Thoughts on the $1 million Mark Steyn verdict
How a DC jury went OJ in defense of dubious climate science
Challenging an entrenched orthodoxy can be a dangerous business.
Consider the Anabaptists. These were a handful of small Protestant sects that split with the Catholic Church around the same time as the Lutherans, Calvinists, and Anglicans.
The sin of the Anabaptists was in not believing in infant baptism. They thought that baptize-ees should be old enough to freely confess their faith and ask to be baptized.
For that, thousands of Anabaptists got burned at the stake and otherwise executed by both the established Catholic Church, and by the other Protestants.
A favored method of murdering Anabaptists was by drowning. The wits among the Righteous referred to this as the victim’s 'third baptism'.
We have, of course, made a lot of progress since the dark days of the 1530s.
Last year, a British nonprofit calling itself CCDH trained an AI to scan YouTube videos to identify climate deniers.
Weatherman-turned-blogger Anthony Watts was fingered for making the statement “The future that they’re portraying isn’t going to happen because the data is not matching up.”1
On February 8, a jury in a civil trial in Washington, D.C. found that two writers, Rand Simberg and Mark Steyn, had defamed climate scientist Michael Mann in blog posts made in 2012.
On actual damages, the jury awarded Mann $1 from each writer.
The gob-smacker was that the jury went on to award $1 million in punitive damages against Steyn. Simberg got off relatively light, for $1,000.
If that award structure seems unusual, it is.
The California Supreme Court has opined that punitive damages far in excess of actual damages requires special justification: “By, for example, extreme reprehensibility or unusually small, hard-to-detect or hard-to-measure compensatory damages.”2
The jury presumably found Steyn’s comparison of Penn State’s inquiry into Michael Mann with Penn State’s investigation of child molester Jerry Sandusky sufficiently reprehensible to merit the $1 million.
Giving juries discretion to make large punitive damage awards is a thorny issue.
In some states, punitive damages are awarded as a way to make the injured plaintiff “whole.” Michigan, for example, compensates for humiliation, anguish, or hurt feelings due to the defendant’s intentional and malicious actions.
This would be one ostensible legal theory behind the jury’s award to Mann. His feelings were hurt.
But punitive damages are also, as the word implies, to punish. They are meant serve as a warning for others not to engage in the same activity.
Mann’s attorney Williams started to orated to the jury about this before he was rightly cut off by an objection: “These attacks on Climate Scientists have to stop, and you now have the opportunity…”
MR. WILLIAMS: And as you've been instructed, if you find punitive damages are appropriate for outrageous behavior, you can set an amount not just to punish, but to serve as an example to prevent others from acting in the same — in a same or similar way.
Let me confess that I was dumbfounded by the jury verdict.
I followed the trial closely via Phelim McAleer and Ann McIlhenny’s fabulous podcast, “Climate Change On Trial.”
To me, an outright dismissal of the case by the judge, or a quick finding for the defendants by the jury, seemed like a sure thing.
Now I’ve learned to start sprinkling my posts with phrases like ‘in my opinion’. They’ll be after me next.
Mann’s attorneys — in my opinion — failed to establish the usual proofs required in a defamation action, other than the rather obvious fact that the bloggers made their statements with ‘ill-will’.
In retrospect, what was on trial was Steyn’s quirky, witty, Anglophile and throughly unrepentant personality.
Steyn represented himself.
As any lawyer will tell you, this is a bad idea.
Steyn didn’t care. His opening and closing statements were brilliant orations, worthy of study as rhetoric. “No cause to answer.”
And it backfired completely on the DC jury.
These is so much wrong with this trial it’s hard to know where to begin.
In the first place, on First Amendment grounds, the trial should never have taken place.
This opinion is not just my own.
In 2019, the US Supreme Court had an opportunity to take up the case, but refused. Justice Samuel Alito dissented from that decision. “This case,” Alito wrote, “presents questions that go to the very heart of the constitutional guarantee of freedom of speech and freedom of the press: the protection afforded to journalists and others who use harsh language in criticizing opposing advocacy on one of the most important public issues of the day.”3
Even “a pungently phrased expression of opinion”, Alito wrote, is protected speech, and for good reason. “If citizens cannot speak freely and without fear about the most important issues of the day, real self-government is not possible.”
This is not the view of the Climate Science Legal Defense Fund (CSLDF), which has underwritten Mann’s legal bills since 2011.4
Freedom of Information (FOI) requests served on climate scientists, which CSLDF goes to court to quash, are a big issue. We’ll see why in a moment.
The Missing Truth Defense
Truth is an absolute defense to defamation.
We need to have Steyn’s exact words from his blog post: “the fraudulent climate-change ‘hockey stick’ graph.”
‘Fraudulent’ is pretty harsh. Proving the Hockey Stick graph ‘fraudulent’ feels like a heavy lift.
As Justice Alito points out “the question that the jury will apparently be asked to decide—whether petitioners’ assertions about Mann’s use of scientific data can be shown to be factually false—is highly technical. Whether an academic’s use and presentation of data falls within the range deemed reasonable by those in the field is not an easy matter for lay jurors to assess.”
The trial constantly ran behind schedule. One consequence was that the defense’s experts on this issue got cut short.
Abraham Wyner, Professor of Statistics at the Wharton School at the University of Pennsylvania, expressed his expert opinion that Mann had ‘manipulated’ the data in creating the Hockey Stick graph, and that the graph was ‘misleading’.
Other than that, the Hockey Stick never went on trial. There were a lot of other distractions. And then everybody seemed to be thinking about going home for the weekend.
There’s a curious reversal of the burden of proof here. Normally the plaintiff would have to prove that the Hockey Stick graph was not fraudulent; that Steyn knew it was not fraudulent; and went ahead and said it was anyway.
Here are just a few notes on what might have been argued in Steyn’s defense.
Legal fraud is a specific thing, and hard to prove. It typically involves some unfair advantage, financial or say, electoral, which provides the motive.
But Steyn was writing in everyday English.
Among the long list of dictionary definitions of ‘fraud’ are some interesting mild ones:
sharp practice
a copy of something that is meant to look like the real thing in order to trick people
I don’t think anyone who reads Andrew Montford’s The Hockey Stick Illusion could come away without concluding that some extreme selectivity — which might well appear to be ‘sharp practice’ to a layman — was going on. In the selection of proxies and the manner in which principal component analysis was used, for example.
A cardinal rule of statistical inference is that the method of analysis must be decided before looking at the data. The rules and strategy of analysis cannot be changed in order to obtain the desired result.
Hovering above the three authors of the original Hockey Stick paper was a sort of lodestar that guided them as they navigated a ‘garden of forking paths’ in their analysis. They had to get to the conclusion that the late 20th century was warmer than anytime previous in the millennium.
By Edward Tufte standards, the original Hockey Stick graph was ‘content hostile’. It merged multiple items identified in a disordered legend.
The original and subsequent Hockey Stick graphs were so-called ‘spaghetti charts’. Multiple lines for temperature reconstructions were overlaid on top of each other.
In the IPCC’s 2001 Third Assessment Report, one inconvenient line, the green one, was heading down, but was simply truncated at 1960 to keep the chart ‘on message’. The truncation is lost in the spaghetti bundle but can be seen in a blow-up:
Mann was the lead author of that section of the IPCC report.
In 1999, Phil Jones, former director of the Climatic Research Unit (CRU) at the University of East Anglia, was commissioned to produce the cover illustration for the World Meteorological Organization (WMO) 50th Year Anniversary publication “Temperature changes over the last Millennium,” published in 2000.
Jones had the same visual problem with Keith Briffa’s line going down, but chose to solve it with what he called ‘Mike’s Nature trick’ by adding thermometer data to the tree-ring proxy data. He wrote about it in an email sent to the three authors of the Hockey Stick paper — Mann, Ray Bradley and Malcolm Hughes:
I’ve just completed Mike’s Nature trick of adding the real temps to each series for the last 20 years (i.e. from 1981 onwards) and from 1961 for Keith’s to hide the decline.5
In 2006, the National Academy of Sciences tested principal component analysis software of the sort used by Mann et. al. and found that it would generate a Hockey Stick shape on pretty much any autocorrelated time series data, even a random one:
Innocent error, or ‘something that is meant to look like the real thing in order to trick people’?
I started with the Church, so let me return to it.
The term ‘propaganda’ derives from the 1622 Congregatio de Propaganda Fide (Congregation for the Propagation of the Faith), which was established by Pope Gregory XV to spread the Catholic faith across heathen lands.
A little more recently, Adobe Systems defined ‘visual propaganda’ as something that has been ‘been manufactured to alter your opinion.’
Now, maybe that’s what science is supposed to do.
But I also think it’s fair to say the Hockey Stick has been one of the most consequential bits of visual propaganda of the modern age.
It’s interesting that one NPR take on the trial6 (which the Washington, D.C. jury may well have heard) showed little interest in the Hockey Stick as science.
Rather, for NPR the Hockey Stick’s value was that it was a “powerful image”, “one of the most accessible, consequential graphs in the history of climate science” and “successful in helping the public understand the urgency of global warming.”
In short, effective propaganda.
The climate orthodoxy has shown the sway it has, at least over a Washington, D.C. jury. An appeals judge may have more sense. Or not.
I believe in some future century we’ll look back at the contemporary climate hysteria the same way three members of a Salem witch trial jury did, in a document they entitled a “Declaration of Regret.” They asked forgiveness for the error of their judgement:
“We whose names are under-written, being in the year 1692 called to serve as jurors in court at Salem, on trial of many who were by some suspected guilty of doing acts of witchcraft upon the bodies of sundry persons, we confess that we ourselves were not capable to understand, nor able to withstand, the mysterious delusions of the powers of darkness…”
In my opinion. Do I need to get Legal to review this before I click Send?
On February 15, I posted “A Few More Thoughts on Mann v Steyn” here.
Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1182.
ALITO, J., dissenting, Supreme Court Of The United States, On Petitions For Writs Of Certiorari To The District Of Columbia Court Of Appeals, Nos. 18–1451 and 18–1477. Decided November 25, 2019,
CSLDF came into existence to fight an April 2010 ‘civil investigative demand’ by then-Virginia Attorney General Ken Cuccinelli for information about five grant applications for research work by Mann, who was then at the University of Virginia.
CSLDF’s lawyers argued that Cuccinelli’s request was an improperly formed, ideologically-motivated harassment of the University of Virginia which posed a threat to academic freedom. In 2011, the Supreme Court of Virginia threw out the Cuccinelli’s requests on a narrow legal issue, involving the University’s status as a ‘person’ under Virginia law.
This email was in the ‘Climategate 2’ dump. Quoted in A.W. Montford, Hiding The Decline, 2012.
Julia Simon, NPR, "A famous climate scientist is in court with big stakes for attacks on science" 6 February 6, 2024.