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

Nos. 18-1451 & 18-1477

In the

Supreme Court of the United States

NATIONAL REVIEW, INC.,

Petitioner,

v.

MICHAEL E. MANN,

Respondent.

––––––––––––––––––––––––––––––

COMPETITIVE ENTERPRISE INSTITUTE, et al.,

Petitioners,

v.

MICHAEL E. MANN,

Respondent.

On Petitions for Writs of Certiorari to the

District of Columbia Court of A ppeals

BRIEF OF AMICUS CURIAE STEPHEN

MCINTYRE IN SUPPORT OF PETITIONERS

J. Michael Connolly

Consovoy McCarthy PLLC

1600 Wilson Blvd., Suite 700

Arlington, VA 22209

(703) 243-9423

Patrick Strawbridge

Counsel of Record

Consovoy McCarthy PLLC

Ten Post Office Square

8th Floor South PMB #706

Boston, MA 02109

(617) 227-0548

patrick@consovoymccarthy.com

Attorneys for Amicus Curiae

July 5, 2019

289353

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

IDENTITY AND INTEREST OF

AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I N T RODUC T ION A N D SU M M A RY OF

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

The Court of Appeals’ Decision Depends

on Its Incorrect Characterization of

the Governmental Reports Purporting

to Exonerate Mann . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Mann’s Conduct Is The Subject Of

Numerous Controversies . . . . . . . . . . . . . . . . 3

B. The Court of Appeals Overstated the

Reports’ Scope and Reliability . . . . . . . . . . . 7

1.

The Penn State Reports . . . . . . . . . . . . . 8

2. The Parliamentary Report . . . . . . . . . 10

3.

The Muir Russell Report . . . . . . . . . . 11

4. The National Science Foundation

Inspector General Report . . . . . . . . . . 12

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Bose Corp. v. Consumers Union of U.S., Inc.,

466 U.S. 485 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Dennis v. United States,

341 U.S. 494 (1951) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Harte-Hanks Commc’ns, Inc. v. Connaughton,

491 U.S. 657 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Other Authorities

A. Regalado, “In Climate Debate, The ‘Hockey

Stick’ Leads to a Face-Off,” Wall Street Journal

(Feb. 14, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. Webst er, “ S c ient i st s i n St olen Ema i l

Scandal Hid Climate Data,” Times Online

(Jan. 28, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Barnes, “Penn State Probe into Mann’s Wrongdoing

a ‘Total Whitewash,’” Fox News (Feb. 5, 2010) . . . . . 9

C. Crook, “Climategate and the Big Green Lie,”

The Atlantic (July 14, 2010) . . . . . . . . . . . . . . . . . . . . 10

F. Furedi, “‘Climategate’: What a Pointless

Investigation,” Spiked (Mar. 31, 2010) . . . . . . . . . . . 11

iii

Cited Authorities

Page

F. Pearce, “Climate Change Emails Between

Scientists Reveal Flaws in Peer Review,”

The Guardian (Feb. 2, 2010) . . . . . . . . . . . . . . . . . . . . .6

F. Pearce, “Climategate: No Whitewash, but

CRU Scientists Are Far from Squeaky Clean,”

The Guardian (July 7, 2010) . . . . . . . . . . . . . . . . . . . . 12

F. Pearce, “Hacked Climate Inquiry Cleared

Jones But Ser ious Questions Remain,”

The Guardian (Mar. 31, 2010) . . . . . . . . . . . . . . . . . . 11

F. Pearce, “Montford Lands Some Solid Blows

i n Rev iew of ‘Cl i mat egat e’ Inqu i res,”

The Guardian (Sept. 14, 2010) . . . . . . . . . . . . . . . . . . 12

H. of C. Sci. & Tech. Comm., “The Disclosure of

Climate Data from the Climatic

Research Unit at the University of East

Anglia” (Mar. 24, 2010) . . . . . . . . . . . . . . . . . . . . . . . . 10

House Energ y & Com merce Com m.

(June 23, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Mann, M.E. et al., “Corrigendum: GlobalScale Temperature Patterns and Climate

Forcing over the Past Si x Centu r ies,”

430 Nature 105 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Mann, M.E. et al., “Global-Scale Temperature

Patterns and Climate Forcing over the Past

Six Centuries,” 392 Nature 6678 (1998) . . . . . . . . . . . 4

iv

Cited Authorities

Page

McIntyre, S. and McKitrick, R., et al., “The

M&M Critique of the MBH98 Northern

Hemisphere Climate Index: Update and

Implications,” 16 Energy & Environ. 1 (2005) . . . . . 4

NSF OIG, “Closeout Memorandum for Case

Number A09120086” (Aug. 16, 2011) . . . . . . . . . . . . . 9

R. McKitrick, “Understanding the Climategate

Inquiries” (Sept. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . 9

S. McInty re, “Climategate: A Battlef ield

Perspective” (May 16, 2010) . . . . . . . . . . . . . . . . . . . . . 5

S. Milloy, “Penn State’s Integrity Crisis,”

Junk Science (July 14, 2010) . . . . . . . . . . . . . . . . . . . . 10

UK H. of Comm. Sci. & Tech. Comm., “Reviews

into University of East Anglia’s Climatic

Research Unit’s E-Mails” (Jan. 17, 2011) . . . . . . . . . 12

1

IDENTITY AND INTEREST OF AMICUS CURIAE1

Amicus Curiae Stephen McIntyre is the founder

and editor of Climate Audit, a website devoted to the

analysis and discussion of climate data. Climate Audit

seeks to analyze data and methods used in climate science.

Through Climate Audit and other academic writings,

Mr. McIntyre has become a prominent commentator on

the reliability of climate research in the United States,

Canada, and the United Kingdom.

Mr. McIntyre has long followed Michael Mann’s

work, including the “hockey-stick” representations.

Through a series of publications, Mr. McIntyre has

identified significant oversights and errors with Mr.

Mann’s findings. 2 Mr. McIntyre also has published

statistical criticism of paleoclimate techniques in academic

journals. He has made invited presentations to a National

Academy of Sciences panel, a subcommittee of the House

Energy and Commerce Committee, and to a Union

session of the American Geophysical Union. He met with

the National Science Foundation Inspector General’s

office, and submitted comments to the Muir Russell and

Parliamentary Committees.

1. Pursuant to this Court’s Rule 37.6, counsel for amicus

curiae certifies that this brief was not authored in whole or in part

by counsel for any party and that no person or entity other than

amicus curiae or his counsel has made a monetary contribution

to the preparation or submission of this brief. All parties received

timely notice of this amicus brief and have consented to the filing

of this brief.

2. See A. Regalado, “In Climate Debate, The ‘Hockey Stick’

Leads to a Face-Off,” Wall Street Journal (Feb. 14, 2005), archive.

is/yIfxq.

2

Mr. McIntyre strives to bring transparency to climate

science. Such openness ensures that scientific conclusions

can be reviewed, critiqued, and improved. Mr. McIntyre

submits this amicus brief because he fears that the D.C.

Court of Appeals’ erroneous decision will stifle open

inquiry into the scientific process and chill speech on these

important issues.

INTRODUCTION AND SUMMARY

OF ARGUMENT

As Petitioners correctly observe, the decision below

is “chilling in its implications” and “threaten[s] speech at

the heart of democratic deliberation.” Nat. Rev. Pet. 14; see

CEI Pet. 3. Public issues, such as climate science, benefit

from meaningful and robust debate. Protecting unfettered

participation in these debates is critically important.

The D.C. Court of Appeals incorrectly described

the scope and findings of the government inquiries into

Mr. Mann’s conduct. Because these inquiries excluded

or ignored many troubling allegations about Mann’s

work, their conclusions are open to considerable doubt.

Thus, they cannot support a finding that the Petitioners

had a “high degree of awareness of … probable falsity”

regarding the challenged statements. Harte-Hanks

Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989).

In light of the decision’s substantial threat to free speech

and open inquiry, this Court should grant the petitions

for certiorari.

3

ARGUMENT

I.

The Court of Appeals’ Decision Depends on Its

Incorrect Characterization of the Governmental

Reports Purporting to Exonerate Mann.

In holding that the Petitioners had “obvious reasons

to doubt the veracity” of their statements, CEI Pet.

App. at 80, the Court of Appeals expressly relied on

four government reports that, in its view, “unanimously

concluded that there was no misconduct” after “thorough[]

investigations.” Id. at 81, 92. The Court of Appeals was

mistaken. The reports were sloppy, not thorough; some of

them contradicted others; one was not unanimous; and all

were severely criticized, even by several climate-change

advocates. In sum, the reports provide no basis for a

finding of actual malice.

A.

Mann’s Conduct Is The Subject Of Numerous

Controversies.

Even before the release of the Climategate emails,

numerous public concerns were raised about Mann’s

conduct. First, there were issues of falsification.

Academic codes of conduct define falsification to include

“manipulating research materials, equipment, or

processes, or changing or omitting data or results such

that the research is not accurately represented in the

research record.”3 This is distinct from fabrication, which

is “making up data or results and recording or reporting

them.”4 Falsification concerns about Mann’s research

included:

3. Pennsylvania State University Policy RA-10, Addressing

Allegations of Research Misconduct, archive.is/nHWKS.

4. Id.

4

• Mann’s undisclosed use in a 1998 paper (“MBH98”)5

of an algorithm that mined data for hockey-stick

shaped series. The algorithm was so powerful that it

could produce hockey-stick shaped “reconstructions”

from auto-correlated red noise. Mann’s failure to

disclose the algorithm continued even in a 2004

corrigendum.6

• Mann’s failure to disclose adverse verification

statistics in MBH98. When the omission became

known,7 it prompted questions from the U.S House

Energy and Commerce Committee and widespread

publicity. 8 Mann also did not archive results that

would permit calculation of the adverse statistics.

Climategate emails later revealed that Mann

regarded this information as his “dirty laundry”

and required an associate at the Climatic Research

Unit (“CRU”) to withhold the information from

potential critics.9

5. Mann, M.E. et al., “Global-Scale Temperature Patterns

and Climate Forcing over the Past Six Centuries,” 392 Nature

6678, 6779-87. (1998).

6. Mann, M.E. et al., “Cor r igendum: Global- Sca le

Temperature Patterns and Climate Forcing over the Past Six

Centuries,” 430 Nature 105 (2004).

7. McIntyre, S. and McKitrick, R., et al., “The M&M Critique

of the MBH98 Northern Hemisphere Climate Index: Update and

Implications,” 16 Energy & Environ. 1, 69-100 (2005).

8. House Energy & Commerce Comm. (June 23, 2005), tinyurl.

com/h98q6d8.

9. Climategate Email (July 31, 2003), archive.is/qrH8y.

5

• Mann’s misleading claims about the “robustness” of

his reconstruction to the presence/absence of tree

ring chronologies, including failing to fully disclose

calculations excluding questionable data from strip

bark bristlecone pine trees.10

• Mann’s deletion of the late 20th century portion of

the Briffa temperature reconstruction in Figure

2.21 in the IPCC Third Assessment Report (2001)

to conceal its sharp decline, in apparent response

to concerns that showing the data would “dilute

the message” and give “fodder” to the “skeptics.”11

• Mann’s insistence in 2004 that “no researchers in

this field have ever, to our knowledge, ‘grafted the

thermometer record onto’ any reconstruction.” But

it was later revealed that in one figure for the cover

of the 1999 World Meteorological Organization

(WMO) annual report, the temperature record had

been grafted onto the various reconstructions—and

in the case of the Briffa reconstruction, had been

substituted for the actual proxy data.12

• Mann’s undisclosed grafting of temperature data

for “Mike’s Nature Trick,” a manipulation of data

which involved: (1) grafting the temperature record

10. See S. McIntyre, Climate Audit (Nov. 28, 2011), archive.

is/XFSIk.

11. See Climate Audit (Dec. 10, 2009), archive.is/TkfA; see

also S. McIntyre, “Climategate: A Battlefield Perspective” (May 16,

2010), tinyurl.com/237sbba.

12. See M. Mann, RealClimate (Dec. 4, 2004), archive.is/2aDc;

Climate Audit (Nov. 20, 2009), archive.is/mQeMB.

6

after 1980 onto the proxy reconstruction up to 1980;

(2) “smoothing” the data; and (3) truncating the

smooth back to 1980.13

Second, there are numerous other instances of

alleged unprofessional conduct by Mann.14 For example,

Mann claimed that skeptics (including Mr. McIntyre)

were “plainly dishonest” and falsely suggested that Mr.

McIntyre was financed by ExxonMobil.15 Mann even

labeled criticisms of his hockey-stick graph as “fraud” and

“fraudulent.”16 And he went to considerable length to block

publication of critics in journals and to organize opposition

to those published criticisms.17 Mann also encouraged

others to withhold data used in his work.18

13. See S. McIntyre, Climate Audit (Mar. 29, 2011), archive.

is/TuQZU.

n.3.

14. See Pennsylvania State University Policy RP02, supra,

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

Kancler, Mother Jones (Apr. 18, 2005), archive.is/zw6j2.

16. See S. McIntyre, Climate Audit (May 3, 2010), archive.

is/4WKj5; Climategate Email (Jan. 4, 2005), archive.is/9v02L; E.

Kancler, Mother Jones (Apr. 18, 2005), archive.is/zw6j2.

17. See F. Pearce, “Climate Change Emails Between Scientists

Reveal Flaws in Peer Review,” The Guardian (Feb. 2, 2010), http://

archive.is/5YbC1; S. McIntyre, Climate Audit (Nov. 28, 2011),

archive.is/jx0tN; Climategate Email (Nov. 15, 2005), archive.

is/6Bnsh; S. McIntyre,” Climate Audit (Feb. 18, 2011), archive.is/

w6BCO.

18. See Climategate Email (Feb 9, 2004), archive.is/NwKbr.

7

Third, the Climategate emails revealed Mann’s

participation in an effort to delete emails requested

under the U.K.’s Freedom of Information Act—a criminal

offense. The UK Information Commissioners’ Office

stated that “it [was] hard to imagine more cogent prima

facie evidence” of the offense.19 The efforts involved the

destruction of emails regarding procedurally questionable

revisions to the IPCC’s Fourth Annual Assessment

Report. As part of that effort, CRU scientist Phil Jones

asked Mann to delete his emails and to forward the

request to Eugene Wahl, the scientist involved in the most

sensitive correspondence. Mann forwarded the request,

and Wahl deleted the email—including attachments that

have never been produced. 20

B. The Court of Appeals Overstated the Reports’

Scope and Reliability.

Each of the reports cited by the Court of Appeals

either omitted, or gave scant or inaccurate treatment to,

these long-standing controversies. They were in no sense

“thorough,” as the court claimed, and certainly would not

permit a finding of actual malice, given their failure to

address much of the alleged misconduct described above.

19. See G. Smith, (Jan. 29, 2010), archive.is/yXNdr; B. Webster,

“Scientists in Stolen Email Scandal Hid Climate Data,” Times Online

(Jan. 28, 2010), archive.is/8dc9N.

20. See S. McIntyre, Climate Audit (Mar. 8, 2011), archive.is/

C3QCC.

8

1.

The Penn State Reports

There were two stages to the Penn State investigations:

the Inquiry Committee and the Investigation Committee.

Both suffered from substantial flaws.

The Inquiry Committee declined to interview Mann’s

critics (including Mr. McIntyre or Dr. McKitrick) about

any of the allegations. Nor did it consider or address any

of the published criticism (on Climate Audit and elsewhere)

raising concerns about Mann’s use of data. As a result,

the Inquiry Commission ignored most of the falsification

issues outlined above. The Inquiry Committee purported

to consider “Mike’s Nature Trick,” but failed to examine

what was done in the actual figures. The Committee

stated that the term “trick” meant a clever technique for

combining data sets that “has been reviewed by a broad

array of peers in the field.” 21 This is untrue; the splicing

had not been “reviewed by a broad array of peers in

the field”—it was unknown before Climategate. Indeed,

Mann himself had vehemently denied any such splicing.

See supra at 5. The Muir Russell panel later reached an

opposite conclusion: it found that the splicing showed an

“intent to paint a misleading picture.” 22 With respect to

the deletion of emails, the Inquiry Committee was satisfied

by Mann’s production of a zip-file of emails. 23 But it failed

to address Mann’s participation in Wahl’s deletion of the

21. Report of the Penn State Inquiry Committee, at 5,

tinyurl.com/jzj9dct.

22. Muir Russell Report, at 13 ¶ 23, archive.is/ivRrT.

23. Report of the Penn State Inquiry Committee, at 4,

tinyurl.com/jzj9dct.

9

most sensitive emails or to report on whether Mann had

removed the emails to an external drive with an intent

to conceal.

The Inquiry Committee report was extensively

criticized in the press and online. 24 And the National

Science Foundation (“NSF”) Inspector General later

concluded that the Inquiry Committee had not “adequately

review[ed]” falsification allegations and failed to “interview

any of the experts critical of [Mann’s] research,” 25 even

though NSF had instructed the Committee in writing to

“review sufficient relevant documents and interview a

sufficient number of knowledgeable individuals who may

provide credible information about the allegations.” 26

The Inquir y Committee recommended that a

committee be formed to investigate potential violations

of Policy AD47 on professional conduct. The falsification

claims were excluded from its stated task. It made no

mention of Policy AD47 and looked only at whether Mann’s

conduct “seriously deviated from accepted practices.” Like

the Inquiry Committee, the Investigation Committee

did not interview Mr. McIntyre or Dr. McKitrick. The

Investigation Committee’s report likewise received heavy

24. See, e.g., E. Barnes, “Penn State Probe into Mann’s

Wrongdoing a ‘Total Whitewash,’” Fox News (Feb. 5, 2010), archive.

is/bMo3R; S. McIntyre, Climate Audit (Feb. 10, 2010), archive.is/

EYVnh; R. McKitrick, “Understanding the Climategate Inquiries”

(Sept. 2010), tinyurl.com/hrdr6bz.

25. NSF OIG, “Closeout Memorandum for Case Number

A09120086,” at 2 (Aug. 16, 2011), tinyurl.com/j88aztr.

26. Kroll, Letter of January 22, 2010, tinyurl.com/hsnnbxh.

10

criticism. 27 One journalist—who supports government

action on climate change—described it as “difficult to

parody,” noting that “Mann is asked if the allegations

(well, one of them) are true, and says no. His record is

swooned over. Verdict: case dismissed, with apologies that

Mann has been put to such trouble.” 28

2.

The Parliamentary Report

Contrary to the Court of Appeals’ assertions, see

CEI. Pet. App. at 82, 92, the Parliamentary Committee

never investigated Mann’s conduct. Nor were its findings

“unanimous” or “unequivocal.” The Parliamentary

Committee did not consider most of the falsification or

unprofessional conduct issues described above. The only

falsification issue they considered was the “trick” email,

on which the committee split 3-1. 29 Even on this point, the

report was not “unequivocal” (as the court asserts); the

Committee stated its expectation that the Science Panel

would “address” the matter. 30 And the Parliamentary

Committee did not clear the CRU scientists (let alone

Mann) of the email-deletion charges. To the contrary, the

Committee noted that “much of the reputation of CRU

27. See M. Morano, Climate Depot (July 2, 2010), archive.

is/4r0vU; S. Milloy, “Penn State’s Integrity Crisis,” Junk Science

(July 14, 2010), archive.is/RkCeS.

28. See C. Crook, “Climategate and the Big Green Lie,” The

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

29. H. of C. Sci. & Tech. Comm., “The Disclosure of Climate

Data from the Climatic Research Unit at the University of East

Anglia,” at 52-54 (Mar. 24, 2010).

30. Id. at 21.

11

hangs on the issue,” and directed Muir Russell and the

Information Commissioners’ Office to ensure that the

matter was “resolved conclusively.” 31 The Committee’s

inquiry was severely criticized. The Guardian stated

that the “climate inquiry ha[d] dodged key questions,”

while another observer found that “[t]he aim of the MPs’

investigation was not to uncover the truth, but to defend

the moral authority of climate-change alarmism.” 32

3.

The Muir Russell Report

The Muir Russell inquiry likewise did not address any

of the MBH98 falsification issues. With respect to IPCC

Figure 2.21 and the “trick” email, its findings contradicted

the Penn State and Parliamentary Committee reports. It

found that the figures were “misleading” and that there

was “evidence of intent to paint a misleading picture.” 33

The Court of Appeals acknowledged this statement, but

claimed that the finding did not relate to the “statistical

procedures.” CEI Pet. App. at 87. This is wrong. As Dr.

McKitrick has noted, the Muir Russell inquiry “found

Jones guilty as charged.” 34

The Muir Russell investigation into the deletion of

emails was comically inept: it made a plainly untrue

31. Id. at 3, 32.

32. F. Pearce, “Hacked Climate Inquiry Cleared Jones But

Serious Questions Remain,” The Guardian (Mar. 31, 2010), archive.

is/4cKgQ; F. Furedi, “‘Climategate’: What a Pointless Investigation,”

Spiked (Mar. 31, 2010), archive.is/QyUPr.

33. Muir Russell Report, at 13 ¶ 23, archive.is/ivRrT.

34. See R. McKitrick, supra, n.24.

12

finding that there had been no deletion of emails requested

under FOI and later conceded that it never even asked the

scientists about the deletion of emails. As The Guardian

recognized, “[t]his is all, we may hope, cock-up rather

than conspiracy. . . . None of the inquiries have cleared

the air.” 35 When the Parliamentary Committee recalled

Muir Russell to explain his failure to question Jones

about deleting emails, he said he was unprepared to ask

Jones whether he had committed a crime. The Committee

issued a second report faulting Muir Russell for “not

fully investigat[ing] the serious allegation relating to the

deletion of emails.”36

4.

The National Science Foundation Inspector

General Report

The Court of Appeals relied heavily on the National

Science Foundation Inspector General Report (“NSF

report”), which it said cleared Mann of all “other types

of research misconduct.” CEI Pet. App. at 86 n.58. This

reliance was misplaced.

• The report is an unsigned, five-page “closeout

memorandum” 37—hardly a “thorough,” “broad[],”

“de novo” investigation. CEI Pet. App. at 81, 86 n.58.

35. See F. Pearce, “Montford Lands Some Solid Blows in

Review of ‘Climategate’ Inquires,” The Guardian (Sept. 14, 2010),

archive.is/4BBHM; F. Pearce, “Climategate: No Whitewash, but

CRU Scientists Are Far from Squeaky Clean,” The Guardian (July

7, 2010), archive.is/KzUmx.

36. UK H. of Comm. Sci. & Tech. Comm., “Reviews into

University of East Anglia’s Climatic Research Unit’s E-Mails,” at 3

(Jan. 17, 2011), tinyurl.com/z6wsk3c.

37. See Closeout Memorandum, supra, n.25.

13

• Notwithstanding its brevity, the report still

concluded that the Penn State investigation failed to

interview experts critical of Dr. Mann’s research. 38

• NSF spoke to some of Mann’s critics (including Mr.

McIntyre), but the report did not name them or

discuss any of the falsification concerns.

• Nor was the NSF investigation “broadened” to

the extent portrayed by the Court of Appeals.

Its investigation was limited to misconduct as

defined in the NSF Research Misconduct Policy,

which concerns only “fabrication, falsification,

and plagiarism … in research funded by NSF.” 39

It stated that Mann “did not directly receive NSF

research funding as a Principal Investigator until

late 2001 or 2002.”40 Because the MBH98 and

Figure 2.21 falsification allegations pre-dated 2001,

the NSF had no jurisdiction over these allegations.

• There is no evidence that the NSF “broadened” its

investigation to consider claims regarding Mann’s

unprofessional conduct under Policy AD47 (over

which it had no jurisdiction).

• Finally, the NSF (like Penn State) never investigated

Mann’s role in getting Wahl to delete the most

sensitive email correspondence.

38. Id. at 2.

39. See 45 C.F.R. 689.1(a).

40. Id. at 3.

14

In the end, an objective review of these reports quickly

reveals their flaws and omissions. As The Atlantic has

noted, competent investigations into these issues could

“have been a first step towards restoring confidence in

the scientific consensus. But no, the reports make things

worse. At best they are mealy-mouthed apologies; at worst

they are patently incompetent and even wilfully wrong.”41

Given this accurate assessment, the reports cannot serve

as the basis for a “clear and convincing” finding that the

Petitioners had serious doubts about the alleged falsity

of their statements.

This error is no small matter. As Petitioners note,

“the basis of the First Amendment is the hypothesis

that speech can rebut speech, propaganda will answer

propaganda, free debate of ideas will result in the wisest

governmental policies.” Dennis v. United States, 341 U.S.

494, 503 (1951). To accomplish that end, courts must “make

sure that the judgment does not constitute a forbidden

intrusion on the field of free expression.” Bose Corp. v.

Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984).

The decision below ignored the body of public evidence

supporting the Petitioners’ view of the investigations and

Mann’s conduct and undermined the critical role courts

play in ensuring free and robust debate. Allowing it to

stand will further divisions among the lower courts, see

CEI Pet. 22-25, and undermine the fundamental right to

express one’s opinions on matters of public concern.

41. See Crook, supra, n.28.

15

CONCLUSION

For the foregoing reasons, the Court should grant the

petitions for certiorari.

Respectfully submitted,

J. Michael Connolly

Consovoy McCarthy PLLC

1600 Wilson Blvd., Suite 700

Arlington, VA 22209

(703) 243-9423

Patrick Strawbridge

Counsel of Record

Consovoy McCarthy PLLC

Ten Post Office Square

8th Floor South PMB #706

Boston, MA 02109

(617) 227-0548

patrick@consovoymccarthy.com

Attorneys for Amicus Curiae