Graph from the court pleadings

Last Thursday, in a case filed in 2012 in the Superior Court of the District of Columbia, a jury found that Rand Simberg and Mark Steyn defamed Michael Mann, awarding Mann $1 in compensatory damages from each and punitive damages of $1,000 from Simberg and $1 Million from Steyn.

Let us be clear, we have great respect for the jury system in the United States, as a key component of our democracy and our freedom, and we have even more respect for jurors who are average citizens who actively participate in deciding the outcome of legal disputes; so, we are confident this six person jury got it right. But, ..

Michael Mann is a well known climate scientist whose research in studying the “paleoclimate,” or ancient climate, has featured prominently in the politically charged debate about climate change. Professor Mann filed an action for defamation and intentional infliction of emotional distress against Rand Simberg then an adjunct scholar at the Competitive Enterprise Institute, and Mark Steyn, a contributor to the National Review, Inc., who referred to an article by Simberg article in his article. Mann’s complaint claimed that the articles criticized his conclusions about global warming from tree rings (i.e., warming conditions result in wider rings), and accused him of deception and academic and scientific misconduct contained false statements that injured his reputation and standing in the scientific and academic communities. The Competitive Enterprise Institute and National Review were dismissed from the lawsuit, but with this verdict, it is expected those dismissals will now be appealed.

By way of background, in 1998 and 1999, Mann coauthored two scientific papers about global warming. The 1999 paper included a graph depicting global temperatures in the Northern Hemisphere for a millennium, from approximately 1050 through 2000. The graphical pattern is roughly horizontal for 90% of the temperature axis, reflecting a slight, long term cooling period between 1050 and 1900, followed by a sharp increase in temperature in the twentieth century. Because of its shape resembling the long shaft and shorter diagonal blade of a hockey stick, this graph became known as the “hockey stick.” 

The hockey stick graph (.. as it appears in the court pleading is reproduced here) became the foundation for the conclusion that the sharp increase in temperature starting in the twentieth century was anthropogenic or caused by concentrations of CO2 in the atmosphere generated by human activity initiated by the industrial age. The hockey stick graph also became a rallying point, and a target, in the subsequent debate over the existence and cause of global warming and what, if anything, should and could be done about it.

We will not reprint Simberg and Steyn’s offensive words here, they were offensive .. when the articles compared Mann, then a professor at Penn State to convicted sex offender Jerry Sandusky, former assistant football coach at Penn State. But, ..

Some legal commentators suggest that Mann lost any moral high ground when throughout the case his attorneys characterized Simberg and Steyn as “climate deniers,” as if having opinions about the science of reporting temperatures a thousand years ago from tree rings, different from Mann was somehow a crime of moral turpitude. And then in his closing argument, Mann’s attorney John Williams compared the climate deniers in this case to election deniers, “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?” 

Scientists attempting to silence those who disagree with their science is wrong (.. Mann sued at least one other climatologist, in 2011 when he sued scientist Tim Ball in a Canadian Court that dismissed the case after a protracted delay), as we now see in hindsight after some of the scientist oracles of the coronavirus pandemic appear wrong today.   

At a time when a recent Pew Research Center poll found just 13% of Americans have a great deal of confidence in scientists, this case will do far more harm than good. This is not the way modern science should be done by scientists. Attempting to suppress free speech about coronavirus or climate change is not consistent with the principles of the scientific method and is not a place that courts of law should go.

This case was about defamation and the jury was correct that Simberg and Steyn said offensive things about Mann analogizing his situation to that of a sex offender, defaming him. This court or a higher court may yet reduce the very large punitive damage award if not only because, as Steyn who has acted as his own counsel points out, questioning Mann’s injured reputation and standing, he has moved on from Penn State to be the Presidential Distinguished Professor of Earth & Environmental Science at the more highly regarded University of Pennsylvania.  

Unfortunately, this decade plus long case (.. that is not over because appeals are all but certain) will offer little if any precedent in defamation law but will be cited for years to come as stare decisis for using the courts to suppress a debate about scientists.  


Join us for a live webinar “Remove Slavery From Your Supply Chain” 30 talking points in 30 minutes, Tuesday, March 19 at 9 am ET presented by Stuart Kaplow on behalf of ESG Legal Solutions, LLC. The webinar is complimentary, but you must register here.