Climate Change Versus Free Speech

If you dare to challenge the scientific establishment generally, and its global warming adherents specifically, you better have deep pockets and plenty of time on your hands. That is the takeaway of the last 15 months, and soon to be more, of Mark Steyn’s life -- one of the recent victims of the Left's war on speech whose case has arguably been the least-covered but most deserving of your attention.

For those unfamiliar, Steyn, author and contributor for the "National Review," along with Rand Simberg of the Competitive Enterprise Institute are embroiled in a defamation lawsuit with noted climate scientist Michael Mann. Mann is the famous originator of the so-called “Hockey Stick Graph” climate model.

Michael Mann (R) is suing Mark Steyn (L) for defamation. (Credit: Michelle Siu/National Post//Pennsylvania State University)

Dr. Mann filed suit against Steyn, Simberg and the "National Review" on Oct. 22, 2012. In his complaint he leveled varying libel charges against each of the defendants. Herein I focus on the allegations against Steyn in particular since his prospective hockey stick beheading as sacrifice to the scientific gods upon the altar of global warming is the most well-chronicled, and based on the least compelling evidence against the two individuals in the case.

Steyn has incurred literally hundreds of thousands of dollars in legal fees over the last 15 months defending himself against the following charge from Dr. Mann [emphasis and hyperlinks added]:

“Mr. Steyn's statement, published by NRI on National Review Online, that Dr. Mann "was the man behind the fraudulent climate-change 'hockey-stick' graph, the very ringmaster of the tree-ring circus" is defamatory per se and tends to injure Dr. Mann in his profession because it falsely imputes to Dr. Mann academic corruption, fraud and deceit as well as the commission of a criminal offense, in a manner injurious to the reputation and esteem of Dr. Mann professionally, locally, nationally, and globally…In making the defamatory statement, NRI and Steyn acted intentionally, maliciously, willfully, and with the intent to injure Dr. Mann, or to benefit NRI and Steyn. Accordingly, NRI and Steyn are liable to Dr. Mann for punitive damages in an amount in accordance with proof at trial.”

Got that? Make fun of a climate scientist and be prepared to lawyer up.

Now before we proceed, we need not get into the science of global warming or climate change or whatever it's being called this week, “Climategate” or Rand Simberg’s comments comparing Michael Mann to a fellow former Penn State employee Jerry Sandusky for “molested and tortured data.” Nor do we need to discuss the fact that Dr. Mann’s initial complaint had to be amended, reflecting the fact that while he originally declared himself in a legal document (and on Twitter per the below) as a Nobel laureate, he actually was not (speaking of misrepresentation).

And I do not intend to debate the merits of the case, however weak from a non-legalistic perspective I think Mann’s position may be, given that the couple of phrases that offended Mann look mild compared to the typical invectives hurled at people who stake out what Mann himself pejoratively calls the “climate denier” position; and however hard it is to believe that Mann has suffered at all, given that as he has argued as recently as two weeks ago in a "New York Times" article “the overwhelming consensus among climate scientists is that human-caused climate change is happening.”

While all of these topics are ripe for discussion, and I urge you to research them yourselves, what really matters is the fact that Steyn, Simberg and the "National Review" were forced to defend themselves in a court of law in the first place.

[sharequote align="center"]In...speech cases, "the process is the punishment"[/sharequote]

For as Steyn himself puts it, in such speech cases “the process is the punishment.” And the way this case has played out, the punishment is already disproportionate, despite there being almost no progress in the case whatsoever.

Had the case been dismissed immediately, I would not be writing this article. But to understand the nightmare of Steyn et al, it took 14 months of litigation just to get right back to square one. How could this happen?

Well after months of deliberations over the initial appeals by Steyn and his co-defendants who sought to have Mann’s case dismissed under Washington D.C.’s aptly-titled Anti-SLAAP law (Strategic Lawsuits Against Public Participation), ultimately the original judge dismissed their appeals on July 19, 2013 (loss number one), but due to what can charitably described as judicial malfeasance, had to be replaced by another judge (loss number one and a half) on Sept. 30, 2013.

On Dec. 19 2013, a Washington D.C. Appeals Court ruled that all appeals relating to Dr. Mann’s original complaint were deemed moot (loss number two).

In other words, a case originating in October 2012 was getting a do-over just in time to raise the champagne glasses...for New Year’s Eve 2014.

As if it weren’t bad enough that the defendants were forced to accrue massive legal fees while no progress in the case was actually made, the next figurative slap in the face to Steyn et al came in the fact that anti-SLAAP laws were apparently ineffective in protecting their First Amendment rights, as Steyn and his co-defendants had their renewed appeals dismissedwithout a hearing on Jan. 22, 2014.

All of this is a way of saying that if you write a blog post calling a scientist, let alone a climate scientist a fraud, you better retract that statement or your life will become a living hell.

[sharequote align="center"]Steyn and his co-defendants, and society as a whole have already effectively lost.[/sharequote]

Steyn’s case is a quintessential example of the chilling of free speech, on a subject the importance of which is absolutely crucial given the billions of dollars in pending redistributed wealth and economic activity blocked by regulation all based on climate science. Regarding the big chill, Steyn wrote in a recent post [emphasis added]:

“by far the biggest consequence of this ridiculous case is in these [National Review's] pages. If you are only a print subscriber (as opposed to an Internet reader), you will have no idea that NATIONAL REVIEW is in the midst of a big free-speech battle on one of the critical public-policy issues of our time. There have been no cover stories, no investigative journalism, no eviscerating editorials. NR runs specialized blogs on both legal matters and climate change, yet they too have been all but entirely silent. I assume, from this lonely outpost on NR's wilder shores, that back at head office they take the view that it's best not to say anything while this matter works its way through the courts. In other words, a law explicitly intended to prevent litigious bullies from forcing their victims to withdraw from "public participation" has resulted in the defendants themselves voluntarily withdrawing from "public participation" . That's nuts.

And for however much the sticks and stones thrown at Mann may have harmed him, one would be hard-pressed to argue that the punishment of sitting through over a year of litigation that went nowhere, replete with thousands of hours wasted and hundreds of thousands of dollars sunk is far worse. For without a remedy like “English rule” in which the loser pays, why would anyone ever challenge a scientist again?

Steyn and his co-defendants, and society as a whole have already effectively lost.

If the case proceeds, life will merely get worse, as the defendants could be subject to discovery, or in other words a full cavity search of every piece of communication generated over a court-mandated period of time. For those unfamiliar, I have seen what a robust discovery consists of in a bankruptcy case: It is time-consuming, invasive and likely embarrassing (that off-color joke you emailed around the office or that hilarious cat meme you texted to your friend could now enter the public domain). And if you’re an individual like Mark Steyn, the price of defending yourself in such a legal process could literally bankrupt you.

Thus, regardless of the outcome of this lawsuit, all who have the temerity to claim that the Earth is not getting hotter, or colder, or weather getting more random, or whatever the new consensus may be, must now feel a deep polar vortex-like legal chill down their collective spines. Who would ever criticize, let alone belittle any scientist or academic knowing that you could go 14 months in court without actually making any progress in clearing your name.

Sadly, as Steyn notes:

“were Dr. Mann to prevail, it would nevertheless be the case that his peculiarly thin skin and insecurities would enjoy greater protection under U.S. law than they do in Britain, Canada, Australia, and other jurisdictions. It would thus be a major setback for the First Amendment.”

Further:

"Free speech is about the right to thrash out ideas — on climate change, gay marriage, or anything else — in the public square, in bright sunlight. And you win a free-speech case by shining that sunlight on it, relentlessly. As we embark on our second year in the hell of the D.C. court system, that’s what I intend to do."

All people that cherish and value their freedom should stand behind the Canadian Mr. Steyn who dared speak up for American “climate deniers,” and is now representing himself in the case, having parted ways with his prior joint legal representation with National Review. The loss of free speech in civil society seems to me to pose a substantially greater risk to our livelihood than whatever may or may not be going on in our atmosphere. But don’t worry, I won’t sue you if you disagree with me…well, unless you call me a fraud.

**[Disclaimer: I am NOT a lawyer. Any technical aspects of the case are simplified, and based purely on my reading of the documents of the case at hand.]

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