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Speaker 1: Washington d C. Appeals Court has cleared the way for

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Speaker 1: a high profile lawsuit that turns, in part on the

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Speaker 1: evidence foreign against climate change. The suit is a libel

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Speaker 1: claim filed by Michael Mann, a Penn State University scientist

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Speaker 1: who helped develop what became known as the hockey Stick graph,

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Speaker 1: showing a recent spike in the Earth's temperature. That graph,

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Speaker 1: first published, made Man a target for climate change skeptics.

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Speaker 1: The criticism of Man only increased a decade later when

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Speaker 1: thousands of hacked emails were released, suggesting, according to skeptics,

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Speaker 1: that Man and other scientists had manipulated data. Man is

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Speaker 1: now suing two bloggers who said Penn State didn't adequately

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Speaker 1: investigate those allegations before the university absolved him of wrongdoing.

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Speaker 1: The Post like in the university's probe to its inquiry

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Speaker 1: into the accusations against Jerry Sandusky, the football coach who

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Speaker 1: was convicted of child molestation, and letting the case go forward,

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Speaker 1: the d C Court of Appeals said a reasonable jury

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Speaker 1: could find the Post falsely accused Man of misconduct, and

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Speaker 1: that the court said could amount to defamation. With us

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Speaker 1: to talk about the case is Kenneth White, a founding

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Speaker 1: partner at Brown, White and Osborne, a Los Angeles based firm,

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Speaker 1: and once again Jonathan Adler of Case Western University's School

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Speaker 1: of Law, Welcome to you both. Um, can I know

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Speaker 1: you have some issues with this appeals court decision, but

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Speaker 1: let me just ask you to start by, you know,

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Speaker 1: describing it to as, uh, you know, give it, give

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Speaker 1: it a fair run. What did the judge writing the

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Speaker 1: opinion have to say? Well? Sure, I mean the context

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Speaker 1: here is that the defendants in Professor Mann's case filed

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Speaker 1: what's called an anti slap motion. It's a statute that

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Speaker 1: allows defendants in a suit that attacks free speech to

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Speaker 1: try to get out of it early. And a lot

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Speaker 1: of the main issues on appeal we're sort of draw

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Speaker 1: technical ones, one of them being if you lose an

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Speaker 1: anti slap motion, can you appeal immediately or you have

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Speaker 1: to wait to go through a trial. Now, the Court

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Speaker 1: of Appeal did say you could appeal immediately, and that's

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Speaker 1: a very big victory for defendants in speech cases. But

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Speaker 1: the other thing that the DC Court of Appeals did

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Speaker 1: was to look through the evidence and decide that it

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Speaker 1: was sufficient for the very low standard they set for

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Speaker 1: Professor Mann to keep going. And what they said was

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Speaker 1: all that he had to show to survive an anti

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Speaker 1: slap motion is to produce some evidence which, if a

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Speaker 1: jury believed it would be enough to prevail. And what

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Speaker 1: they really said was this. They said, first of all,

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Speaker 1: it wasn't clear enough in their view that this these

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Speaker 1: statements about Man were opinion as opposed to assertions of fact.

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Speaker 1: And that's because the writers didn't couch them with terms

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Speaker 1: like in my opinion, I don't think that's right. I

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Speaker 1: think that the sort of the hyperbole and the vivid

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Speaker 1: language that the writers used made it pretty clear they

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Speaker 1: were engaging in commentary. And and let me let me

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Speaker 1: bring Jonathan and Jonathan you agree with that. I mean,

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Speaker 1: there were some facts in these in these posts, weren't

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Speaker 1: there it talked about in comparing or likening Man to Sandusky.

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Speaker 1: It says he has molested and tortured data in the

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Speaker 1: services in the service of politicized science. Uh. Aren't those

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Speaker 1: facts that could be the basis of a defamation suit? Well,

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Speaker 1: I think there are two things that are important here.

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Speaker 1: One is the context. Right, this the conduct was that

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Speaker 1: the both writers were taking issue with an investigation that

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Speaker 1: they believe was insufficiently rigorous and whitewashed what they believe

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Speaker 1: was misconduct on behalf of Michael Mann. It's kind of

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Speaker 1: like criticizing a court that exonerates someone you think is guilty. UM.

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Speaker 1: And I would think we would agree that it's permissible

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Speaker 1: opinion for someone to say that, for example, they think

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Speaker 1: George Zimmerman murdered Trayvon Martin. UM. It's that's different from

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Speaker 1: saying George Zimerman was found to be guilty of during

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Speaker 1: Trayvon Martin. The former I think we recognize, especially in

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Speaker 1: a context like we see here as as opinion, the

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Speaker 1: latter purely a statement of fact that's wrong. It's a

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Speaker 1: claim about what's what? What what a tribunal did. Um

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Speaker 1: to say that that their characterization in this case is

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Speaker 1: potentially defamatory factual claim? Is this severely the constrain the

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Speaker 1: ability of people to criticize investigations, to criticize official pronouncements

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Speaker 1: about why they're not folks engaged in wrong or not.

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Speaker 1: And I think that's problematics. Let me ask Ken, do

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Speaker 1: you agree with that? What's the line? Absolutely? I think

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Speaker 1: Jonathan's perfectly right, and I think his Zimmerman analogy is

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Speaker 1: a great one. What the court did here was say

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Speaker 1: that because all of these institutions conducted these investigations and

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Speaker 1: decided that Professor Mann hadn't conducted academic misconduct, therefore that

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Speaker 1: evidence that it must have been malicious to suggest that

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Speaker 1: he did malicious in the free speech sense, meaning that

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Speaker 1: knowing that the allegation was false or reckless about whether

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Speaker 1: or not it was false. And the Zimmerman um analogy

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Speaker 1: is perfect because he could make the same argument that

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Speaker 1: if I said, you know, he murdered Trayvon Martin, Zimmerman

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Speaker 1: under this decision could say, well, this is a malicious

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Speaker 1: statement as a matter of law, because you know, a

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Speaker 1: jury found that I didn't murder anybody. Uh So, I

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Speaker 1: don't think it's a good decision on that basis. Um.

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Speaker 1: I think that it was far too hyper technical in

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Speaker 1: evaluating what his opinion versus what is a statement of fact.

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Speaker 1: I'm afrared. We're going to have to leave it there.

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Speaker 1: I want to thank both of our guests, excuse me,

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Speaker 1: Jonathan Adler of Case Western University's School of Law, and

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Speaker 1: Kenneth White of Brown, White and Osboe in Los Angeles.

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Speaker 1: That's it for the edition of Bloomberg Law thanks to

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Speaker 1: our technical director Chris try Coming and our producer David Sutterman.

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Speaker 1: Coming up on Bloomberg Radio, Bloomberg Markets with Carol Masser

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Speaker 1: and Corey Johnson. Carol, what's on tap today? Hey? Hi there, Greg.

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Speaker 1: We're gonna talk a bit about venture capital the world,

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Speaker 1: maybe some more unicorns to look out for in seventeen.

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Speaker 1: We're also going to talk with the head of Hatch

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Speaker 1: Baby and uh also talk about what you need to

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Speaker 1: know in terms of tax prep, because Greg, it's just

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Speaker 1: around the corner. Yes it is. Sounds fascinating. That's all

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Speaker 1: coming up on Bloomberg Radio. This is Bloomberg