The fight has begun in a lawsuit that has renowned climatologist Michael Mann, whose work has been instrumental in establishing a historic basis for the scientific consensus that humanity is altering Earth's climate, matched up against two conservative institutions.
Some of the defendants sued for libel by Mann in October have asked a District of Columbia local court to dismiss his lawsuit.
In a motion filed Dec. 14, lawyers for the Competitive Enterprise Institute and one of its writers, Rand Simberg, argued that Mann cannot prove his claims.
They also asked the District of Columbia Superior Court to throw out Mann's case on the basis of a local ordinance that forbids the use of litigation as a tool to discourage political attacks.
Mann, the director of the Earth System Science Center at The Pennsylvania State University, alleges that CEI and Simberg libeled him by publishing a blog post that compared Mann to convicted child molester Jerry Sandusky. The blog post was later edited.
Mann also sued National Review, a conservative magazine that re-published Simberg's blog post and added some additional commentary of its own. National Review columnist Mark Steyn wrote that Mann's work on the so-called "hockey stick" graph is a deceptive and accused his employer, The Pennsylvania State University, of hiding that behavior.
Mann's research leading to a conclusion that Earth's average atmospheric temperatures have risen dramatically over the past 50 or so years has been determined by at least eight separate investigations to be scientifically valid.
Despite the acknowledged scientific credibility of his work studying the history of Earth's climate, Robert Nagel, a law professor at the University of Colorado at Boulder, believes Mann will have a hard time winning his libel case.
"The way the [U.S. Supreme] Court has divided up constitutional protections for defamatory statements, that means the plaintiff would probably have to prove knowing or reckless disregard for the truth," Nagel said. "That’s very hard to do. Even if he convinces the court that he is private figure, that he didn’t interject himself into the debate, he would have to show negligence. Those are difficult burdens to meet. Some of what he’s claiming about may be viewed by a court as either not statements of fact or not literal statements, something akin to a parody or an exaggeration."
The lawyers for CEI and Simberg argued that very point in the motions filed last week.
Nagel, who has written for National Review in the past, said that he is sympathetic to concerns that attacks like those published on OpenMarket.org and The Corner might have the effect of undermining public understanding of scientific knowledge.
"I doubt that those concerns are overblown," he said. "In fact, I think that scientists complaints in that regard are not a whole lot different from wider concerns that exist in terms of, say, political dialogue."
However, Nagel explained, that outcome may not be avoidable given a high bar to libel lawsuits constructed by the U.S. Supreme Court nearly 50 years ago in a case called New York Times v. Sullivan.
"The concern that we’re getting more false information out there, more sloppy reporting, just sort of worse information, I think it’s probably true that the modern changes in defamation law has had that effect in lots of areas," he said.
Nagel pointed out that he was not, in making that observation, referring specifically to the truth or falsity of the specific comments published by CEI and National Review.
Mann will have an opportunity to respond to the defendants' motion for an order dismissing the climatologist's lawsuit before the court rules.
His lawyer declined a request for an interview.
NOTE: A slightly separate version of this article appears at Natural Resources Today.