After 12 years of wandering in the wilderness of the D.C. court system, Michael Mann’s defamation case against Mark Steyn and Rand Simberg has finally gone to trial. Opening statements were delivered today. The trial is being live-streamed, and I got the court’s app to work just in time to hear Steyn’s opening.
The case, as you likely recall, arises out of an internet post written by Simberg, which Steyn quoted and added a few comments to. The two posts drew a parallel between Jerry Sandusky, the disgraced Penn State football coach, and Mann, also a Penn State employee and, like Sandusky, investigated by Penn State’s administration in what amounted to a cover-up. Steyn described Mann’s famous hockey stick temperature chart–accurately, in my opinion–as fraudulent.
Mark fired his lawyer some time ago and elected to try his case pro se. I was afraid this might prove a bad mistake. Also, Mark has often talked about this lawsuit as a landmark free speech case. But defamation has always been recognized as an exception to the First Amendment, or whatever other free speech principles may apply. Free speech concerns are incorporated into defamation law, in the U.S., via the actual malice standard. I thought that the only way to try this case was with an aggressive truth defense. Even if the jury ultimately wasn’t sure which side was right in the global warming debate, it would be obvious that Mark believed that what he said about Mann’s hockey stick was true. Ergo, no actual malice.
I shouldn’t have worried. Mark’s opening statement, delivered on his own behalf, was a bravura performance. It was bold, frequently crossing the line, I thought, from exposition into argument–proper in a closing argument, but not an opening statement. It was shrewd, too. Mark showed one or two of Mann’s tweets, in which he attacked scientists and others who disagree with him–including one scientist who will be a witness in the case–in crude and childish terms. Mark portrayed Mann as a guy who lurks on Twitter, saying worse things about his critics than they say about him. A guy, Mark said, who can dish it out but can’t take it. That was an inspired theme.
And Mark’s opening was, happily, all about truth. Every word of his post, as he said repeatedly, was true. He did not back away from the comparison between Sandusky and Mann. On the contrary, he aggressively and effectively defended it. Not that Mann is a child abuser, of course: rather, the link is the corruption of Penn State’s administration, as embodied in Graham Spanier, the president of the university who went to prison, along with two other PSU administrators and Sandusky. In both Sandusky’s case and Mann’s, Penn State’s corrupt administration purported to investigate, but didn’t.
Mark displayed an email from Mann to a friend in which he said that he wasn’t worried about the administration’s investigation of his work, because he had gotten a phone call from Graham Spanier–who was not supposed to be involved in the investigation, at all–and Spanier had been reassuring. Mark showed photos of Spanier and the other Penn State administrators in prison jump suits.
So, in my opinion as a reformed trial lawyer, the case is off to a good start. Whether Mark can maintain the high standard he set today remains to be seen. But the day will come when he, personally, will cross-examine Michael Mann. I may have to buy a plane ticket to Washington to see it.