A District of Columbia judge said Friday that she would not dismiss a libel lawsuit filed by an acclaimed scientist in the aftermath of articles comparing him to a child molester and accusing him of committing fraud by publishing his research on climate change.
The order by Judge Natalia M. Combs-Greene means that Professor Michael E. Mann of The Pennsylvania State University is one step closer to a chance for a jury to decide whether the National Review, the Competitive Enterprise Institute, and two bloggers for those organizations will be liable for the statements published in 2012.
The National Review had published this blog entry by Mark Steyn on July 15, 2012:
Not sure I’d have extended that metaphor all the way into the locker-room showers with quite the zeal Mr Simberg does, but he has a point. Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph, the very ringmaster of the tree-ring circus. And, when the East Anglia emails came out, Penn State felt obliged to “investigate” Professor Mann. Graham Spanier, the Penn State president forced to resign over Sandusky, was the same cove who investigated Mann. And, as with Sandusky and Paterno, the college declined to find one of its star names guilty of any wrongdoing.
Earlier, Competitive Enterprise Institute had published on its OpenMarket.org blog this post by Rand Simberg:
Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.
Mann had earlier been exonerated by two universities and five government agencies of accusations that, in his work on the famous "hockey stick" graph that shows how atmospheric temperatures on Earth have changed over time, he committed scientific fraud.
Combs-Greene discussed both the Steyn and Simberg comments in her order.
"[T]here is a line between rhetorical hyperbole and defamation," Combs-Green wrote. "Accusations of fraud, especially where such accusations are made frequently through the continuous usage of words such as 'whitewashed,' 'intellectually bogus,' 'ringmaster of the tree-ring circus,' and 'cover-up' amount to more than rhetorical hyperbole."
Combs-Greene also held that the defendants' awareness that at least one investigation had verified that Mann's work had been done in a manner consistent with generally accepted scientific norms indicated that, when they published claims that implied falsification or exaggeration, they had acted with "actual malice."
Actual malice is a hard-to-prove mental state required by U.S. Supreme Court precedents that interpret the First Amendment of the U.S. Constitution.
"[I]t is is obvious that allegations of fraud could lead to the demise of his profession and tarnish his character and standing in the community," Combs-Greene explained.
The judge also agreed with an argument that a comparison of a scientist to a convicted child molester is not simply "caustic" or "colorful" language of the type that is protected by the First Amendment.
"To place plaintiff's name in the same sentence with Sandusky (a convicted pedophile) is clearly outrageous," Combs-Greene wrote, and is therefore subject to liability for the tort of intentional infliction of emotional distress.
Combs-Greene had first decided not to dismiss Mann's lawsuit last month.
Mann is a member of the Intergovernmental Panel on Climate Change, a team of scientists that shared the Nobel Peace Prize in 2007. He is a fellow of the American Geophysical Union, a form of recognition granted by colleagues as a "special tribute for those who have made exceptional scientific contributions."