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