Op-Ed: Are fierce polemics free speech?

The climate scientist Michael Mann imagines himself on a crusade to save the planet. But if he gets his way in his lawsuit against my magazine, his legacy will be reducing the 1st Amendment’s protection for vigorous debate.

Friends of free speech are understandably alarmed every time Donald Trump talks about tightening libel laws. It’s not clear if Trump will try to act on his musings. We do know that Mann is, in effect, pursuing the same agenda in a case that could create a new precedent for chilling speech.

Mann’s suit against National Review — filed in Washington, D.C. — has already dragged on for more than four years. We tried to get it tossed out by the U.S. Court of Appeals for the District of Columbia under a statue affording special protection from meritless litigation impinging on free speech. Underlining the stakes, 37 organizations signed briefs supporting us. (The parent company of the Los Angeles Times was among them.)

Right before the holidays, the D.C. court let the suit stand, leaving it to some other court to vindicate the 1st Amendment.

Here’s the background: Mann, a professor at Penn State University, is the architect of the controversial “hockey stick” graph. It purports to show a flat global temperature for roughly 900 years prior to 1900 (the shaft of the metaphorical stick), at which point there is a steep upswing in global warming caused by carbon emissions (the blade).

Case closed? No. There aren’t thermometer records prior to the mid-1800s, so Mann used “proxy data,” tree rings and the like, for the long period when conventional measurements aren’t available.

Peer-reviewed articles have been published rebutting the hockey stick. Critics note that tree rings are sensitive to factors besides temperature. They argue that a flawed statistical method exaggerates the depiction of the run-up in temperature in the 20th century. They object to the switch-over — not highlighted in the graph — from tree rings to thermometer readings in later years, making the hockey stick an awkward combination of apples and oranges.

In short, Mann’s work has been highly controversial — and the occasion for invective and allegations of bad faith that inevitably attend disputes over hot-button issues.

If you don’t believe me, look no further than the words of Mann himself. He wrote a book titled “The Hockey Stick and the Climate Wars.” He claims that “the scientific community is in a street fight with climate change deniers,” and accuses his critics of taking “corporate payoffs for knowingly lying about the threat climate change posed to humanity.”

This is all well and good. The debate about climate change is enormously consequential, and deserves a full and robust airing by scientists and advocates representing every part of the spectrum on the issue. But Mann’s credo is evidently “scorching polemics for me, not for thee.”

We became his target for a lawsuit over a 272-word blog post. One of our contributors, Mark Steyn, quoted an attack on Mann written on another website. The post cited by Steyn ridiculed the hockey stick data in graphic terms and compared Mann to Jerry Sandusky, the Penn State football coach who was convicted of child sexual abuse. Although Steyn stopped short of making the analogy himself, he embraced the larger critique of Mann’s methods. Mann claimed in his complaint that it was defamatory for Steyn to call him the “man behind the fraudulent climate-change ‘hockey stick’ graph, the very ringmaster of the tree-ring circus.”

Mann maintains that calling the hockey stick “fraudulent” is tantamount to accusing him of a crime. But the word is loosely thrown around in debate all the time. In common polemical usage, it means misleading and wrong, not that someone has criminally defrauded people. Mann generally insists on a hyper-literal reading of Steyn’s sharp attack. That makes no sense. The post was obviously whimsical and hyperbolic — no one could reasonably believe that Mann has ever performed in “a tree ring circus” (whatever that is).

Mann’s suit shouldn’t be a close call. The courts have consistently held that the answer to uncongenial speech is more speech. “However pernicious an opinion may seem,” the Supreme Court wrote in a 1974 case, “we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”

At bottom, there is nothing that Steyn said about Mann that hasn’t been alleged by other critics — except they have been more polite about it. Harsh rhetoric expressing a sincere view about a public controversy is not actionable, though. In its landmark 1st Amendment decision in New York Times vs. Sullivan, the Supreme Court held that “uninhibited” public debate “may well include vehement, caustic, and sometimes unpleasantly sharp attacks.”

The Supreme Court, moreover, has established broad leeway for “lusty and imaginative” expression. It has rebuffed plaintiffs who wanted to take words like “blackmail” and “traitor” literally when they were clearly used as colorful epithets in free-wheeling debates.

The D.C. appeals court argued in our case that “if the use of ‘fraudulent’ in this one sentence were the only arguably defamatory statement” it would have to conclude that “such an ambiguous statement may not be presumed to necessarily convey a defamatory meaning.” It went on to nonetheless contend that Steyn’s post implied (even though it did not explicitly say) that Mann engaged in “serious misconduct.” Even “serious misconduct,” however, is an ambiguous accusation, and cannot be actionable unless we are going to effectively throw out extensive, long-standing jurisprudence creating a safe harbor for fierce polemics.

In a New York Times op-ed, Mann once referred to “the appearance of debate where none should exist.” He meant it. But the 1st Amendment exists as a bulwark against such would-be censors. His suit deserves to fail, and if free speech gets its rightful protection, eventually it will.

Rich Lowry is editor of National Review.

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