A Washington, D.C. judge has ruled that the conservative think tank the Competitive Enterprise Institute cannot be held responsible for an outside blogger’s 2012 online attack on a prominent climate scientist.

At the same time, the judge decided that a jury should decide whether the blogger, Rand Simberg, should be held liable for his post, which excoriated Pennsylvania State University climatologist Michael Mann and suggested that he had engaged in fraud. Mark Steyn, an outside blogger for the National Review, another conservative publication, also should face a trial over his own post, two days after Simberg’s, Superior Court Judge Alfred Irving Jr. ruled. 

Steyn had quoted extensively from Simberg’s original broadside, comparing the climate scientist to Jerry Sandusky, the disgraced Penn State assistant football coach in the wake of Sandusky’s conviction for child sexual abuse, writing that Mann “molested and tortured data in the service of politicized science.” After demanding a retraction and an apology that were not forthcoming, Mann sued for defamation and intentional infliction of emotional distress. 

The decisions last Thursday by Irving set the stage for a possible courtroom showdown on Mann’s seminal work, the iconic “hockey stick” graph of global temperature rise. But only the bloggers—not their publications—would face legal jeopardy. In March, Superior Court Judge Jennifer Anderson granted National Review’s motion to be dismissed from Mann’s case on essentially the same grounds Irving cited in granting a summary judgement for the Competitive Enterprise Institute (CEI), that the authors were not employees of CEI or the National Review. Both Irving and Anderson are appointees of President George W. Bush.

Mann’s attorney, John Williams of Washington, D.C., said that the climate scientist is determined to pursue the nine-year-old case: “We’re pleased with the decision with respect to Steyn and Simberg, and look forward to trial.” Mann’s legal team already has filed a motion for the court to reconsider its decision dismissing the case against National Review, and is considering whether to appeal the CEI ruling.

CEI expressed confidence that Mann would not prevail. “The ruling is a testament to a robust public sphere where ideas are contested through evidence, speech, and debate,” said CEI President Kent Lassman in a statement posted online. “We expect that the remaining defendants will be vindicated in time.”

The Staying Power of Doubts

Mann’s  “hockey stick” graph uses tree rings, boreholes, glacier retreat and other proxies to show the global temperature record of the past 2,000 years, with a dramatic rise during the last half of the 20th century, giving the figure the look of a hockey stick laying on its side.

The judge declined a novel bid by Mann for a ruling on the validity of his science, refusing the scientist’s request that the bloggers be barred from using the defense that their critique of his science was “substantially true.” The ruling opens the door for them to bring into the trial contrarian science, as well as email exchanges between Mann and other climate scientists that were hacked from a university server in England and posted on the internet in 2009 in an incident that became known as “Climategate.”

“There remain a great number of genuine disputes of material fact as to the methods that Plaintiff used to develop his hockey stick graph, the conclusions to be drawn from the Climategate emails, and Plaintiff’s actions while under investigation,” wrote Irving. “A reasonable jury could find, from this evidence, in favor of either Plaintiff or the CEI Defendants.”

In one sense, Irving’s ruling demonstrates the staying power of the doubts raised by foes of climate action. Critiques leveled soon after Mann published his 23-year-old “hockey stick” research persist, even though 19 of the warmest years on record have occurred since then, and the scientific consensus on anthropogenic global warming has grown substantially stronger.

The ruling also speaks to the high burden of proof for public figures like Mann in defamation cases under First Amendment law. Such a plaintiff must show that the defendants acted with “actual malice,” which means either knowing what was published was false or exhibiting reckless disregard for the truth, a standard established by the Supreme Court in rulings on libel suits against the news media, starting with New York Times v. Sullivan in 1964. 

Irving spent much of his 34-page opinion sifting through which, if any, CEI officials bore responsibility for Simberg’s posting and whether there was any evidence they had personal bias against Mann. He concluded that the sole CEI employee responsible for the posting of Simberg’s blog was a policy fellow just three years out of college, who “ran his eyes” over the article, checking for formatting errors and typos, paying no attention to the assertions the blog made. Irving said he saw no evidence that the fellow had great knowledge of the subject matter or an animus towards Mann.

The judge added, however, that it was clear that “many writers and employees at CEI held a deep bias” against Mann and sought to tarnish his work, but they were not responsible for the Simberg blog. 

Irving seemed to put equal weight on conspiracy theories that surrounded Climategate and the eight investigations by U.S. and U.K. government agencies and institutions concluded that there had been no wrongdoing by Mann or the other scientists. In 2016, a Washington, D.C. Court of Appeals looked at this same evidence, and concluded that Mann’s lawsuit had a likelihood of success on the merits.

Irving said his conclusion would have been different if CEI employees with demonstrated enmity toward Mann had any hand in publishing the Simberg blog, which the judge concluded clearly sought to convey that Mann “had engaged in fraud or the like.”

“It is likely that, had the CEI employees with deep bias against Plaintiff had a hand in publishing the Simberg Article, the Court of Appeals’ reasoning would stand today, as the investigatory reports exonerating Plaintiff are extensive, numerous, and reliable,” wrote Irving.

The judge’s ruling, if it stands and the case proceeds to trial, means that the bloggers will have to defend the accusation that they recklessly ignored those reports. But for now, the publishers who gave the bloggers a platform have succeeded in their bid to avoid liability, by virtue of the arm’s length relationship they maintained with the authors who wrote under their banner.