Lawyering up

by Judith Curry

Climate scientists, bloggers, and journalists are increasingly providing business for lawyers.  What’s going on here?

Here are the current legal issues that I am aware of, any others?

Cucinelli vs Michael Mann

The latest in this saga is described in this article in the Washington Examiner and also this NYT post, where the issue is headed to the Virginia State Supreme Court. The Union of Concerned Scientists has been very active on this.

Early on in this case, I did make a public statement on this, and I have not changed my opinion on this one.

Chris Horner and CEI/ATI  vs NASA GISS

Chris Horner began making FOIA requests of NASA GISS in 2007 regarding NASA’s surface temperature record data set, and also about Gavin Schmidt’s blogging activities at realclimate.org.   Failure of NASA to supply this information has resulted in the CEI filing a lawsuit against NASA GISS, details can be found in this American Spectator post.

ATI is requesting information regarding James Hansen’s compliance with ethics and disclosure laws.  Details of ATI’s FOIA requests can be found on the ATI’s website.

Joe Romm’s take on the realclimate.org angle is here.

UEA vs James Delingpole

Denizen Barry Woods has a current essay at WUWT on this one.   The basics are this.  UEA made a complaint to the UK Press Complaints Commission regarding James Delingpole, a reporter for the Telegraph:

“In particular, the complainants were concerned that the blog posts described Professor Phil Jones as “disgraced, FOI-breaching, email-deleting, scientific-method abusing”.  They explained that Professor Phil Jones had been exonerated of any dishonesty or scientific malpractice by a series of reviews” – Press Complaints Commission

From their ruling:

In relation to the columnist’s description of Professor Jones as “FOI-breaching, email-deleting”, the newspaper had provided extracts from an email from Professor Jones in which he had written “If they ever hear there is a Freedom of Information Act now in the UK, I think I’ll delete the file rather than send to anyone”, and another email in which he had written

“Can you delete any emails you may have had with Keith re AR4?”. – Press Complaints Commission ruling

Barry Woods’ analysis:

How many blog owners or other journalists without the backing of an experienced legal team and the Telegraph would have been able to take this case on?

The threat of, or taking legal action against critics of ‘climate science’ does appear to be on the rise, this is a concern as few bloggers have any means to defend themselves legally. If actions like this are not fought and won, all perhaps it would take is a lawyer’s letter from a complainant with deep pockets (like UEA) for the blog owner to have to make a difficult personal and financial decision.  Additionally, these actions may result in a form of self censorship with blogger and journalists not daring to comment.

I was completely unaware that this case was going on until I read about in James Delingpole’s latest blog post and it did make me think what I would have done if a lawyer’s letter found its way to my blog with a threat of legal action.  So hopefully now, before ‘climate scientists’ and politicians rush to the courts they will now think more carefully of the potential outcomes. If only because it may backfire on them and that they realise as he won the complaint, others in the media might pay more attention to the reason why he won the complaint.

Michael Mann vs Tim Ball

Michael Mann is suing skeptic Tim Ball for libel, full details at DeSmog Blog.  The issue here is Tim Ball suggesting that Mann is somehow guilty of criminal fraud for his part in what has come to be known as “climategate.”  The allegedly libelous phrase is this:

Michael Mann, a professor in Penn State’s meteorology department and director of the university’s Earth Systems Science Center, claims that Ball defamed him when he said that Mann “should be in the State Pen, not Penn State,” for his alleged role in the so-called climate gate email tussle.

Mann is seeking punitive damages and wants the article removed from its electronic data base.  According to courthousenews, this is not the first time that Ball has been sued by a climate scientist for defamation.

Analysis from Anthony Watts:

Due to the extra attention Dr. Mann has attracted with the lawsuit, the exposure of the phrase is now far and above what it was when originally posted on the Canadian website. I didn’t even know of it until the lawsuit was announced. I’ve had far worse things said about me in this climate debate turned ugly, and the best legal advice I’ve seen given to public figures in the news business is that they generally are not successful when suing for alleged slander/libel, especially for something that is a critical opinion piece with what appears to be a satirical joke line. Criticism and satire in an opinion piece are generally hard to challenge legally in the USA, though it is different in Canada. In Canada, the law is broader. Even so, I don’t think Dr. Mann or his attorney are going to be prepared for the demands of discovery on this one, nor do I think he will prevail in his lawsuit, based on similar failed actions I’ve seen against anchors and reporters in the TV news business when challenged by a public figure.

Issues for JC and Climate Etc.?

Its hard for a scientist/blogger making controversial statements not to worry about these kinds of issues.

I retain a lawyer (contract law) to deal with contracts related to my company CFAN, and also to make sure all potential conflict of interest issues are squeaky clean (pay attention Anna Haynes.)

Two issues of relevance here have arisen since I started Climate Etc.:

Anna Haynes of sourcewatch.org  has prepared an entry on me, which is a slime job, any way that you look at it.  While I originally answered her questions, I am no longer answering any of her questions since it is clear that this is, well, a slime job.  She is currently fishing for “conflict of interest” stuff, sorry no fish in that pond.  Libelous stuff here?  Probably, but I intend to ignore it (including any future requests for information).

Of perhaps more relevance, on a previous thread, a participant felt that one of the comments libeled him.  Here is the gist of the email exchange, with any potential identifying features removed:

ZZ:  I would like to draw your attention to the exchange below.  I’m not a guy who threatens to sue at the drop of a hat, but on the other hand, I will not hesitate for an instant if my legal rights are violated in a substantive way.  I know that you believe  commenters should be anonymous if they wish, and I respect that, but the law is clear.  You can’t protect an anonymous identity without being complicit.  In other words, if I am libeled and pursue a legal action, you can’t protect the identity or conceal the contact information of a commenter on your site without being complicit in their crime.

JC: if i attempted to sue every time some anonymous person in the blogosphere said something incorrect about me, I would have time to do nothing other than sue.  To win such a case, you have to demonstrate that this affected your reputation.  People  don’t believe what anonymous blog posters have to say, unless they support it with a compelling argument.  XXX merely made a statement, which you refuted.   If you want to pursue legal action, go ahead.  I will preserve the anonymity of my posters who choose to remain anonymous, up to the point where I would end up paying a steep fine or going to jail over it.   I advise you to let these sorts of things go.  Correct the record, then move on.

JC comments: within the broad constraints of first amendment rights and Freedom of Information Act and the Hatch Act, it is not entirely clear to me what the legalities are concerning blogging. There are further challenges to scientists that are employed by the government.  I can certainly understand why government/university employees are buying their own laptops and using gmail accounts. The most complex issues are raised by cases involving Virginia and NASA GISS.   The University of Virginia argues that it is protecting academic freedom.  I haven’t seen a statement from NASA GISS, but exactly what are they claiming to protect by not complying with the FOIA requests?

Looking at the broader context, I would hope that there are better ways of dealing with the debate/dispute surround global warming than by providing fodder for lawyers.  In closing, I repeat Barry Woods’ statement:

So hopefully now, before ‘climate scientists’ and politicians rush to the courts they will now think more carefully of the potential outcomes. If only because it may backfire on them and that they realise as he won the complaint, others in the media might pay more attention to the reason why he won the complaint.

Moderation note: Keep it civil.  Attacks on individuals involved in these lawsuits will be deleted.

508 responses to “Lawyering up

  1. Damages from the exaggerations still accrue. There will be cure or not; in either case, treasure has been lost.

    Never to be regained. What a waste. And for what?
    =====================

  2. Judith,

    I have surmised long ago that science has been a casualty to emotional repartee when trying to take a stance on issues.
    So, rather than moving on with science, the who’s right, who’s wrong issue in character attacking rather than admit mistakes have been made.

  3. Judith,

    Reputation of character is far more important than if science is correct or not.

  4. Dr. Curry,
    Supporting Mann in Cucinelli vs Michael Mann is to support the right of recipients of public money to spend it in accountable ways.
    I think it is worth reconsideration on your part.

    • {unaccountable ways}

    • andrew adams

      If all Cucinelli was concerned about was accountability of the use of public funds he could have sent auditors in (real ones I mean). Please spare us the pretence that his actions are not politically motivated and he is not out to “get” Mann.

      • aa,
        Except the U Va has refused to be audited.
        Get up to speed.

      • andrew adams

        OK, but then that’s presumably down to the management, why go after Mann personally?

      • Why look into Bernie Madoff?
        Mann is the one making this personal.

      • andrew adams

        Cucinelli is specifically asking for material relating to Mann’s work. How is that not making it personal?

      • Oh, please, how do you investigate someone without it becoming personal. This is sloppy use of ‘personal’.
        =========

      • Is Dr Mann not a member of the Management Team of the Unversity?

      • Evidence?

        UVa is regularly audited.

        And Cuccinelli is not an auditor.

      • Greenpeace isn’t an auditor either, yet the UVA were more than happy to be helpful to this global corporation.

        http://www.thegwpf.org/science-news/2164-new-climategate-foi-request-targets-hockey-stick-documents-.html

        “Importantly, also under FOIA in late 2009, the pressure group Greenpeace sought, and was promised, e-mails and other materials of Patrick Michaels, who also formerly worked in the same university department.

        While the university proceeded to compile the material for Greenpeace, one of us, Virginia Del. Bob Marshall, R-Prince William, thought to ask for records relating to Michaels’ former colleague, Mann. Oddly, the university informed Marshall that such records no longer existed because Mann had left the department.

        Michaels has stated that the university, in explaining to him these disparate responses, asserted that some people’s records are treated differently than others. Mann’s were allegedly destroyed; Michaels’ were being packaged for delivery to Greenpeace.”

        The core problem lies with data and methodologies not being made transparent.

      • Typically, when one false charge is challenged, the response is not a defence but a new false charge. UVa did not release emails to Greenpeace.

      • Yes, they did.

      • Rattus Norvegicus

        hunter, you might want to look at this: http://www.virginia.edu/foia/climatechange/

      • Okay, according to RN’s link, UVa did not release the emails to Greenpeace. However, they did not refuse to release them, Greenpeace just didn’t follow through after receiving the cost of copies.

      • Well, Gene, here’s how Greenpeace saw it, as quoted by SPPI (!):
        “According to Greenpeace, the only documents UVA released were Michaels’ CV and a spreadsheet listing three grants. Anything else, UVA told Greenpeace, would require a base charge of $4,000, regardless of what was produced, and no cap on how much it might cost.

        “We were basically stonewalled by the University by and large, contrary to how several people have characterized it,” says Kert Davies, Greenpeace research director. “We didn’t get any e-mails.” He says the pursuit is on hold.”

      • Heh, Greenpeace is flush enough they could just give Cuccinelli the $4,000 it apparently takes for UVa to be compliant. Why didn’t Cuccinelli think of this? It could have saved the state a lot of money.
        ==============

      • Evidence of typical falsehood? One swallow does not…
        Or are you being typically myopic in you blind faith in the team

      • Nick,

        Really? UVa is “stonewalling” Greenpeace and they just let it go? No appeal, no suit? I was completely unaware that Greenpeace had fallen into such dire financial straits.

        Not to be repetitive, but UVa isn’t exactly refusing the request, are they?

      • Also, perhaps Greenpeace is “mistaken” about the open-ended nature of the charges. From the applicable section of the Code of Virginia (emphasis is mine):

        F. A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. No public body shall impose any extraneous, intermediary or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body. Any duplicating fee charged by a public body shall not exceed the actual cost of duplication. The public body may also make a reasonable charge for the cost incurred in supplying records produced from a geographic information system at the request of anyone other than the owner of the land that is the subject of the request. However, such charges shall not exceed the actual cost to the public body in supplying such records, except that the public body may charge, on a pro rata per acre basis, for the cost of creating topographical maps developed by the public body, for such maps or portions thereof, which encompass a contiguous area greater than 50 acres. All charges for the supplying of requested records shall be estimated in advance at the request of the citizen.

      • FWIW, the major cost would be the cost of the lawyers who actually would dig the stuff out. The meter would spin

      • Just curious, is there a reason why Greenpeace should not get the emails if they paid the fee?

  5. Sorry, hit the ‘post button too quickly.
    The AGW community knows it is losing the debate and is resorting to suppression, intimidatin and censorship to clear the public square.
    Like typical unethical losers, they can only accomplish what they want by silencing the opposition.
    Apparently face book is now allowing AGW extremists to have skeptical posts and articles blocked or removed as well.
    This fits into the context of leading AGW opinion makers like Hansen and Suzuki calling for legal action against skeptics and in their support of criminal acts against those with whom they disagree.

    • Hunter,

      No matter what is pushed or printed, the cooling with catch up with these hardcore scientists and destroy what left of their reputations.
      Mind you, MASSIVE government cut has to be enacted, if the U.S. wants to avoid bankruptcy.

    • Most of the postings I have made on NOAA’s facebook this year have been removed. If you disagree more than a few times, they classify you as a Spammer and you stuff can easily be automatically removed. They only want and allow postings from people who agree.

      • I did just discover that NOAA or Facebook has not removed my postings for this year. They have changed the way to get to them. I used to go to postings by Others. Now, I go to Top Posts. I thought they had removed my postings. It looks like they have upgraded them from Others to Top Posts. I do wish I had discovered this before I complained.

        NOAA, I do apologize!

      • Herman,

        They only want and allow postings from people who agree.

        I respect you for coming back to post about your error, but is it lost on you that you extrapolated from your (mis)conception about what happened to your posts to make some global accusation about NOAA’s policy? Why do you think you were willing to so readily generalize from your own personal experience?

    • Alexander Harvey

      hunter:

      “… to clear the public square.”

      I know that there is concern that the internet does not necessarily enjoy the US constititional protection offered to public spaces. In that sense, it is not clear to me what freedom of speech rights exist for anything on what is essentially a non-public medium. By this I do not mean a freedom of speech defence but the right to get ones point of view published at all.

      I know that it can and has been argued that regular passage through, or gathering in, private spaces has lead under State law to such private spaces being considered public in as far as free speech, and I think assembly, goes. That is true for physical spaces and I think one such state was California.

      It is perhaps important to ensure certain virtual meeting places, such as FaceBook, are considered to be “public” for the purposes of speech and virtual assembly, and for their proprietors to suffer the same bar on control that the goverment suffers in public spaces.

      Well that is my understanding anyway and if I be right it is not clear that freedom of speech as a US constitutional right extends to the internet.

      Any thoughts?

      Alex

      • The FCC is trying to sleaze its way into the internet, which is specifically not in its pervue.
        And those trying to do it are well known friends of censorship and political control of free speech.
        So I am willing to fight at every turn, in every way lawful to stop the statist schmucks from grasping our freedom.
        The government has no more business regulating the content of airwaves or the internet than they do what is moved on highways and roads.
        The false premise that somehow the airwaves belong to the people and so require content management by friendly folks from the government is one that is dangerously wrong and should be rejected out of hand.

  6. Lorne LeClerc

    Judith,
    As my Father, who was very much in the public eye locally during his career, always use to say to me – “It is not enough to be honest, you have to go out of your way to be seen to be honest”. It is so easy for someone to cast aspersions and sully a reputation. Your comment on conflict of interest safeguards is bang on. Even if an action falls within the letter of the law wrt to conflict of interest – it is far better to avoid it altogether, if someone can potentially misconstrue it and create doubt about the true intention of that action.

    Regards,
    Lorne

    • lorne,its strange to find you talk about your father yet you have abandoned your own son back in africa kenya.i wonder how a 57 year old man can give advice when his eleven year old lives on charity.shame on you.i just had to say something.

  7. The State Penn joke has been around since Joe Pa was in diapers.
    good thing football fans aren’t sue happy.

  8. In the 17th century, Galileo and Newton laid the foundations of what we now call the “scientific method”. It is generally accepted that science is what scientists do, and proper scientists follow the “scientific method”. Richard Feynman has given a fine presentation of what the “scientific method” is.

    When a group of people, those who believe in CAGW, claim to be scientists, but do not follow the “scientific method”, then it is understandable that true scientists object. Whether going to court to make this right, is a good idea, I have no idea; my instinct says it is the wrong way.

    But it is, I think, understandable.

    • Litigation has long been one of the most potent weapons in the climate/environmental advocates’ arsenal. It first became widely used as a means of forcing government action, or preventing economic development by disfavored industries. It was hugely successful in those areas, so its relatively recent expansion to individual plaintiffs is no surprise.

      For a fairly decent history of the development of environmental litigation as a tool of activists – written by a progressive, see here, beginning at pg. 241 :

      http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1283&context=pelr&sei-redir=1#search=%22environmental+law+suits+annualy%22

      The attraction to progressive activists is easy to see. Litigation presents a means of forcing broad social and economic change without the need to bother with annoying elections. The strangling of nuclear power, attacks on the oil and forestry companies etc., could not be achieved democratically. People will vote for what is presented as safeguarding the environment, but they will usually rebel at actually killing economic prosperity. The nuclear power industry is the best example where litigation was used hand in hand with regulatory action to raise the cost of developing nuclear power so high, that such development ceased.

      Litigation has long been a means progressives use to force social change without the need to rely on those stupid voters. The type of litigation that is the subject of this post (with respect to UEA and Mann) is, in most cases, the same tactic traditionally used against governments and corporations, now being directed at individuals.

      This targeting of individuals is a in large part a response to the fact that the public are increasingly rejecting the politicians who support the activists more radical goals at the polls. The reason for this rejection is largely the success of scientific skeptics, and conservatives in general, outlining the enormously high cost of the progressive climate consensus goals. You know, speech. The reaction of the progressive activists in general has been to try to stop all this irritating speech, including by using litigation targeted at individuals.

      From the Orwellian “Fairness Doctrine” and “Net Neutrality” to attacks on conservative opinion and news outlets, the goal is to stifle the speech of those who oppose the progressive agenda.

      Notice the difference among the four law suits listed in the above post. Cucinelli (though misguided I believe) seeks the release of additional information about Michael Mann’s work. Chris Horner and CEI are similarly seeking more information from NASA GISS.

      On the other hand, UEA and Michael Mann are both seeking to stop the dissemination of information that they dislike: criticism of themselves and their positions. The damages claim asserted by Mann against a retired individual is a particularly powerful tool to silence critics.

      Now to a certain extent, libel laws in the U.S. are not going to prove very fruitful ground for consensus activists. The U.S.’s explicit guarantee of free speech, and the Supreme Court’s rulings regarding the burden of proof a public figure must meet to win such a case, make such litigation problematic. But the Internet has made it much easier for activists to look for more favorable jurisdictions.

      So long as progressive activists are losing the electoral debate, expect much greater use of such litigation against individuals.

      (Please note my use of the term “progressive activist.” I am not referring in this comment to run of the mill voters who favor liberal/progressive policies generally.)

      • Gary, thanks for this analysis, the asymmetry between Cuccinelli/Horner vs Mann/UEA cases struck me also. Cuccinelli and Horner are seeking information (rightly or wrongly), whereas UEA and Mann are seeking to silence critics.

      • andrew adams

        No they are trying to stop people accusing them of being crooks, not quite the same thing.

        BTW, complaining to the PCC is not comparable to filing a libel suit. The worst thing that could have happened if Delingpole had lost is that his newpaper would have had to print a correction, which they would no doubt have put in a single paragraph buried at the bottom of page 37.

      • Seems that lawyers were involved, nevertheless, and UEA lost its case. Re ‘state pen,’ that is a rather routine joke that everyone uses about Penn State, I recall this from the period I was at Penn State (1999-2002). So the justification for these two complaints escapes me, it is only drawing more attention to what Delingpole and Ball actually said.

      • But in direct reply to the question “Various government and academic agencies have whitewashed the Climategate scandal so far. Do you think anyone will be prosecuted for fraud?” it is no longer just a repetition of a tired joke.

      • google the words michael mann fraud on google blogs, there are a huge number of hits (apart from the current issue with Ball). Ball is hardly the first person to use the word fraud in connection with michael mann. then google michael mann fraud prosecution, there are also a large number of hits. Why Ball is the one being sued is not clear to me, when others who have made similar (and even more explicit) statements are not being sued.

      • andrew adams

        Yes, Mann has been on the receiving end of a huge amount of unpleasant abuse and accusations and has failed to sue until now, which suggests that this action is not one he has taken lightly. Who knows why he has chosen to do so now, maybe he has finally had enough and wants to take action pour encourager les autres? In which case one might consider Ball unlucky, but that doesn’t justify what he said and it’s not a defence in lawful to say that others have done the same thing and got away with it.
        The argument that “it just draws attention to the offending words” is weak – I can perfectly understand that people would consider this being outweighed by the fact that they have been able to obtain some kind of redress from the offender.

      • andrew adams

        …not a defence in law…

      • encourager? Or perhaps décourager?

      • In the US, this ALMOST seems so weak that Mann’s asking for a SLAPP suit, but not quite. People who are sue happy need to be aware that there are limits to what the courts will tolerate.

        In Canada, it’s a whole nuther game. And in the UK, you can be sued for sneezing. Libel law is so out of control in the UK, some MPs have been talking about reforming it.

        Mixing libel law and international law is an incredible mess. It got so bad in one case, the New York state assembly wrote a law just to shield one academic from a judgement in the UK:

        http://en.wikipedia.org/wiki/Rachel_Ehrenfeld

      • No, they are silencing critics, in the most counter productive way possible.

      • andrew adams

        hunter,

        So there are no limits to the crap that “skeptics” and people like Delingpole (he doesn’t even deserve the word in scare quotes) can throw at scientists and they just have to take it, because otherwise they are “trying to silence their critics”?

      • There are no limits of what they call us.
        Don’t like the heat? Get out of the kitchen.
        Public figures in America take it or they get out of the public. Mann has drunk deep and richly from the public trough. He gets NOVA shows and speeches and nice tax payer funded lifestyle.
        His work informs policy that is costing us billions already.
        He gets the blowback.
        Period.

      • Amndrew-

        “and they just have to take it”

        Yes – the truth is an absolute defense. Go read up on Mann’s history on climateaudit.org, and then think about how much Mann opens up himself to bigger problems through the discovery process. What a dopey thing to do. I’m guessing he thinks the suit adds to his credibility.

      • andrew adams

        hunter,

        Don’t like the heat? Get out of the kitchen.

        Fine, so I guess we won’t be seeing any more complaints from you about being called a “denier”.

      • andrew adams

        harold,

        Yes – the truth is an absolute defense.

        Well it is if you are actually telling the truth and not either spreading misinformation or just throwing abuse.

      • complaints from you about being called a “denier”.

        So Delingpole telling the truth about Jones being a crook, is the same as spreading the lie that a skeptic is a denier?

      • andrew adams

        Using labels such as “denier”, “alarmist” or whatever may sometimes be somewhat arbitrary and inappropriate but even if they are used unfairly it doesn’t constitute a lie. Personally I think that some of the language used by Delingpole to describe Jones and his colleagues (btw, he didn’t actually call Jones a crook), and indeed the language he uses generally to describe climate scientists and advocates of AGW is worse.

        But regardless of whether you agree with that specific case, the point I was making is about whether in general there are limits to the kind of language which can be usedd against one’s opponents, whether it’s specific accusations or general abuse.
        Hunter seems to think that climate scientists should just take whatever is thrown at them and just accept it. I think that’s a legitimate argument as long as the skeptics are prepared to do the same.
        Personally, I have actually argued before that where a subject is contentious and there are strong views on each side then people should no be too squeamish when strong words are used against them by their opponents, but I do think there are limits and calling someone a crook is outside of what is acceptable unless they have actually been conviceted of a criminal offence.

      • So Delingpole telling the truth about Jones being a crook, is the same as spreading the deliberate lie that skepticism is the same as denialism?

        Stripped of waffle, Andrew Adams’s answer to that (see above) is Yes.

        In his world – also the world of alarmism – objective truth no longer has any advantage over calculated lies anymore; all that matters now is political correctness.

      • all that matters now is political correctness.

        po·lit·i·cal cor·rect·ness (n) The avoidance of words that are perceived to exclude, marginalize, or insult certain groups of people

        Like “denier?”

      • Wow! I have to say, Judith, I really am stunned that you thanked Gary for this “analysis.”

        For example:

        The nuclear power industry is the best example where litigation was used hand in hand with regulatory action to raise the cost of developing nuclear power so high, that such development ceased.

        This is a facile dismissal of myriad factors – in addition to whatever impact litigation and regulatory action has had – which have contributed to the lack of development of the nuclear power industry in this country.

        Litigation presents a means of forcing broad social and economic change without the need to bother with annoying elections. The strangling of nuclear power, attacks on the oil and forestry companies etc., could not be achieved democratically

        The notion that litigation and/or the regulatory power of our government is fundamentally undemocratic is an obvious counterfactual. The regulatory agencies that exist in our country were created by elected officials. Many judges are elected. Many judges need to be approved by elected officials. If voters want do not want government or our courts to play a regulatory role, they can elect officials and judges who will empower agencies to enact regulatory functions or allow suits against Gary’s poor beleaguered corporations. To whatever extent special interest groups influence those democratically created regulatory agencies and judicial processes, the notion that the only groups exerting such influence are those who stand in opposition to “nuclear power, oil and forest companies etc.” is also an obvious counterfactual.

        Gary’s underlying thesis that litigation is uniformly a tool used by “progressives” to limit speech is also a counterfactual. Legal protection against libelous speech is a long-standing right that has been deemed by SCOTUS to be a fundamental plank of our Constitutional protections. The right to sue for libel is not at all incompatible with freedom of speech.

        So long as progressive activists are losing the electoral debate,….

        First, is this determination made upon the outcome of the 2010 election – where “progressives” hold one House of Congress and the executive office, after after a substantial margin of victory in the previous presidential election, after Democrats held both Houses of Congress for many years? Is that how we know that “progressives” are “losing the electoral debate?”

        Second, Gary’s correlation between the use of litigation by “progressives” and their recent electoral setback is internally inconsistent. He just laid out a view whereby for years and years “progressives” used litigation to crush those poor oil and nuclear companies – but certainly over that period of time, “progressives” saw many electoral victories. Therefore, even by his own argument, no such correlation exists.

        Seriously, Judy, for you to agree with this kind of polemic makes it very difficult to see how you think you will be able to build bridges across the politically divisive influences on the climate debate climate.

      • A “democratically created regulatory agenc[y] ” is not at all the same as a democratic agency. Every act by an elected politician is not a democratic action. Unless, like a good progressive, Joshua is trying to redefine yet another word. Think of it like the poor voters in many countries who get one vote, one time. Chavez was elected in Venezuela, but that makes him no less a dictator now. Caesar was appointed by a democratic senate. Even Hitler rose to power through an election. “Democratically created” is not at all the same as “democratic.”

        No one votes for the members of the EPA. No one votes on the regulations they issue. The periods of comment they allow are not binding on the agency at all. And dictats from the EPA are not subject to review of Congress.

        The CO2 endangerment finding issued by the EPA was itself a product of litigation. The plaintiffs sought to force the appointed head of that agency to do the exact opposite of what the administrators determined was the best exercise of their discretion. So activists used the courts to force the unelected EPA administrator to reverse his exercise of discretion. And the progressives on the Supreme Court said “you betcha.” A trifecta: the unelected private plaintiffs using litigation to force massive societal change using the unelected courts to control the unelected bureaucracy My, how democratic.

        The EPA acted because the Dems could not pass cap and trade. No, wait, that is not accurate. They could have passed cap and trade; so why didn’t they? They didn’t pass cap and trade, and didn’t sign a binding agreement at Copenhagen, because their polls and focus groups told them it would be electoral suicide to do so. So they are using the EPA to force on the public something they don’t have the guts to vote for.

        This is what passes for democratic to Joshua.

        Joshua (I guess we are to respond in the third person to people we disagree with now) seems befuddled by the fact that the left used litigation and regulation to strangle the nuclear power industry. He may be the only sentient adult alive at the time who didn’t catch on. It was the express intent of the “environmetnal” movement. But this point has been discussed to death, so I will leave it alone.

        There is nothing inconsistent in what I wrote about the rise of litigation against individuals resulting from progressives’ concerns with losing the political debate. Reading with a little more comprehension would have revealed to him that I indicated that it is the recent rise in litigation against individuals that is a result of electoral set backs. The tactic had long been in use against government agencies and corporations (or individual developers). The litigation against individuals, aggressive violent demonstrations at the homes of individuals, thuggish behavior at political events, are all escalating as the risk of progressives losing power grows.

        Joshua even wants to deny that the Dems have suffered an electoral loss. I guess their victory in 2010, and their expectation of continued success in 2012, explains their enactment of cap and trade this year, the expansion of Obamacare, and the enormous tax increases that are being passed now. Oh wait, they haven’t done any of those things. Maybe the people who actually need to run for election in this country aren’t quite as certain of the ground swell of public support for progressivism gone wild that Joshua sees.

        Joshua is the master of the factless, contentless, citeless critique.

      • Gary – I have no problem answering you directly if I have something to say to you directly. My post was directed at Judith because I wanted a response for her.

        I’ll read your post again, and if I can stop laughing at your comparison of the United States to Venezuela, maybe I’ll respond to your second post here as well.

      • A “democratically created regulatory agenc[y] ” is not at all the same as a democratic agency. Every act by an elected politician is not a democratic action.

        Strawmen. We live in a country where regulatory agencies are empowered or disempowered by politicians were are elected by the public. In the end, the regulatory functions of our government are democratic in nature. According to your logic, we would not be living in a democracy unless we were to vote on every single decision that our government makes. Getting beyond the technical questions about how to narrowly defineof what a republic is, or what a democracy is, or what the different kinds of democracies are, by your logic, no country with a population larger than just a handful could have a working democracy.

        A trifecta: the unelected private plaintiffs using litigation to force massive societal change using the unelected courts to control the unelected bureaucracy

        Now that’s a really interesting point, Gary. Tell me, how do you feel about the Civil Rights Act?

        He may be the only sentient adult alive at the time who didn’t catch on.

        The point is, Gary, beyond the impact of litigation on limiting the development of nuclear power in this country, there are many, many other factors in play. The only countries that have significantly more nuclear power have significantly much more socialistic and centralized governments (and often, ironically, more powerful environmentalist communities). That is no coincidence. You and I might well disagree on the degree of the impact of litigation on behalf of “activists” (who, I should point out, are voting citizens), but to completely dismiss the very possibility of other factors marks your analysis as “agenda-driven.” The economics, public concerns about nuclear energy, incompetence from within the nuclear industry itself, all casually dismissed as if they never existed. Oh, and Gary, what makes you think I’m “senient.” (Maybe if we exchange posts in the future, you could leave the personal attacks, references to my reading comprehension, etc., out?)

        Joshua even wants to deny that the Dems have suffered an electoral loss.

        Strawman. In fact, I specifically mentioned the results of the 2010 election.

        I guess their victory in 2010, and their expectation of continued success in 2012, explains their enactment of cap and trade this year, the expansion of Obamacare, and the enormous tax increases that are being passed now.

        ,/i>

        The 2010 elections were not singularly about the depth of governmental regulation, as can be seen by polling on healthcare reform or the role of government in performing regulatory functions. But even if they were, again, the 2010 election was a point in time along a continuum of electoral results extending backwards and extending into the future (well, unless Obama unleashes his “army of thugs,” eh?). There have been in the past and will be in the future an ebb and flow in how the strength of government regulatory processes reflect the will of the voting public.

      • Nope, thugs aren’t going to help. They just provoked a democratic backlash in Wisconsin.
        ===============

      • Pretty hard to agree with your post when there are plenty of groups with legal strategies to use courts to in the way claimed.

      • Based on what I can tell, Gary is actually a lawyer. Particularly on this thread, I find his legal insight quite valuable. If you can’t get past his political analysis (which you may or may not like), then that is your loss. So by all means argue with Gary, but please don’t infer from anything said here as to what I do or don’t agree with, unless I actually say the words “I agree with x” or “I don’t agree with x.”

      • Judith, you thanked him for his “analysis” in a post with polemical treatise about on the fascism of environmentalists, progressives, the processes of governmental regulation, and the stupidity of voters (curiously, though, only the voters that Gary doesn’t agree with are stupid).

        You might have been a little more specific in your response if you were thanking for a specific component of his post. So, you read that kind of polemic and you have no response to the political focus but only to the lawyerly insight?

      • Joshua, she thanked him explicitly for the legal analysis and for the point about assymetry. She has explicitly withheld comment on the politics.

        Who died and made you the local political commissar?
        ==============

      • Who died and made you the local political commissar?

        I’m just doing what a good facistic progressive should do, kim: Appealing to the authority of the Judy-state.

      • That’s funny. My lesson for you is to read what she says before appealing to her authority. You just stepped in it over this.
        ============

      • Joshua is a true believing, fire breathing, cradle to grave progressive. That is why he can’t recognize common courtesy when he sees it.

        Dr. Curry graciously thanked me for posting an analysis on the topic of her post. The only sense in which she agreed with anything I wrote, if you actually read her comment as she wrote it, was the simple fact that the two climate advocates were seeking to limit information (criticism of themselves), and the two conservatives were seeking to obtain the release of more information. She didn’t even agree with the conclusion I drew from that fact, just the fact itself.

        But Joshua does not respond to the comments people actually write, he misrepresents, mischaracterizes, redefines simple terms, anything to try to put the commenter on the defensive. That is why I didn’t bother to respond to his 9:47 am comment above, it was serial mischaracterizations and no content.

        As far as I know, Dr. Curry is a self described liberal, who would disagree with me on most political issues. And there was certainly nothing in her comment (one that she frequently posts after someone takes the time to post an analysis on a subject in their field here), to suggest otherwise. Joshua’s criticism was reflexive, and wrong.

      • For the record, I am politically independent.

      • Craig Loehle

        Lawsuits do not need to result in change of rules by EPA or even victory. All they must do is cost your opponent more than they can afford, prevent him from acting, and give him a PR black eye. Timber sales by the US Forest Service are constantly challenged in court, and even the the USFS wins 70%+ of them, it ties them up in knots and slows down planned actions. The guy who sued the dry cleaners in NYC over his lost pants did not win, but the cleaners went out of business.

    • Joe Lalonde

      Jim,

      No doubt they were pioneers in a society that hated change.
      This did not mean their research was to be taken as iron clad 100% accurate.
      It was to be taken as building blocks to open the minds to different areas never understood before.
      The mistake with the scientific method it that formulas and mathematical equations are too broad and restricted in individual areas. To try and use these in a totally different time period of billions of years misses the different climate and atmosphere then when the solar system was rotating faster and much tighter together.

      Just recently, I found using forward motion explains gravity much better than our theory of the core pulling even though much material does not conform to magnetics.

  9. BlueIce2HotSea

    I am in favor of giving wide latitude to academic freedom of expression. On the other hand, it is not a get out of jail free license for criminals. Therefore, I don’t see the wisdom in pre-judging either Cucinelli’s case against Mann or Mann’s case against Ball. Let the facts determine the outcome.

    • The facts in Mann’s case vs Ball are known. I can make a determination, having read Ball’s column, that Mann is being ridiculous. The only facts that are not known at present are any which are unfavorable to Mann which may be exposed in the discovery process.

      To reiterate — I know all I need to know to make an fully informed judgment about Mann’s claim. But we might learn more details of the type exposed in the Climategate files about Mann.

  10. Unfortunately, this litigiousness is something that’s been going on for a long time and extends way beyond this particular controversy (British libel law is particularly oppressive). It also has a tendency to bring out the hypocrite in people (I’d be curious to see ZZ’s opinion of SLAPP actions when he’s not the instigator). As far as the Mann v Ball action, Mikey’s the loser no matter what…even if he wins, he broadcasts Ball’s statement longer and louder than the original event.

    • BlueIce2HotSea

      Living in a litigious society is preferable to dueling to the death. Exposing villainous marksmen would be more risky.:)

      • Perhaps a compromise…we square off at 20 paces and whoever caps the other’s lawyer first is declared the winner ;-)

  11. By the way…I don’t know if the rather stalker-ish SourceWatch page crosses the line, but I’d love to see whether the authoress’ attempted neuro-exam by email violates Georgia’s laws re: practicing medicine without a license.

  12. Paul Vaughan

    Investment should instead fund research on natural climate variations.

    • Joe Lalonde

      Paul,

      If scientists do not fully understand all the contributing factors and interactions, how will they know the individual variations?
      Strictly encapsulating oneself to one area of study misses understanding other areas that contribute to the overall climate of this planet.

      • Paul Vaughan

        Joe, are you suggesting that courtroom showdowns are more likely to elicit human understanding of natural climate variations? Best Regards.

      • Paul,
        I doubt that very much.
        Courts are only interested in the issue of law and not in anything else.

  13. This does seem to be somewhat of a new trend (there’s also the Andrew Weaver vs. Ball case to mention) and I imagine many of those involved are likewise quite uncertain of how this will play out – some exploratory litigation. Then there’s the whole issue of legal harassment… innocence is costly in lawsuits.
    Overall I find this trend worrying, and frankly I’m hoping many of these cases don’t make it very far. Part of me would like some commentators in this debate learn they can’t say whatever they like about others, but the price of enforcing this sort of good behavior through the courts just seems too high.

    • It’s hardly a new trend. Wantonly calling people criminals in most places leads to lawsuits.

      Unmentioned here so far is Tim Ball’s own outing to the Law courts. In 2006 he sued Dr Dan Johnson for defaming him. The alleged defamation from that statement of claim?
      “newspapers ought to report factual summaries of authors credentials. You note he ‘was the first climatology PhD in Canada and worked as a professor of climatology at the University of Winnipeg.’

      Ball received a PhD in geography in the UK in 1982 on a topic in historical climatology. Canada already had PhDs in climatology and it is important to recognize them in their research.”

      A lawsuit about whether a PhD was geography or climatology? Compare with the headline currently on Tim Ball’s website:
      “Evidence Points To Mann’s Criminal Misconduct”.

      • As has been mentioned elsewhere here, there have been many accusations of criminality since Climategate, and most of those making such statements are not being sued.
        The reason why Ball is being singled out? I could think of a few reasons, and his precedent with Johnson could certainly be one – he has also been an especially vocal critic, probably the biggest in Canada over the years.
        He makes sense as a target. Even so, I just can’t support these lawsuits.
        I smell plenty of entrenchment and opponents trying to out-victim each other in the months ahead.

  14. Paul Vaughan

    JC wrote,
    “I can certainly understand why government/university employees are buying their own laptops and using gmail accounts.”

    Dr. Curry, I spent 3 years of my life working very long hours developing academic material. One day I found my access to that material permanently blocked.

    Currently I keep my academic work free of funding-string interference, but this freedom comes at a very high cost.

  15. Reading about Tim Ball’s predicament nearly broke my heart. I donated some money, but it’s going to take an awful lot of 50 and 100 dollar contributions to make it a fair fight. He says he’s spent around 10K as if that’s a lot of money, which of course it is, but this could easily cost 10X’s that amount it seems to me.

    I have the sense that Michael Mann is an unbalanced individual. It’s long past the time when this was about the science for him, He’s “all in” as we like to say in poker terms, and it seems he’ll stop at nothing…

    I can hardly believe what’s going on these days in the name of “science.”

    • Well actually I think some lawyer should take this on pro bono, there will be alot of publicity with this one.

    • I wonder if Mann is financing this litigation himself. If so, he is taking a big risk. Canada is a “loser pays” jurisdiction generally. If Ball can resist the suit, and wins, Mann could end up being ordered to pay some or all of Ball’s attorney’s fees as well. I am curious how a newly minted university professor can afford his own fees in pursuing such a minor case, let alone the risk of paying Ball’s fees as well. (I mean “minor case” in the sense that it is about a single comment in what has been an ocean of criticism about Mann and his competence and integrity.)

      With all the negative comments made against Mann over the years, I can see why he sued in Canada, because of their much more lenient defamation laws. But the loser pay rules makes it a risky venture.

      • Someone on another blog speculated that some deep pocket on the warmist side was paying Mann’s legal bills. I don’t recall the name that was raised. Given the enormous investment that rides on the credibility of alarmist science, investment groups with billions on the line would see the legal fees as a mere pittance toward the protection of that wealth.

      • Suzuki Foundation… rumored.

        Mark

  16. Just to add, perhaps there should be some sort of skeptics “legal defense fund” so these individuals have a fighting chance. There are thousands of us who’d be glad to contribute to such a worthy cause.

  17. To prove libel, the work must be published in some form. (Verbal statements for example, are slander, not libel.) There are three criteria to prove libel: the statements have to be false, the critic must have conduced insufficient research (made hasty statements), and the victim must have actually experienced harm. These are criteria easily voided by giving an opinion on the victim’s motivations rather than on facts and actions.

    Contrary to popular opinion, libel is not a tort (a case of personal harm) but a ‘disruption of the peace’, or crime. Jurisdictions differ significantly. This is the problem with the law and it’s history: While most of us consider it a property crime, it is not, but it would be more easily enforced if it was.

    In the USA, political speech tends to be accorded a high bar of tolerance by the judiciary under the assumption that the court of popular opinion will reach the appropriate conclusion without the court’s interference. (Which is why Europeans often can’t fathom the USA news about it’s political system.) And given that AGW is a politicized concept the courts will avoid it like the plague.

    The courts are having a problem adapting to this age of blogs. Because the historically implied, and too infrequently stated, assumption that publishers profit from negative news, and therefore has perverse incentives. A blogger rarely if ever profits materially. And it certainly appears that the courts are treating blogging as a person’s free speech. There are people who have written quite a bit about this topic. And the legal bloggers who follow it still seem to think the question is unsettled.

    Why the peer review process is supposedly superior to the blogosphere is open to question. There is quite a bit of data that contradicts our assumptions about the veracity of the the peer review process. It turns out that writing books tends to produce good criticizable work. It turns out that most papers are in fact, constituted of errors in interpretation that invalidate the paper’s argument.

    • Curt, thanks for this analysis. Do you have any links re the legal issues surrounding blogging?

      • @curryja : I don’t have them handy and I’m in an airport so I can’t get to them. On the rare chance that I remember, I’ll send you something this week. No promises tho.

    • A couple of minor disagreements, but with agreement on the central point:

      In the U.S., a suit for defamation seeking actual damages to a person’s reputation is a tort (although it originated as a crime), because it seeks compensation for personal damages. To the extent a plaintiff seeks punitive damages, punitive damages in general are seen as a way of furthering the public good, and so are more of a quasi-criminal penalty.

      Negligence or malice is not always an element of a defamation case against a private individual, it depends on the jurisdiction. The most common list of prima facie elements includes: 1) a false and defamatory statement; 2) non-privileged publication of that statement to a third person; 3) damages. The negligence/malice issue comes into play if the statement is regarding a public issue or a public figure. (So you are likely correct as to climate issues.)

      As to the utter confusion of the courts on issues of blogging, chat rooms, message boards and the internet in general, I agree 100%. It is a mess. But in terms of the pace at which law develops, the internet is a fairly recent phenomenon. So it is no surprise that the courts are a bit at sea right now.

      One big area of concern for bloggers and others on the internet should be that courts are finding they have jurisdiction of defamation lawsuits if the writer knew or had reason to know his or her article/comment would be read or cause damages in that state:

      “Applying Calder v. Jones, 465 U.S. 783 (1984), we conclude that specific personal jurisdiction lies in Illinois over the individual Canadian and American defendants on Tamburo’s intentional tort claims. These defendants are alleged to have used their websites—or in the case of
      the Canadian defendant, blast emails to the online dogpedigree community—to defame and tortiously generate a consumer boycott against Tamburo, knowing that he lived and operated his software business in Illinois and would be injured there.”

      http://www.ca7.uscourts.gov/tmp/6W1FFFYL.pdf

      In other words, if you post something about someone who lives in Alaska, you could find yourself defending a law suit there. If you make comments about a group of individuals, who live in different states, you could conceivably be defending multiple actions in multiple states for a single comment.

      But this in not unlike writing in, or giving an interview to, a newspaper. If you make a potentially defamatory statement that you know is going to be published in the New York Times, you are potentially subject to suit everywhere the Times is distributed…meaning every state in the union. So the potential broad exposure is really nothing new, it is just being applied to a new medium.

      • Agreed on all points. Although, as I tell my counsels, repeatedly, that there is a definite difference between possibility and probability. The probability of a suit being filed, processed and won, is far smaller than the possibility that a suit may be filed in a jurisdiction. And anyone who takes legal advice as if it’s binary and possible, rather than probabilistic and likely, is a prisoner of his ignorance. (BTW: thanks for the correction on tort classification. I know more about legal history, and the philosophy of law than current law, and confuse them at times.)

    • In Canada it is not strictly “libel,” but defamation, and the bar is quite a bit lower than in the US. Unfortunate, and sad, but true.

      Mark

  18. “Well actually I think some lawyer should take this on pro bono, there will be alot of publicity with this one.”

    I agree that this would be an excellent opportunity for the right lawyer.

    • Tim Ball’s web site http://drtimball.com/ has further details, including analysis by John O’Sullivan and information on how to contribute to his legal fund.

      • From the link given at the top of this post (http://www.desmogblog.com/michael-mann-suing-tim-ball-libel ) The alleged libel was in response to a specific question ” Various government and academic agencies have whitewashed the Climategate scandal so far. Do you think anyone will be prosecuted for fraud?” Ball responds, “Michael Mann at Penn State should be in the State Pen, not Penn State.”

        I think before any lawyer took it on as pro bono they’d want to have some idea that they might win – not good for ones reputation otherwise.

      • Satire and hyperbole are defenses to defamation in many jurisdictions. A statement that is untrue or impossible on its face cannot damage a person’s reputation. (For instance, “John Smith is the devil” would not be actionable.) But to qualify as either, the statement has to be clearly impossible or untrue. This could put Mann in the delicious position of having to argue that it was possible for him to be incarcerated for what he is alleged to have done.

        On the issue of why Mann chose Tim Ball, aside from the previously discussed issue of Canadian libel law, the whole point of the suit is to send a message to individual bloggers and commentators. Fox News, Glen Beck, Rush Limbaugh would laugh at such a suit, they could defend it with the interest earned on a couple month’s income.

        But a retiree, with limited means, who will be hard pressed to even defend himself? Not only does Mann have a better chance of prevailing against such a defendant, but win lose or draw the filing has already sent a message to other writers/commenters of limited means.

      • Fox, Rush, and Beck would have to be sued under US law, too, and such a comment does not even come close to libel here.

        Mark

      • I don’t know if this is a difference with a distinction, but the question asked for a prediction, and Ball answered with a personal opinion as to what should happen. IOW, the answer wasn’t really a direct answer to the question, it was a flippant retort.

  19. “To prove libel, the work must be published in some form. (Verbal statements for example, are slander, not libel.) There are three criteria to prove libel: the statements have to be false, the critic must have conduced insufficient research (made hasty statements), and the victim must have actually experienced harm. These are criteria easily voided by giving an opinion on the victim’s motivations rather than on facts and actions.”

    In the case of speaking or writing about public figures, I believe actual “malice” must be proved. Malice is defined thusly: “knowledge that the information was false” or that it was published “with reckless disregard of whether it was false or not.” Reckless disregard does not encompass mere neglect in following professional standards of fact checking. The publisher must entertain actual doubt as to the statement’s truth. This is the definition in only the United States and came from the landmark 1964 lawsuit New York Times Co. v. Sullivan, which ruled that public officials needed to prove actual malice in order to recover damages for libel.”

    But Tim Ball is in Canada, so I don’t know what the deal is there…

    • Tim Ball’s case with both Weaver and Mann are in the Canadian system, where NYT vs Sullivan was rejected by the Supreme Court and does not apply (no intent of malice needs to be proven). Ball has some experience suing for defamation in Canada, but the facts in that case were different and were not favorable for him at all. Now, he is the target, and the CFP has taken it seriously enough to drop him as a contributor. In my amateur opinion, it looks like there is a case to be made here under Canadian law, but that is totally different than a reason why a case should be made.

      • Dr. Curry

        Overall, I believe in regards this matter (http://www.courthousenews.com/2011/02/04/Climate.pdf) the similarities between the alleged behaviors of the defendant and the majority of participants in climate debates are obvious and ought put one’s mind at ease should one ever choose to go to Canada to debate climate. (Though really, why go to Canada for the climate?)

        The issue in this case goes to months or years of repeated attacks on character, inferences and direct statements against the competence and professional reputation of a recognized expert, and serious public printed allegations by Tim Ball of illegal actions by the plaintiff.

        While some such conduct is seen commonly online and even by participants on this blog towards those with differing viewpoints, it’s seldom seen in print intended for wide readership by serious professional scientists to such a degree and with such persistence… at least here.

        It would be difficult to claim that cases like this will put a significant chill on scientific debate.

        If any good comes out of such bad behaviors, perhaps it will be that by refocusing the manner of the debate through a lens of civility — remembering that Canadian courts and society have a very different view of civility than courts and society in the USA — one may see the actual matter of the subject discussed more and the personalities less.

      • Correction – “actual malice” is not the same as intent of malice, as pokerguy covers the definition pretty well. Either way, it doesn’t apply in Canada.

  20. wilbert merel robichaud

    Actually these suing threats by the Environmentalist/ scientist /lawyers are far more common then we think.

    http://www.bclocalnews.com/bc_cariboo/williamslaketribune/news/113013749.html

    Now we can’t even publish or write anything against this Group ..they have successfully censored all comments.

    • Technically, isn’t posting, “they have successfully censored all comments,” writing against that group?

      It appears they haven’t successfully censored all comments. ;)

  21. Libel suits are almost always a losing proposition in the US because they involve reciprocal discovery.

  22. Jeff Norris

    Dr. Curry
    This maybe a new facet to the climate wars but suing your opponents for saying nasty things about you has a long and glorious history in Britain

    Wilde v Queensberry
    Whistler v Ruskin
    This article in the Guardian gives an example of how libel tourism is effecting Scientists everywhere.

  23. Joe Lalonde

    Judith,

    At times I’ve felt like suing the “peer-reviewed” idiot that wasted my time and eye strain for a bad hypothesis.

  24. I would love to hear from the anonymous posters…do you think writing under a pseudonym protects you from legal action?

    • As one of the aforementioned – no. I think not being libelous protects me from legal action.

    • As one who doesn’t post under a traceable name (therefore, anonymous), I’ve never really given a thought to the threat of legal action. However, I do post anonymously because of threat of losing my employment. My employer (specifically, my boss) is a hardcore CAGW believer. If he/she found out that I’m a lukewarmer, I doubt my contract would be renewed again.

      Thinking about protection from legal action, I’d assumed there wouldn’t be any legal action to worry about as long as I posted sensical stuff…anonymously or not.

      -Scott

      • John Carpenter

        Scott,

        “I do post anonymously because of threat of losing my employment. My employer (specifically, my boss) is a hardcore CAGW believer. If he/she found out that I’m a lukewarmer, I doubt my contract would be renewed again.”

        Sounds like a legal matter in its own right…

    • Ken Cofman,

      No, just the opposite. If I were to post a defamatory comment, my anonymity would be no defense. And if a party served a proper subpoena on Dr. Curry, she would be required to release my email address, and any other identifying information in her possession.

      However, anyone can say anything against me, and I would have no claim to defamation. A plaintiff has to show that a comment is about him, and damaged his reputation. While it is possible I could claim that no one else seems to use my nom de blog here, there is no way any comment could damage my reputation outside this context because no one knows who I am personally. And I can’t see any way that damage to an anonymous blog commenter’s “reputation” on the blog itself is compensable.

      That doesn’t mean an anonymous blogger couldn’t sue, anyone can file a complaint about anything. But such a commenter would have about zero chance of success.

    • There was a case in Estonia a few years ago when someone anonymously made an antisemitic statement in an online commentary of a newspaper, was tracked down, prosecuted and found guilty.

  25. max (note the small 'm')

    Just an observation about the examples you cite. In all of them the skeptic side is suing to gain access to information while the warming side is suing to keep information locked away.

    note: this is not to say that either ‘side’ works the legal system either way, it is merely confined to the four examples cited by dr. curry. i do not know much about the legal efforts of either side beyond that contained in this post and have made no effort to be aware of any more. it is an observation based upon and solely applicable to the limited examples in this post.

    • andrew adams

      But Mann’s libel suit and UEA’s complaint to the PCC have nothing to do with “keeping information locked away”.

  26. First we have this:

    <blockquoteKeep it civil. Attacks on individuals involved in these lawsuits will be deleted.</blockquote</i

    And then we have this:

    “I have the sense that Michael Mann is an unbalanced individual”

    “Mann is pushing the limits far beyond what a reasonable or competent person would push.”

    “There is a grassroots move to support Dr. Ball against this junk lawyering by a junk scientist.”

    With a swift deletion from Judi… Oh. Wait, maybe not:

    • I’ve trashed a few from this thread already, i agree this one should go also, i will try to find it.

      • Thx. The comments may have been from more than one post.

        You actually responded to one of those posts. It is a bit interesting that you passed right over the attack initially.

      • I guess the ones i was deleting were way over the top, that one wasn’t as bad as the others. its gone now.

      • Ok – although you might have guessed I will remain a bit dubious.

        (If I knew how to put in one of those winking/smiling emoticons, I’d put one here now.)

      • I’m multi-tasking: trying to work on revisions of the uncertainty monster paper and monitor the blog, so most posts get skimmed (i’m reading the posts from the lawyers rather carefully)

  27. “I would love to hear from the anonymous posters…do you think writing under a pseudonym protects you from legal action?”

    In my opinion there is simply no practical way to sue an anonymous poster for making comments about a public figure on an Internet blog.

    Even if the poster uses his real name, I don’t see how actual malice can be proven, that is that the poster knew or should have known his statements about some public figure were untrue.

    Do you suppose Barak Obama could sue someone for saying he wasn’t born in the U.S.?

    • @Pokerguy: “In my opinion there is simply no practical way to sue an anonymous poster for making comments about a public figure on an Internet blog”

      Well that is a dangerous opinion to hold, depending upon which way you mean it. It isn’t 1996 anymore. Pretty much everything is traceable. Ask the script-kiddies and hackers who spread viruses. So it is POSSIBLE to identify and sue someone. But it requires third party involvement and that’s legal process and it’s expensive. If you mean it’s hard to succeed, then for public figures, it is being proven that it’s illegal to threaten politicians and there have been recent successful prosecutions, one which was just announced in that past week (against Cantor I think?). If you mean that it’s impossible to libel a politician, then I think the courts have sided with publishers pretty firmly, that it’s a high hurdle. I don’t know who has the data on libel cases (I haven’t checked it ) but for all intents and purposes it’s pretty hard to prove, and it’s very hard to get someone to take the case. I testified in a case in boston in the late 80′s. The Newspaper was very cautious about reporting a story due to the litigious nature of the person in question. Not because the paper would lose a libel suit. But because it’s simply expensive. So, it’s not about wining or losing, but the cost of litigation on a topic of murky standing. (I am not a lawyer BTW. I track legal trends as a political economist. )

  28. How many stories I’ve read that are like mine, that people became skeptics after visiting Realcilmate, Tamino, Tobis or Romm.

    Very interesting observation. I read most of Tamino’s posts and they definitely tend to push me more in the skeptical direction…usually for what’s not covered by Tamino and also for the way he treats people who disagree with him (oh, and ignores any idiocy if it comes from someone who believes in CAGW). Similarly, reading some skeptic’s posts push me more towards believing in CAGW. How many others experience this?

    -Scott

    • It’s strange. First my post is deleted and thus your post refers to nothing and then, when I ask why it’s been deleted and I comment something you said, it gets in front of your post…?!

    • andrew adams

      What do you think is not covered by Tamino that should be?

      • andrew adams

        Sorry, that was a reply to Scott above.

      • Just one example. In december 2007, following David Whitehouse’s article in The New Statesman wondering why the world has not warmed up at least since 2001 even though CO2 was getting higher, Tamino got to a path to show that Whitehouse and everybody who agreed with him was not only wrong and a cherry picker but also either stupid or a liar, showing all kinds of linear trends. He did GISS 10 years and 5 years. When reminded that the talk was about Hadcrut and 7 years, he did Giss 7 years and Hadcrut 10 years and 5 years. And who ever reminded him or asked him to try HadCrut 7 years, got his typical abuse, was ridiculed, chased away with a stick, and then banned. So in this case – what was not covered? The claim itself or HadCrut 7 years … And this is just one small example, most of his behavior is like that.

      • Well Sven covered my thoughts well, but here’s a smaller example of what I meant…not a missing topic, but just choosing the “best” things to show.

        http://tamino.wordpress.com/2011/02/24/while-we-fiddle/

        Here, Tamino effectively tries to sell a global warming summary, presumably for passers by that happen upon his site. So why is it so cherry picked? There’s no need to be. He shows three things – GISS temps, NH sea ice, and CO2 concentrations (with the y-axis starting at 320 ppm).

        Why not show a record other than GISS? The others show essentially no warming over the last decade (or if you cherry pick, since 1998). I guess they don’t look as scary.

        Why not show both NH and SH sea ice (or global see ice) instead of NH? Wouldn’t that be more objective and honest? I know that some models say that SH ice should increase, but I think global sea ice (which is also decreasing) is a much more objective picture and still gets the point across…just not as scary.

        And why plot [CO2] instead of ln[CO2], which is really the thing that matters? Again, not as scary.

        It’s just funny because an objective and complete view off all of those things still paints a similar picture, but clearly he’s let a bias try to paint a scary picture.

        Let’s look at another example – http://tamino.wordpress.com/2010/11/06/extreme-heat/

        I really enjoyed this article from Tamino, but one thing really bothered me, which was this paragraph:

        One of the most interesting facts is that, if not for global warming, this would have been an extraordinary July. That’s because global warming has increased the mean July temperature in Moscow, so a given deviation above the mean corresponds to a hotter temperature. Without global warming, this once-in-a-century-or-two event would have been closer to a once-in-a-millenium event.

        He’d shown his work to this point, but doesn’t show any math to back up this claim (at least that I could tell at the time). Why not? Did he do the math on it? I’d have loved to see it, and that it’s not shown makes me wonder if it’s true. Of course, I’m horrible at stats so maybe there was the information there and I just missed it.

        And finally, the biggest issue, which is how he treats people outside of the CAGW camp…typically those that disagree with him. A relatively mild example is found here:

        http://tamino.wordpress.com/2011/03/21/food-for-thought/

        A commenter named Dean had several good points but was basically put down and then ignored when it was clear he had valid points. Tamino said that he “wasn’t thinking clearly” that the food prices showed a spike rather than a general increase…but usually Tamino is arguing the opposite…that trend is more important than spikes (which I’d agree with). So why not here? He doesn’t elaborate or run some stats to show he’s right, he just ad homs. Nor does he check to see how oil or fuel prices may have affected food price, even when Dean made the reference. Why not? Won’t like what he sees?

        What it comes down to is the extreme bias of Tamino. Any skeptic comment gets trashed, yet he didn’t say a word when one commenter said that Monckton was a human trafficker. Some of the pro-CAGW comments are clearly as poor (or poorer) than the skeptic comments, but I don’t see him calling them idiots (or worse). I find that a real turn-off…basically he comes across as a smarter version of Steven Goddard.

        Well, rattled on and on over some pretty trivial stuff, but you get the idea.

        -Scott

      • It’s garbage.

        H/t Jean S.
        =====

      • Hi Kim,

        I don’t know if by “garbage” you mean Tamino’s site, but if so, I’ll disagree despite my comments above. I’ve learned quite a few things on that site, I just have to wade through an extreme bias and disrespectful attitude to do so.

        At this point we’re getting pretty far off topic (which I contributed significantly to)….sorry about that mods.

        -Scott

      • IPCC Fourth Assessment Report:
        Most of the observed increase in global average temperatures since the mid-20th century is very likely due to the observed increase in anthropogenic greenhouse gas concentrations.

        Folks, the monthly global mean temperature is now BELOW the maxima for the 1940s (before mid-20th century)!

        http://bit.ly/hrMJhT

      • Rattus Norvegicus

        Here Girma, I’ve fixed that for you.

      • Rattus Norvegicus

        I said the MONTHLY!

        You showed the annual!

      • Rattus Norvegicus

        Monthly has far too much noise. For that matter the annual has too much noise too, but at least gives a better idea of what is happening.

  29. Dr. Curry,

    “Early on in this case, I did make a public statement on this, and I have not changed my opinion on this one.”

    I get that you think it’s a fishing expedition. What I don’t get is why you think the State of Virginia, as represented by the AG, doesn’t have the right to go fishing in a pond (of information) that, as far as I know, it owns outright.

  30. Moderation note? Prefacing speculation with “sure” is bad form, as is the medical condition of anyone being sued or not.

  31. You would never be able to find me (even though the email works)

    max (note the small ‘m’) – April 9, 2011 at 3:38 pm
    In all of them [i.e. all cited] the skeptic side is suing to gain access to information while the warming side is suing to keep information locked away.
    Doesn’t that say it all?
    I don’t need the boilerplate

    • wilbert merel robichaud

      It should read ” the scientific side is suing to gain access to information while the warming side is suing to keep misinformation locked away.”

    • max (note the small 'm')

      no, it doesn’t really say much, and certainly not all. perhaps there are more cases than those in the example and an absolute or even general tendency to litigate one way or the other by one or both sides, but with only four examples drawing any sort of conclusion is absurd. i haven’t looked at the issue, although i am sure someone could do an objective analysis of all litigation about the issue and report their findings (although there is far more incentive to do an non-objective analysis to support their position).

      i know there is a general belief on the skeptic side that the warming side is part of a conspiracy to pervert science and destroy the modern society. i also know there a general belief on the warming side that the skeptic side is part of a conspiracy to destroy the environment and wipe mankind from the face of the planet. (that is a bit overwrought but it’s what both sides believe of the other if drawn to their logical conclusions.) even if an analysis of litigation showed a tendency one way or the other it wouldn’t be absolute proof of either belief being correct since the two sides are not equally situated.

      anthony watts (and most of the skeptic side) is a private person who is privately funded working on his own behalf, send an foia request to him about his funding and he can tell you to pound sand, if he does so and you file a suit to force him to comply with the foia request and the court will tell you to pound sand. dr. mann is a public employee who is funded by the government working on the public’s behalf, send an foia request to him for his data and he must at least justify why he doesn’t comply with your request, if he doesn’t comply with your request you can file a suit with a court which is obligated to consider whether or not he must comply with your request.

      • John Carpenter

        max,

        “i know there is a general belief on the skeptic side that the warming side is part of a conspiracy to pervert science and destroy the modern society. i also know there a general belief on the warming side that the skeptic side is part of a conspiracy to destroy the environment and wipe mankind from the face of the planet”

        Good one… no matter what happens on the fringes, we in the middle are up a creek.

      • max (note the small ‘m’) | April 9, 2011 at 5:51 pm | Reply

        …dr. mann is a public employee who is funded by the government working on the public’s behalf…

        I agree with pretty much all of your post except this part…you imply that the Government is funding Mann to help the public. But really, isn’t the public funding the government which trickles down to Mann? If the public is paying for it, they have the right to see the work in detail. And considering that most of the issues seem to stem from a paper that’s 13 years old, I don’t think one could claim that he’s trying to protect his IP or methods at this point (which I think is totally valid by the way…just because the public funds you doesn’t mean you should lose your benefits from innovation…but clearly 13 years is more than enough time.)

        In fact, skeptics might claim that your quote is backwards and should instead say something like “Dr. Mann is an employee that gets his funding from the people and works on the government’s behalf.” At least that goes along with the conspiracy idea. ;-)

        -Scott

      • Uh, actually, the funding agent typically owns any innovation. Certainly if that agent is the public, then they own it. Not that there is really an issue of innovation here anyway…

        Mark

      • Mark-

        “the funding agent typically owns any innovation”

        This depends on the contract terms – I’ve seen it both ways. Certainly US govt contracts tend to keep the patent rights for the government, which can cause problems for further development and commercialization..

      • Harold – as I note below, I have worked on US Govt R&D programs where IP ownership rests with the creator of the IP specifically in order to facilitate commercial exploitation.

      • John Carpenter

        Harold,

        I think the government is granted to right to use the IP, license and royalty free, but it does not own the IP. The inventor still owns the IP and is able to commercialize it… i.e. can license and/or use it for commercial purposes.

      • max (note the small 'm')

        It’s intended to point out that while Mann is subject to FOIA suits, Watts isn’t. If we count the amount of FOIA litigation by/against each group it won’t necessarily present an accurate picture of which group is trying to “conceal” and which side is trying to “discover” because the groups are not equally subject to FOIA law. The merit of FOIA laws in general is beyond the scope of this simple observation – regardless of what the “rights” of the various parties should be, less of the skeptic side is subject to FOIA law and will have fewer FOIA suits brought against them.

  32. Joshua wrote: Joshua | April 9, 2011 at 3:39 pm | Reply
    First we have this:

    <blockquoteKeep it civil. Attacks on individuals involved in these lawsuits will be deleted.</blockquote</i

    And then we have this:

    “I have the sense that Michael Mann is an unbalanced individual”

    “Mann is pushing the limits far beyond what a reasonable or competent person would push.”

    “There is a grassroots move to support Dr. Ball against this junk lawyering by a junk scientist.”

    With a swift deletion from Judi… Oh. Wait, maybe not:

    I'm the one who asserted that "I have the sense Michael Mann is an unbalanced individual."

    This is suppose to be some sort of vicious attack? Are you kidding me?

    • She said she would delete attacks, pokerguy.

      You attacked.

      She deleted.

      It’s her blog, and you’re her guest. Would you prefer that she make an exception for you, in contradiction to what she stated as her intent?

  33. Dr. Curry,
    what made you delete my post? The statement about Anna Haynes? Come on, this was a joke referring to her own insinuations for you… I think the rest of it was not libellous and the parallel of Gavin’s complaints about libel suit threats are relevant considering his best colleague and brother in arms is doing the same thing?! And stating that the behavior on the pages I was referring to is pushing people to the other side is not a violation of anything either…

    And Scott, I agree, it goes both ways for me as well

  34. It gets curiouser and curiouser. The post I just wrot was in reply to Scott but it got to the general thread. I’m lost…

  35. To this list of intimidation, we must add the efforts of Bradley to alter the Congressional Record by going after Wegman on plagiarism charges. (Which means he has to go after North also who agreed with Wegman under oath).

  36. I was very surprised that UEA’s legal advice went with those particular complaints, ie email deletion.. as allthough the ‘inquiries’ ignored the email deletion emails, and the other issues and did not ask the question, why the need to ask to delete emails, etc

    The fact that emails existed saying ‘please delete emails’ from Jones, I would have thought immediately give a response from UEA’s legal team of well that is some evidence and back up a fair comment defence so poor legal advice, or just arrogance?

    Did UEA really think their Press complaint through, very puzzling?

    As a comparison for the Penn State joke..

    UEA was known as the University of Easy Access when I was studying for my A-level exams over 20 years ago… ie The joke (reality) was put UEA down on your University admission forms if you messed up your A-levels, they’d have you.. That and they are/were most famous for the universities ‘Creative Writing’ courses.

    I do have some very bright friends that studied there and they laugh at it, but 20-30 years ago (it was a 3rd rate type place – in my opinion) and the fact it was stuck out in East Anglia meant it wasn’t that great a destination for students…

    That is how I see the Penn state comment getting treated in court.

  37. Dr. Curry,
    Good post. Your notice of the asymmetry of the cases is insightful.

  38. Perhaps I should put in my five cents. As a non-scientist with a lowly B.Com degree but a bit of a history buff I really cannot comment on the ins and outs of the science. However, perhaps a different perspective is in order. As we all know, the baby boom generation is getting older. In general, people that are getting older are normally also getting more “conservative” in their outlook. A lot of the hippies of the sixties are now managers in business and will be retiring soon or are. The socialist tendencies of the last 25 to 30 years are now hitting the reality of the pension cheque. It does tend to focus the minds of many. And in the end economic considerations outweigh socialist spending proliferations. I therefore think it is the general conservative pushback against the lefty academic crowds, the bureaucrats and unaccountable scientists who spout nonsense and wish Joe Public to pay for such idiocy. In general “studies” on dying polar bear populations or sinking islands is getting to be a bit much. Who on earth is paying for this? The taxpayer. You and me. And then a falsified hockey stick comes along that is supposed to be peer reviewed? Who were these peer reviewers that let the disappearance of the LIA and the Roman warm period through the review? Should they be sued as well? And if that person did this work on the taxpayer’s dime, than such results are PUBLIC, not private property. So sorry Dr. Curry. A thing is or it is not. One should act accordingly.

  39. batheswithwhales

    Any judicial system that bankrupts anyone sued for whatever reason is of course useless.

    It is exemplified perfectly by the Mann/ball lawsuit, where Mann is backed by seemingly unlimited capital, while Ball is a pensioner.

    So is Ball to sell his house to defend himself from the vicious attacks from Mann? Or should he settle for a retraction of his (just) statements?

    It is a circus.

    Excuse me, but the American judicial system is in bad need of reform.

    It is a permanent joke.

    • What is there to suggest that Mann is backed by seemingly unlimited capital? I’m not sure who’s funding what, but I bet both sides have limited pockets.

      • It is “suspected” in several places in the blogosphere that the David Suzuki Foundation is funding the lawyer in Canada for both Weaver and Mann, but who knows.

      • That’s possible, and I imagine many will accept it as fact without any evidence. I wouldn’t be surprised if Tim Ball has started off outmatched on this one, but I also wouldn’t be surprised if he can rally a fair bit of support for his defense.
        I think this is the best thing that could happen for his new website anyway.

      • Speaking of which… there’s a bit on there that privileges you with quite a role in history:

        “Several fellow academics, including Dr. Judith Curry smelt something rotten among mendacious Mikey’s tree rings and their fears were confirmed when Canadian statistical experts, Steve McIntyre and Professor Ross McKitrick found a string of ‘errors’ in Mann’s work. “

      • batheswithwhales

        Even if both sides have unlimited funds: so what: does it make sense to spend millions in a court battle over schoolyard slander?

        But of course it is not about that. It is about Michael Mann (and his team of deep-pocketed backers) steamrolling the pensioner Bell to make a point: anyone critical of Mann-science is likely to get sued and must be prepared to sell their house, car and wife. Whether they are right or wrong, it doesn’t matter, they will be deep in debt for challenging “the consensus”.

      • batheswithwhales

        Rest assured: Mann will have his legal fees covered by “friends and followers”, and if you investigate thoroughly, some of those friends (through taxation) might even be you!

        Ball? Maybe some small change may be collected through various websites. (Where is Big Oil when we need them?)

        Anyway: I don’t see Mann going to court. It is just a threat.

        Mann has too much to loose if his “science” becomes an issue.

    • This is not being done in the US courts. Canada, actually, probably because their standard of defamation is much lower than in the US. He’d be silly to sue here for something similar.

      Mark

  40. Dr. C.,

    Inasmuch as I don’t recall sever eeing the kind of warning you posted with this thread: “Moderation note: Keep it civil. Attacks on individuals involved in these lawsuits will be deleted.”

    ..it got me to wondering if already the kind of chilling effect Barry Woods writes about on WUWT and the Delingpole case is already being felt:

    “The threat of, or taking legal action against critics of ‘climate science’ does appear to be on the rise, this is a concern as few bloggers have any means to defend themselves legally. If actions like this are not fought and won, all perhaps it would take is a lawyer’s letter from a complainant with deep pockets (like UEA) for the blog owner to have to make a difficult personal and financial decision. Additionally, these actions may result in a form of self censorship with blogger and journalists not daring to comment.”

    I’ll come write out and ask…how much of a concern is this to you?

    • Well I am certainly very careful what I say personally. Personal attacks typically degrade the conversation and don’t help further discussion or information exchange. And I figured that mentioning the names Michael Mann, James Hansen, Gavin Schmidt, Chris Horner and Tim Ball all in one blog post was ripe for a flame war, so hence the warning.

    • How does deleting your attack, after she said that attacks would be deleted, relate to the “chilling effect” of legal action?

      There was no legal action or threat thereof.

      Once again, she said she’d delete attacks, you attacked, she deleted.

      Why would you have a problem with that? Do you have some expectation that you will be extended the courtesy to violate the banning criteria laid out by the blogger? Your comment was not the only one deleted. Other attacks were deleted as well. Why would you have her make an exception for you?

  41. It’s quite an amazing and depressing development…barely a step or two removed from burning at the stake heretics who refuse to recant. Only instead of the torch it’s the threat of financial ruin.

  42. Regarding Mann, Anthony’s ‘analysis’ in this post is very ill-informed, legally speaking. Discovery will likely be much more of a problem for FCPP because it will have to disclose previously undisclosed funding sources; it can’t prove most of the things it has claimed in its attempt to deny climate change, never mind the persistent attempts to defame Mann with lies; and it puts the spolight not only on FCPP but on other groups that get their funding, and their climate change denial, from industry. ;-)

    Re NASA GISS, you refer only to an opinion piece in a conservative magazine, for information? Judith, that’s ridiculous. :-(

    “I haven’t seen a statement from NASA GISS, but exactly what are they claiming to protect by not complying with the FOIA requests”

    Nor will you, during a lawsuit. The real question is why so many deniers associated with industry have spent a lot of time systematically abusing FOIA requests and attempting meritless suits, to do nothing other than harass individual scientists and research groups.

    By the way, I don’t see any lies or lack of basis for the information in Anna’s Sourcewatch entry on you. Also, there are a range of problems created by your entrepreneurial activity in the university e.g. real or perceived conflicts over the use of university resources for company work, the hiring of graduate students to staff the company and how this affects student-teacher mentorship and professional relationships, etc. These ethical and administrative conflicts are not likely current conflicts in a legal sense, but that doesn’t make it all ‘squeaky clean’.

    It may be important to consider other legal accountability e.g. intentionally misleading the public especially when the potential harm is serious. In addition to the potential for the public to launch climate change civil suits – which I see you are also not familiar with — some professional climate scientists are now turning to intervention using the legal framework to address ongoing threats, harassment and slander by groups and individuals associated with groups funded to challenge the reality of climate change.

    “I will preserve the anonymity of my posters who choose to remain anonymous, up to the point where I would end up paying a steep fine or going to jail over it”

    Anonymous speech has First Amendment protection, so you aren’t actually protecting anybody — the law is. On the other hand, the frequency with which a blog allows false and signficantly damaging information to be posted or recycled on a blog, anonymously or not, raises the stakes for online libel risks for the blogger.

    • Martha, I seem to be much luckier than the other “professional climate scientists are now turning to intervention using the legal framework to address ongoing threats, harassment and slander by groups and individuals” since it is only you and Anna Haynes that are harassing me and making unfounded and unsubstantiated allegations and otherwise trying to smear me. And I don’t use the word “squeaky clean” lightly.

      So I guess by allowing your false and significantly damaging information to be posted here, I am running the risk of libel. Dearie me.

      And the anonymity of anonymous bloggers is not protected by the first amendment. For example, the first amendment does not protect you from my from publishing your email and IP address.

      • >For example, the first amendment does not protect you from my from publishing your email and IP address<

        :) :) :)

    • Martha
      “Nor will you, during a lawsuit. The real question is why so many deniers associated with industry have spent a lot of time systematically abusing FOIA requests and attempting meritless suits, to do nothing other than harass individual scientists and research groups”.

      You know this is abuse because? How many FOIA requests have been made? Specifically, how many to whom. Please let me know so I can be outraged by this awful tactic of trying to get taxpayer paid for information. Thanks, I’ll wait and for sure be overwhelmed.

    • Martha,
      When the discovery starts, Mann’s suit will stop.
      The last thing he can withstand is discovery.
      Whatcha wanna bet?

    • Apparently there is no discovery if the dollar amount is under $50k. Mann has a problem if he wants to take part in discovery himself, and your thesis is quite meaningless if he does not. Take your pick.

      Mark

    • @Martha
      Let me guess. You have no idea that one of the major funders of UEA/CRU is none other than British Petroleum. And you have no idea that the Muir Russell “independent” inquiry panel included BP’s Group Vice President for Research and Technology. Given these facts your rant against “industry” funding is quite amusing.

  43. Martha writes: “…never mind the persistent attempts to defame Mann with lies”

    Be helpful if you’d be good enough to enumerate these so-called lies.

    • I think she is referring to all of the slanders for which he was completely exonerated http://blogs.discovermagazine.com/badastronomy/2010/05/05/breaking-climate-scientists-cleared-of-malpractice-by-panel/ as well as all of the other baseless accusations that Deniers try to use a a substitute for having no facts or evidence.

      • Oh, somehow I think anyone who reads those and agrees would be someone who cannot tell the difference between opinion/propaganda and fact.
        Especially from a ‘review’ that was a blatant abuse of whitewash.
        It is too bad that a site devoted to busting crap science in Astronomy is promoting exactly that in climate science.

      • The BA was great until he merged with UT and then started promoting his views regarding climate science. At that point you could no longer post anything skeptical without being attacked, by moderators and the BA himself.

        Mark

      • Hehe, that’s kind of like being a juror at your own trial then declaring some sort of victory when you find yourself not guilty.

        Mark

      • It is too bad that a site devoted to busting crap science in Astronomy is promoting exactly that in climate science.

        Another case of that is the top-class science writer Simon Singh.

      • John Carpenter

        greenfyre,

        You and your link lose all credibility when you frame the debate around “deniers” promoting conspiracy theories.

        There is no denying the emails reveal a systematic collusion of certain scientists, of which one was Mann, trying to use the IPPC and peer review process to prevent opposing viewpoints from seeing the light of day while actively promoting their work to create a narrative conducive to the type of policymaking the IPCC wants to promote.

        Someday you should sit down and read them because you have to be drinking hard from the CAGW kool aid and burying your head deep in the sand not to realize this.

      • greenfyre
        “as well as all of the other baseless accusations that Deniers try to use a a substitute for having no facts or evidence”.

        How about “it’s not heating like its supposed to”? Would that be one of those baseless accusations? Orrrrrr, “the sea level isn’t increasing at an accelerated rate like it’s supposed to”? Want me to go on?

      • Green-cryer says:
        “My heart is moved by all I cannot save”

        Do you walk on water too?

  44. I am an Ohio lawyer and don’t know Canadian law. However, here is my perspective as a climate realist and lawyer. Ball made a mistake by calling Mann a criminal. Whether he was joking or not, that is something that is ripe for a misunderstanding. If it was made in a serious vein, then Ball has to justify it. Either way, Ball has given Mann a sword by which Mann can impale Ball. Ball could have made essentially the same point without the baggage or the risk by calling Mann clueless or statistically challenged or any number of other phrases that would describe someone who has produced seriously flawed work. If I was Ball and received a request for a retraction, I would have produced a retraction, but would have done so in either a sophisticated or humorous way. Maintaining the right to call someone a criminal, without substantial grounds, is not bright in my opinion.

    Second, many people are defamed under legal definitions in the U.S. but since they typically have little, or virtually no damages, defamation suits are not common. In the climate arena, there are occasions where a damageless defamatory statement can be used to inflict political damage on the speaker. This might be one of those occasions.
    JD

    • Bruce Cunningham

      If Mann deliberately or knowingly misused Virginia public funds in any way, then he violated Virginia law. That makes him a criminal.

      • If Bruce deliberately or knowingly misused Virginia public funds in any way, then he violated Virginia law. That makes him a criminal.

      • Of course, no-one is a criminal here – there’s no evidence that anyone has misused Va public funds.

      • Discovery in the Mann case may uncover evidence you don’t expect, Nick.
        ==========

      • Well, Cucci isn’t expecting much
        “But in an interview several months ago, he conceded that his chances of finding evidence of financial fraud in Dr. Mann’s e-mails were indeed low.

        “Frankly, I would say the odds are there is nothing like that,” he said. “But we don’t know that.””

      • Yes, Nick, it’s likely going to be a lot easier to prove scientific fraud than it will be to prove financial fraud. Some of the emails show scientists getting ‘cagy’ with their US Federal funds, but there is no evidence yet that Mann did so with either state or federal funds.

        I’ve wondered for awhile if showing that his science is deliberately fraudulent, not an impossible thing to do, can then be used to allege fraud in application for further studies. It’s a stretch to prove, but that is what happened.
        ====================

      • Nice link, Nick, nice. I note it says that Cuccinelli is now allowed to pursue questions about federal funding. Did you read the link?
        ================

    • JD, thanks for stopping by.

  45. The fundamental problem is the existence of laws against slander and libel.
    They should simply be abolished, and anyone allowed to say whatever they please. As always, comments continue will be judged from whence they come.

  46. Rule of thumb : the vigour with which any comment is stifled, is proportional to its truth.

    • So if I decide to write an article in a newspaper that says that you’re a paedophile that’s OK?

      No right for you to demand that I either prove the accusation or retract it, apologise and possibly pay damages to you too?

  47. So if I decide to write an article in a newspaper that says that you’re a paedophile that’s OK?

    Yes – it should be legally OK. Doesn’t mean it’s morally OK. Similar to say prostitution.

    No right for you to demand that I either prove the accusation or retract it, apologise and possibly pay damages to you too?

    Should be no legal right to demand, No. I can of course challenge you to do so. And call you a liar, fraud, data-hider etc etc if you decline.

    It’s not perfect, just (much) less imperfect than coercive censorship.

    • “Should be no legal right to demand, No. I can of course challenge you to do so. And call you a liar, fraud, data-hider etc etc if you decline.”

      But I’m the editor of a large national newspaper – you’re a lowly manual labourer with no access to the media in the way I have.

      I say again – do you still think it is OK for me to write a six page spread saying that you’re a paedophile and making up loads of lurid ‘facts’ to prove this yet you don’t even have the means or mechanisms to challenge me?

  48. The chief purpose and effect of slander/libel legislation, is to give big people the power to silence or deter criticism from small people. It is a calculated privilege for the politically correct and the rich. Unfair by design.

  49. Same question same answer Louise.

    If your newspaper sells by making false claims, this will soon become known. And I can point this out to rival papers.

    People treat comments from whence they come. If you (naively) think libel laws ensure fairness, you might take comments in newspapers seriously . But if there are no libel laws, they’ll also wonder if that hissy journalist is just making it up to sell papers. Your paper will then be judged on how often it gets found out making up porkies. Competing papers will of delight in exposing such practices.

  50. What I find hard to grasp, is how otherwise intelligent people fail to understand the basic concepts of qualifying ones statements.

    Libel in the UK against any skilled individual has always been viewed as a distinct possibility where published opinion is concerned.
    Take Acting for example, it has always been understood by Drama critics that they could not state “X” cannot act. They have to limit themselves to comments such as not the strongest performance of “Y” I have witnessed.

    The same logic follows in Music and the rest of the arts . Any other opinion on a persons work, in the course of their endeavours in other fields, would have simialr protections.
    If individuals refrained from blunt instrument ad homs (on all sides of the debate), they would not find themselves in this mess.
    Statement- Caveat, Opinion-Qualification, wil prevent you finding yourself in the courts (in general). :)

    Basically do not question someones competence, or fitness to practice (unless you can back it up), people can be competent and also be wrong from time to time (humanity advances as much from failure as success).

  51. Guam,
    If it’s wrong to say “X can’t act”, surely it’s equally wrong to say “X can act”. Both are opinions, not necessarily shared by others, who might then be ‘misled’. If the law punishes ‘undue’ criticism, shouldn’t it also punish ‘undue’ praise?

    The law in this area is both a bully and an ass, and sabotages justice. It should just be taken out and shot.

  52. randomengineer

    I think all of this is related to the goings on in Wisconsin vis a vis public employees.

    Cucinelli is investigating (or at least trying to!) how much time Mann spends using public pay to do private things e.g. blog about climate, intimidate naysayers, game the peer system, and now suing Dr Ball. And so on.

    Politicial detractors refer to this as a witch hunt. Others (Dr Curry comes to mind) may not phrase it this way but as public employees aren’t really quite able to grasp the underlying point.

    As a US taxpayer I find this to be proper — if Mann is employed privately
    and his employer doesn’t care what he does with his time, great, it’s none of my business. But when *I* am footing the bill for an employee, FOIA and such doesn’t exist. It’s my #%#$% data, my #%#^& email, and I’ll look at these as I get the urge to. What a public employee does is 100% of my business since it’s my cash.

    This is really quite simple: collect PUBLIC cash and everything you do at work is owned by the public. Don’t like this requirement? Work elsewhere. It’s a free country.

    At the core of this entire issue is the political situation regarding “rights” of those who collect taxpayer money. There is an ongoing fundamental change happening across the US as we speak, and Cucinelli is little more than one of the spearheads. It’s high time we taxpayers — those of us who aren’t connected to the government in any fashion whatsoever — start enforcing the rules regarding those who feed at the public trough.

    As far as I’m concerned, Mann can do anything he wants when he owns his own company and/or is privately employed. But as a public employee he’s obligated to answer to Cucinelli, and when Cucinelli says so.

  53. “But as a public employee he’s obligated to answer to Cucinelli, and when Cucinelli says so.”
    Nonsense. Cucci is the AG of Va, not a dictator. And Mann is an employee of PSU, and has been for over five years.

    • Mann’s present place of employment is irrelevant to his duty to disclose to taxpayers at a previous place of employment. Stick to science, Nick; you make sense there.
      =======

      • Well, the post said:
        “Cucinelli is investigating (or at least trying to!) how much time Mann spends using public pay to do private things e.g. blog about climate, intimidate naysayers, game the peer system, and now suing Dr Ball.”
        Hard to see what that has to do with Va state law.

      • Mann took State money under the pretense that he was spending it for State purposes. We shall see if he did.
        ===============

      • Really? Details please.

      • No, you try to demonstrate that though he took state money he is not now responsible to the state for an accounting.
        =====================

      • What state money? All I’ve heard mentioned are federal grants.

      • Nope, one was State of Virginia funds.

        Stick to science, Nick; you are very knowledgable there.
        ====================

      • And besides, the point holds with Federal Funds. We’d have to get Obama’s DoJ to pursue it though, and that’s probably not happening.
        ===========

      • But, heh, elections matter.
        =========

      • By the way, the ClimateGate emails show some of the scientists getting a little ‘funny’ with their funds, and it was US Federal funds.

        In the record. For review in the future. Heh.
        =================

      • Well, knowledgeable one, tell us more. Did Mann actually apply for, or administer, a Va state grant?

      • In place of my rightfully deleted post, I’ll just note that a link Nick gave us downthread shows that Cuccinelli is being allowed to argue about the federally funded grants.
        ===========

      • You see it’s easy.
        It’s really just how we talk.
        Enjoy your fine repast.
        ===========

      • Mann was co-I on the VA state grant (it was actually a UVa grant and UVa does not get much from the state, but that is deep in the weeds) Principal Investigators are the ones who direct the spending of funds and sign on the bottom line. In other words, Mann had no right or responsibility for any funds that were spent.

      • Judith?

        Attacks on individuals involved in these lawsuits will be deleted.

        Meet kim.

      • Yep, Judy, probably over the line. Deleting what I’ve said won’t make it go away Joshua. You can run, but you cannot hide.
        =================

      • Joshua is always there, with a friendly request for censorship.

      • Hunter – I’m asking for consistency.

        I know that it is the hobgoblin of little minds, but us fascistic progressives find it to be a useful tool in shutting off debate from anyone that we disagree with.

      • Deleting what I’ve said won’t make it go away Joshua. You can run, but you cannot hide.

        Actually, kim, I’ve seen the kind of stuff you write many, many times. Honestly, it’s not all that unique. If I wanted to hide from it, I wouldn’t come to websites rife with your kind of extremism.

        Well, except for your haiku. Your poetry is definitely unique.

      • It’s easy to hide
        From me, not from the Furies.
        Don’t mess with Gaia.
        ==========

      • Progressive fascists
        Hiding the decline, and such.
        Hiding from kim’s fury.

        Hey – it was a first attempt at a Haiku.

      • The fury is felt
        In the dung plastered hovels.
        Who can see the stars?
        =============

      • Is fury furry?
        Like the dung of a young yak?
        Youth, easily fooled?

      • Your energy use
        Fools you about your power.
        Walk behind the plow.
        ============

      • Devoid of attacks
        With power left unwritten
        Will kim be silenced?

      • kim not silent,
        kim be quick.
        But sooner or later
        The end of the schtick.
        ===========

      • Gotta go for now.
        Brunch awaiting consumption.
        Before the earth cools.

      • Nick,
        Even faithful Catholics, when confronted with stories of priestly abuse, will at least admit that priests may be making bad decisions and doing bad things. And will even call for a particular priest to be investigated and held accountable. And will be disappointed if Church hierarchy if they turn out to have covered up for the bad priest.
        Even if the Church itself is, by its magisterium, not directly soiled.
        AGW believers, on the other hand, reject any notion of any possible wrong doing by any of their opinion leaders, and refuse to accept the idea that finding out if anything bad happened could be a reasonable effort. And they accept merely the word of those who are being investigated, and praise their attempts to avoid being investigated. So who has blind foolish faith?

      • Or perhaps they believe in the old adage “innocent until proven guilty in a court of law” ?

      • hunter,
        Good points. The thing is the pro-AGW crowd will not even read the facts about Michael Mann or Phil Jones.

        Do you think Louise has read this article?

        http://www.uoguelph.ca/~rmckitri/research/Climate_L.pdf

      • The evidence is there, Louise, for all to see. And it’s headed for the courts, as we speak. Aren’t you excited that your heroes will have their day in court?
        ===============

      • Mann won’t be in court. It’s Cucci vs UVa. Which people seem to forget.

      • Give it time, Nick. He’ll get his day in court.
        ===========

      • Louise,
        No, the believers do not believe innocent until proven guilty at all. Since these are the same people who shout endlessly that skeptics are ‘deniers’ and receive constant abuse from false claims by believers of being paid by a vast conspiracy for their skeptical opinions.
        And, more importantly, since believers are enabling the AGW opinion leaders to avoid scrutiny and honest investigations to see if a court of law would even be called for.
        Certainly you know the difference between a lawful review of work and being convicted?

    • randomengineer

      Nonsense. Cucci is the AG of Va, not a dictator.

      Reading comprehension much?

      The AG of VA is the official appointed to represent the interests of the state and has full authority to investigate the use of state funds.

      The issue is the use of public money. Period.

      As for Mann being an employee of PSU… news flash. Unless PSU is 100% privately funded by Bill Gates, it’s collecting taxpayer money. I’m not really quite sure what part of taxpayer money you don’t seem to fathom.

      • So you think The AG of Va is empowered to investigate the use of Pennsylvania funds? And can demand the emails of every Pa state employee?

      • randomengineer

        If he’s following a trail that began with VA/federal fund mix, then yeah, damn right he can, because if he can’t do this, there isn’t anyone who is qualified to investigate at all. You have been told by others that he’s investigating starting from the use of VA taxpayer money, and you either can’t seem to grasp this or you’re deliberately obfuscating.

        Well then, fat lot of good that’s going to do you. Cucinelli will continue to investigate and you’re going to flaccidly opine about it. Big deal.

  54. It should be really simple. If a tax-funded person fails to satisfy an FOI request, he is sacked and banned from all future government jobs for life.

    • randomengineer

      You’re not thinking this through. For taxpayer funded stuff there should never be a need for FOI in the first place.

      The government apparatchiks and politcians have gotten away with crap for decades due merely to obfuscation. FOI was claimed to be necessary due to the paperwork needed (file cabinets, microfiche, i.e. ancient tech.) In the world of the internet and ridiculously cheap terabyte level storage, there is no need for this. High school kids seem to be able to figure out how to upload their bowel movement schedules to facebook (info overload!) and the government seems to think it’s too difficult to provide a page of links to where given files are kept?

      I say we also draw and quarter the apparatchiks who cause and enable this dysfunctional system; obviously they’re either too stupid or incompetent to figure out how to use computers.

      Ahhh, the perfect mixture of medieval justice and modern tech.

      • No, you’re not answering. But FOI is not involved here. Cucci could do that, even at PSU. So could you. But he chose to use a CID, which is a heavy-duty executive power mechanism, intended for dealing with real fraud.

      • Sorry, I thought this was a reply to mine above. But it’s still true – Cucci vs UVa isn’t FOI.

    • You’re not thinking this through. For taxpayer funded stuff there should never be a need for FOI in the first place…FOI was claimed to be necessary due to the paperwork needed (file cabinets, microfiche, i.e. ancient tech.) In the world of the internet and ridiculously cheap terabyte level storage, there is no need for this.

      Yes virtually everyone has had that thought before I’m sure. However, finding information that is indeed online and public – somwhere>/i> or other – may not be so straightforward. As even Steve McIntyre will tell you. You don’t seriously think they’ll make it easy to navigate do you? So you might still need to be shown the right url in the cyber-labyrinth.

  55. In the UK the Law does not see it that way, “X” Cannot Act is a statement as to their total competence (akin to say “X” is incapable of the same).

    For any number of reasons on any given day, any individual can deliver a sub par performance. That is different from doubting their overall competence.

    Also in the UK one would have to demonstrate damage to have likely occurred.

    Stating that “X” can not act would affect future employment opportunities therefore damage would de facto have (and continut to be) been occurring.

    Delivering a bad performance on a given night (and reflecting such in an article) would be probably seen as fair comment (and opinion) a sweeping statement as to competence would be seen as damaging.

    It is a subtle but sound distinction.

    So state you think any Climate Scientist you want got A, B, or C, wrong (hopefully showing why) just dont say they are too dumb to read the data correctly :)

  56. Given the trillions that will be spent as a result of some of this research, the slightest whiff of, say, collusion, shonky methodology, concealment of information etc should start all the alarm bells ringing. For me this is about truth and honesty. I don’t really care about Cucinelli’s motives as much as I do about getting to the bottom of this mess.
    Looking in from the outside there seems to have been a small clique of well positioned and idealogically aligned scientists who either made up the rules to suit themselves, or corrupted processes as they went along. The hockey stick etc is definitely not science as I understand it. What makes it worse for Mann, jones et al is that the lofty and arrogant and dismissive tone they adopted with dissenters is now really coming back to bite them. All this has become a distracting sub plot.
    This matter should be investigated in a civil or criminal proceeding. It should not be about a witch hunt, but about ensuring that our institutions have the integrity that we all thought they had. Let the cards fall where they will – if he is being inappropriately hounded and there is no evidence to support the action then that is the end of the matter. If he isn’t then there is a course to follow.
    This is not something that can be brushed aside. We all need to know what substance there is to some of these concerns. Although he has been maligned McIntyre has been meticulous in articulating some of these matters in an articulate and dispassionate way. I can’t gloss over some of the concerns he raises and I just don’t understand how others can. This mess will keep festering away until there is an open and very public investigation. So far Cucinelli is the only one accepting the challenge.

  57. If a person or a University accepts research grants from public funds, that research is no longer proprietary to the University or the institution. And if that research is being used by Governments to make economic policy worth trillions of dollars affecting millions of people, there’s no way anything can remian hidden. It should all be open to public view.

    And why would a honest scientist or a honest institution hide anything related to research on climate? The fact that they are spending hundreds of thousands of dollars to avoid FOI’s and information release shows that they have something to hide, which is not going to leave them in good light.

    To many of us in the real world, any act like this would mean to go behind bars. Only in organised AGW supporting Climate Science does one see a complete lack of ethics or proper practices.

    And why would a honest person support such tactics?

    • I have worked on USA government funded R&D programs. Any IP generated by the program remains the property of the entity undertaking the R&D although the government has free user rights for government purposes only.

      One of the reasons behind this is that the government wants to encourage commercial exploitation of the IP as that ultimately creates wealth for the nation.

  58. Bottom Line, the Suzuki Foundation may be spending a lot of money to link the State Pen/Penn State joke to the Piltdown Mann.

    Now, that’s funny.
    ================

  59. Freedom of Speech, Freedom of the Press, the Right to Keep and Bear Arms, Freedom of Religion, Etc. are illusions that little people cling to but, in fact, are gone with the wind. Freedoms aren’t free and the American Judicial System has become the Master of Everything and Everyone. Wonder when and how that little revolution happened?

    • I do not think they are as gone as you claim, but they are certainly in quiet retreat, and the revolution you mention is creeping in on cat’s paws.

  60. IR relates to unique intellectual property derived out of research that can be commercially exploited. And IP requires full disclosure which is then protected by patents, if on wants to exploit the commercial potential of the IP. I’m a scientist who works with as well as commercialises IP from Universities in USA and am aware how the whole system works.

    Nothing of what Mann did qualified as any technological breakthrough or IP for both the institution and person. In fact it was shoddy work with dubious methods employed. If public funds are used improperly to produce made up results that will not stand scrutiny, no scientist or institution is protected. It will be a necessity for them to disclose their work fully. In that aspect Cuccinelli is well within his right to demand openness of data and communication. All he is asking for is a right to audit the work to see that the funds were properly used. He is not a dictator as one of the apologists for the AGW crowd here mentioned. He is the AG of the State of Virginia investigating utilisation of state funds by a State University in his State. He has all the right to make these demands.

    And can anyone justify why the University should spend over half a million dollars in legal fees to refuse to show their work? If their work is squeaky clean, shouldn’t they throw it at the AG and challenge him to find anything wrong? What are they hiding? Why are they ” lawyering up ” as Judith stated?

    • Apparently UVA isn’t even spending their own funds to fight Cuccinelli. The deep pockets that are defending Mann are presently anonymous, but may not stay that way.

      It’s a scandal, folks; it just hasn’t reached the light of day yet.
      ============

  61. Punksta,

    You are totally wrong about defamation laws and Louise is right. Without defamation laws absolute vicious liars could destroy the lives of totally innocent people. Totally false accusations of child molestation or drug usage could destroy a person’s career and life, and in your world there would be no remedy. One safeguard in the U.S. is that most of the time actual damages have to be proved. (Damages is a very subtle question that can’t be discussed at a blog.)

    • JD – do you have any numbers for cases of unsupported allegations made vs. those successfully challenged? My expectation is that the ratio is strongly in favour of the “defamers” rather than the “defamed” but maybe I’m wrong.

      As someone else noted on this thread, invoices come in from the engagement of lawyers and I’m guessing that it is a relatively small minority of the pop. who have the financial resources to pursue redress through court.

      Obviously data in this area is hard to come by but I’d appreciate any anecdotal view you can offer – ie)”In my experience 10 clients sought advice on defamation and x decided to proceed, y were successful and in my estimation z would be a true measure of the valid cases.” Thanks.

      • Curious,

        Only a small portion of my practice dealt with defamation. What I essentially told several people was that by suing for libel or slander, you make your life an open book — in Ohio, your opponent can raise any problems or mistakes you have had in the past in an effort to dispute damages. That ended the potential plaintiffs interest in filing a defamation suit.

        Someone here commented that Canada may have a weird system where discovery is very limited if the damages sought are less than $50,000. Have no ideas about how that system works. Because the plaintiffs in the U.S. generally have the burden of proving defamation and damages, in my experience, defamation suits are relatively rare.

        JD

      • Thanks JD – follow up appreciated.

  62. Cuccinelli FOIA Request

    It appears to me that Cuccinelli’s FOIA request is legally legitimate. Mann was a public employee, and his emails should be discoverable. There is a question of whether he should exercise his discretion to obtain the records, and there are legitimate public policy concerns against a witch hunt but I can’t imagine why he would not be entitled to a state employee’s emails.

    I would add that legal rights do not have to be used by the holder. For instance, I consider it an abuse of the legal system to file a lawsuit alleging that CO2 is a nuisance. This is simply a backdoor attempt by advocates of CO2 restrictions to subvert the democratic process and have social engineering by judges. Liberals, including liberal judges, are imbued with an unjustified sense of moral superiority, and have short memories of the failures of judicial social engineering, such as school busing.

    JD

  63. Louise,

    You appear to be correct that there is not an automatic right to an employee’s emails in Virginia. That seems very strange to me. However, the court merely stated that Cuccinelli could not seek discovery under Federal grants. It gave Cuccinelli the right to discover facts pertinent to state grants. It stated:

    “However, the University of Virginia is a proper subject for a CID and the Attorney General may investigate grants made with Commonwealth of Virginia funds to professors such as Dr. Mann. As noted by the Attorney General in argument to the Court, the University ofVirginia is a State Institution and Professor Mann was a state employee allegedly obtaining state funds to conduct his research.”

    This case involves subtle questions under Virginia law, so I will try to stay away from interpreting Virginia law.

    JD

    • No, the AG does not have an automatic right to the universities’ emails.

      The problem with investigating state grants is that there wasn’t one. At least not to Mann as applicant and Principal Investigator. He did have a minor role in someone else’s grant. But it would be very odd to say that only Mann should be investigated when he was not administering it, and did not control the funds. And it wasn’t even climate science.

    • Louise is just out of date. Last week the Supreme Court backed Cuccinelli’s argument that he’s entitled to review federal funding, too. It’s in Nick’s link above.
      ===========

      • No, they didn’t back his argument. They merely agreed to hear the case.

      • You are not a lawyer either. In agreeing to hear the case, they backed Cuccinelli’s argument that he’s entitled to review federal funding.
        ===========

      • I’ve never heard a court say – yes, we’ll hear the case and we’re backing that side?

      • Nick, your literality is an aid in science and a flaw in law. Appeals courts do this all the time, in effect.
        ==============

      • Nick,
        To be clear, the Supreme Court of Virginia ruled that the lower court (Circuit Court) made several mistakes in the earlier ruling. So, in effect, the Supreme Court ruled in favor of Cuccinelli. It is not over yet, but Cuccinelli has good legal standing for what he is doing.

      • Ron has it much more clearly than do I, Nick. The taxpayers deserve an answer.
        ==========

      • I don’t think so. The Attorney General lost in the lower court. I would think typically the loser authors the appeal claiming some error in the lower court. Don’t know if winners author many appeals. Maybe so, but sounds like an odd step for a winner to take. Do Supreme Courts commonly author appeals? Seems to me,it’s most likely the list of “errors” was written by the Attorney General.

      • JCH,
        You don’t appeal unless you lose in the lower court. Cuccinelli lost and so he appealed to the Supreme Court for VA. The Supreme Court ruled in favor of Cuccinelli. See the Supreme Court of Virginia’s website for yourself. http://www.courts.state.va.us/courts/scv/appeals/102359.html

      • Ron, I don’t think those are court rulings. I think they are the grounds of appeal that they have agreed to hear.

      • The schedule for the appeal is here. They are only half way through the petition for appeal. The appeal is still to be heard.

      • Nick,
        It appears you are correct.

      • JD probably knows an approximate % for how many appeals are heard. I know the United States Supreme Court hears a very low percentage of the cases that are appealed to it. Whether or not that tips the final outcome in favor of the loser at the lower level, I don’t know. I doubt it.

        The case has not been heard. They have simply agreed to hear the case. They will decide whether or not the “errors” are errors. To date, they have not said a thing about the “errors”. Had they decided not to hear the case, this case probably would have ended right there.

      • Of course he does.
        AGW believers claiming that a public officer like the AG of Va, whose job is to review state expenditures is somehow new, vicious or abusive only point out how unreasonable their faith is.

      • Rattus Norvegicus

        Actually, I think that the document handed down from the VA SCt was just an agreement to hear an appeal and that they would listen to arguments on the questions listed.

        They did not decide anything.

  64. Nick,

    Although it appears to be moot in light of a higher court’s decision, the lower court clearly did state that Cuccinelli could investigate Mann with respect to the state funding he claimed existed. Whether you (presumably as a non-lawyer) agree or not, the lower court, whose decision did matter, found that the AG could obtain what he considered state-funded information. Would add that, parenthetically, discovery requests are generally broadly interpreted and generally are permissible if they would help lead to the discovery of admissible evidence. (See Fed. R. Civ. Proc. 26) Again, I can’t comment on how it works specifically in Virginia.

    JD

    • Did they really say that? The case was Cuccinelli vs UVa. Presumably they ruled that he could investigate UVa’s grants. But if they didn’t go to Mann, that doesn’t help.

      • Nick, the stick hoaxed some big players. Mann’s best hope is the protection of the Court.
        =========

  65. Any amount of wishy washy arguments do not change the fact that the Supreme Court of the country has agreed that Cuccinelli has a case to entitled to review Federal Funding.

    And the million dollar question is still unanswered. What are they hiding ? Why are they going to such lengths to prevent release data and e-mails exchanged by Mann? One suspects that there is something there which could create problems for the person and the institution. Otherwise nobody spends hundreds of thousands of dollars in legal fees on a matter of releasing e-mails and work of one scientist.

    It’s a question of follow the money. Some person or persons or institution or group seems to be pending a lot to ensure something stays hidden.

    • Supreme Court of the Commonwealth, not the country.
      ===============

    • how about principle?

      strange you didnt think of that

      • That would be the same “principle” that says it’s okay to release Michaels’ emails to Greenpeace (provided they pay the fee)?

        To be honest, I’m no big fan of Cuccineli’s, but I have some reservations about a state-supported institution dodging oversight. Their lack of scruple regarding Michaels’ emails is a bit suspicious.

      • Gene, you’re distorting UVa’s response. Again
        “Anything else, UVA told Greenpeace, would require a base charge of $4,000, regardless of what was produced,… “
        They made no promise to produce anything. There are all sorts of reasons why emails can’t be released (see UW). They produced nothing and Greenpeace gave up.

      • From the horse’s mouth:

        1.
        In all cases in which records were requested, the University agreed to search for the documents but also sought to recover the costs of searching for and providing the records, pursuant to the law and consistent with University policy.

        2.
        Q: Why did the University initially state that it had emails for Patrick Michaels but not for Michael Mann?

        A. The difference relates to the policies for faculty who retire from the University (e.g., Michaels) and those who leave to take other positions (e.g., Mann). Retired faculty such as Michaels may retain their email accounts upon their request, but the accounts of those who resign to take positions elsewhere, such as Mann, are supposed to be deleted after they successfully transition to their new institution.

        3.
        Q: Did U.Va. give Michaels’ emails to Greenpeace?

        A. No. After a series of emails and narrowing of the group’s request to reduce its costs, and a letter confirming what the amount of those costs would be, U.Va. heard nothing more from Greenpeace.

        That’s not a refusal. Nor is what I stated a “distorting” UVa’s response.

        By the way, did you miss my earlier responses? Particularly this one? If Greenpeace’s version of the facts is accurate, then UVa is in violation of Virginia law. I find it less than credible that they would walk away from that without challenge.

      • Gene,
        It’s not a refusal. Nor is it an agreement to release the emails. They are just setting out what it would cost for them to consider it:
        “the costs of searching for and providing the records, pursuant to the law and consistent with University policy.”

        You seem to be saying simultaneously that they made it easy for Greenpeace, and that they made it so hard that they were in breach of Va Law and Greenpeace should have challenged. You need to make up your mind.

        I’m sure that if Greenpeace had been sure of getting the emails, the $4000 could have been raised.

      • Nick,

        Items 2 and 3 above both show that UVa is in possession of Michaels’ emails that can be released. The negotiation to reduce costs in #3 is particularly instructive: how would UVa provide an estimate for providing emails it would not release? Both the costs and the decision about what can and cannot be released are constrained by Virginia law.

        My point was that either UVa was within the law or not. If it was not, why didn’t Greenpeace pursue it? If it was within the law, then Greenpeace alleging stonewalling is a sham.

        Based on UVa’s statement, if the fee had been paid then the emails subject to the act would have been released.

      • This post shows the outcome of such a request acceded to by UW Madison, under probably similar law. They go through the emails and decide what can be released “consistent with University policy”. Of course that could be challenged, but evidently Greenpeace didn’t like their chances.

      • Nick,

        There was no mention of “University policy” in that article, nor is there any provision for excluding items under Va FOI based on “University policy”. The exclusions are spelled out in the act (and there are no “academic freedom” exclusions listed for Virginia; I didn’t research Wisconsin’s law).

      • Gene,
        There was no mention of “University policy” in that article
        It was right there at the end of point 1 in your quote:
        providing the records, pursuant to the law and consistent with University policy“.

        You’re supposed to be arguing that UVa was agreeing to release Michael’s emails, but you keep dropping back into the narrative of university stonewalling, which is confusing because it counters your argument. UVa said they would release docs consistent with Uni policy. That’s all they agreed to, and it means whatever they interpret it to mean. It may be that they can be forced to release docs counter to their policy, but that’s not your argument.

      • Nick,

        You trimmed that one a little too closely:

        In all cases in which records were requested, the University agreed to search for the documents but also sought to recover the costs of searching for and providing the records, pursuant to the law and consistent with University policy.

        “pursuant to the law and consistent with University policy” pertains to “sought to recover the costs”. In other words, it is University policy to recover costs as allowed by the Act. My point still stands – had they paid the fee, the records would have been released.

      • I disagree – the provisos clearly relate to providing the records. Apart from the grammar, such a proviso would have to be made. The University does have policies which restrict what records they can agree to provide. Privacy, for one. No university is going to willingly release emails which discuss students and their difficulties, or even staff. There will be many such issues, and they could under no circunstances make a blamket offer to release documents.

        Maybe they can be forced to. But they will not volunteer do so as a matter of policy. That’s why the proviso is there.

      • Nick,

        It is not that difficult a sentence to parse (provided you look at the whole sentence). That ship has sailed, deal with it.

        As to your claiming that University policy has any relevenace, that is outright nonsense. The Code of Virginia clearly states what can be withheld. Anything else must be provided by law. Federal law could supercede, but any policy of the institution is irrelevant.

  66. Thanks Kim, I wanted to type County and ended up as typing Country. But agree that the Commonwealth is the correct term.

  67. Nick, “Did they really say that? The case was Cuccinelli vs UVa. ”

    The explicit language of the court was “the Attorney General may investigate grants made with Commonwealth of Virginia funds to professors such as Dr. Mann.” So what the trial court said applied to Mann. (Don’t know how to use the reply feature on this blog, so I have another independent entry. Sorry JD)

    • No, it only applies if Mann received such a grant.

      • Nick,

        You are way beyond your depth. Would the court say it applied to Mann if it thought there was no evidence that there was a state grant to Mann? I agree that the coverage issue may come up later and was not finally determined , but the court was saying preliminarily, based upon the evidence before it, that it appeared that Mann’s activities were covered. Incidentally, your argument about the caption of the case only mentioning the U of Va. (and that Mann’s product was not at issue) was totally wrong. Captions have nothing to do with the substantive scope of a court’s jurisdiction or findings. They are simply a way to name a case.

        JD

      • They didn’t say it applied to Mann. They said it applied to professors such as Mann. That relates to his employment status, not to the fact of any grant.

        You’re not proving a model of accuracy so far. You have already mixed up FOIA’s and CID’s.

      • Nick, was Mann the investigator on federally funded research administered through the Commonwealth?
        ============

      • Yes, I believe he was the principal investigator of federal grants for which UVa administered the funding (and charged the feds).

      • So if Cuccinelli ends up being allowed to investigate the federal funding, your small point here about Mann will become small beans.
        =============

      • Rattus Norvegicus

        Yes, Kim, that is right. But, and it’s a big but, in the assignment of cross error section of the grant of appeal they appear to be willing to listen to arguments over whether or not UVa is a “commonwealth entity” and thus exempt from the VA FATA.

  68. JD,

    As I understand it with respect to speech concerning a public figure, “malice” must be shown. That’s a pretty high standard is it not? In the case of Mann vs. Ball, wouldn’t Mann have to show Ball intentionally lied? Even if Ball is mistaken in his belief, isn’t a belief that’s actually held sufficient defense? If he really thinks Mann is a “criminal,” even if not in a literal sense, then where’s the “malice?”

    • You are talking U.S. law not Canadian law. Also, Malice is a high standard, but in view of the enmity between Ball and Mann, I think it could be provable.

  69. After stating that I didn’t know how to use the reply feature, see it staring right at me. Will use it in the future. JD

  70. The argument of Federal Funds and state funds were made much before pointed out here and judgement clearly refers to the receipt of the Federal Grants by the Commonwealth, with which the Commonwealth funded the grants to the University.

    • Rattus Norvegicus

      Once again, this is not a judgement, merely a grant of appeal and the questions which the court is willing to hear.

  71. If Mann did not receive the grant from the University what is making all this noise for and what are the University fighting for? If this had nothing to do with Mann’s work and was only an investigation of how the University as an institution used the grants in general, they would have fessed up all the data on day one and be done with it in the first instance. They wouldn’t spend over half a million dollars in legal fees. Their response would’ve been prompt like what they did to Greenpeache in pat Michaels’ case.

    It seems very much that this is related to Mann’s work at the University. And there seems to be something the University wants to hide in relation to that. And there seems to be some group allegedly funding over half a million dollars in legal fees on this case. That suggests that there are interests which do not want the data and e-mails requested to be brought to light.

    Except for ardent believers of the AGW clique, it seems obvious to every other sane person that there’s something highly fishy here from the University’s side and the stench is overpowering.

    • It’s not the crime, it’s the cover-up.

      The human quality of shame ensures that it will be ever so.
      ===================

    • “Except for ardent believers of the AGW clique, it seems obvious to every other sane person that there’s something highly fishy here from the University’s side and the stench is overpowering.”

      Perhaps they just don’t like the idea of a suspected political motivated witch-hunt against one of their employees and are standing up for principle.

      Of course the added bonus from their point of view is that the AG can’t win, and the harder and louder he forces the matter, the further he will fall if he succeeds in getting his emails and no wrongdoing can be found.

  72. One interesting legal point is the intersection of the Cuccinelli v. UVA investigation with the Mann v. Ball suit. United States law is based on British Common Law and I imagine Canadian law is as well. In the US, we have the clean hands doctrine meaning people with dirty hands do not have standing before the court and cannot bring suit. I’m hoping JD Ohio might want to comment on this.

    It seems to me that one of Tim Ball’s best legal moves would be to bring before the court the investigation Cuccinelli is conducting UVA based on Mann’s research (along with the stuff in the Climategate emails, of course.)

    • Ron,

      Have to leave now. Short answer is that clean hands doctrine wouldn’t be applicable.

      • JD, I hope you find the time to return. It has been a long time since I studied these things. I would like to hear your explanation of why it does not apply.

    • Heh, expressing a view about the outcome of a criminal investigation is probably protected speech in the USA.
      ===================

  73. Anna Haynes is surely wasting her talents on people like Judith Curry. But her question is: “why are some people retarding action on climate change? What motivates them?”

    Maybe Haynes doesn’t realize that she is discrediting Sourcewatch and herself going after individuals who are poor targets for her mission.

    But…she should still not be gagged. I thank Dr Curry for saying this without saying this. Yes, Anna, I hope you are not blind to this.

    Three cheers for Anna Haynes

  74. Steve McIntyre’s quest for FOI requests should fit in here somewhere. Some in the climate science community seem to believe they are above the law and they are persisting in this behavior.
    From the second link below:
    The pre-Climategate issue that is the issue
    Posted on April 9, 2011 by Anthony Watts

    UPDATE: After some late night insomnia, and re-reading Steve’s essay again. I have decided to make this introduction to his essay a “top post” for a couple of days. New stories will appear below this one.

    Readers, I urge you to read and digest this story, because if forms the seminal basis for everything that is wrong with Team paleoclimate science: the hard earned field work of Russian field researchers whose inconvenient data was excluded, warnings from colleagues ignored, tribalism exposed, testimony self-contradicted, whitewashes performed, and in a hat-tip to Leibig’s Law, even a “reindeer crap theory”. As one CA commenter, Peter Ward, put it:

    My 13-year-old daughter asked me what I was reading. I explained at a high level and showed her figure 4. She grasped it immediately. How can we get this figure publicised widely?

    I urge every climate blog to pick this utterly damning story of forensic investigation up and make it as widely known as possible. – Anthony

    http://climateaudit.org/2011/04/09/yamal-and-hide-the-decline/

    and

    http://wattsupwiththat.com/2011/04/09/the-pre-climategate-issue-that-is-the-issue/

  75. Possibly I am the only one here who has been sued for defamation in a Canadian court. I can’t recommend it. This was some time ago, and while it doesn’t make me an expert, I assume that the rules haven’t changed much. That whole unpleasant experience brings, to my perspective, an oddness about the Mann vs. Ball imbroglio. Canadian lawyers rarely work on contingency. When the suit starts, so do the invoices. Mann therefore is paying his way, or has support. Discovery will be irritatingly thorough. Mann also risks, in losing, having costs of not only the court, but Ball too, awarded against him. In the extreme, even his lawyers assume risks if the case is judged frivolous and vexatious. And Ball gets to choose a judge – skilled in the law, not elected – rather than a jury. I would also speculate that the court will not a priori look kindly on a privileged American professor, with a significant public presence, using the Canadian courts to seek minor redress.

    But I must also say that Ball’s hyperbole is tiresome, and masks whatever science he might wish to defend. I stopped reading him some time ago.

    There has been speculation that the Suzuki Foundation is funding Mann. I of course don’t know, one way or the other. But I have watched Suzuki evolve from being a decent geneticist, to the public face of science on CBC’s “Nature of Things”, to the mystic that he is today. A couple of decades ago, a Professor of Something at the University of Western Ontario published a paper (peer reviewed!) purporting – once again – to connect race with intelligence. This created the expected brouhaha. Students tried to set up a public debate on the work, but could find no takers amongst UWO faculty. Suzuki accepted the invitation. He eviscerated the Professor of Something, and his ideas, and the horse he came in on. And then Suzuki excoriated the local faculty, asking why he had to be there. Why would they not support their students in confronting this damaging nonsense? He was, frankly, magnificent. I wonder where that attitude has gone? It is disheartening to see it disappear under the weight of ideology, in any field of science, or Something.

  76. “Also, Malice is a high standard, but in view of the enmity between Ball and Mann, I think it could be provable.”

    Putting aside the Canadian venue for a second, here’s what I found in the U.S. regarding the “enmity” you ascribe to the two men:

    “In a legal sense, “actual malice” has nothing to do with ill will or disliking someone and wishing him harm. Rather, courts have defined “actual malice” in the defamation context as publishing a statement while either
    knowing that it is false; or acting with reckless disregard for the statement’s truth or falsity.”

  77. Craig Loehle

    It is interesting that Mann can make accusations in editorials and interviews in national media that “deniers” are funded by oil companies, and Hansen can do the same, and worse, with no repercussions.

    • It’s the lack of specificity. I’m not a lawyer, but I think it’s a fair bet that it would be very difficult (if not impossible) to libel or defame an undefined group.

      It’s somewhat discouraging in that people who rail on (IMHO wrongly) about the sins of climate science seem to be on firmer legal ground than those who complain about specific wrongs by specific individuals.

    • It is interesting that deniers can make accusations in editorials and interviews in national media that CO2 concentration in the atmosphere is too small to matter, and worse, with no repercussions.

  78. Perhaps in this regard one should mention the names of Christopher Monckton and Richard Courtney, who have a long and distinguished history of writing demand letters?

  79. “It is interesting that Mann can make accusations in editorials and interviews in national media that “deniers” are funded by oil companies, and Hansen can do the same, and worse, with no repercussions.”

    Superb point. The trouble is, most sane people don’t really think in terms of suing for libel. It’s a nasty business, that in my view only serves to make the aggrieved party look petty.

    That said, maybe it’s time for a few “deniers’ to fight back

    • Actually it is not remotely a superb point. It is instead a pointless statement. In case you don’t know it, most people (including Mann and Hansen) are not speaking about mixed up citizens when addressing ‘deniers’ in a legal framework. You are not who Mann and Hansen or anyone else with accountability for that matter, is interested in.

      In the most relevant context, ‘deniers’ refers to those individuals and groups funded to challenge the reality of climate change for expressly political reasons, related to short-sighted market interests and ideology. These activities are so well documented by multiple independent and credible and objective sources from so many different perspectives, it is hard to believe that anyone could be unaware. These activities have negatively influenced public opinion and resulted in significant policy delays, especially in the U.S. Deniers don’t disclose funding sources, can’t prove what they say, and are very much aware they are fabricating lies about scientists and the science, and acting in bad faith – both ethically and legally. There is increasing action to make them accountable.

      Unfortunately, denier stuff (especially originating in the U.S.) has circulated widely on the internet for many years and is not infrequently presented as truth, here on Climate Etc. Make of it what you should, either in terms of interests or ignorance.

      • Lol – thanks for my daily laugh, Martha. Your activism is hilarious.

      • John Carpenter

        Martha

        “These activities are so well documented by multiple independent and credible and objective sources from so many different perspectives, it is hard to believe that anyone could be unaware”

        Of course you offer absolutely no links or references to back this up…. I’m interested in seeing these well documented, independent and credible/objective sources…. and who funds them.

        “These activities have negatively influenced public opinion and resulted in significant policy delays..”

        Again, please offer some specific examples of the activities and how they negatively influence the public opinion… I would like to judge for myself whether you are getting this right or not

        You offer nothing to back up your rhetoric so far…

      • Martha
        I take it you realize that your assertions can be readily reversed with very minimal amendment to the wording, to apply to ‘warmists’?

        Can you please point me to any documentation re: funding/political reasons which apply to WUWT or Climate Audit, two of your biggest ‘thorns’, by the way? – I must have missed it, but you surely won’t have.

      • ‘These activities are so well documented by multiple independent and credible and objective sources from so many different perspectives, it is hard to believe that anyone could be unaware’

        I’m unaware. I have a lot of people (like you) shouting at me that we’re all gonna fry unless I stop dong whatever they don’t like today . But where do I find the other guys?

        You keep banging on about them – especially their fundng, but where are these well-documented sources for ther activities?

    • “The trouble is, most sane people don’t really think in terms of suing for libel”

      Is that why Tim Ball filed a lawsuit against the Calgary Herald in 2006?

    • Eli prefers using rejection in place of denial

      • Eli, i look forward to your further elucidation of this train of thought. So far, labelling the “judith curry crowd” as rejectionists doesn’t make much sense. Exactly what are “we” rejecting? The main thing that I have personally been concerned with is certainty and overconfidence in both the science and policy options. Some specific examples of “rejection” from Climate Etc.?

      • Eli R: I’d be curious to know what advantages your choice of “rejection” as a preferred term offers. It doesn’t seem to be accuracy. Everyone except the hyper-orthodox accepts some things and rejects others.

        I’m a lukewarmist. I could be your ally. Once upon a time I was.

        No longer and much of that is due to the nasty machine politics of the climate change movement that includes this search for terms of abuse like denier, denialist, and rejectionist to poison the well before discussion begins.

      • RTFP all is explained. Oh yes, and the two after it which deal with the rhetoric of rejection.

  80. Nick Stokes “Nick Stokes ‘They didn’t say it applied to Mann. They said it applied to professors such as Mann. That relates to his employment status, not to the fact of any grant.’”.

    I guess it is irrelevant that the opinion mentioned Mann’s name 18 times. The court also stated on p. 6 that “Therefore, any investigation has to be into acts of Dr. Mann to obtain state money after January 1, 2003.” Your inability to read 6 pages of relatively simple text calls into question your scientific abilities, which were complimented elsewhere on this thread. You apparently think that you can take a phrase out of context and interpret it any way you want and be legally correct. By your methodology someone could defend their refusal to school their child because schooling a child requires involuntary servitude and involuntary servituded violates the 13th Amendment’s prohibitions. You must be terrified about what would turn up in Mann’s records to make such specious and silly arguments. Respond however you wish, I am not going to waste any more time with you.

    JD

    • Mann was not a party to the hearing, and was not represented in Court. The court made no finding of fact as to whether he had received a state grant that would enable Cucci to investigate. The ruling pointedly said:
      “the University of Virginia is a State institution and Professor Mann was a state employee allegedly obtaining state funds to conduct his research.”
      It makes exactly the distinction that escapes you between a finding about Mann’s employment status and the fact of a relevant grant.

      It did point to a further difficulty for Cucci that the grant he cited seemed to have been completed before FATA came into force. That’s not affirmation for him.

  81. I sent Ball some cash as it is in a good cause.

    • you’d be better off sending the cash to Japan, or to help AIDs in the third world.

      • lolwot @ 5:01 you’d be better off sending the cash to Japan, or to help AIDs in the third world

        If only Mann, Weaver and whoever/whatever is providing their funding shared such humanitarian concern!

        It will be a shame if the warming ‘signal’ gets ‘lost’ in a ‘sea’ of litigation

  82. Ron Cram — “Clean hands doctrine”

    From my law school days in Ohio, the clean hands doctrine, must apply to the same transaction. For instance, suppose Tom and Joe robbed a store and agreed to split the money. If Tom kept all of the money, Joe couldn’t sue to get his half because of the clean hands doctrine. In this sense, UV wouldn’t affect Mann’s standing. However, if the UV investigation finds proof of a crime committed by Mann, then Ball could use truth as a defense (at least in Ohio – British rules are goofy, and they may or may not be applicable.)

    Would add that if Mann has called Ball a “denier” (expect that he has, but haven’t researched it), Ball could have a defamation suit against Mann that would argue that “denier” is innuendo designed to falsely accuse Ball of being associated with Holocaust deniers. This would be a subtle and complex matter, but the general black letter law is that one can’t hide behind the literal meaning of a word when the innuendo is designed to be hurtful and defamatory. For instance, if Fred called Frank a fruit, and it was understood that “fruit” meant gay, then Fred couldn’t hide behind the literal meaning of fruit if Frank suffered actual damages from the description.
    JD

    • apologies, landing in spam for some reason

    • JD, thank you. Your description is much the way I remembered it. I was just thinking in terms of legal strategies. It seems Ball has two choices. One, he moves for summary dismissal to get it out of his life as quickly as possible. Two, he asks for continuance after continuance to drag it out as long as possible in the hope Cuccinelli or some other investigator (Pennsylvania State Senator Jeffrey Piccola has expressed an interest in investigating Mann also; see http://www.examiner.com/essex-county-conservative-in-newark/mann-controversy-gets-pa-senate-attention ) develops more. I think Ball would only drag it out if he was supremely confident and wanted to make Mann and his backers pay more.

      • A minor nit pick. The unclean hands doctrine, in the U.S. at least, is only a defense to an action seeking equitable relief, such as an injunction or foreclosure on a home. Unclean hands is not generally available as a defense to an action seeking monetary damages. It can come into play in some defamation cases because many plaintiffs seeking damages for defamation are also seeking injunctions or other equitable relief. But the defense is not properly raised on the issue of monetary damages. (This is in the U.S., although a quick google search suggests Canadian law is the same on this issue)

        Whether it would be available to Ball would depend on what relief Mann was seeking. Judith’s post indicates that Mann is asking that the alleged defamatory statement be “removed from its electronic data base.” If so, the defense would be available as to that request, but not his on claim for damages.

        Since Mann is a public figure, any misconduct by him that could be considered criminal would be relevant to an affirmative defense based on the truth of the defamatory statement. So you might be able to use the evidence of “unclean hands,” if there is any, in that way.

        For the example of one armed robber suing his accomplice for his share of the booty, a court would reject that as an “unconscionable” contract.

  83. Probably Exhibit 1 in Ball’s defence will be Dr. Muller’s video presentation of the hockey stick graph: why it was wrong, and that it was done deliberately. Which leaves the question: Why didn’t Mann go after Muller? Maybe the point is to distract everyone by attending to critics who have less stature.

    • Ron,

      Muller accused Mann of making a serious mistake, but he didn’t accuse Mann of committing a crime. Big difference. Also, Muller was speaking in the U.S.

      JD

      • So, is there a difference between ‘is a criminal’ and ‘ought to be in the State Pen’?
        ===========

      • Functionally I would say no, particularly when you consider the legal doctrine of innuendo. (This is a matter of Canadian law, though, and I am not familiar with that law.) However, you do make a respectable point in that the way it was phrased could be used to argue that the terminology made clear that it was totally satirical and not meant to be a substantive accusation.

        JD

      • Thank you. Yes, I see light between the two.
        ========

      • Here is the light: ‘Is a criminal’ is not the same as ‘should be determined to be a criminal’.
        ===============

      • Michael Mann may misinterpret when the subjunctive is used, but his lawyers shouldn’t.
        =================

      • Ball’s statement was substantive and it was an accusation, not a judgment. Have we come to the point that it is illegal to accuse?
        ==================

      • Oops, that depo just went down the drain.

        Well, it will be a good case to watch.
        ========

      • OK, here’s my amusing scenario. Ball loses the defamation case, but Mann ends up in the State Pen.
        =================

      • It is not “illegal” in the sense of committing a crime to “accuse”, but at least in the U.S. if you accuse someone of committing a crime and the accusation is false and the accusation causes damages (under some doctrines [libel per se -- way beyond a blog post] you may not have to prove damages) then the accuser is liable in damages to the falsely accused.

        JD

      • Thanks again, but don’t you also have to know that the accusation is false? In the case of Mann, that is not yet determined.

        It’s suspected by many more than Dr. Ball.
        ===============

      • So which country was Mann “injured” in?

  84. Dear Dr Curry,

    You must be aware that Dr. John Mashey PhD, Canadian, cigarette smoke conspiracy addict, and close global warming spiritual affiliate of the climate blogger Eli Rabett, found something worthy in your opinions to be pursued under libel law:

    I quote:

    Depending on geography, defamation might include: untruth, purposeful or with reckless disregard

    people read it and believe it (which is hard to know for newspaper, a lot easier in blogosphere) someone’s reputation is damaged.

    The “Chair, School of Earth and Atmospheric Sciences, Georgia Institute of Technology”says that Steig’s behavior is apparently duplicitous.

    I don’t know. does that sound like damage or not?

    • shub, thanks for spotting this. maybe anna haynes will put this on my sourcewatch page.

    • Spiritual affiliate. Eli likes that, it has it all, pretentious, cute and meaningless all wrapped up in a neat package.

      • Eli Rabett, Spiritual Affiliate of John Mashey

        Has a nice ring to it.

        Yes, Bart, Mashey is not Canadian. He had so much Demogbog links all over his presentation that I was misled perhaps.

      • And a hearty spiritual Hastur, Hastur, Hastur to you too, Shub.

        If we’re to resent baseless accusations of wrongdoing against people, we ought be evenhanded in this.

        I can see no call for accusing John Mashey, who has done significant work in advancing Unix and MIPS, of being Canadian, whatever evil you believe he may have perpetrated.

      • Check this out.

        This is John Mashey, on McShane and Wyner (here):

        Not only did M&W use poor statistical methods, but their paper most likely falls under academic misconduct (plagiarism + falsification/fabrication, certainly false citation.) They cut-and-paste/edit or copied tipoff errors from Wegman Report & Wikipedia, and then false-cited Ray Bradley’s book, whose title they misspelled in exactly the same way as Wegman Report had! Read that section of SSWR, although it was done quickly, and even more is known now.

        Are we sure that Mashey’s not Canadian now? :) :)

        N.B: I am forgetting to hat-tip my source here. He/she may even be in this very thread!

      • Shub

        You may as well listen to Dr. Mashey for yourself, have a look at him, and decide if he sounds like he has a Canadian accent.

        http://www.pics.uvic.ca/broadcast.php

        The presentation link under April 7 will give you almost an hour and a half of direct scientific evidence.

        And you’ll also be able to put into context the relatively mild things Dr. Mashey says about Dr. Curry compared to what he says about many others. In this context, he’s pretty much all but praising Judith Curry.

      • Bart,
        Oh dear. I do accept that the good doctor Mashey is US and not Canada. Nor do I see any resentment at what the good doctor has said, nor even do I see what the good doctor said as being a ‘baseless accusation’. (Not possible to have a global warming conversation without ‘accuse’, ‘disinformation’, it still seems).

        Another thing I noted, Bart, was that Mashey kept saying things like ‘SSWR’ (sounds like USSR) here and there, sprinkling it into his comments. I kept wondering: “what the heck is this SSWR thing”, and only recently did I realize that it refers to a thread on the Deepclimate blog titled: ‘Strange Scholarship in Wegman Report’. I was reminded of how David Cross’ character Tobias Funke hangs around the water cooler trying to create a buzz about ‘that Funke guy’ in the TV series ‘Arrested Development’.

        I wonder: if Mashey’s case is so strong, why does he have go to the courts to fight it?

    • Shub

      Mashey’s a California anti-tobacco-activist from old-time Pennsylvania farm stock.

      For what it’s worth, I’m no expert but see nothing defamatory in Dr. Curry’s remarks on this iss.. Let me broaden that. I’ve see nothing that could be called defamation in Dr. Curry’s writing, ever.

      In Shub’s case, I’m not so sure if calling a Californian Canadian doesn’t count as slander. ;)

  85. ap·par·ent (-prnt, -pâr-)
    adj.
    1. Readily seen; visible.
    2. Readily understood; clear or obvious.
    3. Appearing as such but not necessarily so

    I would say definition 3 apparently makes the complaint moot.

  86. The questions not asked are always the most interesting.

    Why have UEA and Phil Jones NOT sued Douglas Keenan for frequent very public accusations of ‘scientific fraud’, more damaging than just some old sceptic blogger like James Delingpole ;) surely?

    “Keenan has become notorious for pursuing a series of vitriolic disputes with British academics over climate data. Two years ago, he accused Phil Jones of the Climatic Research Unit (CRU) at the University of East Anglia of “fraud” over his analysis of data from weather stations in China. Jones recently conceded he may have to revise the paper concerned”

    http://www.guardian.co.uk/environment/2010/apr/20/climate-sceptic-wins-data-victory

    http://www.guardian.co.uk/environment/2010/feb/01/dispute-weather-fraud

    He has a peer reviewed paper in Energy and Environement, which is partof of his allegation with respect to Jones.:

    “The fraud allegation against some climatic research of Wei-Chyung Wang”, Energy & Environment, 18: 985–995 (2007).

    http://www.informath.org/pubs/EnE07a.pdf

    http://www.informath.org/

    He made the same repeated allegation at the Guardian sponsored Climategate debate (ie very public)

    http://omniclimate.wordpress.com/2010/07/14/report-from-climategate-guardian-debate-with-monbiot-mcintyre-pearce-watson-keenan-and-some-uea-guy/

    (from the comments and I agree with the impression)

    “I think Keenan made a very strong impression when he repeatedly accused Jones of fraud and said he’d do so in a court of law. To me he seemed obviously contemptuous of the CRU people, both intellectually and ethically, and that may have diluted his message for some people – and reinforced it for others”

    Douglas Keenan even repeats it in a written submsission to the Houses and Parliamnet, and confirms that the Inquiries (Oxburgh and Muir Russell) had NOT contacted him about his complaints of CRU.

    http://www.publications.parliament.uk/pa/cm201011/cmselect/cmsctech/444/444vw04.htm

    “Memorandum submitted by Douglas J Keenan (UEA Reviews 02)

    This letter concerns the upcoming oral evidence sessions on the Climatic Research Unit (CRU) at the University of East Anglia. I am the sole person to have made a substantiated allegation of fraud against a researcher at CRU. The allegation was published in a peer-reviewed paper.
    It has also received substantial media coverage; in particular, The Guardian had a front-page story about my allegation: the story was positive, despite The Guardian being a strong advocate of action on global warming.
    Indeed, the evidence for fraud is conclusive—and it does not require scientific training to understand.

    The report by Lord Oxburgh et al claimed to assess the integrity of the researchers at CRU. Yet it ignored the allegation.

    The report by Sir Muir Russell et al does discuss the allegation: Section 6.6 is devoted to this. That section, however, does not consider any of the evidence for the allegation. Instead, the section claims that the head of CRU, Phil Jones, denied the allegation. The claim is false, and would be obviously irrelevant even if it were true.
    Neither Oxburgh nor Russell contacted me.

    Douglas J Keenan
    September 2010

    So why have UEA and the scientists concerned, NOT pursued legal action of very public accusations of FRAUD?

  87. Maybe they are worried that if they do so and the case comes to court, they could be in deep do-do if all whatever they are hiding comes out.

    And the question also that is being avoided by Mann supporters here in the Cuccinelli issue, is the big elephant in the room. What are UVa hiding? Why are they spending allegedly half a million plus dollars in legal fees, fighting the State’s AG to avoid showing one single researcher’s work and correspondence? What is in there that needs to be hidden at this cost? If there was nothing to hide and it was squeaky clean I’ve no doubt that they’d have given it up on day one. There seems to be something there that is so sensitive that access is being prevented at great cost and it maybe that something could possibly have ruinous effects on the University, the scientist and his work, not to mention the AGW crowd as such.

    • They’re very likely not hiding anything. It’s called a stand on principle. It’s something that people of principle sometimes do.

      • I doubt they’re hiding anything either, but the principle argument has already been disposed of. Attempting to set a precedent is probably more like it.

      • If they think the CID is being used inappropriately, then fighting it is a stand on principle.

      • Sorry, but if the academic freedom issue applies to Mann it applies to Michaels. UVa doesn’t seem to be consistent in that regard.

        If Cuccinelli’s CID is flawed, then it should be denied. If not, it should stand and the law fixed to remove the potential for abuse. What should not happen is the manufacture of some new “freedom” to allow the circumvention of the law.

      • Academic freedom does not apply to public records. UVA emails and records that are not exempt are subject to FOIA requests.

        I would assume that anybody who makes a FOIA request for Mann’s non-expempt emails and records, and pays the costs, will get them.

      • And you see no contradiction that they should be unavailable for an oversight agency?

      • You missed “non-exempt”, as you have been right through. Anyone, including Cucci, can under FOIA ask for Mann’s or Michaels’ non-exempt emails, and the University will produce them, if costs are paid. And they will likely, according to University policy, argue that some are exempt. That may be quite a lot.

        You might like to reflect on why Cucci did not do that (much cheaper). Or why Greenpeace gave up. FOIA is not as simple as you think.

      • Nick,

        If you were a bit more familiar with US law you would recognize the absurdity of arguing that a university policy had any relevance. If you were a bit less obstinate, you’d recognize the absurdity of continuing to do so after having been corrected by someone who is.

        A little research might also reveal why the Attorney General of the Commonwealth of Virginia does not use FOI requests when seeking information from a state-supported university.

      • Gene,
        It is you who was arguing that UVa were hypocrites because they were choosing to release Michaels’ emails and not Mann’s. Now you’re saying that their choice is irrelevant.

        You’re wrong on what their choice was, but their policy is relevant. It determines what they come up with when asked. If you think they are wrong, you have to fight them for it, and that is proving to be not so easy. Check with the people who went after Cronon in Madison. Or even Cucci.

      • Nick,

        My argument is that they are hypocrites for going to court to block release of Mann’s information but not for Michaels’. In both cases, a legal request for documents has been presented. One they took to court, one they did not.

        Again, you’re not paying attention on the policy issue. I’ve twice linked to the law on what records they are required to provide and what is exempt. Federal law would take precedence over State law. Policy takes a hike.

      • Gene,
        That’s a silly argument. They didn’t go to court over Michaels’ emails because they didn’t have to. They just didn’t release them. How or why would they “go to court”?

      • They didn’t go to court over Michaels’ emails because they didn’t have to. They just didn’t release them. How or why would they “go to court”?

        So they provided a price tag for something that they weren’t going to turn over? We’ve covered this already.

      • andrew adams

        Living in the UK I’m not an expert on US FoI law but from reading the exchanges above ISTM that there are some emails which would be covered by FoI and some which are exempt. If UVA is requested to provide a particular set of emails relating to a given subject they are entitled to charge a fee to cover the expense of retrieving the emails and having done so they can then judge whether specific emails are exempt from FoI and therefore decide not to release them (which decision can presumably be appealed).Therefore the fact that a party has paid the abovementioned fee is not in itself a guarantee that any emails would ultimately be provided to them because UVA, having retrieved them from the archives, could judge that they are actually exempt from FoI. If they were going to block emails which they did not want to be in the public domain presumably that is the point at which they would try to do so (of course they may hope that the requested fee would act as a deterrent).
        I’m happy to be corrected if my understanding is wrong but otherwise I don’t see any double standards here.

      • Andrew, exactly. UVa essentially told Greenpeace that a) the search would cost a lot of money and b) that they would not necessarily get anything. In other words, they told Greenpeace to go away, and Greenpeace took the hint.

        JCH, be careful, whether academic interchanges are protected or not depends very strongly on the specific state/federal law. It varies by area. One of the amusing things about VA is you have to be a VA resident to make an FOIA request of a VA institution. Eli spent a few amusing hours looking up the applicable laws in a couple of states. It is interesting to see the variations.

      • From the Code of Virginia, section 2.2-3704 B. (emphasis is mine):

        Any public body that is subject to this chapter and that is the custodian of the requested records shall promptly, but in all cases within five working days of receiving a request, provide the requested records to the requester or make one of the following responses in writing:

        1. The requested records are being entirely withheld because their release is prohibited by law or the custodian has exercised his discretion to withhold the records in accordance with this chapter. Such response shall identify with reasonable particularity the volume and subject matter of withheld records, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records.

        2. The requested records are being provided in part and are being withheld in part because the release of part of the records is prohibited by law or the custodian has exercised his discretion to withhold a portion of the records in accordance with this chapter. Such response shall identify with reasonable particularity the subject matter of withheld portions, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records. When a portion of a requested record is withheld, the public body may delete or excise only that portion of the record to which an exemption applies and shall release the remainder of the record.

        3. The requested records could not be found or do not exist. However, if the public body that received the request knows that another public body has the requested records, the response shall include contact information for the other public body.

        4. It is not practically possible to provide the requested records or to determine whether they are available within the five-work-day period. Such response shall specify the conditions that make a response impossible. If the response is made within five working days, the public body shall have an additional seven work days in which to provide one of the four preceding responses.

        You will note that there are only 5 authorized responses and none of those are “pony up money and we’ll search”. In fact, in order to comply with the bolded portions listed, one would have had to have conducted the search.

        The relevant portion on costs:

        F. A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. No public body shall impose any extraneous, intermediary or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body. Any duplicating fee charged by a public body shall not exceed the actual cost of duplication. The public body may also make a reasonable charge for the cost incurred in supplying records produced from a geographic information system at the request of anyone other than the owner of the land that is the subject of the request. However, such charges shall not exceed the actual cost to the public body in supplying such records, except that the public body may charge, on a pro rata per acre basis, for the cost of creating topographical maps developed by the public body, for such maps or portions thereof, which encompass a contiguous area greater than 50 acres. All charges for the supplying of requested records shall be estimated in advance at the request of the citizen.

        There isn’t a provision for charging to search, then providing a response.

      • Rattus Norvegicus

        Gene,

        Just what do you think “accessing … or searching” the records involves?

      • RN,

        Please read the entire comment. Part B specifies the responses that a public body is allowed to make to the request. Part F allows the public body to recoup the costs incurred for the records provided. You cannot rush past part B to get to part F.

      • Minor point, Cuccinelli did not use FOIA, because he is part of the state government.

      • Rattus Norvegicus

        You did read the link I previously supplied? http://www.virginia.edu/foia/climatechange/

        Looks like they choose option 4 and told Greenpeace that it was going to cost X dollars. RTFL, there is nothing else in evidence.

      • Option 4 is a one time 7 day extension to provide one of the other four responses. Note the language “After a series of emails and narrowing of the group’s request to reduce its costs”. In order to negotiate the costs, there would have to be some idea of what was being priced.

        You are correct that there is nothing else in evidence. Absent evidence to the contrary, the presumption would be that UVa would have provided the appropriate records in return for the fee.

      • Rattus Norvegicus

        I was wrong that there is nothing else on record…. This link contains the bulk of the correspondence:

        http://www.virginia.edu/foia/climatechange/timeline.html

        Note that they are currently proceeding on producing Mann’s emails (and apparently other responsive documents) for The American Traditions Institute.

      • Interesting…one of the links from that page confirms that UVa is requiring payment prior to searching. This would appear to contravene section 2.2-3704 B as the authorized responses require that you either provide the records requested or provide an accounting of the subject matter of the withheld records and the section of the Code which exempts the record. I’m surprised Greenpeace has not challenged this.

      • Rattus Norvegicus

        Er, Gene — No. From the code:

        H. In any case where a public body determines in advance that charges for producing the requested records are likely to exceed $200, the public body may, before continuing to process the request, require the requester to agree to payment of a deposit not to exceed the amount of the advance determination. The deposit shall be credited toward the final cost of supplying the requested records. The period within which the public body shall respond under this section shall be tolled for the amount of time that elapses between notice of the advance determination and the response of the requester.

      • Rattus Norvegicus

        Also, if you read some of the other requests made on that page, you will see that this is SOP for UVa. They ask everyone to pay in advance.

      • Ah, ok. I overlooked the last sentence of item H when reading that section.

      • Also, I suspect UVA will lose.

      • Attempting to set a precedent is probably more like it. It’s something that people of principle sometimes do.

        The principle in question herfe, being that they don’t want to be answerable to anyone, least of all the pubic that funds them.

      • The Piper no longer
        Plays on key or in rhythm
        When payer is deaf.
        ============

      • When player is deaf?

      • No, when player isn’t fundamentally musical.
        =================

      • Well, like any good hillbilly, I can do a multitude of Flatt runs.

      • This is an interesting question for UVa. At this point they are getting about 10% of their budget from the state and much of that goes to reducing tuition for in state students. One of the recent reactions of state universities to decreasing state budget allocations has been to increase the number of out of state admissions and decrease the number of in state admissions.

      • A principle has to be uniformly applied. It was not applied in the case of Pat Michaels by UVa. They were pretty eager to comply on a request from Greeenpeace. They did not give the e-mails of Michaels of course, but their entire response to Greenpeace’s request was showing outright eagerness to comply. And Greeenpeace had no locus standi in the first place to ask anything from the University.

        And who pays out half a million dollars and ore of legal charges on ” principle ” and that too raised from contributions from parties undisclosed? Principled?? Pull the other one and it has bells on it.

        In the real world no organisation or individual[s] will pay a University this kind of money merely on a point of principle to refuse to answer a simple query from the State’s AG. If somebody is spending that kind of money to avoid disclosure, there’s something to hide.

      • What’s particularly vicious here is that so far the source of those funds to fight disclosure is itself still hidden. Is this the face of academic freedom, or a mask?

        Let there be light.
        =============

      • Nonsense. They basically told Greenpeace that they would look through the Emails and charge them a boatload for looking through the Emails to see if they had any that they would hand over. Such a bargain.

      • If Greenpeace has documentation of that, then they have documentation that UVa violated Virginia’s FOIA. Otherwise it’s just a story and not a very credible one.

      • No one knows for sure. However, Mann has loose lips and is statistically challenged. Wouldn’t be surprised if there are a substantial amount of embarrassing emails. Also, UV hasn’t distinguished itself in this matter. First claiming that it didn’t have emails, and then finding them later. Much easier for UV to keep everything under the rug rather than open up a potential hornet’s nest that could result in a review of how he spent his money and how UV does business generally.

        JD

      • Exactly, UVa and UEA have almost reacted the same way when asked for any data or mails. First deny that they exist, then mysteriously find them again, give excuses, delay, obfuscate stonewall, cry foul, blah, blah blah, but never give out anything.

        Not a sign of institutions with any noble principle to uphold.

      • The only mystery I see here is the conspiratorial mind. Hard drives are squirreled away in recesses all over America: office buildings, storage sheds, garages, closets, etc. A long-ago disconnected one surfacing is about as mysterious as that yellow ball that showed up this morning.

      • It came up but is shedding no light.
        ==========

      • After the Michaels FOIA, a hard drive showed up in a recess. This is hardly unusual or mysterious or sinister. My house has ~ 7 of these. Can’t be certain. Have owned a lot of computers.

        It ain’t like the missing 10 minutes. They admit they found it. They disclosed that Mann material in on the hard drive. Evil people generally employ slightly different tactics than that.

        The court will rule. What’s so hard for you to understand? It will play out.

        Hear. I will improvise a Flatt run for you. It will be original – unchartered Flatt-run territory. It will be in perfect time. It’ll even be in the right key.

      • Sigh, JCH. The sun came up-they found the hard drive. It is shedding no light-they won’t show it.

        The band on stage and refusing to play?
        =============

      • A University is not your house. You don’t squirrel away hard drives anywhere. You document it and store it with indexing for easy retrieval. Universities are expected to keep immaculate records and they do so. I deal with enough Universities in USA on a regular basis on collaborative work and they can bring out a 50 year old document in 5 minutes with no trouble. I’m aware of how 95% of the Universities document research and data and how they work professionally and ethically, in proper scientific fields. I deal with such efficient and ethical institutions and departments day to day.

        Only ” Climate Science ” faculties in Universities all over the world, whether UEA or UVa or anywhere can’t seem to document anything, can’t keep proper records, can’t seem to find any paper related to any work by any scientist and easily give the ” dog ate my homework ” answer anytime they are asked to produce any data backing up climate science claims. And they get millions of dollars of funding for the same work which proclaims ” it’s worse than we thought and we need to remodel the whole world “.

        It’s time for people to stop being an apologist for shoddiness, unprofessional and downright unethical methods.

      • When the first request was made for Mann’s emails in December 2009, the University performed a thorough search of central email archives and concluded that Mann’s emails were no longer stored in them. This was not a surprise as normal procedure is that a faculty member’s email is purged when he or she leaves the University. In the course of researching records potentially responsive to the CIDs, which were broader than previous records requests, the University discovered a previously unknown surplus computer stored in the environmental sciences department that retained electronic documents relating to Mann. – UVA

      • JCH, it has come to the point that some climatologists are no longer due the benefit of the doubt which you would like them to have.

        I’m sorry, but they have brought this on themselves.
        ====================

  88. Did a quick Google search of Canadian law, which according to the article found is controlled by the provinces. The most pertinent quote was: “If one can prove that one has been libelled, and there is no defence for the loss of reputation, the law assumes damages and fixes an amount as compensation.” The link is: http://www.canadianlawsite.ca/libel-slander-defamation-of-%20character.htm

    There are other elements discussed which would indicate that the application of Canadian law is not simple. Of course, this is simply a quick first look on my part.

  89. someone mentioned why have they not gone after douglas Keenan, who has been spectacularly rude about (Wang) and Jones. Well, Mann at least thought about it. After Keenan published his paper trashing the Wang & Jones paper which argues ‘UHI don’t matter’, Mann suggested suing, he knew a guy who would do it pro bono, and it would wipe E&E off the face of the Earth. Its all there in the Climategate emails, stolen or not. Why didn’t they? Possibilities: Mann is big on bluster; Kennan is very rich; Keenan could be right.

  90. Dr. Curry, the poster’s contention that maintaining the anonymity of your visitors in any way makes you liable for any libel they might commit is completely wrong–so wrong, I have no idea where they might even get such an idea. (At least under US law.) The only potential liability I can even imagine would be based on the theory that you republished the libel, but even that is tortured, subject to the actual malice standard, and, I believe, subject to a takedown safe harbor.

    On the other hand, if he really did file a libel suit, the court would order you (or the ISP, or whoever) to cough up the identity. I wouldn’t worry, though. Getting that far would cost someone 10s of thousands. Since the suit would fail pretty quickly–summary judgment, if not 12(b)(6)–that’s a lot of jack just to pierce anonymity.

    • To be clear, QB, you’re suggesting this…if JC is ordered by a judge to disclose contact information and she refuses, the judge will let that slide? I disagree. At that point, I think she becomes an accomplice.
      I’m sure she would not risk the displeasure of the court. I wouldn’t. Would you, QB?

      • If subpoenaed by a judge, i will provide what information i have on posters, which is email and IP address. Short of a subpoena, I will not provide information on the email/IP address of Climate Etc. commenters to anyone.

      • I find this so alien from what I said that I can’t understand how you even got to this level of confusion. Although the way you’re using some of those legal terms suggests that you began from a point of profound confusion.

        To begin with, there’s no such thing as “an accomplice” to libel. It is not a crime, and none of the incohate forms apply to it in any way. So there’s no “attempted libel,” no “conspiracy to commit libel, and certainly no “accomplice to libel.” One is either liable for it or not. And maintaining confidentiality can in no way I can even imagine constitute an element of libel (though failing to do so could!)

        I do not see how any of this could be construed as a suggestion that one who recieves a subpeona ought to defy the court, and, speaking as an officer of the court, I very much discourage it. I was simply pointing out how unlikely I think it is that any such subpeona will materialize.

    • I disagree that it would be that expensive to determine the identity of an anonymous commenter. In most jurisdictions, initial discovery can be done shortly after a defendant has been served with the complaint, before the larger costs of litigation begin to accumulate. The procedure is more structured in federal court, but can still be initiated fairly quickly. The largest costs in a civil litigation are usually the costs of discovery, but a party can choose the sequence in which he conducts his own discovery. So a subpoena to determine the identity of an anonymous defendant/witness could easily be done first.

      In a case where a plaintiff is seeking to determine the name of a commenter who made an allegedly libelous statement, most jurisdictions allow the filing of a John Doe complaint, where the defendant is not named because the plaintiff does not have that name. In such cases, the plaintiff can begin discovery to determine the name of the defendant, and the case does not really proceed on any other level until that has been accomplished. In such a case, there not even be a no motion to dismiss filed before discovery of the identity, because there is no defendant to file it.

      In a case with multiple defendants, a summary judgment motion could be filed before discovery is complete, but most courts would delay consideration of such a motion (continuing the defendant’s obligation to respond to the motion for instance), until discovery relevant to the motion is complete.

      The person served with a subpoena can of course move to quash the subpoena (ask the court to not enforce it), but unless there are first amendment issues involved, or the subpoena is seeking evidence clearly unrelated to the complaint, it is not likely to succeed. And a subpoena seeking the identity of a co-defendant or key witness would certainly be relevant.

      AOL and other providers have adopted policies with respect to such subpoenas, and they do not generally resist them. They do usually give their customers notice of the subpoena and wait a certain period of time to give the customer time to respond. But there is no real effort made to resist. Nor is there really any reason to. We are not talking the Pentagon Papers or Deep Throat here.

      If Dr. Curry, or any other blog host, were served with a subpoena seeking the identity of an anonymous commenter, absent truly unusual circumstances, the only rational response would be to respond to the subpoena and provide the requested information. So there would not be excessive expense in that regard either.

      The point being, piercing anonymity would not come without some cost, but it can often be done before the truly serious costs of litigation start to accrue. It is in fact becoming more common with respect to claims of defamation, etc. on the internet.

      It is still relatively rare, because even the initial costs of filming a suit would deter most normal plaintiffs. But in increasingly heated debates, tempers rise and people become more willing to spend a few dollars to harass their opponents.

  91. OK so all the blather drove Eli to actually look up the Virginia FOIA and guess what he found
    ——————————-
    § 2.2-3705.4. Exclusions to application of chapter; educational records and certain records of educational institutions

    The following records are excluded from the provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law: . . . .

    4. Data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education, other than the institutions’ financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or a private concern, where such data, records or information has not been publicly released, published, copyrighted or patented.

    5. All records of the University of Virginia or the University of Virginia Medical Center or Eastern Virginia Medical School, as the case may be, that contain proprietary, business-related information pertaining to the operations of the University of Virginia Medical Center or Eastern Virginia Medical School, as the case may be, including business development or marketing strategies and activities with existing or future joint venturers, partners, or other parties with whom the University of Virginia Medical Center or Eastern Virginia Medical School, as the case may be, has formed, or forms, any arrangement for the delivery of health care, if disclosure of such information would be harmful to the competitive position of the Medical Center or Eastern Virginia Medical School, as the case may be.

    • And your point is?

      • 1. The exclusions are broad
        2. “may be disclosed by the custodian in his discretion”
        3. UVa could not possibly have agreed to hand over unseen emails merely on the payment of $4000.

      • The silly Rabett purports to pick a cherry and Nick is left to wonder why they taste like raspberries.
        1. #4 is a specific exclusion for unpublished research, #5 is strictly related to records of UVa Medical Center and Eastern Virginia Medical School. Greenpeace was not looking for unpublished research and I think we can stipulate that Pat Michaels is not a medical doctor.

        2. Yes, these excluded records can still be released “by the custodian in his discretion”. There’s no provision for the custodian to exclude non-exempt records. Big difference. Another point is that this clause doesn’t extend to the rest of the Act. There is another section that generally defines what records are exempt and which are not.

        3. Asked and answered.

      • What Nick said, anyhow 4K$ was the buy in and there was no upper limit.

      • Continuing to assert it does not make it so. I’ve pointed out the relevant section of the Code of Virginia. There is no authorization there to reply to a request with “pay us four grand and we’ll look”. Can you cite a section that authorizes such a response?

      • Can you cite evidence that they made such a response? From what I can see, Greenpeace asked them for an indication of likely costs, and they provided one. Is that forbidden by the Act?

      • Rattus Norvegicus

        Greenpeace, in their original letter asked for a fee waiver, clearly anticipating that a fee would be involved. Here is UVa’s response:

        http://www.virginia.edu/foia/climatechange/pdf/2010-01-15-Trowbridge-response-costestimate.pdf

      • Nick,

        The way the Act reads the custodian of the record is required to respond to the request in one of 5 ways:

        1. Providing the records requested
        2. Denying the entire request
        3. Denying the request in part and providing the remaining records
        4. Stating that the records don’t exist or aren’t held by the custodian (with the provision that the custodian must identify which agency does hold the record if he is aware)
        5. Invoke an automatic extension after which one of the four responses above must be provided

        In the case of responses 2 and 3, the custodian is required to provide an accounting of the subject matter and legal authorization for withholding the record. Rattus Norvegicus did find evidence that confirms that UVa is requiring payment in advance of searching, which would appear to violate the FOIA. I’m surprised that Greenpeace has not challenged it.

      • Gene, Rattus QUOTED the VA FOIA act which SPECIFICALLY says that UVa can demand payment in advance

        —————–
        H. In any case where a public body determines in advance that charges for producing the requested records are likely to exceed $200, the public body may, before continuing to process the request, require the requester to agree to payment of a deposit not to exceed the amount of the advance determination.
        ——————

        Since this was in a reply to you, some, not Eli to be sure, would conclude that you are not being fully honest.

      • Yes, Rattus Norvegicus did point out that section, after the comment you’re replying to. When he did, I admitted that I had overlooked the last sentence of that part when reading the section. Where, exactly is the dishonesty?

  92. So? It just proves my point that Universities dealing in ” Climate Science ” seem to find mysterious reasons for not being able to trace 4 year old records of prominent star researchers. Mann’s work was being hailed world over at that period and was considered ground breaking. So it beats any logic, commonsense and any other sense that such a researcher’s records would be in some ” previously unknown, surplus computers “.

    If you are prepared to accept that excuse, there’s a bridge I’d like to sell to you.

    • If you cannot accept reality, then so sorry, you’re just the type to whom bridges are sold. Reality-based people do not buy bridges. Fantasy-based people are prime candidates for bridge sales.

      Reality: the CID had a much broader scope. This caused the university to cast a wider net. The university’s wider net found a computer. They immediately disclosed its discovery and that it had Mann material on it. This story is as credible as it gets. In it you see a conspiracy. Enjoy life on the grassy knoll.

      • Heh, if there is nothing damaging in the emails, then sure, the idea of a conspiracy is ‘grassy knoll’ stuff. If there is something damaging in the emails, we can be almost sure there is a conspiracy to suppress it.

        So let there be light. We’ll find out, probably. Even if Cuccinelli loses, the quest for the corruption will go on.

        The corruption has been frighteningly expensive. The bills are coming due.
        ===============

      • JCH, if you removed your Mann tinted specs, you’ll see as everyone else sees here, that you’ve not only bought a bridge from Mann / UVa combo, but you are assuring everyone that it is a real one and will be delivered soon.

        What reality are you talking about? So Mann’s work was in some unknown computer stored at some place and once UVa’s CID was widened, somebody went looking for data all over the University grounds and found a computer hard drive stashed away somewhere, unknown and unaccounted for, containing Mann’s data, right?

        Wow, do you realise even how pathetic that excuse looks.

        Why do climate scientists and institutions behave exactly like kids caught doing something naughty? Anyone who has had children will be able to relate to these excuses

        1. No I didn’t do it.
        2. I can’t find it.
        3. You are bullying me.
        4. You don’t trust me.
        5. It’s all your fault.
        6. You didn’t ask me properly.
        7. I don’t know how this happened.
        8. But everyone does it.
        9. When I said I didn’t do it I meant something else.

        blah, bah blah!

      • What the University of Virginia says happened is perfectly credible. It has nothing to do with Mann.

      • Bunk.

      • Exactly, here.s UEA doing similiar stonewalling in UK, on FOI requests about Muir Russel panel. They haven’t changed their unethical behaviour one bit, even after Climategate and earlier FOI scandals. Their tactic seems to be delay, obfuscate, bring on tenuous excuses etc. etc.

        http://bishophill.squarespace.com/blog/2011/4/14/when-is-a-contract-not-a-contract.html#comments

  93. The answer’s simple. The law suits are the last desperate throes of what may be the biggest scientific fraud in history.

    When about 2003, NASA learnt there no experimental proof of ‘cloud albedo effect’ cooling without which the high feedback CO2-AGW hypothesis fails, also there was a second, reflection-like optical effect not considered by the aerosol optical physics used in the models, they knew the wheels had come off the wagon.

    What NASA did was to swap Twomey’s correct Mie explanation of diffuse scattering with a new, ‘surface reflection’ explanation. It’s here: http://geo.arc.nasa.gov/sgg/singh/winners4.html

    There’s no such physics but it’s widely believed in climate science. You disprove it by looking at clouds as droplets coarsen prior to rain: they get darker underneath and glider pilots know there is very strong directed albedo, almost like reflection. Twomey had consistently warned not to extrapolate Mie analysis of diffuse scattering to thick clouds, which is what Sagan did for example and was introduced to climate modelling in 1974 by his ex-students, Lacis and Hansen.

    The explanation of the second optical effect is substantial shielding of the cloud interior by direct backscattering you get at from standard Mie physics. Unlike thin clouds, pollution reduces the albedo of thicker clouds by switching off this backscattering. As this is another AGW, you must further reduce CO2 climate sensitivity. Net CO2-AGW could well be zero.

    The really interesting aspect of this physics is that it explains palaeo-climate data far better than CO2-GW with its c. 800 year delay. As the seas are freed from ice, I suspect UV triggers plankton blooms in nutrient-rich areas and you get considerable dimethyl sulphide, known to be the key aerosol controlling droplet size in low level oceanic clouds.

    Rapid reduction of cloud albedo from c. 0.9 to c. 0.6 [45 micron to 15 micron droplets] increases energy transmission by a factor of c. 4, far more potent warming than you get from CO2 at the no-amplification level, all that AR4 data can predict.

    I could be wrong but I doubt it. At the same time as Hansen was writing computer code to calculate Mie scattering, so was I.

    • Very interesting! I have always found the positive feedback assumptions to be absurdly implausible. If the effect of CO2 was to cause run-away warming, which has it never happened before? It’s not a perferct argument, but surely it warrents greater skepticism than climatologists display.

      It reminds me of the old economists’ joke. An economics student and his teacher are talking outside the building, and the student sees a$20 bill in the street. He tells his teacher he’s going to go get it. The teacher tells him not to bother. It can’t possibly be a $20 bill, because if it were, someone would already have picked it up.

      • I’ve saw an interesting cartoon – somewhat related.

        Two economists looking at a complicated equation on a blackboard. Economist A says to economist B: “This equation would work perfectly if we could just eliminate the variable that represents human behavior.”

      • Joshua,
        Cliamte science would be great except for all of the climate scientists.

  94. The Black-Scholes solution of the differential equations which produce the exact solution for the price of a financial derivative won Black and Scholes the Nobel prize for economics. However, when tested in 2008, the market failed. This was because the equation assumes a perfect market and in trading there ain’t no such thing.

    Indeed, it was massive fraud [the intermediary companies shipping money from Wall St. to the high street mortgage offices. In the Autumn of 2006, the records in those companies were destroyed and Wall St. went for carbon trading instead.

    Similarly, with climate science, the claim by the IPCC is that the models are based on settled, sound physics’ principles. However, just by looking at some clouds a year ago, I instantly saw that the key assumption in AR4, cloud albedo effect’ cooling of median 44% of claimed net AGW, is not only based on incorrect science. I then learnt that when NASA realised this, about 2003, it published a fake scientific justification apparently to keep it in AR4.

    Now we’re getting e-mails destroyed as part of another cover up. Plus ça change, plus c’est la même chose.

    • Dr. Curry

      Possibly? Do you feel defamed to such a degree you wish to pursue remedy?

      Keeping in mind, I disagree with you on many, many issues (which tends to increase your credibility in my view and I believe the view of most), some of what Martha says is true and ought be borne as a badge of honor; some small part is possibly an indication of at least some underlying issue or fault (though nothing so far as I can tell much of a character flaw); most is so vaguely opinionated as none who were not already in agreement would see it as anything but the most tendentious (thanks to Chief for reviving that too-little used adjective) fluff; and some of what is directly said, along with so far as I can tell everything that is implied, about you is clearly false.

      Do I think less of you after reading this?

      Not in the least.

      Might some?

      We both know the academic world is.. well, it is what it is, when it comes to this sort of thing.

      • actually my comment was satirical. not sure what it is about the females in the climate blogosphere. Martha makes Anna Haynes and shewonk look like class acts.

      • Odd as it may sound, I’m genuinely satire-deaf after tea time.

        I did much better on Physics exams set after mid-afternoon, but terribly in Chemistry unless I wrote in the morning. I guess this is telling about the relative sense of humor of professors in the two fields.

        There are likely as many theories extant about women in science as there are people with too much free time on their minds.

        My question, humor-blind at the moment as I am.. do you think they get the joke?

      • Just returned to CE after a gap and been catching up on some April posts. I feel we have the strengths and weaknesses of women on show here. The weaknesses of the critics of JC are to me obvious, old women to a man. But her strengths surely explain the tender toes: the instinct, the breadth and the curiosity. High quality multitasking if you ask me. Getting the climate economists and the lawyers going in the same week, that’s useful work indeed. Without ever losing sight of the science, simplified to the point of distortion by the climate establishment. Formidable.

        It puts me in mind of one of my favourite pieces of flattery: that of a young Italian politician to a female former UK prime minister, our only PM trained in science, as far as I can recall, who remains controversial because of her continuous outclassing of the men of her era. I won’t further embarrass them by naming her.

        He wrote that in the UK she had many advantages over would-be reformers in Italy and listed some of our traditions of the rule of law, freedom and democracy. “But we have one thing that you did not have. Your example.”

        I always liked that. It doesn’t often apply. But here in climate science it does: the example of something different is all important. We’re duly grateful.

    • Wow…well, I’m not an attorney but for what it’s worth, I’d say there are two things that would hurt your case:

      1. Prose like this makes it difficult to argue it’s not satire: “Like a plastic doll, she has re-purposed herself and regularly updates her clothes and accessories on her blog. Sure she has a science job, ambition, and rooted hair and eyes: but she is just a libertarian cut-out doll, and we need to look afresh at this version of sexism.”

      2. I think someone has to admit they actually read it in order for you to claim to be defamed.

      I’d list more but I have a sudden need to bleach my brain.

    • Dr. Curry,

      In the event your question was not rhetorical:

      You are a public figure, so you would have a very high hurdle. Most of it is vague gibberish, so probably not grounds for a claim of defamation. The comments that come the closest to libel are these:

      “Apparently being right requires an abundance of false misleading comments, deliberate confusion and other mischief-making.”

      “However, there is something perhaps even more unsettling about a grown woman who likes to play mischief-making little girl to a group of dissatisfied men.”

      “She recycles hysterical accusations of misleading use of data, but also routinely demonstrates that she is herself incapable of the most basic internet and reading skills. ”

      There are problems with each of these as the basis for a claim of libel, but they are the closest she comes to direct statements about your honesty, character and professional competence (which are all areas of reputation protected by libel laws).

      What I want to know is how she knows you wear a skirt while blogging. And why it matters to her.

    • Well, I would interpret these remarks against the blog they appeared in. It is this sort of patronising, condescending, elitist, and arrogant set of attitudes that makes my teeth grind. People who have to label others to somehow convince themselves of their own innate superiority probably aren’t worth listening to.
      I am a recent reader of your blog, having been a regular reader of WUWT and Climate Audit for a long time. I admire people who make their point without attacking the person. This is why I stopped reading Real Climate. After a while the vitriol just wears you down.
      I don’t give a hoot about Anna and Martha so you aren’t diminished in my eyes. In fact this blog (which I understand to be warmist) is refreshing in it’s tolerance. This is a good thing. More dialogue and less rhetoric would get us all a lot further.
      I have benefited from a number of good posts on this blog. Thank you.

      • Eli Rabett

        One believes it is the use of the word “disinterested,” implying objective, a dispassionate and rational judge, a person capable of acting without bias while vigorously pursuing an investigation or scoring a debate, that is most at issue when applied to Dr. Curry.

        Had Martha said the much less perjorative, ‘uninterested,’ with its implications of apathy, unconcern or unwillingness to participate, then the whole thing would take on a completely different tenor.

        Then, Martha’s remarks would have cast Dr. Curry as a one-sided advocate or puppet to interests and in matters she naively does not begin to understand out of vanity or perversity, which is pretty much the high water mark of personal accomplishment in the academic world.

        Sadly, Martha seems to indict by that one prefix, that single ‘dis’ Dr. Curry as a person intent on being logical so far as inquiry takes her as if the goal of science were to add to the body of human knowledge by careful and rigorous questioning and proofs while recognizing the limits of reasoning in uncertainty, and, as professor Muller recently lamented, thus pigeonholed by others who ought know better and reviled for such a silly way of conducting academics.

        Sorry, satiring blind here.

      • where as in which venue

    • Dr C says: “have I been libeled ?”

      Doubtful. One of the defenses to libel is (from Wikipedia):

      “Claimant is incapable of further defamation–e.g., the claimant’s position in the community is so poor that defamation could not do further damage to the plaintiff. Such a claimant could be said to be “libel-proof”, since in most jurisdictions, actual damage is an essential element for a libel claim. Essentially, the defense is that the person had such a bad reputation before the libel, that no further damage could possibly have been caused by the making of the statement.”

    • Ripples of Hatred,
      Reflections in a jaundiced eye.
      Mirror on the Wall.
      ===========

    • Judith,
      I shouldn’t worry about it (not that you are). It’s not as though anybody goes to that website to read their drivel. It’s a mutual appreciation society where they massage each other’s egos. It is best filed under ‘i’ for irrelevant.

    • Probably but it would cost too much of your soul to get even. Luckily, I’m still anonymous. My arguments are censored but the information is out in the wild and physicists are quietly working on the same science.

      Now the ‘cloud albedo effect’ cooling keystone of the IPCC’s high climate sensitivity arch has been removed, that structure is collapsing. The more astute in the CAGW hierarchies are preparing exit routes. Scapegoats have been identified by politicians trying to displace blame.

      Governments who have ceased to be in thrall to Greenpeace and Agenda 21 Malthusians are planning to escape the tyranny of the windmills.

    • With a heading like he obviously has a Mesiah complex and can’t be taken seriouly.

      Climate Denial Crock of the Week.Greenfyre’s
      “My heart is moved by all I cannot save”

  95. My, what we don’t learn about a person when they are stricken by fear!

  96. The following is from the Facebook EULA…I don’t know how common this boilerplate language is. Very common?

    To respond to legal requests and prevent harm. We may disclose [identity and contact] information pursuant to subpoenas, court orders, or other requests (including criminal and civil matters) if we have a good faith belief that the response is required by law. This may include respecting requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law under the local laws in that jurisdiction, apply to users from that jurisdiction, and are consistent with generally accepted international standards. We may also share information when we have a good faith belief it is necessary to prevent fraud or other illegal activity, to prevent imminent bodily harm, or to protect ourselves and you from people violating our Statement of Rights and Responsibilities. This may include sharing information with other companies, lawyers, courts or other government entities.

    http://www.facebook.com/policy.php

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