Yesterday, a jury in Washington, DC awarded renowned climate scientist Michael E. Mann more than $1,000,000 in damages in a defamation lawsuit he brought against two bloggers.1 I was a witness in the case and testified on Tuesday.2 Here, I’ll offer my thoughts on the case and some personal reflections on my experience.
Mann’s case alleged that he was defamed by statements made the bloggers more than a decade ago, which harmed his reputation and career (I won’t rehash the details here, but you can get a full accounting of the trial at this comprehensive podcast).3
The defense built their case around making three points to the jury.
One was to bring in experts to testify that Mann’s methods in producing the so-called “Hockey Stick” graph were manipulative, and thus critics of the Hockey Stick were factually correct in saying so. The second point was to demonstrate that the debate over climate during the time that the blog posts were written was intense and vitriolic, with Mann saying things about others that were worse than what the defendants said about him.4 Finally, the defense argued that Mann hardly put on a case — he provided no evidence or witnesses supporting his claims of damage to reputation or career.
In contrast, the prosecution was — in the words of the court, “disjointed” — and was reprimanded on multiple occasions by the judge, most notably for knowingly providing false information to the jury on alleged damages suffered by Mann.5 When I was cross-examined, Mann’s lawyer had considerable trouble getting basic facts right like timelines and who said what.6
Even so, in a trial that most neutral observers would surely see as favoring the arguments of the defense, Mann walked away with a resounding, comprehensive victory.7 How did that happen?
In my view, there were two absolutely pivotal moments in the trial.
One occurred when Mann was testifying and he explained that he felt that the bloggers were not just criticizing him, but they were attacking all of climate science, and he could not let that stand. As the world’s most accomplished and famous climate scientist, Mann intimated that he was simply the embodiment of all of climate science.
For the jury, this set up the notion that this trial was not really about Mann, but about attacks on all of climate science from climate deniers.
The second pivotal moment occurred when in closing arguments Mann’s lawyer asked the jury to send a message to right-wing science deniers and Trump supporters with a large punitive damage award.
Here is how an advocacy group called “DeSmog” accurately reported these dynamics:
Mann sued Simberg and Steyn for defamation, but the trial proved to be about much more than statements that harmed the scientist’s reputation — the entire field and validity of climate science was under scrutiny.
In closing arguments, Mann’s lawyer John Williams compared the climate deniers in this case to election deniers overall. “Why do Trumpers continue to deny that he won the election?” he asked the jury. “Because they truly believe what they say or because they want to further their agenda?”
He asked the jury to consider the same question about Steyn and Simberg: Did they believe what they wrote was the truth, or did they just want to push their agenda? . . .
“Michael Mann is tired of being attacked,” Williams told the jury. “You have the opportunity to serve as an example to prevent others from acting in a similar way” to Simberg and Steyn.
An underlying current throughout this trial has been that climate denialism, like what the two defendants practice, isn’t really about the science. It’s more about politics and policy that drives organizations and individuals to “attack the science and confuse the public . . .
This framing — climate deniers versus climate science — has also characterized mainstream media coverage. For instance, The Washington Post announced, on the day that the case went to the jury, that this case was part of a “mounting campaign” against “right-wing trolls” (below).
Prominent climate scientist or right-wing trolls? Which side are you on?
The case was formally about defamation, but in reality it was not at all about defamation.
As Michael Mann stated after the verdict, the case was really about politics and ideology:
Take a victory lap, Dr. Mann
This is about the defense of science against scurrilous attacks, and dishonest efforts to undermine scientists who are just trying to do our job … whose findings might prove inconvenient to certain ideologically driven individuals and outlets. It’s about the integrity of the science and making sure that bad actors aren’t allowed to make false and defamatory statements about scientists in their effort to advance an agenda.
The defense made a big mistake in thinking that it would be sufficient to win by proving their case while Mann chose not to put one on. That was wrong.
There is no equivalence here between the “renowned” Michael Mann and the “right-wing trolls” who deny climate science and support Donald Trump. The case, at least in this particular venue, was simply unwinnable no matter what cases were put on by the prosecution and the defense. Mann simply had to show up.
The fact that the jury awarded him only $2 in actual damages and $1,001,000 in punitive damages (send a message!) supports this interpretation — The defense won on merits, and Mann won on the framing and the politics.
What does the case mean for discourse about politically contentious issues that involve science? Science magazine reports that it means that we now need to be circumspect in how we engage these issues:
In a statement, Mann said, “I hope this verdict sends a message that falsely attacking climate scientists is not protected speech.”8
At the same time, the ruling could end up having a chilling effect on necessary public criticism of science, says Gene Policinski, a senior fellow at the Freedom Forum, a nonpartisan foundation focused on First Amendment protections. People will need “to be more judicious in commentary. They might be more vague or circumspect.” And that could be to the detriment of the public, he says. “It’s important in today’s world for people to be aware of research that’s going on and having people both praise and criticize it openly.”
For Mann’s part, he signals that he is just getting started in his legal campaign against his opponents:
Asked about Competitive Enterprise Institute and National Review, [Mann’s lawyer] John Williams said, “They’re next.”
I would not be surprised to now see a flurry of lawsuits against people who have been critical of climate science or climate scientists. Such legal action may not be limited to climate — debate over Covid-19 also presents a target-rich environment for unwanted speech to silence. Watch this space.
Finally, let me offer some personal reflections on my experiences.
Form the start, my view was that this entire lawsuit was unnecessary and a waste of everyone’s time. People who I still would not recognize on the street said some mean things about Michael Mann on the internet. Welcome to public discourse in the 21st century. People say mean, false things about me on the internet every day — it goes with the many privileges of having outsized impact and voice. The case was never about the integrity of science or the political impact of right-wing trolls — it was always about Michael Mann.
As I stood in line with dozens of other people on Tuesday waiting to go through security to enter the courthouse, I wondered how we got here — how leading scientists and institutions of climate science became totally consumed with a battle against minor bloggers and political boogeymen.
When I entered the courtroom, I had a profound sense of sadness for Mann. He was alone with his lawyer — no family, no friends, no university officials, no adoring fans, no mainstream media. Totally alone. There were just a handful of observers in the room. As I said at the trial, Mann has not been the best colleague to me, but I am fine even so. Who knows what demons haunt him and why he behaves the way that he does. I do hope he can find peace at some point.
The larger issues here are not about Mann, but rather the continued failures within the climate science community to uphold fundamental norms of conduct among its own ranks. For instance, in the trial we learned that Penn State’s committee looking into Mann’s conduct following Climategate wanted to censure him for his behavior — apparently that was overturned upon the intervention of the Penn State president. There have been so many similar opportunities for leaders to take the off-ramp from escalated conflict and politicization, and the community instead chosen to further conflict.
Like I said, it is just sad. And it is not over yet.
Thanks for reading! It was an interesting week. I welcome your comments, questions, perspectives and opinions. In the comments, I want absolutely no insulting or denigrating of Mann — None, zero, nada. Any such comments will be immediately removed with no warning. THB strives to be a place where people can respectfully disagree and debate issues where we each may hold strong opinions. I want THB to model the sort of behavior that Mann and Steyn have not. Thanks for obliging. THB is reader supported. That means that this forum and my role in it are entirely made possible thanks to your support. So thank you for your engagement and your support!
Specifically, against defendant Rand Simberg Mann was awarded $1 in compensatory damages and $1,000 in punitive damages, and against defendant Mark Steyn, Mann was awarded $1 and $1,000,000 respectively. There may be appeals or further court action, so this lawsuit may continue.
I was not an expert witness. I was like the person standing on the corner who witnessed a car crash and who reports to the jury what I saw and experienced.
Some of the revelations during the case about Mann’s behavior are indeed shocking, especially his misogynistic attacks on Judy Curry. But apparently these attacks can be justified and excused, because she is, as Mann tells us, a climate denier.
The theory of damages was that Mann did not win certain NSF grants due to the blog posts impact on his reputation, and that he personally should now be awarded the total amounts of these grants. The jury clearly did not buy this argument.
For instance, Mann’s lawyer claimed that I lost my gig at 538 because President Obama’s science advisor, John Holdren, had criticized me. Well, no. I was hired at 538 after Holdren criticized me, so that was not the cause of why I was let go — in fact, Mann (along with the Center for American Progress) took credit for getting me booted. Details, I suppose.
There is a case to be made that Simberg actually won his case, suffering only $1,001 in damages, and that the big loser was Steyn. Further, a case can be made that had Steyn not represented himself, he too may have won in similar fashion. Perhaps.
Here that Mann shifts from defamation to whether statements made about climate science are true or false. This is legally questionable, but it clearly suggests opening the door to efforts to silence those who hold the “wrong” views.
Mann is absolutely rage-Tweeting today about me, McKittrick and especially McIntyre and Curry. Having a perfectly normal Saturday. I'm pretty sure there are laws against going after witnesses in a civil trial.
Caveat lector, indeed. From my perspective – that of a lawyer familiar with standards which are supposed to govern defamation claims – Mann’s verdict is not a “resounding victory” at all.
If the reports I read of the trial are accurate, Mann presented essentially no evidence of damages, without which a claim for defamation fails. This may be why the jury awarded him only $1 in compensatory damages.
The jury awarded $1,000,000 in punitive damages against Steyn, but under the U.S. Supreme Court’s BMW v. Gore decision, punitive damages are generally limited to a single-digit multiple of the compensatory damages awarded. With Mann having been awarded $1 in compensatory damages, the most he can recover in punitive damages against each defendant is nine bucks. Anything more violates the Due Process Clause of the 14th Amendment. As they say in the NFL, “this one is coming back.”
Climate change and climate science are “matters of public concern” and so the U.S. Supreme Court’s “actual malice” standard governs. As articulated in the Court’s New York Times v. Sullivan case, “actual malice” requires that to be found liable for defamation, a defendant must have made the statement at issue “with knowledge that it was false or with reckless disregard of whether it was false or not.” Mann failed to present any evidence that would allow a reasonable jury to find either of these preconditions to liability. Moreover judges (and ultimately the Supreme Court) have an independent obligation to review the evidence to determine whether this standard has been met. It wasn’t here.
In the rebuttal portion of his closing Mann’s counsel asserted (over the defendants’ objections) that the jury should award punitive damages to deter the defendants and others from “attacking science.” He argued that this punishment was analogous to that meted out to the January 6 arrestees to deter insurrection. This was totally (indeed, shockingly) improper. Attorney argument is properly limited to the issues and evidence presented at trial. A defamation trial is supposed to determine whether the individual plaintiff was subjected to reputational harm, not place general societal limits on discourse about a matter of public concern like climate change.
Indeed, the Court in Sullivan emphasized that “debate on public issues should be uninhibited, robust, and wide-open,” making the use of punitive damages to stifle debate on such an issue generally a non-starter. Mann’s post-verdict comments to the effect that he now intends to go after others he disagrees with on climate issues (e.g., NR and CEI) starkly illustrate the need for the trial judge, or the U.S. Supreme Court, to step in and vacate the judgment.
Depending on post-trial motions and what the trial judge does with them, the U.S. Supreme Court may have the opportunity to grant cert and reaffirm that the “actual malice” standard and other protective rules established by Sullivan and its progeny “mean what they say.” These precepts seem to have been largely ignored, or parsed into meaninglessness, by the courts in this case. After a period in which some members of the court flirted with the idea of abandoning Sullivan on grounds that it did not reflect the “original understanding” of the First Amendment, the Court last year signaled that Sullivan remains good law. Time for the trial court, or failing that the Supreme Court, to actually apply its requirements, which are fatal to Mann’s claims and the jury’s verdict.
Mann is absolutely rage-Tweeting today about me, McKittrick and especially McIntyre and Curry. Having a perfectly normal Saturday. I'm pretty sure there are laws against going after witnesses in a civil trial.
Caveat lector, indeed. From my perspective – that of a lawyer familiar with standards which are supposed to govern defamation claims – Mann’s verdict is not a “resounding victory” at all.
If the reports I read of the trial are accurate, Mann presented essentially no evidence of damages, without which a claim for defamation fails. This may be why the jury awarded him only $1 in compensatory damages.
The jury awarded $1,000,000 in punitive damages against Steyn, but under the U.S. Supreme Court’s BMW v. Gore decision, punitive damages are generally limited to a single-digit multiple of the compensatory damages awarded. With Mann having been awarded $1 in compensatory damages, the most he can recover in punitive damages against each defendant is nine bucks. Anything more violates the Due Process Clause of the 14th Amendment. As they say in the NFL, “this one is coming back.”
Climate change and climate science are “matters of public concern” and so the U.S. Supreme Court’s “actual malice” standard governs. As articulated in the Court’s New York Times v. Sullivan case, “actual malice” requires that to be found liable for defamation, a defendant must have made the statement at issue “with knowledge that it was false or with reckless disregard of whether it was false or not.” Mann failed to present any evidence that would allow a reasonable jury to find either of these preconditions to liability. Moreover judges (and ultimately the Supreme Court) have an independent obligation to review the evidence to determine whether this standard has been met. It wasn’t here.
In the rebuttal portion of his closing Mann’s counsel asserted (over the defendants’ objections) that the jury should award punitive damages to deter the defendants and others from “attacking science.” He argued that this punishment was analogous to that meted out to the January 6 arrestees to deter insurrection. This was totally (indeed, shockingly) improper. Attorney argument is properly limited to the issues and evidence presented at trial. A defamation trial is supposed to determine whether the individual plaintiff was subjected to reputational harm, not place general societal limits on discourse about a matter of public concern like climate change.
Indeed, the Court in Sullivan emphasized that “debate on public issues should be uninhibited, robust, and wide-open,” making the use of punitive damages to stifle debate on such an issue generally a non-starter. Mann’s post-verdict comments to the effect that he now intends to go after others he disagrees with on climate issues (e.g., NR and CEI) starkly illustrate the need for the trial judge, or the U.S. Supreme Court, to step in and vacate the judgment.
Depending on post-trial motions and what the trial judge does with them, the U.S. Supreme Court may have the opportunity to grant cert and reaffirm that the “actual malice” standard and other protective rules established by Sullivan and its progeny “mean what they say.” These precepts seem to have been largely ignored, or parsed into meaninglessness, by the courts in this case. After a period in which some members of the court flirted with the idea of abandoning Sullivan on grounds that it did not reflect the “original understanding” of the First Amendment, the Court last year signaled that Sullivan remains good law. Time for the trial court, or failing that the Supreme Court, to actually apply its requirements, which are fatal to Mann’s claims and the jury’s verdict.