Climategate on Appeal

Michael Mann, a Professor of Meteorology at Penn State University, studies and writes about climate change. When the email servers of the University of East Anglia were hacked in 2009, Mann’s emails were among those used to suggest that there was a conspiracy to suppress evidence inconsistent with climate change.

Various committees investigated allegations of scientific malfeasance, which has come to be known as “climategate”; none found evidence of scientific misconduct. Some of the committees, however, did urge that the investigators engage in greater sharing of their supporting data, methods, and materials.

In February 2010, Penn State issued a report of its investigation, which found there was “no credible evidence that Dr. Mann had or has ever engaged in, or participated in, directly or indirectly, any actions with an intent to suppress or to falsify data.” A Final Investigation Report, from Penn State in June 2010, further cleared Mann.

In the United Kingdom, a Parliamentary Committee on Science and Technology published a report, in March 2010, finding that the criticisms of the Climate Research Unit (CRU) at the University of East Anglia (UEA) were not well founded. A month later, the UEA issued a Report of an International Panel, which found no evidence of deliberate scientific malpractice. Another UEA report, the Independent Climate Change Email Review report, found no reason to doubt the honesty of the scientists involved. An official UK governmental report, in September 2010, similarly cleared the climate researchers of wrongdoing.

The view from this side of the Atlantic largely exonerated the climate researchers of any scientific misconduct. An EPA report, in July 2010, dismissed the email content as merely a “candid discussion” among scientists collaborating on complex data. An independent review by the Department of Commerce’s Inspector General found no “inappropriate” manipulation of data in the emails. The National Science Foundation reported, in August 2011, that it could discern no research misconduct in the climategate emails.

Rand Simberg, an adjunct scholar with the Competitive Enterprise Institute (CEI) wrote a blog post, “The Other Scandal in Unhappy Valley” (July 13, 2012), in which he referred to Mann and his research as “wrongdoing” and “hockey-stick deceptions.” Simberg describes the hacked UEA emails as having “revealed” that Mann “had been engaging in data manipulation to keep the blade on his famous hockey-stick graph.” Similarly, Simberg states that “many of the luminaries of the ‛climate science’ community were shown to have been behaving in a most unscientific manner.”

The current on-line version of the Simberg’s blog post ends with a note[1]:

*Two inappropriate sentences that originally appeared in this post have been removed by the editor.

A post by Mark Steyn on the National Review online website called Mann’s hockey stick “fraudulent.” A subsequent National Review piece offered that in “common polemical usage, ‛fraudulent’ doesn’t mean honest-to-goodness criminal fraud. It means intellectually bogus and wrong.”

Legal counsel for Penn State wrote the Competitive Enterprise Institute, in August 2012, to request an apology from Simberg and the CEI, and a retraction of Simberg’s blog post. I am not sure what was in the two, subsequently removed, “inappropriate sentences” in Simberg’s piece were, or when the sentences were removed, but Dr. Mann, represented by Cozen O’Connor, went on to  sue Mark Steyn, Rand Simberg, the CEI, and National Review, for libel, in October 2012, in the Superior Court of the District of Columbia. Further publications led to an Amended Complaint in 2013.

Mann obviously does not like being called the author of fraudulent and intellectually bogus work, and he claims that the publications by Simberg and Steyn are libelous as “allegations of academic fraud.”

The D.C. Superior Court denied defendants’ motion to dismiss, setting up interlocutory appeals to the D.C. Court of Appeals, which is the highest court for the District. The appellate court allowed an interlocutory appeal, with a schedule that calls for appellants’ briefs by August 4, 2014. Dr. Mann’s brief is due by September 3, 2014, and appellants’ reply briefs by September 24, 2014.  The Court set consideration of the appeal for its November calendar.

Defendants CEI and National Review filed their opening briefs last week. This week, on August 11, 2014, the Cato Institute, Reason Foundation, Individual Rights Foundation and Goldwater Institute filed a brief in support of CEI and National Review. Other amici who filed in support of the defendants are Mark Steyn, the District of Columbia, and the Alliance Defending Freedom, and the Electronic Frontier Foundation.

I am not sure that all the epithets point to academic fraud.  Some of the adjectives, such as “bogus” do not really connote scienter or intent to deceive.  The use of the adjective “fraudulent,” however, does connote intentional falsity, designed to mislead. Deceit and intent to mislead seem to be at the heart of an accusation of fraud.

The defendants’ arguments, and their amici, on appeal predictably rely heavily upon the First Amendment to protect their speech, but surprisingly, they characterize labeling someone’s research as “fraudulent” as merely “hyperbolic” or “robust” debate and polemics.

Some of the defendants’ other arguments are even more surprising.  For instances, Cato correctly points out that “Courts are ill-suited to officiate scientific debate to determine ‛truth’ or ‛falsity’.” True, but officiate they must in criminal fraud, intellectual property, product liability, and in securities fraud cases, as well as many other kinds of litigations. Cato admonishes that the “[e]volution of scientific thought over time highlights the danger of courts[’] determining ‛truth’ in public debate.” Dangerous indeed, but a commonplace in state and federal courts throughout the land.

Is this Think Tank Thuggery or robust free speech? The use of “fraudulent” seems to be an accusation, and it would have much more “robust” to have had a careful documentation of what exactly was Professor Mann’s supposed deviation from a scientific standard of care.

[1] The words “fraud” and “fraudulent” do not appear in the current on-line version of Simberg’s post.

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