Climate Change and Free Speech on Trial

On February 9, 2024, when a Washington DC jury found writers Mark Steyn and Rand Simberg guilty of defaming climate scientist Michael Mann (above) in articles and blogs about his work on climate change, the world’s reactions seemed to divide neatly into two distinct camps. 

Much the larger group that knew about the trial from its sparse and occasional coverage in the mainstream media could hardly be either surprised, let alone disturbed, that Steyn and Simberg had lost and received punitive damages for launching attacks on climate scientists and climate science with, as the New York Times reported, “maliciousness, spite, ill will, vengeance or deliberate intent to harm”.

John O’Sullivan appears in every Quadrant.
Click here to subscribe

That morning’s AP media trailer for the trial’s climax, widely republished and copied, had been headlined as follows: “Jury to Decide on Climate Scientist Michael Mann’s Defamation Suit Over Comparison to Molester”. The story went on: “It’s been 12 years since a pair of conservative writers compared a prominent climate scientist to a convicted child molester for his depiction of global warming.” 

Scientist defamed as molester by conservatives, eh? That framing doesn’t quite do justice to both sides. Michael Mann is indeed a climate scientist of some reputation, and though Rand Simberg presented himself in court modestly as a simple researcher, Mark Steyn is a formidable commentator in leading newspapers throughout the Anglosphere on—inter alia—climate change, demography and popular culture. 

A smaller and more interested group was following the proceedings closely either in court or through the intensive internet coverage of news and commentary websites, including Steyn’s own website, but in particular Ann McElhinney’s and Phelim McAleer’s hour-long daily reconstruction of the trial with actors reading out court transcripts as a play—and an exciting one at that.

That group was amazed that the course of the trial they had been following (which certainly revealed lots of maliciousness, spite, ill-will and vengeance, not wholly or even mainly from the defendants) contrasted so markedly with its result. Instead of a verdict on defamation, they thought, the jury had delivered a public policy decision to protect climate science and scientists from criticism. 

To decide between these two opposing reactions, we have to ask some questions about the course of the trial: First, what kind of molestation was alleged against Mann by the two defendants? In his original blog posting Rand Simberg used a well-known academic metaphor about manipulating statistics—torturing the data until it confesses—to compare Mann’s statistical methodology with a Penn State scandal of child sex abuse by sporting coach Jerry Sandusky which the university had concealed. He described Mann as the Jerry Sandusky of climate change except that “instead of molesting children, he has molested and tortured data”. Quite a difference there.

Even so Steyn, citing this in his own article, shifted the comparison to a cooler one between two Penn State investigations—one into Sandusky’s child molestation and the other into Mann’s alleged molestation of statistics in the 2009 Climategate scandal—on the grounds that both investigations had been cover-ups. No one alleged a connection between Mann and child abuse.

Did the metaphor distort media coverage? Certainly, in Mann’s favour—see the AP story above. Or scientific opinion? Highly unlikely—scientists would be familiar with the metaphor and its limited statistical meaning. Or mass popular opinion? Surely not—since not many people read Simberg’s column before the metaphor was edited out. Mann himself claimed in court that a man in the supermarket had scowled at him shortly after the articles appeared. But his lawyers struggled to show mass impact.

Leaving the metaphor aside, are Mann’s findings open to criticism? The AP story above takes this question back to the Climategate controversy of 2009—the real start of this debate—and finds several investigations, including those of both Penn State and AP in 2009, found “no misuse of data” by Mann even though—wouldn’t you know it?—“his work continued to draw attacks, especially from conservatives”.

Except that, if you go back to the original 2009 AP investigation, you discover that its verdict at the time was much more—what’s the word?—nuanced. I go into greater detail about the AP’s 2009 report on The Pipeline website, but this gives the flavour of its more guarded conclusions:

“One of the most disturbing elements suggests an effort to avoid sharing scientific data with critics sceptical of global warming. It is not clear if any data was destroyed; two U.S. researchers denied it. The e-mails show that several mainstream scientists repeatedly suggested keeping their research materials away from opponents who sought it under American and British public records law. It raises a science ethics question because free access to data is important so others can repeat experiments as part of the scientific method.” 

Given such criticisms of the Climategate scientists’ adherence to scientific protocols, it was plainly legitimate for Steyn and Simberg to question the evidence for Mann’s “hockey stick” graph. Showing carbon emissions flatlining until the industrial revolution and then soaring sharply upward solved a key problem for the climate change argument by showing post-industrial warming to be a unique emergency in human history that demanded a unique response: namely a worldwide, massively expensive campaign of energy transformation and deindustrialisation. On the other hand, a dissident minority of distinguished climate scientists and statisticians, on whose work Steyn and Simberg drew, were critical of the hockey stick methodology.

It was not difficult for the defendants to make a case against the hockey stick. Three distinguished statisticians testified that the data could indeed be ordered in a way that produced Mann’s required result. On the other hand, the same data arranged to follow different paths would produce contrary results more often. Was that fraud, asked one?  No, but it was misleading.

To such arguments the plaintiff, Mann, had an obvious argument from authority: such questions had already been examined by other scientists including Penn State’s own committee. And rejected. 

In theory, that cuts both ways. If there are no final verdicts in science, Mann cannot sue for defamation rooted in scientific disagreements nor can the defendants allege misconduct without evidence of something more than disagreement. The trial thus became a struggle between Mann’s argument that the defendants were knowingly making false claims and the defence’s allegation that the Penn State 2009 investigation into Mann was a sham—and that wasn’t an easy battle to win without a Perry Mason moment.

Nor indeed when there is a Perry Mason moment. For a witness late in trial, Hank Foley, a Penn State administrator, testified that he had been a member of the college committee investigating Mann’s actions in Climategate. His committee had been leaning towards a verdict of censure over Mann’s use of data until—though he did not learn this until later—Penn State’s president, Graham Spanier, who was later convicted and imprisoned for covering up the child abuse scandal, intervened and dictated an exoneration of Mann to the committee chairman which duly appeared as its verdict.

That evidence was almost a carbon copy of Steyn’s charge of a cover-up. Yet the jury found for Mann and imposed heavy punitive damages on both defendants. If that seemed contrary to the logic of Foley’s evidence, was it explained by either the course of the trial or the nature of the verdicts? Not really. Or even, not at all.

Mann received heavy financial damages on the grounds that Steyn and Simberg harboured “malice” which requires evidence that they knew their arguments were false but presented them anyway. That verdict legally requires a high standard of proof. But little or no evidence was provided that Steyn and Simberg did not sincerely hold those views, and Steyn in particular argued persuasively that he had been making them for decades. Lawyers expect this judgment will be appealed and either reduced or set aside completely.

Mann, the plaintiff, received only one dollar each from Steyn and Simberg in “compensatory” damages for harm to his reputation. That reflects the fact that he had a difficult time trying to establish any harm as a result of the critiques of Simberg and Steyn. His income and status as a leading climate scientist had risen after 2012. Might they have risen further if not for financial losses in grants never obtained because of the molestation slurs? It seems unlikely because he and his lawyers between them greatly exaggerated these losses in an earlier trial, had to apologise for doing so, and then presented the wrong figures again on this occasion. Even then, his lawyers conceded they could not claim that the critical articles had “caused” these losses—it was merely a “correlation”. Finally, one of Mann’s own witnesses—in a slip of tongue—attributed his own hesitation about inviting Mann to a scientific conference not to the defendants’ articles but to the Climategate controversy. That one dollar in compensatory damages looks more like a dismissal of his claims than a reward.

It seems agreed that Steyn, who represented himself, and Simberg’s lawyer Victoria Weatherford gave brilliant performances. Steyn’s opening and closing statement in particular wielded his characteristic wit but always at the service of a rigorous forensic logic. 

Will Mann’s reputation be more damaged by the trial than by the defendants’ articles? He admitted to having spread gossip about a fellow climate scientist, Judith Curry, who gave powerful evidence that her career had been ruined by his false charge that she had risen academically because of an affair with a senior colleague. And though he claimed that he hadn’t deleted inconvenient data, evidence was presented by friendly witnesses that he had facilitated their deletion by others.

What then explains the outcome? In his summing up, the judge had told the jury that the case was about defamation—not climate change. That’s a basic legal rule. But it’s also a tough call for Washington DC jurors who are told by all the progressive great and good in society that climate change is an imminent threat to the world overriding all other considerations. Mann’s lawyer, John Williams, facing a real risk of defeat, told the jury that this was a chance to vindicate their progressive sympathies. They should end the attacks on climate scientists. And that’s what they did. They voted to end climate scepticism by transforming it into defamation of climate scientists. If this stands, both scientific debate and free speech fall.