s conduct before and during the case, as well as his supporters’ reaction to the verdict.

The media has portrayed Mann as a beleaguered researcher desperately pushing back the anti-science horde of “climate deniers.” That’s a tendentious framing of the case, though, since many of Mann’s biggest critics are themselves eminent scientists and journalists who have carefully dissected his work. One study published shortly after the hockey stick graph first appeared challenged the reliability of the temperature data Mann utilized. Another peer-reviewed paper suggested “that the 20th century is not unusually warm or extreme,” undermining the trend depicted by the hockey stick. Still other researchers uncovered critical mistakes in Mann’s statistical analysis.

These examples of scholarly criticism of Mann’s research are just a sampling. As the prestigious journal Nature Climate Change reported in 2007, multiple studies “have helped to clarify that the hockey-stick methodologies lead indeed to questionable historical reconstructions.” Notably, one scientist even suspected that his work was deliberately misinterpreted by Michael Mann.

“Pathetic excuse for a human”

The technical dispute over the hockey stick’s veracity continues to this day, and it’s not the first time Mann tried to silence his critics: “Better that nothing appear, than something unacceptable to us,” Mann wrote to the editor of the journal Science in an attempt to halt the publication of a study criticizing his graph.

In its summary of the verdict, National Review highlighted some of Mann’s private comments about the case, which paint a picture of an ideological bully rather than the victim of character assassination:

“In a 2012 email, Mann wrote that he hoped to use the lawsuit to ‘ruin’ Steyn, whom he referred to as a ‘pathetic excuse for a human being.’ Mann also wrote in private exchanges that there was ‘a possibility that I can ruin National Review,’ which he referred to as ‘this filthy organization,’ a ‘threat to our children,’ and beholden to ‘greedy fat cat corporate masters.’”

Mann’s public comments about his critics were no less harsh, as National Review detailed in its petition to the US Supreme Court. Writing in the Washington Post in 2010, Mann called his opponents “anti-science,” alleging their concerns were “not good-faith questioning of scientific research.” He told HuffPost readers three years later that his critics were “professional climate-change deniers,” and that media outlets that gave them a platform were “conservative tabloids” and “fringe right-wing news sites.”

Perhaps most starkly–and seemingly hypocritically–Mann accused other researchers in a 2012 book of doing “fraudulent” science and taking “corporate payoffs for knowingly lying about the threat” of global warming. One doesn’t have to be an expert on free speech jurisprudence to wonder what makes Mann’s accusations of fraud legitimate but his critics’ accusations of fraud defamatory.

Protecting (some) scientists

Mann’s caustic rhetoric and backroom scheming demonstrate that his lawsuit was an important step forward for climate change maximalists who want to control the public discourse on the subject. Mann’s supporters in the science community and the media clearly see his victory through the same lens, though with much broader application.

Scientific American (SciAm) called the verdict “a warning to those who attack scientists working in controversial fields, including climate science and public health.” Here again there appear to be two standards, as the magazine has accused entire university departments of racism and sexism with little or no evidence. It also fired columnist Dr. Michael Shermer because his work offended the “woke” (his term) sensibilities of its editors. It seems fair to ask whether SciAm is really interested in protecting scientists as a body, or just those with the “right” opinions on controversial subjects.

Virologist Angela Rasmussen, a vocal critic of any deviation from the standard COVID narrative, understood Mann’s victory the same way. Retweeting his announcement of the verdict, she mocked “anti-science conspiracy theorists” and declared, “You lost.” Refusing to allow replies to her post, she added that “The anti-vaxxers & lab leak truthers should prepare to join their climate denialist brethren among the losers.”

Whatever the eventual conclusion of the lab leak hypothesis or the efficacy of COVID vaccines, those questions have precisely no substantive connection to climate change. Instead the argument seems to be that the “wrong kind of people” hold skeptical views in both realms--and that they should be silenced. Guilt by association on steroids.

Similarly fawning responses to the verdict were published by one major news outlet after another, including The Guardian and AP, both of which receive millions from leftist foundations to report on climate change. Not to be outdone, Democracy Now perversely declared that Mann’s suit underscored the importance of “resisting climate denialism through free scientific inquiry and expression.” Free inquiry for me but not for thee is the common refrain from climate change maximalists.

Free speech and science: the real losers

Mann’s victory is now under appeal and could be overturned. But if allowed to stand, the verdict is another serious blow to free speech and scientific progress, which are already under assault in the US.

Pluribus has previously reported that researchers working in fields ranging from climate science to tobacco control and obesity medicine are increasingly censoring themselves for fear of offending the prevailing left-wing dogma. Those courageous remaining academics and commentators brave enough to challenge “the science,” personified by influential figures like Mann, can potentially be sued into silence in politically sympathetic courts. Supreme Court Justice Samuel Alito anticipated such a scenario:

“When allegedly defamatory speech concerns a political or social issue that arouses intense feelings, selecting an impartial jury presents special difficulties … [A] plaintiff may be able to bring suit in whichever jurisdiction seems likely to have the highest percentage of jurors who are sympathetic to the plaintiff ’s point of view.”

The threat this scenario poses is not an idle one. When courts silence dissent–even acerbic dissent–on important public issues, there occurs a short-circuit of the process of free inquiry that has delivered the very civilization the Michael Manns of this world purport to be trying to save. Climate change maximalists are not the sole arbiters of inconvenient truths, and the public deserves to hear both sides unimpeded by heavy-handed legal tactics.