Right-wing bloggers set to appeal $1 million verdict in climate scientist defamation case

WASHINGTON (CN) — Two right-wing bloggers plan to appeal a $1 million verdict in a 12-year defamation case that concluded last Thursday at the D.C. Superior Court.

A Washington jury found the writers, Rand Simberg and Mark Steyn, defamed climate scientist Michael Mann in a pair of 2012 articles accusing him of manipulating data in his famed “hockey stick” graph showing global temperatures spiking dramatically over the last century. 

Simberg, writing for the Competitive Enterprise Institute, compared Mann to convicted serial child molester and former Pennsylvania State University football coach Jerry Sandusky, saying the researcher had “molested and tortured data” of global warming. Steyn quoted Simberg’s article in a piece for the National Review and called Mann’s research “fraudulent.” 

The jury awarded Mann $1,000 from Simberg and $1 million from Steyn in punitive damages, and granted $1 in compensatory damages from each writer.

Simberg was found liable for his statements comparing Mann to Sandusky, but the jury cleared him for those criticizing Mann’s research. 

Mann, who directs the Center for Science, Sustainability & the Media at the University of Pennsylvania, sued both men and their publishers initially. But in 2021, a judge dismissed the claims against the outlets, finding they couldn't be held liable for what Simberg and Steyn wrote. 

Christopher Bartolomucci, Steyn’s attorney of firm Schaerr Jaffe, told Courthouse News his client intends to file a motion for judgement as a matter of law and will consider filing appeal. Steyn has until March 8 to file the motion, Bartolomucci said. 

Simberg plans to appeal the jury’s verdict, his attorney Mark DeLaquil of Baker Hostetler said Tuesday.

“We think this is a very important case for First Amendment freedoms, and even though the verdict was only for $1,001 and we prevailed on half of the statements, the underlying principles in this case merit pursuing an appeal,” DeLaquil said in an interview.

DeLaquil said he thought Mann had failed to show any meaningful evidence Simberg had acted with actual malice and claimed his client was punished for critiquing Mann’s findings. 

Under the actual malice legal standard a plaintiff must prove that a defendant knew their statement was false or demonstrated reckless disregard to the veracity of their statements by relying on unreliable sources or publishing with an ulterior motive.

Created by the Supreme Court in the landmark New York Times v. Sullivan, the requirement is intended to protect public debate — even when it includes “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials,” as former Justice William Brennan wrote in the 1964 opinion. 

DeLaquil seized on that impetus in defending his client's writing.

"We’re in a lot of trouble if people can be held liable just because they disagree with a government report,” he said, referring to Mann’s research being included in a 2001 UN climate panel report. 

Mann determined that global temperatures had been consistent over the last 2,000 years, dipping slightly between 1050 and 1900, then sharply rose over the last century. He based his determination for years without recorded temperatures on the growth rings of ancient trees and corals, ice cores from glaciers and cave sediment cores. 

His research was also included in Al Gore’s 2006 Oscar-winning climate change documentary, “An Inconvenient Truth.” 

Following the leak of Man and other scientists’ emails in a 2009 incident known as “Climategate,” where climate deniers first claimed Mann had manipulated data, Penn State conducted an investigation and found no misuse of data in Mann’s research.

Media outlets and First Amendment scholars have expressed concern over the case’s potential impact on the freedom of speech and freedom of the press throughout the case’s 12-year history. 

Seth Berlin, an adjunct professor at Georgetown Law and Ballard Spahr senior counsel, said in an interview with Courthouse News that the jury’s decision could be harmful to First Amendment freedoms. 

“Regardless of one’s views of climate science, people should be able to express opinions on either side without fear of being punished,” Berlin said, warning that the verdict could incentivize “silence by lawsuit," rather than spirited public debate to combat disinformation.  

Berlin, who helped write a 2014 amicus brief in the defamation case for the Reporters Committee for Freedom of the Press at the D.C. Court of Appeals, explained his concern that there is a gray area between opinions and facts that courts are not well equipped to handle. 

In his view, the case raises an important question that the D.C. Court of Appeals, and potentially the Supreme Court, should consider. 

The Supreme Court in 2019 declined to take up the case, but Justice Samuel Alito, a George W. Bush appointee, dissented, writing that the case presented a key question regarding the protection of journalists and others. 

“If the Court is serious about protecting freedom of expression, we should grant review,” Alito wrote. 

Follow @Ryan_Knappy

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