by Judith Curry
Some new angles in Mann vs Steyn et al.
Michael Mann’s brief
Michael Mann has now filed his brief in the DC Court of Appeals as part of his defamation lawsuit against the National Review and the Competitive Enterprise Institute [link]. For reference, the briefs of the defendants were discussed in this previous post [link].
Mann’s brief is discussed in a post at ClimateScienceWatch, excerpts:
In its Introduction, Dr. Mann’s brief says (with underlining added):
Defendants’ and amici assert that this case is a threat to freedom of expression and involves a “scientific controversy” which courts are “ill-equipped” to referee. … They are mistaken. The issues in this case are simple, straightforward, and certainly capable of an effective judicial resolution. This is not a referendum on global warming, or climate change, or even the accuracy of Dr. Mann’s conclusions. This is a defamation case, no more and no less: did Defendants defame Dr. Mann when they accused him of fraud? As in any defamation case, the issues are limited: were the defendant’s statements true or false; did the defendant make a defamatory allegation of fact concerning the plaintiff; and did the defendant act with the requisite degree of fault? Those are the essential questions in this case as well—and they do not involve a search for “scientific truth, as Defendants claim. Nor is there, as Defendants suggest, any broad-based “science exclusion” in defamation law.
Here, there is no question that Defendants’ assertions were false, and Defendants do not even attempt to argue that their statements about Dr. Mann were true. They have accused him of “academic and scientific misconduct,” “data manipulation,” “molesting and torturing data,” and “corruption and disgrace”—all the while gloating in a disgraceful comparison to Jerry Sandusky, a convicted child molester who worked at the same institution that employs Dr. Mann. And they made these statements knowing that Dr. Mann’s research has been reviewed repeatedly and replicated by other scientists, and that Dr. Mann has been repeatedly exonerated: no fraud: no misconduct; no molestation; no corruption. Importantly, Dr. Mann brought this lawsuit not to squelch public debate, but rather to protect himself against those who have recklessly accused him of fraud and misconduct.
Rather than defending the falsity of their words, because they cannot, Defendants attempt to hide behind the inapposite “opinion defense” and the unsupported position that accusations of fraud are an accepted part of political discourse and thus protected under the First Amendment. Defendants say that their words are “protected speech” because they are “pure opinion and hyperbole” and cannot be construed, by any reasonable reader, to be assertions of fact. Not so, and the U.S. Supreme Court has been clear on this opinion defense. …
Defendants also argue that they really did not intend to accuse Dr. Mann of fraud. They now claim that they were just engaging in hyperbole; and that, in any event, their readers (or at least their reasonable readers) did not construe their statements to be factual assertions of fraud, but rather to be legitimate criticism of Dr. Mann’s scientific conclusions. These arguments are not only factually unsupported, they are flatly contradicted by the evidence. Defendants’ own subsequent statements make it clear that they intended to—and did—accuse Dr. Mann of fraud. …
Defendants’ secondary challenge to this lawsuit is that it should be dismissed because Dr. Mann is not likely to prove actual malice by clear and convincing evidence. … The allegations already of record without access to discovery demonstrate overwhelmingly that Defendants knew that there was no fraud, and, at the very least, proves that Defendants acted with a reckless disregard for the truth or a “deliberate effort to avoid the truth.” [emphasis added]
In a scientific or professional context, ‘fraud’ is inferred to refer to research misconduct, which is characterized by falsification, fabrication and/or plagiarism. I don’t think that this is the case with regards to Mann’s hockey stick, and Steve McIntyre has said previously that he doesn’t think so either. The only one of the ‘inquiries’ which to my mind carries any weight at all in terms ‘exoneration’ of Mann is that conducted by the National Science Foundation, which did not find any evidence of scientific misconduct with respect to Mann’s NSF funded research.
Nevertheless, accusations of data cherry picking and flawed statistical analyses and interpretations seem to be justified. Steve McIntyre and Jean S are still on the case, see these recent posts:
Communicating the hockey stick to the public
Here is the general definition of fraud:
“Fraud is generally defined in the law as an intentional misrepresentation of material existing fact made by one person to another with knowledge of its falsity and for the purpose of inducing the other person to act, and upon which the other person relies with resulting injury or damage. Fraud may also be made by an omission or purposeful failure to state material facts, which nondisclosure makes other statements misleading.” (USlaw.com)
Mann’s intentional failure to disclose and efforts to hide the “dirty laundry” could be argued to be fraud. However, the arguments for ‘fraud’ are more convincing in context of the communication of the hockey stick to the public – the infamous ‘Mikes Nature trick’ to ‘hide the decline.’ Background on this issue is discussed at length in my previous post Hiding the Decline. I concluded:
There is no question that the diagrams and accompanying text in the IPCC TAR, AR4 and WMO 1999 are misleading. I was misled. Upon considering the material presented in these reports, it did not occur to me that recent paleo data was not consistent with the historical record. The one statement in AR4 (put in after McIntyre’s insistence as a reviewer) that mentions the divergence problem is weak tea.
It is obvious that there has been deletion of adverse data in figures shown IPCC AR3 and AR4, and the 1999 WMO document. Not only is this misleading, but it is dishonest (I agree with Muller on this one). The authors defend themselves by stating that there has been no attempt to hide the divergence problem in the literature, and that the relevant paper was referenced. I infer then that there is something in the IPCC process or the authors’ interpretation of the IPCC process (i.e. don’t dilute the message) that resulted in the scientists into deleting the adverse data in these diagrams.
Additional history is provided in a recent post at Climate Audit The Original Hide the Decline.
The most serious issue for Mann’s case is mentioned briefly in Mann’s brief, as described in this post at Climateaudit [link]:
Mann’s brief: “In their brief, the CEI Defendants suggest that the University of East Anglia’s investigation actually found that the hockey stick graph was “misleading” because it did not identify that certain data was “truncated” and that other proxy and instrumental temperature data had been spliced together. See CEI Anti-SLAPP Mem. at 16-17; NRO Mem. at 35. This allegation is yet another example of Defendants’ attempts to obfuscate the evidence in this case. The “misleading” comment made in this report had absolutely nothing to do with Dr. Mann, or with any graph prepared by him. Rather, the report’s comment was directed at an overly simplified and artistic depiction of the hockey stick that was reproduced on the frontispiece of the World Meteorological Organization’s Statement on the Status of the Global Climate in 1999.41 Dr. Mann did not create this depiction, and the attempt to suggest that this report suggested an effort by Dr. Mann to mislead is disingenuous.”
McIntyre: CEI had raised both the WMO 1999 and IPCC 2001 diagrams, but Mann ignored the finding in relation to the IPCC 2001 diagram (where he could not dispute his association) and fired back only on the WMO 1999, claiming with faux outrage that Mann had had nothing to do with the WMO 1999 and was merely an attempt to “obfuscate” – a somewhat ironic accusation given the massive misrepresentation of the inquiries by Mann and his lawyers.
Now Climategate emails (especially CG2) showed that Jones had corresponded with Mann in the preparation of the WMO cover and that Mann had signed off on both Jones’ splicing of proxy and instrumental records and Jones’ truncation of the Briffa reconstruction. So Mann’s outrage seemed pretty stretched.
But Jean S has found something even more damning. In Mann’s own CV, Mann lists himself as a coauthor of the WMO 1999 diagram.
Mann’s claim that the WMO diagram “had absolutely nothing to do with Dr. Mann” stands exposed as yet another porky by Mann and his lawyers.
For further details, Climate Audit has a post Inventory Hide the Decline.
Scientific misconduct or ‘fraud’ has been traditionally constrained to fabrication, falsification and plagiarism. However, current thinking on responsible conduct of research is beginning to address ethical issues regarding how scientists interface with society regarding their research. Some of my previous essays on this include:
- Responsible conduct in the global research enterprise
- (Ir)responsible advocacy by scientists
- Questions on research integrity and responsibility
The responsibility of appropriately communicating to the public is starkly realized in context of the arrest of Italian geophysicists with regards to their communication of earthquake risk [link] .
So, were the WMO/TAR representations of the hockey stick that hide the decline fraudulent, in the sense of “intentional misrepresentation of material existing fact made by one person to another with knowledge of its falsity and for the purpose of inducing the other person to act.”? Was the misrepresentation merely a misguided attempt at simplification for the public? It is the issue advocacy of Mann that cements the motivation of ‘inducing the other person to act.‘
In this context, there is no need for Steyn et al. to ‘prove’ fraud in court; but merely to legitimize a public statement of ‘Mann’s fraudulent hockey stick‘ as not defamatory.
‘Fraud’ is generally a different beast than ‘scientific misconduct.’ Scientific misconduct is typically motivated by career advancement; fraud is motivated by inducing someone to act.
This situation may be the single most compelling reason for scientists not be issue advocates regarding their scientific research – efforts to induce other to act need to be very careful that they do not mislead the public.
I think Mann’s advocacy is a new angle in interpreting the issue of ‘fraud’; I look forward especially to the take on this from the lawyers among the denizens.