Mann filed his lawsuit in October 2012, in reaction to a July 13 CEI OpenMarket blog post by former CEI adjunct scholar Rand Simberg. The post compared Penn State’s Climategate investigation of Mann to the school’s initially shoddy investigation of the infamous former football coach Jerry Sandusky. Simberg’s rough language, accusing Mann of “molesting” data to produce the “hockey stick” reconstruction of pre-instrumental climate history, was subsequently quoted by National Review and Steyn. CEI argues the blog post was Simberg’s constitutionally protected opinion, especially given its clear reliance on publicly available sources. This, coupled with Mann’s status as a highly outspoken public figure in the global warming debate, places the blog post squarely within the realm of constitutionally-protected speech.
Mann’s lawsuit argued that Simberg’s criticisms were defamatory and not protected by the First Amendment. CEI responded by moving to dismiss the case under the District of Columbia’s 2011 Strategic Litigation Against Public Participation, or “Anti-SLAPP,” Act. That statute protects free speech by instructing courts to dismiss lawsuits “intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.”
In her amicus brief, Curry, the author of three books and nearly 300 peer-reviewed articles on climate science, points out that Mann has repeatedly harassed and insulted her in print. His accusations, calling her work “boilerplate climate change denial drivel” and “anti-science,” are “at least as bad as what Steyn said about Mann, particularly since Mann (an academic) is passing judgement on my science and my behavior as a scientist (which is my profession and source of income).” Yet Curry has taken those attacks in stride, believing that the use of libel law to “intimidate into silence conflicting scientific views injures both a free society and scientific advancement.”
In Curry’s view, “Mann does not seem to understand the difference between criticizing a scientific argument versus smearing a scientist.” Moreover, he takes a selective view of which smears are permissible and which are not. As one commentator cited by Curry put it, “Mann wants a legal guarantee that he can dish it out, but he doesn’t have to take it.”
The amicus brief argues that “If the entire Court does not hear this case, those like Dr. Mann who use libel laws to silence their critics will prevail, while those who use normal scientific debate will find themselves disadvantaged in the marketplace of ideas.”
Curry’s brief concludes:
If this Court allows the panel decision to stand unreviewed, not only will the protections of the Anti-SLAPP Act not truly apply to the Appellants-Defendants (or anyone else questioning Dr. Mann in colorful language), but the very scientific inquiry and methods that this Court relies upon will be circumvented. Outside the walls of the courtroom valid opinions will be squelched. . . . Neither Galileo nor Einstein sued their detractors for libel. They simply let their work and ideas speak for themselves to eventual, substantial vindication. The Court should take up this case en banc, and allow Dr. Mann the same recourse.