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Climate-change skeptics have free-speech rights

by Stephen L. Carter

Bloomberg

I find myself tugged in two directions by the latest ruling in the defamation suit filed by climatologist Michael Mann. A professor of meteorology at Pennsylvania State University, Mann has long been an object of ire among climate-change skeptics. Now it seems they have let their ire get out of hand.

The lawsuit centers on an article published by the Competitive Enterprise Institute and reprinted by the National Review that labeled Mann — co-author of the well-known hockey-stick graph — “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.”

Most likely the writer of this adolescent prose thought he was being snarky and clever. In a ruling issued last week, Judge Frederick H. Weisberg of the Superior Court of the District of Columbia took a different view. This language, he said, could easily be read as accusing Mann of fraud.

Allegations of fraud or data manipulation, wrote Weisberg, “go to the heart of scientific integrity.” He added: “They can be proven true or false. If false, they are defamatory. If made with actual malice, they are actionable.” And actual malice, in accordance with Supreme Court precedent, is generally defined as making allegations either knowing they are false or with reckless disregard to whether they’re true or false.

Why does this matter? Because, under District of Columbia law, it is a complete defense in a defamation action that the defendant’s alleged act was “in furtherance of the right of advocacy,” unless the court believes that the plaintiff is “likely to succeed on the merits.”

What the ruling means in practical terms is that unless there is a settlement — always a possibility in these cases — a jury will probably decide whether the words in question, fairly read, involve an accusation of fraud and, if so, whether it’s true. (Presumably it isn’t.)

Mann has been a lightning rod for climate-change skeptics since his publication in 1998 of the hockey-stick diagram, a graph that shows a sharp upturn in global temperature in the 20th century after a fairly stable climate in the previous millennium. Critics were further inflamed by the 2009 release of stolen emails supposedly showing that Mann and his colleagues had fudged their data.

This mini-scandal unfortunately lingers even today, despite a review by the inspector general of the National Science Foundation that found “no substance” to allegations that Mann had falsified, misused, concealed or deleted any data.

I believe that climate change poses a genuine threat. But nothing I’ve said should be taken to mean that one cannot be a thoughtful skeptic. Arthur Schawlow, one of my physics professors at Stanford University, was fond of saying that what makes science science is precisely the search for evidence that what we think we know is wrong. Schawlow, who would later win the Nobel Prize, warned against ever considering a subject closed.

But to be seriously skeptical, it’s necessary to dig into the data and find the errors, or tear open the models and point to their weaknesses. Maybe there’s a better way to measure temperatures from more than 500 years ago. (The National Academy of Science, in a 2006 report that generally endorsed the hockey stick, warned of the “substantial uncertainties” in measuring large-scale surface temperature changes prior to about 1600, mainly because of inadequate records.)

All of that would be fair and even useful comment. But the claim at issue in Mann’s lawsuit isn’t that his data are wrong. The claim — as Weisberg ruled a jury might reasonably find — is that the data are fraudulent.

The charge is one that matters. A claim of fraud is unlike other efforts to debunk a scholar’s work. Fraud, even in its common usage, requires an intention to deceive. Thus, the claim is that Mann, not by accident but by deliberate purpose, fudged the data in order to make his model work. Such a charge strikes at the heart of the academic enterprise — and academic reputation. Calling a scholar a liar is several degrees worse than calling him a fool.

But here is where I begin to feel torn.

My sympathies as a fellow academic lie with Mann. And yet, as a believer in the First Amendment, I am troubled. I would rather that name-calling weren’t a regular part of our public debate, but it is. Indeed, I should note for the uninitiated that “molested and tortured data” is the sort of molested and tortured prose that academics commonly inflict on each other (and the great unwashed beyond the campus) in this unenlightened era of discourse.

I myself have been accused from time to time of lying about the evidence or reasons for my views on a variety of subjects. Ad-hominem charges have no legitimate place in the academy — always be wary of the scholar who attributes motive to another! — but I’m uneasy at the thought that even so scurrilous a claim should be actionable.

Of course we need defamation law. But our constitutional tradition correctly makes it difficult for public figures to prevail. Close cases should go to the critic, no matter how nasty or uninformed. The preservation of robust dissent allows no other result, and robust dissent is at the heart of what it means to be America.

I am old-fashioned enough to believe that the cure for bad speech is good speech. Yes, it’s a cliche. But it’s also a useful reminder. Nobody is forced to enter public debate. Once you’re there, it’s rough and tumble. Unfair attacks are as common as dew and sunshine, and everybody’s reputation takes a beating. That’s the price of freedom.

Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University. He is the author of “The Violence of Peace: America’s Wars in the Age of Obama” and the novel “The Impeachment of Abraham Lincoln.” Follow him on Twitter at StepCarter.