Better in their words…

If the left wants to take off the gloves, perhaps that is what should happen.
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By MICHAEL A. CARVIN and ANTHONY DICK
WSJ Feb. 5, 2017 8:16 p.m. ET

The First Amendment provides robust protection for political and scientific debate, but it faces a new threat from a climate activist determined to silence his critics. In a case pending before the District of Columbia Court of Appeals, Penn State professor Michael Mann is waging an aggressive campaign of lawfare, accusing of defamation those who dare to question his work. So far, the courts have given this assault on free speech a green light.

Mr. Mann is famous as the creator of the “hockey stick” graph, which portrays a dramatic trend in global warming over the past century. Numerous critics have cast doubt on the quality and accuracy of his work. They argue that his historical temperature proxies are unreliable, his data presentation misleading, and his statistical techniques skewed.

Even among those who support the theory of global warming, some have singled out Mr. Mann’s work as sloppy and exaggerated. David Hand, a former president of Britain’s Royal Statistical Society, has written that Mr. Mann’s technique “exaggerated the size of the blade at the end of the hockey stick,” which corresponds to the 20th-century temperature rise.

Not content to answer his critics in the public square, Mr. Mann has sued them. One target of his lawsuit is the political magazine National Review, which published a 270-word blog post criticizing Mr. Mann as “the man behind the fraudulent . . . ‘hockey-stick’ graph.” His lawsuit objects to the magazine’s decision to quote a critic who wrote that Mr. Mann “could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data.”

National Review moved to dismiss the suit, citing a phalanx of Supreme Court precedent. The Constitution obviously does not allow crippling damages to be imposed for voicing one’s opinion, however vehemently or caustically. Punishing such criticism because a jury disagrees with it does not aid the search for truth, but impedes it by stifling conflicting views. As the liberal Justice William Brennan observed: “Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned.” Such speech “is the essence of self-government.”

As a federal court once put it in the particular context of scientific controversies: “More papers, more discussions, better data, and more satisfactory models—not larger awards of damages—mark the path toward superior understanding of the world around us.” Even a meritless defamation suit can be an effective weapon to intimidate critics and shut down debate through ruinous litigation costs.

In this case the trial court refused to dismiss Mr. Mann’s libel suit. Judge Natalia Combs Greene ruled that the defamation claims were “likely” to succeed because “to call his work a sham or to question his intellect and reasoning is tantamount to an accusation of fraud,” when in fact Mr. Mann “has been investigated by several bodies (including the EPA)” which determined that his research was “sound and not based on misleading information.” For procedural reasons, the case was reassigned to Judge Frederick Weisberg, who largely adopted Judge Greene’s reasoning.

Appellate courts, which exist to reverse such legal error, in this case compounded it. National Review was supported in friend-of-the-court briefs by such unlikely allies as the American Civil Liberties Union, the Electronic Frontier Foundation, the Washington Post and the Reporters Committee for Freedom of the Press. Yet a panel of the D.C. Court of Appeals—Judges Vanessa Ruiz,Corinne Beckwith and Catharine Easterly—held in December that Mr. Mann’s suit should proceed to a jury. The court again relied on various “official” investigations that had cleared Mr. Mann of misconduct, including an inquiry by the federal government. Speech that disagrees with the government is at the core of the First Amendment’s protection—though not in this court’s topsy-turvy world.

National Review has filed a petition for rehearing along with its co-defendants, the Competitive Enterprise Institute and Rand Simberg. If the full court of appeals does not correct the error and end this assault on the First Amendment, the case will doubtless proceed to the Supreme Court.

Those hoping Mr. Mann prevails because they agree with him about global warming are missing the point. If he succeeds in diminishing the right to free speech, he and his fellow climate activists have just as much to lose. Mr. Mann has attacked his critics for peddling “pure scientific fraud,” engaging in what he calls “the fraudulent denial of climate change,” and taking “corporate payoffs for knowingly lying about the threat climate change posed to humanity.” He accused Fox News of trying to “mislead its viewers” through a “deceptive” report about climate change.

None of this is particularly polite, but it is common in the cut-and-thrust of public debate. If such caustic criticism is now to be fair game for legal action, big oil companies and other well-heeled interests can launch their own lawsuits asking juries in Texas or Oklahoma to silence Mr. Mann and his allies.

The logic of Mr. Mann’s position threatens to convert political and scientific debate into a litigation free-for-all, with all sides seeking to sue one another into submission instead of resolving differences through the free exchange of ideas. For those who care about the spirit of open inquiry at the heart of the scientific enterprise, it is scarcely possible to imagine a greater legal disaster than the prospect of Mr. Mann’s succeeding on his claims.

Messrs. Carvin and Dick are Washington lawyers. They represent National Review in Mr. Mann’s lawsuit.