After more than 11 long years, jury selection in Michael Mann’s defamation case against Mark Steyn and others begins on Monday. I had lost track of this case as it wended its tortuous way through the courts, and tried to catch up with it by watching Mark’s deposition, the two short halves of which you can see here and here. The deposition does not lack for entertainment value, but as I watched it, I wondered, how can this terrible case possibly be going to trial? How could Mark Steyn not have gotten summary judgment?
The case arises out of a post that Mark wrote at the Corner on National Review quite a few years ago. He quoted Rand Simberg, who called Michael Mann the Jerry Sandusky of climate science (both Mann and Sandusky were employed by, and investigated by, Penn State). Mark added a few comments of his own about Mann’s absurd hockey stick. The gist of Mark’s brief post was that Mann’s hockey stick was a fraud. Which it was.
I had thought the only question, at this point, was whether Mann’s infamous attempt to frighten the ignorant was an honest mistake or a fraud. Like Steyn, I lean toward the latter explanation. But that isn’t primarily what the lawsuit is about. Like other defamation cases involving public figures, liability hinges on a finding of “actual malice,” which has little to do with malice in the usual sense. Rather, Mann has to prove that Steyn wrote what he did while knowing that it was false, or acting with reckless disregard for whether it was true or not:
“The ‘reckless disregard’ measure requires a showing higher than mere negligence; the plaintiff must prove that ‘the defendant in fact entertained serious doubts as to the truth of [the] publication.’” CEI, 150 A.3d at 1252 (quoting St. Amant, 390 U.S. at 731). “The plaintiff may show that the defendant had such serious doubts about the truth of the statement inferentially, by proof that the defendant had a ‘high degree of awareness of [the statement’s] probable falsity.’”
That quote is from the trial court’s order denying Mark’s motion for summary judgment. But how could Mann possibly have presented evidence sufficient to meet that standard? Steyn obviously believed what he wrote about Mann when he wrote it, and he continues to believe it today. He even wrote a book about it: A Disgrace to the Profession. In his deposition, Mark cited chapter and verse from the work of various climate scientists, and explained in detail why he believes Mann’s hockey stick was not just a mistake, but a fraud.
Again, the question at this point is not whether the hockey stick was a fraud. That is relevant to Steyn’s truth defense, which also will be tried to the jury. The question as to actual malice is whether Steyn in good faith believed it was a fraud. The answer there is, of course he did.
So how could D.C. District Court Judge Alfred Irving possibly have denied his motion for summary judgment? This is Irving’s explanation:
Dr. Mann offers significant evidence that Mr. Steyn held ill-will toward him, that Mr. Steyn was zealous in advancing his side of the climate change debate, and that Mr. Steyn did not investigate his claims. The combination of such evidence could reasonably support a jury finding that Mr. Steyn acted with actual malice.
But ill will is at best marginally relevant to actual malice, while being a zealous advocate has nothing whatever to do with it. And the judge’s statement that Steyn did not investigate his claims is simply false. Rather, he was aware of the investigations that exonerated Mann from wrongdoing, but did not agree with them. Instead, he agreed with the scientists who think Mann’s hockey stick was absurd as well as deceptive, and could not have been constructed in good faith, for the reasons Steyn laid out in his deposition.
I don’t suppose anyone still thinks that America has a unitary system of justice. It is inconceivable that a liberal advocate for global warming who smeared a climate change critic (as Michael Mann has done many times) would be hauled into the dock for a jury finding on actual malice. Rather, any court would find that there is no evidence Mann didn’t believe what he said, and dismiss the case. But Mark is a disfavored litigant espousing a disfavored cause. Global warming hysteria, including Mann’s infamous hockey stick, may be on the outs in the scientific community, but it remains a pillar of Democratic Party doctrine, and as such it is being protected.
Where will the case go from here? It will be heard by a D.C. jury consisting, most likely, entirely of Democrats. Most of them will probably be highly partisan Democrats. While they will be blissfully ignorant of climate science, they will be aware that global warming is an important part of their party’s ideology. I would like to think that Mark Steyn can get a fair trial in D.C., but in fact I seriously doubt it.
I understand that Mark is going to represent himself at trial. Can that possibly be true? I hope not. Mark is a great man and a good friend who is suffering some pretty serious health issues, and this is one of those times when I wish to God I had my law license back. I can’t believe that Mann’s lousy case can ultimately succeed, but it may take the U.S. Supreme Court to finally apply the actual malice standard in a normal way. So this 11 1/2 year old case might go on for another five or six years.
UPDATE: At the last minute, the court continued this trial. It likely will take place early next year, unless it is postponed again. The handling of this case by the federal courts has been a disgrace and an embarrassment.