By Nick Pope
A right-of-center pundit is appealing a February ruling that found him liable for defaming a prominent climate scientist, and legal experts told the Daily Caller News Foundation that he may have a good chance at a successful appeal.
A Washington, D.C., jury concluded that Mark Steyn — a right-of-center political pundit who referenced a separate blog post comparing climate scientist Michael Mann to serial pedophile Jerry Sandusky for the former’s purported data manipulation in his signature 1998 “hockey stick” climate model — liable for defaming Mann. Steyn is appealing the court’s decision that he must pay Mann $1 million in punitive damages on top of $1 in compensatory damages, and legal experts told the DCNF that his case may be strong enough to win on appeal.
“Michael Mann’s counsel did something you’re not supposed to do. He invited the jury to send a message that these attacks on scientists have to stop and the jury, being a D.C. jury, decided they were going to send that message. Now, that’s explicitly forbidden, both in the District of Columbia and in the United States at large,” Steyn told the DCNF. “You’re supposed to be trying ‘Fred Smith.’ He’s the guy in the dock. You’re not sending a message to millions of other potential ‘Fred Smiths’ out there. But that’s what they did.”
Beyond Steyn’s contention that Mann’s counsel “invited the jury to send a message” to critics of consensus positions on hot-button issues like climate change, legal experts told the DCNF that the ratio of compensatory and punitive damages could open the door for a favorable outcome for Steyn’s appeal.
“It appears to me that Steyn has strong arguments that the punitive damages awarded are excessive under current law, particularly under Supreme Court decisions invalidating exorbitant punitive damage awards that are disproportionate to the actual damages suffered by the plaintiff,” Jonathan Adler, the director of Case Western Reserve University School of Law’s environmental law center, told the DCNF. “By this standard, a one-million-to-one ratio between punitive and compensatory damages would appear to be quite problematic.”
“That said, there are some complicating factors. On the one hand, punitive damages will always appear disproportionate in which compensatory damages are nominal. On the other hand, the arguments against disproportionate punitive damages would seem to be augmented by the First Amendment concerns,” Adler continued. “If, as the jury concluded, Mann suffered no measurable harm from what Steyn wrote, the primary function of the punitive damage award is to discourage potentially inflammatory commentary about matters of public concern, and that raises serious First Amendment problems.”
Anthony Fargo, the director of the Center for International Media Law and Policy Studies at Indiana University, agreed with Adler’s assessment of the ratio of punitive to compensatory damages.
“The appellate court is likely to look at this thing that jumps out at me here is the punitive damage award. I think an appellate court would be reluctant to second guess the jury as far as its findings of fact,” Fargo told the DCNF. “What they will probably raise an eyebrow at is the disproportionate amount of the punitive damage award as compared to the compensatory damage award.”
The “hockey stick” model was the result of combining several climate proxies into one model, purportedly demonstrating that global temperatures have increased drastically in the past several decades compared to the preceding centuries. Critics, including Steyn and Rand Simberg, have gone after the “hockey stick” model for many years, contending that it should not be considered credible because of its purported flaws.
“The fact that a verdict was rendered against [Steyn] when you had a statistics expert like Abraham Wyner of the University of Pennsylvania testifying that Mann engaged in ‘improper manipulation’ of data that made his signature climate model ‘misleading’ demonstrates that the jury ignored the legal principle that the truth is a defense to any defamation claim,” Hans von Spakovsky, a senior legal fellow for the Heritage Foundation, told the DCNF. “From a legal standpoint, Steyn should have the ability to appeal on the basis that the jury ignored his defense that his criticisms that Mann had manipulated data were the truth, and therefore the jury committed a grievous legal error when it found against him.”
National Review’s editors wrote Wednesday that the outlet — which Mann also sued before a court order led to the outlet being dropped from the suit — is looking to “recover more than a million of the dollars that we have lost defending [its] unalienable right to free speech” from Mann. Before National Review was dropped from the suit, Mann wrote in emails that the outlet is a “filthy organization” and a “threat to our children,” according to the outlet.
Nick Pope is a contributor to the Daily Caller News Foundation.
Originally published by The Daily Caller. Republished with permission. Content created by The Daily Caller News Foundation is available without charge to any eligible news publisher that can provide a large audience. For licensing opportunities of our original content, please contact licensing@dailycallernewsfoundation.org.
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