In 2012—after writers for National Review and a prominent conservative think tank accused him of fraud and compared him to serial child molester Jerry Sandusky—climate scientist Michael Mann took the bold step of filing a defamation suit. The defendants moved to have the case thrown out, citing a Washington, DC, law that shields journalists from frivolous litigation. But on Wednesday, DC Superior Court Judge Frederick Weisberg rejected the motion, opening the way for a trial.
Although public figures like Mann have to clear a high bar to prove defamation, Weisberg argued that the scientist's complaint may pass the test. And he brushed aside the defendants' claims that the fraud allegations were "pure opinion," which is protected by the First Amendment:
Accusing a scientist of conducting his research fraudulently, manipulating his data to achieve a predetermined or political outcome, or purposefully distorting the scientific truth are factual allegations. They go to the heart of scientific integrity. They can be proven true or false. If false, they are defamatory. If made with actual malice, they are actionable.
Weisberg's order is just the latest in a string of setbacks that have left the climate change skeptics' case in disarray. Earlier this month, Steptoe & Johnson, the law firm representing National Review and its writer, Mark Steyn, withdrew as Steyn's counsel. According to two sources with inside knowledge, it also plans to drop National Review as a client.
The lawyers' withdrawal came shortly after Steyn—a prominent conservative pundit who regularly fills in as host of Rush Limbaugh's radio show—publicly attacked the former judge in the case, Natalia Combs Greene, accusing her of "stupidity" and "staggering" incompetence. Mann's attorney, John B. Williams, suspects this is no coincidence. "Any lawyer would be taken aback if their client said such things about the judge," he says. "That may well be why Steptoe withdrew."
Steyn's manager, Melissa Howes, acknowledged that his commentary "did not go over well."* But Steyn maintains it was his decision to part ways with his attorneys.
The lawsuit centers on Mann's famous "hockey stick" graph. In 1999, Mann and two colleagues charted 1,000 years worth of climate data, and found a steep uptick in global temperatures beginning in the 20th century. The graph, named for its iconic shape, became a potent, easy-to-grasp symbol of global warming. And it was featured prominently in the landmark 2001 report from the United Nations' Intergovernmental Panel on Climate Change, which concluded that "the increase in temperature in the 20th century is likely to have been the largest of any century during the past 1,000 years."
The chart also made Mann a target for climate change skeptics. This was especially true beginning in 2009, when more than 1,000 emails were stolen from Britain's University of East Anglia Climatic Research Unit (CRU), one of the world’s leading climate research institutions. In one message, CRU’s director, Phil Jones, famously described using Mann's "Nature trick" to "hide the decline." He was referring to a technique that Mann had used to control for variations in tree-ring data in a paper for the journal Nature. But Skeptics—among them the Competitive Enterprise Institute (CEI), a free-market think tank that has received funding from the Koch bothers and Exxon Mobil—seized on this revelation as evidence that scientists were conspiring to cover up a decline in global temperatures.
Soon, climate researchers found themselves under siege. Mann's inbox was flooded with death threats and messages calling him a "fraud," a "fucking terrorist," and a "one-world-government socialist.” As Mother Jones reported in 2011, "Images of Mann and other scientists were posted on neo-Nazi sites. The CRU's Jones temporarily stepped down from his post; he later said he contemplated suicide."
Pennsylvania State University, where Mann works, and at least six other institutions conducted separate investigations into the allegations of scientific misconduct. An independent probe commissioned by the University of East Anglia faulted the researchers for their bunker mentality, and found their responses "to reasonable requests for information were unhelpful and defensive." But none of the investigations turned up evidence of malfeasance or data manipulation. After completing its inquiry, the US Environmental Protection Agency posted a fact sheet on its website stating:
The CRU emails do not show either that the science is flawed or that the scientific process has been compromised. EPA carefully reviewed the CRU emails and found no indication of improper data manipulation or misrepresentation of results…Some people have "cherry-picked" a limited selection of CRU email statements to draw broad, unsubstantiated conclusions about the validity of all climate science.
Still, the emails remained a rallying cry for skeptics, some of whom turned their ire on Penn State, which allegedly declined to interview Mann's critics during its probe. In 2012, it came to light that Penn State officials had ignored or concealed evidence that former assistant football coach Jerry Sandusky was molesting children, including in the university's locker room. That July, CEI scholar Rand Simberg wrote a post for the organization's blog likening the situation to "another cover up," the "Michael Mann affair." Simberg also called Mann "the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data."
Several days later, CEI deleted the passage, which it admitted was "inappropriate." But Steyn, a regular National Review contributor, quoted it on the magazine's blog. He added:
Not sure I'd have extended that metaphor all the way into the locker-room showers with quite the zeal Mr. Simberg does, but he has a point. Michael Mann was the man behind the fraudulent climate-change "hockey-stick" graph.
Mann's attorney fired off letters to CEI and the National Review, calling the fraud allegations "defamatory" and demanding apologies and full retractions. National Review Editor Richard Lowry responded with another post, which dismissed the defamation claims as "transparent nonsense." "In common polemical usage, 'fraudulent' doesn’t mean honest-to-goodness criminal fraud," he wrote. "It means intellectually bogus." At that point, Mann filed his defamation suit against CEI, Simberg, National Review, and Steyn. In July 2013, Judge Combs Greene of the DC Superior Court rejected the defendants' motion to dismiss. The defendants appealed the decision. But that December, the appeals court, which was concerned that Mann had filed an amended complaint shortly before Combs Greene's ruling, sent it back to the Superior Court for further review. Judge Weissman took on the case, following Combs Greene's retirement.
Finally, on Christmas Eve, Steyn published his blog post, railing against Combs Greene and her ruling, which contained typographical errors and mixed up the defendants:
Among her many staggering incompetences, DC Superior Court judge Natalia Combs-Greene…denied NR's motion to dismiss the fraudulent complaint while simultaneously permitting Mann’s lawyers to file an amended complaint.
The appellate judges have now tossed out anything relating to Mann's original fraudulent complaint, including Judge Combs-Greene's unbelievably careless ruling in which the obtuse jurist managed to confuse the defendants, and her subsequent ruling in which she chose to double-down on her own stupidity. Anything with Combs-Greene's name on it has now been flushed down the toilet of history.
When asked about these comments, Steyn made no apologies. "I spent the first months attempting to conceal my contempt for Judge Combs Greene's court," he said in an email to Mother Jones. "But really, it's not worth the effort." Wednesday's ruling affirms the thrust of Combs Greene's order, however. It also concludes that "a reasonable jury" may "find the statement that Dr. Mann 'molested and tortured data' was false, and published with knowledge of its falsity or reckless disregard for whether it was false or not."
Steyn, meanwhile, appears to be paying a price for his brazenness. He still has no legal representation. ("My check from the Koch brothers seems to have been lost in the mail or intercepted by the NSA," he wrote. "So for the moment I am representing myself.") And since his Christmas Eve diatribe, the conservative pundit—who had been writing near-daily posts for National Review Online—hasn't written a single item. Neither he nor the magazine's publisher, Jack Fowler, would say why. But Steyn hinted at the reasons in a post on his website: "As readers may have deduced from my absence at National Review Online and my termination of our joint representation, there have been a few differences between me and the rest of the team."
As for Mann, he welcomes the recent ruling. "I'm pleased that the judge has reaffirmed the merit of our case and has allowed it to now move on to the discovery phase," he told Mother Jones. Beyond that, he declined to comment, but he has written about his reasons for coming out aggressively in his own defense. "As the staid scientific journal Nature put it, climate researchers are in a street fight with those who seek to discredit the accepted scientific evidence, and we must fight back against the disinformation that denies this real and present danger to the planet," he explained on the liberal blog ThinkProgress. "The worst thing we can do is bury our heads in the sand and pretend that climate change doesn’t exist."
Correction: A previous version of this story mistakenly stated that Howes had said Steyn's commentary did not go over well with the judge. We regret the error. Go back.