The debunking of formerly oracular Global Warmer and proto-Gorite Michael Mann should have been a routine matter, conspicuous only for the skill and originality of the polemicist involved—I mean Mark Steyn, of course. To review: Rand Simberg at the Competitive Enterprise Institute published a blog post in which he made the amusing suggestion that Mann
could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.
Steyn, a friend of mine for many years, cited Simberg’s piece in a post for National Review Online and added a shower of causticities of his own:
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, the very ringmaster of the tree-ring circus. And, when the East Anglia emails came out, Penn State felt obliged to “investigate” Professor Mann.…
If an institution is prepared to cover up systemic statutory rape of minors, what won’t it cover up? Whether or not he’s “the Jerry Sandusky of climate change”, he remains the Michael Mann of climate change, in part because his “investigation” by a deeply corrupt administration was a joke.
Neither Simberg nor Steyn was accusing Mann of any crime—the reference to Sandusky was a joke prompted by the fact that Sandusky and Mann were employed by the same university. Yet Mann took the unusual step of suing Steyn, National Review, and CEI for libel. Since New York Times Co. v. Sullivan was decided in 1964, public figures seeking to win defamation suits have been required to prove defendants acted with “actual malice”—intent to defame or reckless disregard for the truth. If the Supreme Court did not believe in 1988 that Larry Flint’s parody interview of Jerry Falwell, in which the late evangelist confessed to losing his virginity to his own mother in an outhouse, constituted libel, it is hard to imagine that Mann thinks he can do anything more than intimidate Steyn and Simberg with court filings and legal fees.
But what has made this case a cause célèbre is not just the prominence of the protagonists, particularly Mark. The bench-clearing brawl that has ensued in the media between partisans on either side, and the antics of the first members of the judiciary who have opined, have all raised the stakes. But the real ante-upper has been Steyn himself, who has, quite rightly, taken this ludicrous defamation suit for what it is: a referendum on American justice and the state of free expression in this country.
Steyn has already written a bestselling book bewailing America’s decline into moral and fiscal bankruptcy. For so powerful a writer and indomitable an exponent of heartfelt views, the Mann affair could scarcely fail to escalate into something more than an exposé of the crooked timber of Mann’s hockey stick.
Mann became one of the stars of the global warming movement by advocating this so-called “hockey stick” graph, which claims that the world’s average temperature remained more or less flat over the past thousand years until it suddenly shot upward around 1900—like a hockey stick laid on the ground, the blade shooting up from the shaft. It was a simple image that caught on, but the reliability of the data on which it is based has been called into question by many in the scientific community, including proponents of anthropogenic climate change such as Hans von Storch of the University of Hamburg, who has called the stick model quatsch, or “nonsense.”
In the fifteen years since Mann stepped onto the rink with his stick in hand, data suggests that there has been no change in world temperature. Over the last seventy years, temperatures have risen by about one degree centigrade. But the alarmists, who have embarrassed themselves with their “end is nigh” scenarios, are unrepentant. Unsurprisingly a great deal of scorn has been heaped upon the whole global warming fraternity (and I for one have not entirely succeeded in resisting the temptation to join in the fun). But these jabs are generally endured as fair comment, especially in the United States. Mann’s lawsuit, then, is (to continue the sports analogy) something of a last stand by a group of struggling players at the crease in front of their goalie.
Steyn has mocked, as well he might, Mann’s unctuous swaddling of himself in his supposed status as a “Nobel Prize recipient.” This is adding more than a cubit to his earned stature, as the 2007 prize in question was shared by the Intergovernmental Panel on Climate Change, and Mann is one among the many who have furnished this body with learned papers. One intrepid National Review correspondent called the Nobel Committee and was told emphatically that it would be incorrect to call Mann a laureate—that the IPCC won the Nobel as an organization. Mark Steyn pointed out that he could make a similar claim to Mann’s: Steyn’s mother is Belgian, Belgium is in the European Union, and the EU also won a Nobel Prize for Peace.
But anyone who thinks that facts and the First Amendment trump all here is unfamiliar with the American legal system. Because the defendants’ blogs are disseminated widely over the Internet, Mann was able to shop for a friendly jurisdiction. He launched his suit, unsurprisingly, in the District of Columbia, 90 percent of whose population votes Democratic, where jurors and judges are likely to be unsympathetic to conservatives (as the outrages against Scooter Libby and Ted Stevens demonstrated).
Steyn and National Review have moved to dismiss the case under anti-SLAPP (Strategic Lawsuit Against Public Participation) statues intended to spare innocent defendants the substantial costs of discovery and other legal expenses. This is a standard response to frivolous and vexatious litigation. But the initial judge, Natalia Combs-Greene, rejected the
anti-SLAPP action, allowing the lawsuit to proceed. Her reasoning can only be described as tortuous: According to her, the defendants uttered statements that could be considered defamatory—specifically, they implied that Mann had engaged in fraud or other disreputable conduct. (As NR editor Rich Lowry wrote when Mann threatened to file suit, “In common polemical usage, ‘fraudulent’ doesn’t mean honest-to-goodness criminal fraud. It means intellectually bogus and wrong. I consider Mann’s prospective lawsuit fraudulent. Uh-oh. I guess he now has another reason to sue us.”) The judge acknowledged that there was “slight” evidence of actual malice but said that it would be sufficient to “demonstrate some malice or the knowledge that the statements were false or made with reckless disregard as to whether the statements were false.”
At this point, Steyn took the tompions out of his heavy-gage guns and bombarded the serried ranks of be-robed sacred cows on the American bench. Apart from appealing the decision (unsuccessfully), he impugned the judge’s intelligence and pointed out factual errors in her judgment. It was a refreshingly robust response, doubly refreshing because of the free lunch the entire American judiciary has long enjoyed in the media and public opinion. While the president and Congress have been rightly chastised for their incompetence, and at times, their venality, the bench has soldiered unassailably on for decades, tacitly assumed by almost everyone to be condign and virtuous.
In fact, as is becoming notorious, American justice is in a shocking condition. Too many judges in the U.S. are elected; too many are ex-prosecutors; the battle over capital punishment has taken all the air out of the room in which the infamous severity of American sentences and the unspeakable lopsidedness of prosecutorial success should be debated. This is a country that inspired the world with a vision of freedom and democracy (though Great Britain, Switzerland, much of the Netherlands, and Scandinavia were just as democratic at the time of the American Revolution). Yet the entire legal apparatus has sat like a gigantic suet pudding and the Supreme Court, in between its four-month vacations, has drunk the Kool-Aid of its own bathwater. The Fifth, Sixth, and Eighth Amendment guaranties of due process, just compensation for seizure of property, grand jury deliberations as assurance against capricious prosecution, prompt justice, access to counsel (of choice), impartial jury, and reasonable bail have been put to the shredder. The United States has six to twelve times the number of incarcerated people per capita as Australia, Canada, France, Germany, Japan, and the United Kingdom, the nearest comparable countries. Even after removing from the totals all those with unstigmatizing records irrelevant to their hireability today (DUI or disorderly conduct decades ago, for example), about 15 percent of adult males are felons.
Prosecutors win 99.5 percent of their cases, 97 percent of them without trial, because of the plea bargain system, which has often been reduced to a sleazy extortion or subornation of confected and rehearsed inculpatory testimony in exchange for immunities, including from the perjury sponsored and approved by the prosecutors. This is far from what was intended by the authors of the Bill of Rights and the original propagators of the tenuous theory that American independence was a new order of the ages and the dawn of government of, by, and for the people, vested with inalienable rights, according to self-evident truths.
Beyond all that, the American legal profession is a suffocating cartel that saps 10 percent of American GDP and through its members in legislatures and regulatory authorities adds 4,000 statutes and regulations a year to the law books, steadily tightening its strangulation of American life, all and always in the name of a society of laws and the ever more equitable refinement of civilization. It would have been impossible and unreasonable to anticipate that so perceptive and spontaneous and fearless an observer as Steyn would not steadily broaden his range of fire, as he has. At one point Steyn began filing motions on his own behalf—the best written court documents you may ever read—that drip with disdain for the judicial process. He quotes Lady MacBeth and describes various pieces of the case using phrases such as “multi-car pileup,” “zombie-like,” “Potemkin hearing” and “meretricious folderol.” It would have been equally unreasonable not to foresee that the authorities upon whom his withering fire descended would not resent this deserved if unaccustomed hostility, and whatever one may think of Mann, he cannot be faulted tactically for trying to tuck himself under the wing of an affronted legal establishment. That does not justify Mann’s infliction of the hockey stick upon the world (like the great Montreal Canadiens point-man Bernard “Boom Boom” Geoffrion lowering—with considerable but probably not sufficient provocation—the real article onto the cranium of a New York Ranger forward sixty years ago) any more than it whitewashes Mann’s own insults. He has dismissed the immensely respected Danish scientist and intellectual Bjorn Lomborg as “a career fossil fuel industry apologist”; Judith Curry, co-editor of the Encyclopedia of Atmospheric Sciences and an honored member of the National Research Council’s climate research committee, as a “serial climate disinformer”; Australian journalist Andrew Bolt as a “villainous” threat to the planet who is paid by Rupert Murdoch “to lie to the public” (Mann apologized for this one after Bolt—in solidarity with Steyn—threatened a lawsuit); and the rest of us as mere “climate change deniers.”
All of this has fed the appetite of the Left and caused the Guardian, the default home for misinformation in the English-speaking world, the middle-brow tribune of antiquarian British leftist bigotry—for which Michael Mann frequently writes and which makes the New York Times seem like an ideological soulmate of The American Spectator—to declare that the costs of the legal tangle and a potential judgment could bring down National Review itself. The narrative metastasized, and soon misinformed web writers were penning such headlines as “Is National Review doomed?” and “A defamation lawsuit may kill National Review.”
It will not. National Review has libel insurance, and Mann can’t win. He is notoriously reticent about releasing his data and cannot possibly hope to withstand intensive cross-examination under oath in the free-wheeling manner typical of American civil procedure to prove sufficiently that malice was the motive of the defendants or that his professional stature has been unfairly impugned. Further, as has now been widely recognized, the implications for free speech of a Mann victory would be extremely grievous. In the London Spectator, James Delingpole has written that he had initially wished Mann had sued him instead, but that things have become more serious:
In the bigger (than American legal technicalities) argument about empiricism, free speech and the scientific method, (Mann) doesn’t have a leg to stand on. Steyn…is laying his neck on the line not solely because he is a show-off (which he isn’t) and an awkward sod (some might think so), but for the greater cause of Western civilization.
This is a civilization that Delingpole elsewhere in the same piece describes as “cowardly, sniveling, career-safe, intellectually feeble, (and) morally compromised.” (Doubtless, if it could be sufficiently particularized, civilization and the current age would sue him for libel, and D.C. judges probably would waive that case through to trial also.)
The law may be tattered, degraded, compromised by the avarice of the American lawyer; the detached exaltedness and frequent bigotry and philistinism of the American bench; and the preening, reckless, megalomania of Richard Posners and Leo Strines (judges of the Seventh Circuit and Delaware Supreme Court). But the judiciary cannot ultimately sustain Mann’s absurd claim. It may choose to hear and try the case, but victory for Mann would, as Robert Tracinski wrote at Real Clear Politics, immunize from unfavorable comment anyone who could lay claim to high “intellect and reasoning.” If the United States ever enthrones such a totalitarian principle (Tracinski compared Mann to Trofim Lysenko, Stalin’s crackpot geneticist whose theories were entrenched as Soviet dogma), then it will no longer enjoy freedom of expression. It will not be America and will have sailed into a world undreamt of in the most vivid nightmares of Orwell, Kafka, and Koestler. Only an imbecile could look with satisfaction on the contemporary state of public life in America, but it remains a democratic country that cherishes the freedom it has fought for centuries to enjoy and protect, and has sacrificed greatly to extend to other parts of the world. Such a sacred and fundamental canon of American civilization will not be thrown in the gutter to protect a mediocre academic opportunist, especially one who cannot face courts that will take a fine-toothed comb to his research (this has happened in British Columbia), one who is simply trying to use the labyrinthine, jejune American legal system to defer criticism of his infamous piece of athletic equipment.
When the dust settles, the failure of Mann’s thrashing swipes will only make Mark Steyn loom even larger as a free-speech crusader. Recall the circumstances of his struggle with the human rights apparatus of Canada, which attempted to enforce a Pleasantville ban on any group disparagement. In 2007 his commentary was the subject of human rights litigation by Muslim groups in three Canadian jurisdictions. He prevailed after a bruising battle. One of the commissioners disclaimed jurisdiction but criticized Steyn anyway, accusing him of an “Islamophobic portrayal of Muslims,” which Steyn rightly denounced as a verdict without a hearing by a person proclaiming his own incapacity to judge. Eventually, the senior human rights commission in Canada dismissed the complaint and found that Steyn’s writing was “polemical, colorful, and emphatic, and was obviously calculated to excite discussion and even offend certain readers,” but “when considered as a whole and in context was not of an extreme nature.” It was a satisfactory outcome, and Steyn clipped the wings of the human rights censors. But the verdict came only after an intense and vituperative battle of fourteen months. At the end of it all, Steyn wrote that “the broad mass of Canadian media seems generally indifferent to a power grab that explicitly threatens to reduce them to a maple-flavored variant of Pravda.”
Mark Steyn has displayed in the Mann case similar courage and principle, fighting a battle for freedom of expression in keeping with the greatest traditions of the West and of all democratic countries. He must succeed as he soldiers on against the evils of oppression slouching in the dark corners of the tenebrous American legal system. Many of his seeming friends have slunk out the back door into the tall grass, as they always do, especially when the law gets involved. (I have some experience of this.) He is paying counsel himself, even doing his own legal work where he can. Yet he remains jaunty. If not a Happy Warrior, he is at least a stoically determined one.
As well he should be. Mark Steyn, National Review, and CEI must win.