Speaking Of Losing Your Lawyer: Mark Steyn Has Lost His in Mann v. National Review

A print-screen from a recently filed motion (its only two pages long):

One can only speculate.  But Steyn has, as Ezra Levant sometimes does, kept up with the abuse after proceedings have been launched against him.  For example last week on his N.R. blog. Lawyers don't like it when you make their job defending you more difficult by playing an asshole on the Internet.

So it might have something to do with that.

Some background here.

No Wonder Mark Steyn

...is considering a run for the U.S. Senate.  He may need an extra income source if Mike Mann's defamation case against the National Review goes the way it appears to be headed:

"The Court finds that there is sufficient evidence in the record to demonstrate that Plaintiff is likely to succeed on the merits," said a DC Superior Court judge in her latest procedural ruling in the defamation case of Michael Mann v. National Review, et al. "The evidence before the Court indicates the likelihood that 'actual malice' is present in the [National Review's] conduct." 

This language is somewhat stronger than the previous ruling, which merely suggested that evidence of "actual malice" might be found during discovery (but was not present in the NR piece itself).

Mann Vs. Steyn: Mann Takes A Round

In October of last year, climate scientist Michael Mann filed suit against Mark Steyn and the National Review for a piece Steyn wrote in that publication, and against  the Competitive Enterprise Institute for a  piece that appeared earlier on its blog.  The articles in question described Mann's hockey stick graph, his reconstruction of pre-instrument  temperature records, as "fraudulent" and his work in general as "bogus", so Mann's angry response isn't surprising.

The NR and the CEI filed motions to dismiss on the grounds that their statements are protected speech under the First Amendment, mere “opinion,” “rhetorical hyperbole,” or “fair comment.”.  They also argued that Mann's action was a SLAPP suit.  At the time I wrote:

Frankly, I know of nowhere that a reader, be they careful or careless, could interpret the term "fraudulent" when applied to a scientist's work as implying anything less than that they were guilty of scientific misconduct (the kind of thing they discuss here) or straight out fraud.  I am unaware of any place the term has been used  merely to state that the scientist's work is incorrect. This is quite a bit different than the situation with "blackmail", where there is an established colloquial sense that is weaker than the more precise legal sense (the colloquial sense does not entail criminality where the more legal sense does). 

The court has now ruled that the Mann action did not constitute a SLAPP suit; these are typically launched by large corporate entities against individuals, and this case did not fit that description.  And they rejected the First Amendment arguments for reasons that echo my earlier remarks:

“Given the dictionary definition as well as the common readers’ thought about the use of these words (fraud and fraudulent) the Court finds that these statement taken in context must be viewed as more than honest commentary—particularly when investigations have found otherwise. Considering the numerous articles that characterize Plaintiff’s work as fraudulent, combined with the assertions of fraud and data manipulation, the CEI Defendants have essentially made conclusions based on facts.” [at 15]

The definition of “bogus” in the Merriam-Webster online dictionary, inter alia, is “not genuine . . . sham.” BOGUS, MERRIAM-WEBSTER: ONLINE DICTIONARY AND THESAURUS, http://www.merriam-webster.dictionary/bogus.com/  In Plaintiff’s line of work, such an accusation is serious. 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).”

So the NR and CEI articles were not opinion, but (mis)statements of fact.  Mann's suits can go forward.

Although they are far from won.  The court docs note, in regards to the National Review case, how difficult actual malice can be to prove under U.S. law. Nevertheless

Some ways to go, then, but a real possibility that Steyn and NR will be out a pantsful of money when this is all over.  A fate richly deserved, IMHO.  And in the case of the CEI, the judge's ruling (not quoted above) suggests that Mann probably will be able to show actual malice.  So they are in even deeper trouble.

PS.  As usual, the court docs are easier to read when you click on the image.