Amicus Curiae Brief — Competitive Enterprise Institute, et al., Petitioners v. Michael E. Mann

Supreme Court briefJun 12, 2019

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No. 18-1477

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In The

Supreme Court of the United States

-----------------------------------------------------------------COMPETITIVE ENTERPRISE INSTITUTE, ET AL.,

Petitioners,

MICHAEL E. MANN,

Respondent.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari To The

District Of Columbia Court Of Appeals

-----------------------------------------------------------------MOTION FOR LEAVE TO FILE BRIEF OF

AMICUS CURIAE AND BRIEF OF AMICUS

CURIAE SOUTHEASTERN LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

-----------------------------------------------------------------KIMBERLY S. HERMANN

SOUTHEASTERN LEGAL

FOUNDATION

560 W. Crossville Rd., Ste. 104

Roswell, GA 30075

HARRY W. MACDOUGALD

Counsel of Record

CALDWELL, PROPST &

DELOACH, LLP

Two Ravinia Dr., Ste. 1600

Atlanta, GA 30346

(404) 843-1956

hmacdougald@

cpdlawyers.com

Counsel for Amicus Curiae

June 2019

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

MOTION FOR LEAVE TO

FILE BRIEF OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37.2, Southeastern Legal Foundation (SLF) respectfully moves for

leave to file the accompanying amicus curiae brief in

support of the Petition. Petitioners have consented to

the filing of this amicus curiae brief. Respondent Michael Mann has withheld consent to the filing of this

amicus curiae brief. Accordingly, this motion for leave

to file is necessary.

SLF is a nonprofit, public interest law firm and

policy center founded in 1976 and organized under the

laws of the State of Georgia. SLF is dedicated to bringing before the courts issues vital to the preservation of

private property rights, individual liberties, limited

government, and the free enterprise system.

SLF regularly appears as amicus curiae before

this and other federal courts to defend the U.S. Constitution and the individual right to the freedom of speech

on political and public interest issues. See Common

Cause v. Schmitt, 455 U.S. 129 (1982) and Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014). SLF has

also participated both as a party and as amicus in

landmark global warming cases such as West Virginia,

et al. v. EPA, et al., No. 15-1363 (D.C. Cir. filed Oct. 23,

2015) (amicus); Util. Air Regulatory Grp., et al. v. EPA,

134 S. Ct. 2427 (2014) (party); Am. Elec. Power Co. v.

Connecticut, 564 U.S. 410 (2011) (amicus); Am. Mun.

Power v. EPA, 137 S. Ct. 2296 (2017) (amicus).

SLF agrees that this Court should grant the Petition to clarify and if necessary reformulate the boundary between protected expression and actionable

defamation to prevent and rectify the infringement on

First Amendment freedoms like that of the court below.

SLF will not repeat arguments made in the Petition in

its brief. Rather, SLF writes separately to address the

chilling effect and suppression of free discussion and

debate on public issues that results from the lower

court opinion. Further, SLF will discuss how the nature of the debates over climate science and policy in

general demonstrate that the opinion commentary at

issue here was common and echoed by many other respectable and scientifically well-informed participants

in the debate. As a result, it should be viewed, as a matter of law, as well within the rough-and-tumble parameters of debate in a very loud and boisterous corner of

the public square.

SLF believes that the arguments set forth in its

brief will assist the Court in resolving the issues presented by the Petition. SLF has no direct interest, financial or otherwise, in the outcome of the case.

Because of its lack of a direct interest, SLF believes

that it can provide the Court with a perspective that is

distinct and independent from that of the parties.

For the foregoing reasons, SLF respectfully requests that this Court grant leave to participate as

amicus curiae and to file the accompanying amicus curiae brief.

Respectfully submitted,

KIMBERLY S. HERMANN

SOUTHEASTERN LEGAL

FOUNDATION

560 W. Crossville Rd., Ste. 104

Roswell, GA 30075

HARRY W. MACDOUGALD

Counsel of Record

CALDWELL, PROPST &

DELOACH, LLP

Two Ravinia Dr., Ste. 1600

Atlanta, GA 30346

(404) 843-1956

hmacdougald@

cpdlawyers.com

QUESTIONS PRESENTED

Under the First Amendment, “a statement of opinion relating to matters of public concern which does

not contain a provably false factual connotation will

receive full constitutional protection.” Milkovich v.

Lorain Journal Co., 497 U.S. 1, 20 (1990). Applying that

principle, practically every lower court to consider the

issue has recognized that the First Amendment shields

from defamation liability subjective commentary on

the facts of a matter of public concern. The D.C. Court

of Appeals split from that consensus to hold that that

rule is limited to things like book reviews and does not

protect speech opining on public controversies like the

debate over climate science. Such commentary, it held,

may be subject to defamation liability whenever a jury

could conceivably find it to be false, even when the underlying facts are undisputedly true. Accordingly, the

questions presented are:

1. Whether the First Amendment permits defamation liability for subjective commentary on true

facts concerning a matter of public concern.

2. Whether the determination of whether a challenged statement contains a provably false factual connotation is a question of law for the court or a question

of fact for the jury.

TABLE OF CONTENTS

Page

Questions Presented ............................................

Table of Contents .................................................

Table of Authorities .............................................

iii

Interest of Amicus Curiae....................................

Summary of Argument ........................................

Argument .............................................................

II.

Debate over extremely contentious and

consequential issues of great public concern enjoys the highest possible level of

constitutional protection ...........................

Climate science and policy are highly contentious, highly polarized, and extremely

consequential matters of public concern ....

III.

Plaintiff Michael Mann’s work and advocacy in climate science and policy are

hotly disputed and highly polarized .......... 13

IV.

The District of Columbia Court of Appeals’

opinion demonstrates that existing rules

fail to sufficiently protect the speech at issue in this case .......................................... 22

Conclusion............................................................ 24

iii

TABLE OF AUTHORITIES

Page

CASES

Am. Elec. Power Co. v. Connecticut, 564 U.S. 410

(2011) ..................................................................... 1, 9

Am. Mun. Power v. EPA, 137 S. Ct. 2296 (2017) ..........1

Bennie v. Munn, 137 S. Ct. 812 (2017) .........................1

Brown v. Hartlage, 456 U.S. 45 (1982) .........................4

Buckley v. Valeo, 424 U.S. 1 (1976) ......................... 5, 21

Citizens United v. FEC, 558 U.S. 310 (2010) ................3

Consol. Edison Co. v. Public Serv. Comm’n, 447

U.S. 530 (1980) ..........................................................5

Eu v. San Francisco Cty. Democratic Cent.

Comm., 489 U.S. 214 (1989) ....................................22

First Nat’l Bank v. Bellotti, 435 U.S. 765 (1978) ..........5

Garrison v. Louisiana, 379 U.S. 64 (1964) ............. 4, 24

Levin v. McPhee, 119 F.3d 189 (2d Cir. 1997) ...............2

Meyer v. Grant, 486 U.S. 414 (1988) .............................4

Milkovich v. Lorain Journal Co., 497 U.S. 1

(1990) ................................................................... 2, 23

Mills v. Alabama, 384 U.S. 214 (1966) ..................... 4, 5

Minority TV Project, Inc. v. FCC, 134 S. Ct. 2874

(2014) .........................................................................1

New York Times Co. v. Sullivan, 376 U.S. 254

(1964) ................................................. 6, 20, 22, 23, 24

Phantom Touring, Inc. v. Affiliated Publ’ns, 953

F.2d 724 (1st Cir. 1992) .............................................2

TABLE OF AUTHORITIES – Continued

Page

Republican Party v. White, 536 U.S. 765 (2002) .........22

Roth v. United States, 354 U.S. 476 (1957) ..................4

Susan B. Anthony List v. Driehaus, 134 S. Ct.

2334 (2014) ................................................................1

Thornhill v. Alabama, 310 U.S. 88 (1940) ....................4

Util. Air Regulatory Grp., et al. v. EPA, 134 S. Ct.

2427 (2014) ................................................................1

West Virginia, et al. v. EPA, et al., No. 15-1363

(D.C. Cir. filed Oct. 23, 2015) .....................................1

Whitney v. California, 274 U.S. 357 (1927) ..................4

RULES

Sup. Ct. R. 37.2(b) .........................................................1

Sup. Ct. R. 37.6 .............................................................1

OTHER AUTHORITIES

1 John Trenchard & William Gordon, Cato’s Letters: Essays on Liberty, Civil and Religious 99

(1724), reprinted in Jeffrey A. Smith, Printers

and Press Freedom: The Ideology of Early

American Journalism 25 (Oxford University

Press 1988) ............................................................ 3, 4

A Disgrace to the Profession: The World’s Scientists in Their Own Words on Michael Mann,

His Hockey Stick, and Their Damage to Science, Vol. 1 (Mark Steyn ed. 2015)..........................21

TABLE OF AUTHORITIES – Continued

Page

A.W. Montford, Hiding the Decline: A History of

the Climategate Affair (2012) .................................18

A.W. Montford, The Hockey Stick Illusion: Climategate and the Corruption of Science

(2010) .......................................................................18

Blakeley B. McShane & Abraham J. Wyner, A

Statistical Analysis of Multiple Temperature

Proxies: Are Reconstructions of Surface Temperatures Over the Last 1000 Years Reliable?,

5 Annals of Applied Statistics (2011) .....................17

Clive Crook, Climategate and the Big Green Lie,

The Atlantic (July 14, 2010) ...................................20

E. Kancler, Mother Jones (Apr. 18, 2005) ...................13

Editorial, U.N. Official Reveals Real Reason Behind Warming Scare, Investor’s Business

Daily (Feb. 10, 2015) ...............................................12

Edward J. Wegman, et al., Ad hoc Committee

Report on the ‘Hockey Stick’ Global Climate

Reconstruction (Apr. 26, 2010) .......................... 16, 17

E-mail from Michael E. Mann to Phil Jones

(Dec. 30, 2004, 09:22:02) .........................................13

Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section

202(a) of the Clean Air Act: EPA’s Response to

Public Comments, Vol. 2 .........................................18

Global warming could cause rise in kidney

stones: study, The Canadian Press (July 15,

2008) ..........................................................................8

TABLE OF AUTHORITIES – Continued

Page

Hannah Ritchie & Max Roser, Our World in

Data: CO2 Emissions and Prosperity, Our

World in Data (May 2017) ......................................10

House Select Committee on the Climate Crisis ........10

How 18 Democratic Candidates Responded to a

Climate Policy Survey, The New York Times

(Apr. 18, 2019) ...........................................................9

Interview by Neue Zürcher Zeitung with

Ottmar Edenhofer, “IPCC Official: ‘Climate

Policy Is Redistributing The World’s Wealth’ ”,

The Global Warming Policy Forum (Nov. 14,

2010) ........................................................................11

IPCC First Assessment Report (1990) .......................15

IPCC Third Assessment Report (2001) ......................15

IPCC Fifth Assessment Report (2013) .........................9

Jeff Brady, Despite Few Details And Much

Doubt, The Green New Deal Generates Enthusiasm, NPR (Feb. 8, 2019) .......................................10

John Adams, A Dissertation on the Canon and

Feudal Law (1765) ................................................ 5, 6

Joseph D’Aleo, Alarmist Claim Rebuttals,

ACResearch (May 20, 2019)......................................9

Larry Bell, Climate of Corruption, Politics and

Power Behind the Global Warming Hoax

(2001) .......................................................................11

Lenore Taylor, Penny Wong jeered, Hugo Chavez

cheered, The Australian (Dec. 17, 2009) .................12

vii

TABLE OF AUTHORITIES – Continued

Page

Louis Jacobson, Yes, Donald Trump did call climate change a Chinese hoax, Politifact (June

3, 2016) ....................................................................10

M. Crok, N&T (Feb. 16, 2005).....................................13

Michael E. Mann, et al., Global-Scale Temperature Patterns and Climate Forcing over the

Past Six Centuries, 392 Nature 6678 (1998) ..........14

Muneeb Kazi, Global Warming May Cause

Women To Become Prostitutes, Says Rep. Barbara Lee, The Science Times (Mar. 27, 2015) ...........8

National Research Council, Surface Temperature Reconstructions for the Last 2,000 Years

(2006), Chapter 9 Statistical Background..............17

Patrick J. Michaels, How to Manufacture a Climate Consensus, CATO Institute (Dec. 18,

2009) ........................................................................18

Quotes.net, My Cousin Vinny (1992)..........................20

Roger Pielke, Jr., The Rightful Place of Science:

Disasters & Climate Change (2018 Consortium for Science, Policy & Outcomes).......................9

Ross McKitrick & John Christy, A Test of the

Tropical 200- to 300-hPa Warming Rate in

Climate Models, Earth & Space Science 5,

529–36 (2018) ............................................................7

viii

TABLE OF AUTHORITIES – Continued

Page

Stephen McIntyre & Ross McKitrick, Corrections to the Mann et al. (1998) Proxy Data

Base And Northern Hemispheric Average

Temperature Series, 14 Energy & Environment, No. 6 (2003) ....................................... 15, 16, 17

Stephen McIntyre & Ross McKitrick, Hockey

Sticks, Principal Components, and Spurious

Significance, 32 Geophysical Research Letters

(2005) ................................................................. 15, 16

Stephen McIntyre, New Light on “Delete Any

Emails,” Climate Audit (Feb. 23, 2011 at 5:32

PM) ..........................................................................18

Stephen McIntyre & Ross McKitrick, The M&M

Critique Of The MBH98 Northern Hemisphere

Climate Index: Update And Implications, 16

Energy & Environment, No. 1 (2005) ............... 15, 16

Stephen McIntyre & Ross McKitrick, Reply to

comment by Huybers on ‘‘Hockey sticks, principal components, and spurious significance,’’ 32

Geophysical Research Letters (2005) ............... 15, 16

Stephen McIntyre & Ross McKitrick, Reply to

comment by von Storch and Zorita on ‘‘Hockey

sticks, principal components, and spurious significance,’’ 32 Geophysical Research Letters

(2005) ................................................................. 15, 16

Stephen McIntyre “Climategate: A Battlefield

Perspective” (May 16, 2010) ....................................16

TABLE OF AUTHORITIES – Continued

Page

Stephen McIntyre, Correspondence with the

University of Virginia, Climate Audit (May 3,

2010, 11:03 AM) ................................................ 13, 16

Stephen McIntyre, IPCC and the “Trick,” Climate Audit (Dec. 10, 2009) ......................................16

Technical Support Document for Endangerment

and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean

Air Act (Dec. 7, 2009) ................................................8

The Guardian, “The five key leaked emails from

UEA’s Climatic Research Unit” (July 7, 2010) .......18

The Independent Climate Change E-mails Review (July 2010) ......................................................19

INTEREST OF AMICUS CURIAE1

Founded in 1976, Southeastern Legal Foundation

is a national nonprofit, public interest law firm and

policy center that advocates individual liberties, limited government, and free enterprise in the courts of

law and public opinion. For 40 years, SLF has advocated, both in and out of the courtroom, for the protection of our First Amendment rights. This aspect of its

advocacy is reflected in regular representation of those

challenging overreaching governmental actions in violation of their freedom of speech. See, e.g., Bennie v.

Munn, 137 S. Ct. 812 (2017); Minority TV Project, Inc.

v. FCC, 134 S. Ct. 2874 (2014); Susan B. Anthony List

v. Driehaus, 134 S. Ct. 2334 (2014).

SLF has also participated both as a party and as

amicus in landmark global warming cases such as West

Virginia, et al. v. EPA, et al., No. 15-1363 (D.C. Cir. filed

Oct. 23, 2015) (amicus); Util. Air Regulatory Grp., et al.

v. EPA, 134 S. Ct. 2427 (2014) (party); Am. Elec. Power

Co. v. Connecticut, 564 U.S. 410 (2011) (amicus); Am.

Mun. Power v. EPA, 137 S. Ct. 2296 (2017) (amicus).

------------------------------------------------------------------

Rule 37 statement: Consent to file this brief was requested

of the parties but refused by the Respondent. Therefore, this brief

is accompanied by a motion for leave to file. See Sup. Ct. R.

37.2(b). No party’s counsel authored any of this brief; amicus

alone funded its preparation and submission. See Sup. Ct. R. 37.6.

The parties received timely notice of this filing.

SUMMARY OF ARGUMENT

In Milkovich v. Lorain Journal Co., 497 U.S. 1

(1990), the Court set forth guidelines for lower courts

to determine the boundaries beyond which expressions

of opinion lose their First Amendment protection. The

ensuing years, and particularly this case, show that

further clarification is necessary to give adequate

“breathing room” for vigorous public debate on climate

science and policy, hotly contested and highly consequential matters of utmost public concern.

Following Milkovich, most federal circuit courts

and several state courts continued by other means to

distinguish and immunize commentary about facts as

opposed to defamatory statements of underlying facts.

These approaches generally protect subjective, hyperbolic, and even vituperative commentary and statements of opinion about “true facts” because such

commentary cannot be proved false, while at the same

time, permitting claims arising from provably false

and defamatory statements of fact.

These approaches sometimes rest on rather fine

distinctions between statements of opinion and “actual

facts” capable of being proven false. For example, a

polemical accusation of “fraud” about a stage play in

Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d

724 (1st Cir. 1992) and a speculative conjecture that

the plaintiff was a murderer in Levin v. McPhee, 119

F.3d 189 (2d Cir. 1997) were both protected on this basis. In some cases, protection turns on the genre of expression, with genre-specific dispensations crafted on

a case-by-case basis where scathing commentary is the

norm.

This improvised regime of barely perceptible distinctions yields inconsistent results, imposes burdens

of proof on defendants that are too onerous, and offers

insufficient shelter to vigorous public discourse on

matters of great public concern. This Court should

grant the Petition to clarify and if necessary reformulate the boundary between protected expression and

actionable defamation, to prevent and rectify the infringement on First Amendment freedoms like that of

the court below.

------------------------------------------------------------------

ARGUMENT

Debate over extremely contentious and

consequential issues of great public concern enjoys the highest possible level of

constitutional protection.

Since 1724, freedom of speech has famously been

referred to as the “great Bulwark of liberty[.]” 1 John

Trenchard & William Gordon, Cato’s Letters: Essays

on Liberty, Civil and Religious 99 (1724), reprinted in

Jeffrey A. Smith, Printers and Press Freedom: The Ideology of Early American Journalism 25 (Oxford University Press 1988). The First Amendment “was

understood as a response to the repression of speech

and the press that had existed in England.” Citizens

United v. FEC, 558 U.S. 310, 353 (2010). Through the

First Amendment, our Founding Fathers sought to

ensure complete freedom for “discussing the propriety

of public measures and political opinions.” Benjamin

Franklin’s 1789 newspaper essay, reprinted in Smith,

at 11. “Believing in the power of reason as applied

through public discussion, they eschewed silence coerced by law – the argument of force in its worst form.”

Whitney v. California, 274 U.S. 357, 375-76 (1927)

(Brandeis, J., concurring).

A major purpose of the First Amendment was to

protect public discourse, broadly defined. “Whatever

differences may exist about interpretations of the First

Amendment, there is practically universal agreement

that a major purpose of that Amendment was to protect the free discussion of governmental affairs.”

Brown v. Hartlage, 456 U.S. 45, 52 (1982) (quoting

Mills v. Alabama, 384 U.S. 214, 218-19 (1966)). “The

freedom of speech and of the press guaranteed by the

Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent

punishment.” Meyer v. Grant, 486 U.S. 414, 421 (1988)

(quoting Thornhill v. Alabama, 310 U.S. 88, 101-02

(1940)). “The First Amendment ‘was fashioned to assure unfettered interchange of ideas for the bringing

about of political and social changes desired by the people.’ ” Id. (quoting Roth v. United States, 354 U.S. 476,

484 (1957)). “For speech concerning public affairs is

more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U.S. 64, 74-75

(1964). This free discussion necessarily “includes discussions of candidates, structures and forms of

government, the manner in which government is operated or should be operated, and all such matters relating to political processes.” Mills, 384 U.S. at 218-19.

When a law or judgment burdens political or public issue speech, this Court applies the most exacting

scrutiny and upholds such restrictions only if they are

narrowly tailored to serve a compelling government interest. Buckley v. Valeo, 424 U.S. 1, 44-45 (1976); see

also Consol. Edison Co. v. Public Serv. Comm’n, 447

U.S. 530, 540-41 (1980); First Nat’l Bank v. Bellotti, 435

U.S. 765, 786 (1978).

John Adams’ A Dissertation on the Canon and Feudal Law, written in 1765, argues that a free press is

essential to the preservation of liberty. Adams paid

particular attention to the means and methods of disseminating knowledge to an informed yeoman citizenry to preserve liberty – the printing press in his day

and the internet in ours:

Care has been taken that the art of printing

should be encouraged, and that it should be

easy and cheap and safe for any person to

communicate his thoughts to the public. And

you, Messieurs printers, whatever the tyrants

of the earth may say of your paper, have done

important service to your country by your

readiness and freedom in publishing the speculations of the curious. The stale, impudent

insinuations of slander and sedition, with

which the gormandizers of power have endeavored to discredit your paper, are so much

the more to your honor; for the jaws of power

are always opened to devour, and her arm is

always stretched out, if possible, to destroy

the freedom of thinking, speaking, and writing. And if the public interest, liberty, and

happiness have been in danger from the ambition or avarice of any great man, whatever

may be his politeness, address, learning, ingenuity, and, in other respects, integrity and humanity, you have done yourselves honor and

your country service by publishing and pointing out that avarice and ambition.

John Adams, A Dissertation on the Canon and Feudal

Law 7-8, The Federalist Papers Project.2 Adams’ tribute to the printers of his day applies with equal force

to the defendants,3 who have been persecuted over six

years of litigation – and counting – for pointing out

that the emperor has no clothes.

The familiar principles outlined above drove the

seminal overhaul of defamation law in New York Times

Co. v. Sullivan, 376 U.S. 254 (1964), and the Court’s

subsequent enduring vigilance in protecting vigorous

discourse on matters of public concern.

Available at https://thefederalistpapers.org/wp-content/

uploads/2013/01/John-Adams-A-Dissertation-on-Canon-and-FeudalLaw.pdf, p. 7-8 (last visited June 11, 2019).

“Defendants” as used in this amicus curiae brief refers

to the defendants in the consolidated cases Nos. 14-cv-101 and

14-cv-126 before the D.C. Court of Appeals: National Review,

Rand Simberg, and Competitive Enterprise Institute.

II.

Climate science and policy are highly contentious, highly polarized, and extremely

consequential matters of public concern.

Climate science and policy are of great public importance and concern. From seemingly authoritative

sources we hear a constant drumbeat warning that human-caused climate change poses an imminent and serious if not existential threat to humanity, such that

we must take urgent and decisive action before it is too

late. The science on which such exhortations are based

is said to be settled beyond honest dispute. Those skeptical of these claims are assailed as deniers and corrupt

frauds, including by the plaintiff here. To avert the climate apocalypse, policies and programs are offered to

restructure fundamentally the global economy away

from fossil fuels. In this view, literally nothing could be

more important.

These are radical claims. In a free society any demand for such a radical restructuring naturally provokes skepticism and resistance. Climate skepticism

exists and thrives in part because of the trenchancy of

the scientific critiques that are mounted, including the

jarring mismatch between climate models and observations,4 and in part by the sometimes risible nature

Ross McKitrick & John Christy, A Test of the Tropical 200to 300-hPa Warming Rate in Climate Models, Earth & Space Science 5, 529–36 (2018), https://agupubs.onlinelibrary.wiley.com/

doi/epdf/10.1029/2018EA000401 (“[W]e observe a discrepancy

across all runs of all models, taking the form of a warming bias

at a sufficiently strong rate as to reject the hypothesis that the

models are realistic. Our interpretation of the results is that the

major hypothesis in contemporary climate models, namely, the

of hysterical claims that all manner of unpleasant developments, from kidney stones5 to the loss of feminine

virtue,6 and every type of bad weather,7 are caused or

theoretically based negative lapse rate feedback response to increasing greenhouse gases in the tropical troposphere, is incorrect.”).

Global warming could cause rise in kidney stones: study,

The Canadian Press (July 15, 2008), https://www.cbc.ca/news/

technology/global-warming-could-cause-rise-in-kidney-stonesstudy-1.734262.

Muneeb Kazi, Global Warming May Cause Women To Become Prostitutes, Says Rep. Barbara Lee, The Science Times (Mar.

27, 2015), https://www.sciencetimes.com/articles/4906/20150327/

global-warming-may-cause-women-to-become-prostitutes-says-repbarbara-lee.htm.

EPA’s Endangerment Finding for Greenhouse Gases projects rising GHG concentrations will lead to loss of Arctic ice, sea

level increases, more frequent and severe storms, floods, and

droughts. See Technical Support Document for Endangerment

and Cause or Contribute Findings for Greenhouse Gases under

Section 202(a) of the Clean Air Act (Dec. 7, 2009) (TSD), at ES4, https://www.epa.gov/sites/production/files/2016-08/documents/

endangerment_tsd.pdf (“Sea ice extent is projected to shrink in

the Arctic under all IPCC emissions scenarios”); (“It is very likely

that heat waves will become more intense, more frequent, and

longer lasting in a future warm climate, whereas cold episodes

are projected to decrease significantly.”); (“It is likely that hurricanes will become more intense”); (“Intensity of precipitation

events is projected to increase in the United States and other regions of the world. More intense precipitation is expected to increase the risk of flooding.”); (“Reduced snowpack, earlier spring

snowmelt, and increased likelihood of seasonal summer droughts

are projected in the Northeast, Northwest, and Alaska. More severe, sustained droughts and water scarcity are projected in the

Southeast, Great Plains, and Southwest.”).

made worse by “climate change.” Observations simply

do not match and indeed refute these claims.8

This Court has wisely avoided taking a position on

the thorny issues of climate science. In American Electric Power Co., the Court described the findings of the

EPA on human-caused global warming, but carefully

noted the existence of reputable views to the contrary:

For views opposing EPA’s, see, e.g., Dawidoff,

The Civil Heretic, N. Y. Times Magazine 32

(March 29, 2009). The Court, we caution,

endorses no particular view of the complicated issues related to carbon dioxide

emissions and climate change.

564 U.S. at 417 n.2 (emphasis added) (citing an article

profiling the famous physicist Freeman Dyson and his

skepticism towards human-caused global warming).

The significance of the public policy issues arising

from the claims of climate science can hardly be overstated. Many politicians have declared global warming

to be a crisis, an emergency, or an “existential threat.”9

See IPCC Fifth Assessment Report (2013), § 10.6.1.3, at

913 (insufficient evidence to detect or attribute any trend in

droughts); id., Technical Summary at 112 (no trend in floods); id.,

§ 2.6.3 (low confidence there is any trend in tropical cyclones). See

also Roger Pielke, Jr., The Rightful Place of Science: Disasters &

Climate Change (2018 Consortium for Science, Policy & Outcomes); Joseph D’Aleo, Alarmist Claim Rebuttals, ACResearch

(May 20, 2019), https://alarmistclaimresearch.wordpress.com/

2019/05/20/alarmist-claim-fact-check-update/ (rebutting 10 common alarmist claims).

See How 18 Democratic Candidates Responded to a

Climate Policy Survey, The New York Times (Apr. 18, 2019),

Some have endorsed a radical but amorphous agenda

labeled the “Green New Deal.”10 There is a U.S. House

Select Committee on the “Climate Crisis.”11 By contrast, President Trump is on record saying global

warming is a “hoax.”12

The policy proposals to solve global warming generally call for the partial or complete elimination of fossil fuels. This outcome is urgently sought despite the

miraculous improvements in the material quality of

human health and welfare that have ensued from the

widespread exploitation of fossil fuels.13 Modern civilization unquestionably depends on fossil fuels.

Some advocates of radical policies to “fight” “climate change” have at times made no secret of their actual political agenda. Former co-chair of IPCC Working

https://www.nytimes.com/2019/04/18/us/politics/climate-change2020-democratic-candidates.html.

See Jeff Brady, Despite Few Details And Much Doubt, The

Green New Deal Generates Enthusiasm, NPR (Feb. 8, 2019),

https://www.npr.org/2019/02/08/692508990/despite-few-detailsand-much-doubt-the-green-new-deal-generates-enthusiasm.

See House Select Committee on the Climate Crisis,

https://climatecrisis.house.gov (last visited June 9, 2019).

See Louis Jacobson, Yes, Donald Trump did call climate

change a Chinese hoax, Politifact (June 3, 2016), https://www.

politifact.com/truth-o-meter/statements/2016/jun/03/hillary-clinton/

yes-donald-trump-did-call-climate-change-chinese-h/.

See Hannah Ritchie & Max Roser, Our World in Data:

CO2 Emissions and Prosperity, Our World in Data (May 2017),

https://ourworldindata.org/co2-and-other-greenhouse-gas-emissions

#co2-emissions-and-prosperity.

Group 3, Ottmar Edenhofer, gave an interview in

which he said:

The climate summit in Cancun at the end of

the month is not a climate conference, but one

of the largest economic conferences since the

Second World War. . . . But one must say

clearly that we redistribute de facto the

world’s wealth by climate policy. Obviously,

the owners of coal and oil will not be enthusiastic about this. One has to free oneself from

the illusion that international climate policy

is environmental policy. This has almost nothing to do with environmental policy anymore,

with problems such as deforestation or the

ozone hole.14

Similar quotes showing a clear intent to destroy capitalism in the name of saving the planet from global

warming can be collected from such figures as Maurice

Strong, founder of the United Nations Framework on

Climate Change,15 or Christina Figueres, a recent head

See Interview by Neue Zürcher Zeitung with Ottmar

Edenhofer, “IPCC Official: ‘Climate Policy Is Redistributing The

World’s Wealth’ ”, The Global Warming Policy Forum (Nov. 14,

2010), https://www.thegwpf.com/ipcc-official-climate-policy-isredistributing-the-worlds-wealth/, translating from original German publication https://www.nzz.ch/klimapolitik_verteilt_das_

weltvermoegen_neu-1.8373227 (last visited June 10, 2019).

Larry Bell, Climate of Corruption, Politics and Power Behind the Global Warming Hoax 226 (2001) (“We may get to the

point where the only way of saving the world will be for industrialized civilization to collapse.”).

of that same organization,16 or from Hugo Chavez, the

late communist dictator of Venezuela.17 While not

every advocate of aggressive climate change policy

holds such views, remarks of this nature are widely

known to skeptics and are enough in and of themselves

to provoke vigorous, completely legitimate, and constitutionally protected opposition from those who, reviewing the bloody and tyrannical record of collectivism,

independently conclude that the cure must be worse

the disease.

In the end, policies to “fight” “climate change” rest

on the claims of climate science. As a result, disputes

about climate science and climate policy are inextricably intertwined. Whether climate science is wrong in

some significant respect is thus a matter of intense importance and public interest.

Editorial, U.N. Official Reveals Real Reason Behind

Warming Scare, Investor’s Business Daily (Feb. 10, 2015) (“This

is probably the most difficult task we have ever given ourselves,

which is to intentionally transform the economic development

model for the first time in human history.”), https://www.

investors.com/politics/editorials/climate-change-scare-tool-todestroy-capitalism/.

Lenore Taylor, Penny Wong jeered, Hugo Chavez cheered,

The Australian (Dec. 17, 2009) (“Our revolution seeks to help all

people . . . socialism, the other ghost that is probably wandering

around this room, that’s the way to save the planet, capitalism is

the road to hell . . . let’s fight against capitalism and make it obey

us.”), http://www.theaustralian.com.au/politics/penny-wong-jeeredhugo-chavez-cheered/story-e6frgczf-1225811179614.

III. Plaintiff Michael Mann’s work and advocacy in climate science and policy are hotly

disputed and highly polarized.

Plaintiff Michael Mann is both a climate scientist

and an impassioned advocate for very aggressive climate policies. He is also a vituperative critic of those

with whom he disagrees.

His rhetoric on both science and policy issues is

equally if not more scathing and pejorative than the

comments about which he complains in this lawsuit.

He often accuses those with whom he has scientific disputes of fraud18 and those with whom he has policy disagreements of corruption.19 This type of rhetoric is par

for the course in the highly polarized and politicized

debates over climate science and policy.

One reason for the intensity of the disputes over

Mann’s work arises from its importance to determining whether humans are the cause of observed warming, one of the most fundamental issues in climate

science. His work, as relevant to this case, relates to

reconstruction of temperature trends in periods before

there were thermometers. This field, broadly called

See Stephen McIntyre, Correspondence with the University

of Virginia, Climate Audit (May 3, 2010, 11:03 AM), https://

climateaudit.org/2010/05/03/correspondence-with-the-universityof-virginia/; E-mail from Michael E. Mann to Phil Jones (Dec.

30, 2004, 09:22:02), http://www.climateaudit.info/data/CG1/

1104855751.txt; E. Kancler, Mother Jones (Apr. 18, 2005),

archive.is/zw6j2.

See M. Crok, N&T (Feb. 16, 2005), archive.is/XD7fe.

paleoclimatology, relies on indirect historical indicia of

temperatures, called proxies, preserved to varying degrees in such things as tree rings, fossils, and the isotopic composition of air bubbles buried in ice sheets.

Analysis of proxy data is highly sensitive to the particular proxy data selected – some is better than others.

It is also sensitive to the statistical methods employed,

as the data, especially tree rings, often has many infirmities, such as weak signal-to-noise ratios, multiple

confounding factors, poor temporal resolution, patchy

and limited spatial coverage, or all of these.

Mann’s work was an important building block for

the argument that observed warming can be attributed to human emissions of greenhouse gases. His

Hockey Stick graph first appeared in his 1998 paper,

Michael E. Mann, et al., Global-Scale Temperature Patterns and Climate Forcing over the Past Six Centuries,

392 Nature 6678 (1998). The Hockey Stick graph

showed a long flat handle, and a very sharp uptick in

the 20th century, the blade.

The importance of the Hockey Stick graph to the

attribution debate can hardly be overstated. Attribution analysis requires a determination of the scope of

natural variability and whether modern temperatures

exceed that scope and thus support an inference of human causation. The Hockey Stick was a great boon to

that inference because it showed minimal natural variability over a long period, and a sharp upward excursion from that range in recent years.

The Hockey Stick contradicted the then-prevalent

consensus, supported by the Intergovernmental Panel

on Climate Change (IPCC), that there had been a Medieval Warm Period and a Little Ice Age.20 Yet the

Hockey Stick, in various iterations, quickly became

world-famous iconic proof of dangerous man-made

global warming. A version of the Hockey Stick appeared on the cover of the World Meteorology Organization’s 1999 annual report and was also relied upon

in the 2001 IPCC Third Assessment Report, Working

Group 1, Chapter 2 at 134, Figures 2.20 and 2.21.

Given the pivotal importance of Mann’s work to

the argument for attribution, and its contradiction of

the prior consensus, it was inevitably subjected to intense scrutiny. Controversy over the validity of his

data and methods raged for years in the scientific literature and in online forums for the discussion of climate science.21

See IPCC, First Assessment Report (1990), Fig. 7.1.

See Stephen McIntyre & Ross McKitrick, Corrections to the

Mann et al. (1998) Proxy Data Base And Northern Hemispheric

Average Temperature Series, 14 Energy & Environment, No. 6 at

751 (2003); Stephen McIntyre & Ross McKitrick, Hockey Sticks,

Principal Components, and Spurious Significance, 32 Geophysical Research Letters (2005); Stephen McIntyre & Ross McKitrick,

The M&M Critique Of The MBH98 Northern Hemisphere Climate

Index: Update And Implications, 16 Energy & Environment,

No. 1 at 69 (2005); Stephen McIntyre & Ross McKitrick, Reply

to comment by von Storch and Zorita on ‘‘Hockey sticks, principal

components, and spurious significance,’’ 32 Geophysical Research

Letters (2005); Stephen McIntyre & Ross McKitrick, Reply to

comment by Huybers on ‘‘Hockey sticks, principal components,

and spurious significance,’’ 32 Geophysical Research Letters

Several very serious problems were identified in

Mann’s work. The major points of contention included

but were not limited to the following:22

1. The use of a statistical method that would

show a hockey stick when applied to data that

had no such actual trend.23

2. Failure to disclose adverse verification

statistics for the analysis used in the 1998 paper.24

3. Deletion of a portion of a proxy reconstruction that declined instead of going up, famous in climate circles as “Hiding the

Decline.”25

4. Undisclosed grafting of instrumental data

onto a proxy reconstruction after having denied this was ever done.26

(2005); Edward J. Wegman, et al., Ad hoc Committee Report on

the ‘Hockey Stick’ Global Climate Reconstruction (Apr. 26, 2010)

(Wegman Report), http://scienceandpublicpolicy.org/wp-content/

uploads/2010/07/ad_hoc_report.pdf.

This compilation in n.21 and in n.23-26 is taken from the

amicus brief filed in the court below by Stephen McIntyre.

See authorities cited in n.21.

The M&M Critique Of The MBH98 Northern Hemisphere

Climate Index: Update And Implications.

See Stephen McIntyre, IPCC and the “Trick,” Climate

Audit (Dec. 10, 2009), archive.is/TkfA; see also Stephen McIntyre

“Climategate: A Battlefield Perspective” (May 16, 2010),

tinyurl.com/237sbba (both last visited June 9, 2019).

See Stephen McIntyre, Correspondence with the University

of Virginia, Climate Audit (May 3, 2010, 11:03 AM).

The first of these points, that the statistical

method used in the 1998 paper would produce a spurious hockey stick, was first shown by Stephen McIntyre

& Ross McKitrick in 2003.27 This finding was later

confirmed three separate times: (1) by an ad hoc panel,

chaired by the President of the American Statistical

Association, convened by a Congressional Committee;28 (2) by a panel of the National Research Council;29

and (3) in an important paper by Blakeley B. McShane

and Abraham J. Wyner.30

As a result of the fundamental problems with

the merits of Mann’s work, EPA gave it a wide berth

when it promulgated the 2009 Endangerment Finding.

In responding to a commenters’ criticism of the Hockey

Stick, EPA replied: “[W]e we note that the TSD

See first cited paper in n.21 above.

See Wegman Report at 4 (“In general, we found MBH98

and MBH99 to be somewhat obscure and incomplete and the criticisms of MM03/05a/05b to be valid and compelling.”).

National Research Council, Surface Temperature Reconstructions for the Last 2,000 Years (2006), Chapter 9 Statistical

Background, p. 90, https://www.nap.edu/read/11676/chapter/12

(“McIntyre and McKitrick (2003) demonstrated that under some

conditions the leading principal component can exhibit a spurious

trendlike appearance, which could then lead to a spurious trend

in the proxy-based reconstruction.”).

Blakeley B. McShane & Abraham J. Wyner, A Statistical

Analysis of Multiple Temperature Proxies: Are Reconstructions

of Surface Temperatures Over the Last 1000 Years Reliable?,

5 Annals of Applied Statistics, 5-44 (2011) (“[W]e conclude unequivocally that the evidence for a ‘long-handled’ hockey stick

(where the shaft of the hockey stick extends to the year 1000 AD)

is lacking in the data.”).

[Technical Support Document] does not include nor

discuss the ‘hockey-stick’ graph in (Mann et al., 1998),

nor [the] treatment of this issue in IPCC 2001.”31

These controversies were turbocharged with the

publication of the Climategate emails in 2009. The

emails showed, among other things, that Mann conspired to exclude skeptical papers from scientific journals, ostracize the scientists who wrote them and the

editors who published them,32 and relayed a request

for the destruction of emails subject to Freedom of Information Act requests from a scientist in England to

a scientist in the U.S.33

This touched off a firestorm of negative publicity

for climate scientists, including Mann. A.W. Montford

wrote two books detailing the controversies and scientific misconduct in the Hockey Stick saga. See A.W.

Montford, The Hockey Stick Illusion: Climategate and

the Corruption of Science (2010) and A.W. Montford,

Endangerment and Cause or Contribute Findings for

Greenhouse Gases Under Section 202(a) of the Clean Air Act:

EPA’s Response to Public Comments, Vol. 2, Response (2-65) at

46.

See Patrick J. Michaels, How to Manufacture a Climate

Consensus, CATO Institute (Dec. 18, 2009), https://www.cato.

org/publications/commentary/how-manufacture-climate-consensus.

See The Guardian, “The five key leaked emails from UEA’s

Climatic Research Unit” (July 7, 2010), https://www.theguardian.com/

environment/2010/jul/07/hacked-climate-emails-analysis; Stephen McIntyre, New Light on “Delete Any Emails,” Climate Audit

(Feb. 23, 2011 at 5:32 PM), https://climateaudit.org/2011/02/23/

new-light-on-delete-any-emails/.

Hiding the Decline: A History of the Climategate Affair

(2012).

In the ensuing uproar, various bodies undertook

investigations. The District of Columbia Court of Appeals relies heavily on four of these “investigations” to

conclude that any commentary by defendants to the effect that Mann had engaged in academic misconduct

or fraud was provably false and therefore defendants’

commentary presented a jury question on defamation.

The record below, however, demonstrates that

these reports simply do not support the propositions

for which they were cited by the District of Columbia

Court of Appeals. A Parliamentary Committee Report

cited by the court below as having exonerated Mann

never even examined his conduct. The Muir Russell inquiry, also cited as having exonerated Mann, found the

exact opposite – that “[i]n relation to ‘hide the decline’

we find that, given its subsequent iconic significance

(not least the use of a similar figure in the TAR), the

figure supplied for the WMO Report was misleading. . . .”34 A National Science Foundation Inspector

General Report – relied on as well by the court below

– criticized the Penn State investigation, also relied on

by the court below, for having interviewed only one

The Independent Climate Change E-mails Review at

60 ¶ 26 (July 2010) (Muir Russell Report), at 13 ¶ 23,

http://www.cce-review.org/pdf/FINAL%20REPORT.pdf.

witness, Michael Mann himself, who was in the

“unique position” of “say[ing] [he] didn’t do it.”35

Critics, even some who could in no sense be considered climate skeptics, mocked and assailed these investigations as obvious whitewashes.36 The court

below, however, held these investigations exonerated

Mann and created a question of fact whether defendant could be shown by clear and convincing evidence to

have acted with actual malice in satirically mocking

Mann and his claims of exoneration. Contrary to the

decision below, strong ridicule of these investigations

was a widely circulated and well-supported opinion.

That defendants should be forced to bear the burden of

trial in a defamation action under these circumstances

repudiates First Amendment law since New York

Times Co. v. Sullivan.

The nature of online discussion regarding plaintiff

before the allegedly libelous statements in this case

were first published on July 13, 2012, is evident from

the results of a Google search for “Michael Mann

fraud,” limited to occurrences before July 11, 2012,

which yields approximately 62,400 results.37 As far as

Mann was concerned, the comments made by the

Quotes.net, My Cousin Vinny (1992), arraignment scene,

https://www.quotes.net/mquote/65622 (last visited June 10, 2019).

See Clive Crook, Climategate and the Big Green Lie, The

Atlantic (July 14, 2010), archive.is/ym3WZ (describing the Penn

State investigations as “difficult to parody.”).

Google.com, https://tinyurl.com/yxhqolpo (last visited June

3, 2019).

writers and reporters here were a pair of raindrops in

a hurricane.

That the challenged commentary in this case falls

into a constitutionally protected zone is further

demonstrated by what other scientists have said about

Mann and his work. One of the defendants below, opinion columnist Mark Steyn, edited and compiled a 300page volume of statements by other scientists denouncing Michael Mann’s work in particular, or climate science in general. See A Disgrace to the

Profession: The World’s Scientists in Their Own Words

on Michael Mann, His Hockey Stick, and Their Damage to Science, Vol. 1 (Mark Steyn ed. 2015). Four

scientists described Mann’s work as “fraud” or “fraudulent.”38 A number of others described it as “dishonest”

or “misleading.”39 The rest were only slightly less

harsh.

The rule for defamation of politicians should apply

no less to climate scientists: “In a republic where the

people are sovereign, the ability of the citizenry to

make informed choices among candidates for office is

essential, for the identities of those who are elected

will inevitably shape the course that we follow as a nation.” Buckley, 424 U.S. at 14-15. “ ‘Debate on the qualifications of candidates is at the core of our electoral

process and of the First Amendment freedoms, not at

See Steyn, Disgrace to the Profession, at 1, 118, 146, 285-

See id. at 78, 104, 161-62, 199-200, 201-02, 215-16.

86.

the edges.’ ” Republican Party v. White, 536 U.S. 765,

781 (2002) (quoting Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 222-23 (1989)) (internal quotations omitted).

IV. The District of Columbia Court of Appeals’

opinion demonstrates that existing rules

fail to sufficiently protect the speech at

issue in this case.

The foregoing review of the nature of the debates

over climate science and policy in general, and the

plaintiff in particular, is not offered to win the debate

for the skeptic side. It is instead offered to show that

the opinion commentary at issue here had ample foundation in fact, and was echoed by many other respectable and scientifically well-informed participants in

the debate. As a result, it should be viewed, as a matter

of law, as well within the rough-and-tumble parameters of debate in a very loud and boisterous corner of

the public square.

The court below would subject the defendants to

the burden of proving the unprovable – that their pejorative opinions, metaphors, similes and analogies regarding Mann’s work and the flawed investigations

that exonerated him are in fact true. In New York

Times Co. v. Sullivan, the Court held that the burden

of requiring defendants to prove their statements were

true violated the Constitution:

A rule compelling the critic of official conduct

to guarantee the truth of all his factual

assertions – and to do so on pain of libel judgments virtually unlimited in amount – leads

to a comparable “self-censorship.” Allowance

of the defense of truth, with the burden of

proving it on the defendant, does not mean

that only false speech will be deterred. Even

courts accepting this defense as an adequate

safeguard have recognized the difficulties of

adducing legal proofs that the alleged libel

was true in all its factual particulars. Under

such a rule, would-be critics of official conduct

may be deterred from voicing their criticism,

even though it is believed to be true and even

though it is in fact true, because of doubt

whether it can be proved in court or fear of the

expense of having to do so. They tend to make

only statements which “steer far wider of the

unlawful zone.” The rule thus dampens the

vigor and limits the variety of public debate.

It is inconsistent with the First and Fourteenth Amendments.

New York Times Co., 376 U.S. at 278-79 (internal citations omitted). The same rationale applied here should

have the same result.

In the wake of Milkovich, the diversity of judicial

approaches to claims of defamation arising from commentary and opinion concerning matters of public concern described in the Petition is too complicated, too

uncertain, too burdensome, and yields too many fundamentally inconsistent results. This Court should clarify or modify the rule to protect defendants’ speech and

carry out the higher purposes of vigorous debate of important public issues. That CEI, National Review, and

the individual reporters and writers here should have

to go to trial to defend themselves is as great an affront

to the First Amendment as the libel judgments in New

York Times Co. v. Sullivan and Garrison v. Louisiana.

The Court should grant the writ of certiorari.

------------------------------------------------------------------

CONCLUSION

For all these reasons, and those stated by the Petitioners, the Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

KIMBERLY S. HERMANN

SOUTHEASTERN LEGAL

FOUNDATION

560 W. Crossville Rd., Ste. 104

Roswell, GA 30075

HARRY W. MACDOUGALD

Counsel of Record

CALDWELL, PROPST &

DELOACH, LLP

Two Ravinia Dr., Ste. 1600

Atlanta, GA 30346

(404) 843-1956

hmacdougald@

cpdlawyers.com

Counsel for Amicus Curiae

June 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.