Barbs at Global Warming Thinker May Be Libelous

     (CN) - A climatologist can advance claims that the National Review defamed him by likening him to convicted child molester Jerry Sandusky and accusing him of academic fraud, a judge ruled.
     Michael Mann is a meteorology professor at Penn State University, which was rocked by Sandusky's sex abuse scandal in late 2011. In addition to running the university's Earth System Science Center, Mann co-wrote the "Hockey Stick Graph," a purported long-term analysis of global climate trends using indicators such as tree rings.
     Questions over Mann's work arose in 2010 when emails between Mann and climate scientists at the University of East Anglia surfaced.
     In one email from East Anglia, a researcher said: "I've just completed Mike's Nature trick of adding in the real temps to each series for the past 20 years (i.e. from 1981 onwards) (and) from 1961 for Keith's to hide the decline."
     In addition to an investigation by Penn State, Mann faced queries from the U.S. Environmental Protection Agency and the National Science Foundation.
     Mann said the EPA's investigation stemmed from "constant pressure" from the National Review. It found "no evidence of scientific misconduct," he added.
     The National Review meanwhile told the court that the National Science Foundation faulted Penn State for not interviewing Mann's critics. The foundation purportedly concluded that "Penn State did not adequately review the allegation in its inquiry."
     National Review reporter Mark Steyn brought the allegations to a head in July 2012, days after the school released an FBI report that faulted Penn State's failure "to properly investigate known allegations of misconduct when they arose."
     Steyn's blog post for the National Review, titled "Football and Hockey," made reference to another blog post that called Mann "the Jerry Sandusky of climate science, except for 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."
     As for Mann's climate-change hockey graph, Steyn called it "fraudulent" and "the very ringmaster of the tree-ring circus."
     Mann demanded a retraction and apology for the allegation of academic fraud.
     The National Review declined, with editor Rich Lowry saying that Steyn had merely called Mann's work "bogus" without accusing him of "criminal fraud."
     Mann sued the National Review and Steyn for libel and intentional infliction of emotional distress. Mann also sued Competitive Research Institute and its writer Rand Simberg, who made the original Sandusky comparison in his article, "The Other Scandal in Unhappy Valley" for the institute's website Openmarket.org.
     The National Review and Steyn tried to block the suit in D.C. Superior Court under the district's Anti-SLAPP (strategic lawsuit against public participation) Act, claiming that its article represent opinion protected by the First Amendment.
     Judge Natalia Greene concluded Friday, however, that it not clear that the so-called NR defendants were giving an opinion in discussing Mann's "hockey-stick deceptions."
     In addition to finding that the statement does not "simply invite readers to 'ask questions," Greene highlighted one accusation as relying "on the interpretation of the facts (the emails)."
     "Considering the numerous articles that characterize plaintiff's work as fraudulent, combined with the assertions of fraud and data manipulation, the NR defendants have essentially made conclusions based on facts," Greene wrote. "Further, the assertions of fraud 'rely upon facts that are provably false' particularly in light of the fact that plaintiff has been investigated by several bodies (including the EPA) and determined that plaintiff's research and conclusions are sound and not based on misleading information.
     Greene also slammed the reporters for trying to minimize the harm in calling Mann's work "bogus."
     "In plaintiff's line of work, such an accusation is serious," she wrote. "To call his work a sham or to question his intellect and reasoning is tantamount to an accusation of fraud (taken in the context and knowing that plaintiff's work has been investigated and substantiated on numerous occasions). The court must, at this stage, find the evidence indicates that the NR defendants' statements are not pure opinion but statements based on provably false facts." (Parentheses in original.)
     The court likewise refused to protect the statements at this stage as rhetorical hyperbole or under the fair comment privilege.
     Though the evidence here does not prove actual malice, Mann has made enough of a showing that further discovery could produce such evidence, the court found.
     "The record demonstrates that the NR defendants have criticized the plaintiff harshly for years; some might say, the name calling, accusations and jeering have amounted to a witch hunt, particularly because the NR defendants appear to take any opportunity to question plaintiff's integrity and the accuracy of his work despite the numerous findings that plaintiff's work is sound," Greene wrote.
     Greene set a Sept. 27 status hearing for the case.