WEBVTT - Climate Change Suit Gets Day in Court (Audio)

0:00:00.200 --> 0:00:02.520
<v Speaker 1>Washington d C. Appeals Court has cleared the way for

0:00:02.560 --> 0:00:05.200
<v Speaker 1>a high profile lawsuit that turns, in part on the

0:00:05.240 --> 0:00:08.840
<v Speaker 1>evidence foreign against climate change. The suit is a libel

0:00:08.880 --> 0:00:12.400
<v Speaker 1>claim filed by Michael Mann, a Penn State University scientist

0:00:12.480 --> 0:00:15.400
<v Speaker 1>who helped develop what became known as the hockey Stick graph,

0:00:15.840 --> 0:00:19.360
<v Speaker 1>showing a recent spike in the Earth's temperature. That graph,

0:00:19.400 --> 0:00:23.480
<v Speaker 1>first published, made Man a target for climate change skeptics.

0:00:23.960 --> 0:00:27.200
<v Speaker 1>The criticism of Man only increased a decade later when

0:00:27.280 --> 0:00:30.960
<v Speaker 1>thousands of hacked emails were released, suggesting, according to skeptics,

0:00:31.000 --> 0:00:35.120
<v Speaker 1>that Man and other scientists had manipulated data. Man is

0:00:35.159 --> 0:00:38.280
<v Speaker 1>now suing two bloggers who said Penn State didn't adequately

0:00:38.320 --> 0:00:43.080
<v Speaker 1>investigate those allegations before the university absolved him of wrongdoing.

0:00:43.440 --> 0:00:46.159
<v Speaker 1>The Post like in the university's probe to its inquiry

0:00:46.200 --> 0:00:50.200
<v Speaker 1>into the accusations against Jerry Sandusky, the football coach who

0:00:50.280 --> 0:00:53.760
<v Speaker 1>was convicted of child molestation, and letting the case go forward,

0:00:53.840 --> 0:00:56.560
<v Speaker 1>the d C Court of Appeals said a reasonable jury

0:00:56.640 --> 0:01:00.639
<v Speaker 1>could find the Post falsely accused Man of misconduct, and

0:01:00.680 --> 0:01:04.160
<v Speaker 1>that the court said could amount to defamation. With us

0:01:04.200 --> 0:01:07.000
<v Speaker 1>to talk about the case is Kenneth White, a founding

0:01:07.040 --> 0:01:10.400
<v Speaker 1>partner at Brown, White and Osborne, a Los Angeles based firm,

0:01:10.440 --> 0:01:13.640
<v Speaker 1>and once again Jonathan Adler of Case Western University's School

0:01:13.680 --> 0:01:16.840
<v Speaker 1>of Law, Welcome to you both. Um, can I know

0:01:16.959 --> 0:01:20.480
<v Speaker 1>you have some issues with this appeals court decision, but

0:01:20.600 --> 0:01:23.560
<v Speaker 1>let me just ask you to start by, you know,

0:01:23.600 --> 0:01:26.520
<v Speaker 1>describing it to as, uh, you know, give it, give

0:01:26.560 --> 0:01:29.319
<v Speaker 1>it a fair run. What did the judge writing the

0:01:29.360 --> 0:01:32.319
<v Speaker 1>opinion have to say? Well? Sure, I mean the context

0:01:32.360 --> 0:01:36.959
<v Speaker 1>here is that the defendants in Professor Mann's case filed

0:01:37.000 --> 0:01:40.520
<v Speaker 1>what's called an anti slap motion. It's a statute that

0:01:40.560 --> 0:01:44.679
<v Speaker 1>allows defendants in a suit that attacks free speech to

0:01:44.720 --> 0:01:47.600
<v Speaker 1>try to get out of it early. And a lot

0:01:47.600 --> 0:01:50.080
<v Speaker 1>of the main issues on appeal we're sort of draw

0:01:50.280 --> 0:01:53.160
<v Speaker 1>technical ones, one of them being if you lose an

0:01:53.160 --> 0:01:56.600
<v Speaker 1>anti slap motion, can you appeal immediately or you have

0:01:56.720 --> 0:01:59.520
<v Speaker 1>to wait to go through a trial. Now, the Court

0:01:59.520 --> 0:02:02.080
<v Speaker 1>of Appeal did say you could appeal immediately, and that's

0:02:02.080 --> 0:02:06.440
<v Speaker 1>a very big victory for defendants in speech cases. But

0:02:06.760 --> 0:02:09.840
<v Speaker 1>the other thing that the DC Court of Appeals did

0:02:10.440 --> 0:02:12.960
<v Speaker 1>was to look through the evidence and decide that it

0:02:13.040 --> 0:02:17.679
<v Speaker 1>was sufficient for the very low standard they set for

0:02:18.200 --> 0:02:20.720
<v Speaker 1>Professor Mann to keep going. And what they said was

0:02:20.800 --> 0:02:23.600
<v Speaker 1>all that he had to show to survive an anti

0:02:23.639 --> 0:02:27.639
<v Speaker 1>slap motion is to produce some evidence which, if a

0:02:27.720 --> 0:02:31.200
<v Speaker 1>jury believed it would be enough to prevail. And what

0:02:31.240 --> 0:02:33.600
<v Speaker 1>they really said was this. They said, first of all,

0:02:33.639 --> 0:02:37.720
<v Speaker 1>it wasn't clear enough in their view that this these

0:02:37.760 --> 0:02:41.960
<v Speaker 1>statements about Man were opinion as opposed to assertions of fact.

0:02:42.600 --> 0:02:46.480
<v Speaker 1>And that's because the writers didn't couch them with terms

0:02:46.520 --> 0:02:50.240
<v Speaker 1>like in my opinion, I don't think that's right. I

0:02:50.320 --> 0:02:54.520
<v Speaker 1>think that the sort of the hyperbole and the vivid

0:02:54.639 --> 0:02:57.320
<v Speaker 1>language that the writers used made it pretty clear they

0:02:57.320 --> 0:03:00.320
<v Speaker 1>were engaging in commentary. And and let me let me

0:03:00.320 --> 0:03:02.680
<v Speaker 1>bring Jonathan and Jonathan you agree with that. I mean,

0:03:02.680 --> 0:03:05.240
<v Speaker 1>there were some facts in these in these posts, weren't

0:03:05.280 --> 0:03:09.320
<v Speaker 1>there it talked about in comparing or likening Man to Sandusky.

0:03:09.440 --> 0:03:12.640
<v Speaker 1>It says he has molested and tortured data in the

0:03:12.680 --> 0:03:16.480
<v Speaker 1>services in the service of politicized science. Uh. Aren't those

0:03:16.480 --> 0:03:19.480
<v Speaker 1>facts that could be the basis of a defamation suit? Well,

0:03:19.480 --> 0:03:21.639
<v Speaker 1>I think there are two things that are important here.

0:03:21.720 --> 0:03:25.359
<v Speaker 1>One is the context. Right, this the conduct was that

0:03:25.400 --> 0:03:29.760
<v Speaker 1>the both writers were taking issue with an investigation that

0:03:29.880 --> 0:03:34.519
<v Speaker 1>they believe was insufficiently rigorous and whitewashed what they believe

0:03:34.800 --> 0:03:38.760
<v Speaker 1>was misconduct on behalf of Michael Mann. It's kind of

0:03:38.800 --> 0:03:44.200
<v Speaker 1>like criticizing a court that exonerates someone you think is guilty. UM.

0:03:44.360 --> 0:03:47.640
<v Speaker 1>And I would think we would agree that it's permissible

0:03:47.680 --> 0:03:50.800
<v Speaker 1>opinion for someone to say that, for example, they think

0:03:50.840 --> 0:03:56.320
<v Speaker 1>George Zimmerman murdered Trayvon Martin. UM. It's that's different from

0:03:56.320 --> 0:04:00.320
<v Speaker 1>saying George Zimerman was found to be guilty of during

0:04:00.400 --> 0:04:03.760
<v Speaker 1>Trayvon Martin. The former I think we recognize, especially in

0:04:03.800 --> 0:04:06.120
<v Speaker 1>a context like we see here as as opinion, the

0:04:06.200 --> 0:04:08.960
<v Speaker 1>latter purely a statement of fact that's wrong. It's a

0:04:09.000 --> 0:04:13.000
<v Speaker 1>claim about what's what? What what a tribunal did. Um

0:04:13.040 --> 0:04:16.440
<v Speaker 1>to say that that their characterization in this case is

0:04:17.320 --> 0:04:22.640
<v Speaker 1>potentially defamatory factual claim? Is this severely the constrain the

0:04:22.680 --> 0:04:29.160
<v Speaker 1>ability of people to criticize investigations, to criticize official pronouncements

0:04:29.200 --> 0:04:31.400
<v Speaker 1>about why they're not folks engaged in wrong or not.

0:04:31.520 --> 0:04:36.880
<v Speaker 1>And I think that's problematics. Let me ask Ken, do

0:04:36.920 --> 0:04:40.240
<v Speaker 1>you agree with that? What's the line? Absolutely? I think

0:04:40.320 --> 0:04:43.800
<v Speaker 1>Jonathan's perfectly right, and I think his Zimmerman analogy is

0:04:43.800 --> 0:04:47.039
<v Speaker 1>a great one. What the court did here was say

0:04:47.160 --> 0:04:53.719
<v Speaker 1>that because all of these institutions conducted these investigations and

0:04:54.279 --> 0:04:59.800
<v Speaker 1>decided that Professor Mann hadn't conducted academic misconduct, therefore that

0:05:00.200 --> 0:05:03.800
<v Speaker 1>evidence that it must have been malicious to suggest that

0:05:03.800 --> 0:05:07.400
<v Speaker 1>he did malicious in the free speech sense, meaning that

0:05:07.839 --> 0:05:10.839
<v Speaker 1>knowing that the allegation was false or reckless about whether

0:05:10.920 --> 0:05:15.000
<v Speaker 1>or not it was false. And the Zimmerman um analogy

0:05:15.600 --> 0:05:18.479
<v Speaker 1>is perfect because he could make the same argument that

0:05:18.480 --> 0:05:22.360
<v Speaker 1>if I said, you know, he murdered Trayvon Martin, Zimmerman

0:05:22.480 --> 0:05:26.120
<v Speaker 1>under this decision could say, well, this is a malicious

0:05:26.160 --> 0:05:29.080
<v Speaker 1>statement as a matter of law, because you know, a

0:05:29.200 --> 0:05:33.080
<v Speaker 1>jury found that I didn't murder anybody. Uh So, I

0:05:33.120 --> 0:05:37.479
<v Speaker 1>don't think it's a good decision on that basis. Um.

0:05:37.520 --> 0:05:42.200
<v Speaker 1>I think that it was far too hyper technical in

0:05:42.600 --> 0:05:47.200
<v Speaker 1>evaluating what his opinion versus what is a statement of fact.

0:05:46.920 --> 0:05:49.560
<v Speaker 1>I'm afrared. We're going to have to leave it there.

0:05:49.600 --> 0:05:53.800
<v Speaker 1>I want to thank both of our guests, excuse me,

0:05:53.880 --> 0:05:57.600
<v Speaker 1>Jonathan Adler of Case Western University's School of Law, and

0:05:57.720 --> 0:06:01.120
<v Speaker 1>Kenneth White of Brown, White and Osboe in Los Angeles.

0:06:01.839 --> 0:06:04.080
<v Speaker 1>That's it for the edition of Bloomberg Law thanks to

0:06:04.120 --> 0:06:07.240
<v Speaker 1>our technical director Chris try Coming and our producer David Sutterman.

0:06:07.560 --> 0:06:10.359
<v Speaker 1>Coming up on Bloomberg Radio, Bloomberg Markets with Carol Masser

0:06:10.440 --> 0:06:14.480
<v Speaker 1>and Corey Johnson. Carol, what's on tap today? Hey? Hi there, Greg.

0:06:14.600 --> 0:06:16.680
<v Speaker 1>We're gonna talk a bit about venture capital the world,

0:06:17.200 --> 0:06:20.640
<v Speaker 1>maybe some more unicorns to look out for in seventeen.

0:06:20.680 --> 0:06:22.520
<v Speaker 1>We're also going to talk with the head of Hatch

0:06:22.600 --> 0:06:25.159
<v Speaker 1>Baby and uh also talk about what you need to

0:06:25.160 --> 0:06:27.880
<v Speaker 1>know in terms of tax prep, because Greg, it's just

0:06:28.000 --> 0:06:31.040
<v Speaker 1>around the corner. Yes it is. Sounds fascinating. That's all

0:06:31.120 --> 0:06:34.599
<v Speaker 1>coming up on Bloomberg Radio. This is Bloomberg