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Free speech victory for enviro bloggers

February 14, 2017:-Today the highest court in Massachusetts marked St. Valentine’s Day  by demonstrating its love for free speech.

The question was this: If bloggers accuse a scientific consulting company of fraud, questionable ethics, and intentionally manipulating findings, may the company sue the bloggers for defamation? The answer: No, not in Massachusetts, at least not if the company is providing expert testimony in high-profile litigation.

In a case connected to the Deepwater Horizon explosion and oil spill, the Supreme Judicial Court (SJC) considered the defamation complaint one of BP’s experts, Chemrisk, had brought against two environmental activists. The activists wrote that Chemrisk had engaged in fraud and “intentionally manipulated findings.” Relying on the anti-SLAPP statute, they had asked a lower court to dismiss Chemrisk’s lawsuit. The  lower court denied the motion, but the SJC essentially overturned that denial and, to boot, awarded the activists their costs and legal fees. To read the SJC decision, click here.

The anti-SLAPP statute protects defendants not only in directly petitioning governmental bodies, but also in making “any statement reasonably likely to enlist public participation” in that petitioning effort effort. According to the SJC, the activists’ blog post was “part of [their] ongoing efforts to influence governmental bodies by increasing the amount and tenor of coverage around the environmental consequences of the spill, and closes with an implicit call for its readers to take action.”

Today’s decision represents a very welcome victory for freedom of speech.

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Peter Vickery, Esq.
Featured

Free speech for public employees?

October 28, 2016:- If you are one of the 139,000+ people employed by state or local government in Massachusetts, today’s decision about speech-rights at work might be of interest.

The case involves an erstwhile employee of the Worcester County Sheriff’s Office, Jude Cristo, who complained about a colleague’s use of official time and facilities while campaigning for Scott Bove, a candidate running for Sheriff (unsuccessfully, as it turned out). After the election the new Sheriff, Lew Evangelidis, fired Cristo, who brought an action under federal law for violation of his civil rights, namely his right to freedom of speech guaranteed by the First Amendment.

Cristo lost. The Appeals Court applied the federal test, which protects the speech of public employees only if they are speaking as citizens and not “pursuant to their official duties.” Cristo’s complaints were pursuant to his duties, said the Appeal Court.

But in a footnote, the court left open the possibility that public employees’ speech rights under the Massachusetts Declaration of Rights might be greater than under the First Amendment. If the speech that triggered the firing was whistle-blowing, the court hinted, then the fact that it was job-related whistle-blowing would not necessarily prove fatal. In other words, the  employee might have a viable free-speech claim. Click here to read the case, Cristo v. Evangelidis.  The footnote in question is number 6 on page 15.

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Another campaign finance rule. KA CHING!

As if they needed it this presidential-campaign season, here’s some good news for political consultants. The Massachusetts Office of Campaign and Political Finance (OCPF) is generating more business for them.

The latest state regulation aimed at controlling the funding of political speech  means that candidate committees and independent expenditure political action committees (IE PACs) will face penalties if they share consultants. How will they likely avoid that? By employing separate consultants, of course.

Massachusetts law prohibits IE PACS from coordinating with candidate committees. But proving coordination can be difficult, so the regulations create presumptions that put the onus on the PACs and candidate committees to prove they did not coordinate. Readers with backgrounds in criminal law, constitutional law, high-school civics, or cop shows may be familiar with the presumption of innocence: These presumptions are not like that presumption.

Under the new state regulation, there will be a presumption that the IE PAC and the candidate committee are coordinating expenditures if they use the same “political, media, or legal consultant, or polling firm.” They can rebut the presumption, i.e. prove their innocence, by demonstrating that they adhered to a written firewall policy, the sort of document lawyers and political consultants are good at drafting. Those who would prefer to avoid any entanglements in the first place should bear in mind the words of Han Solo on the subject: “That’s the real trick, isn’t it. And it’s gonna cost you something extra.” An extra consultant, that is.

Another provision states that there will be a presumption of coordination if an IE PAC republishes in whole or in part “a communication relating to a candidate that is posted on the candidate’s Internet or social media site.” So no mere copying from now on. This rule should encourage even greater creativity (a billable quality) by requiring IE PAC consultants to make their clients’ communications look and sound distinct from those on the candidates’ site. Whoever said red tape stifles business?

Somewhere in the Caribbean, I suspect, there floats a yacht named OCPF.

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Peter Vickery, Esq.

Climate Control

defamation_mudslingingAs an ongoing case in the District of Columbia demonstrates, what other people think about us really does matter, whatever our parents may have said to the contrary when we were schoolchildren. Because each individual’s pursuit of happiness and a livelihood depends, to varying degrees, on the opinion of neighbors and colleagues, our reputations have value, which is why the law protects them against some forms of attack.

What degree of protection? The case I discuss below might surprise you. But first some background:

The First Amendment covers many forms of expression – such as parody, protest, and pornography – but not statements that are false and damaging. Intentionally saying something untruthful and damaging about another person orally (slander) or in permanent form (libel) constitutes defamation.

Most of us understand that there is a permanent, uncomfortable tension between free speech and freedom from harmful speech. We also appreciate that conversing in the public sphere is a civic virtue, even when the conversation turns critical or crude. But we are not always sure about where, exactly, speech slips across the boundary from civil to slanderous, from lawful to libelous. What is the precise location of that line? It shifts, according to the status of the plaintiff and the state of mind of the speaker.

One factor is whether the plaintiff is a public figure as opposed to an ordinary citizen who has not actively sought the spotlight. Public figures suing for defamation carry a heavy burden. They have to prove that the speaker knew that the statements were false or showed reckless disregard for their truth or falsity, a standard known as “actual malice.” Hyperbole and harsh opinions are endemic to meaningful discussion, and in this self-governing republic we prefer our debate heated, not chilled. If public figures do not like the heat they know where to find the kitchen door.

Using lawsuits to go after political opponents for what they have said deters people from participating in public discussion. Strategic lawsuits against public participation (the source of the acronym SLAPP) tend to chill speech so, to prevent such lawsuits, state legislatures across the country have enacted anti-SLAPP statutes. Among those jurisdictions is the District of Columbia, whose anti-SLAPP law requires a court to dismiss any claim that arises from “an act in furtherance of the right of advocacy on issues of public interest” unless the plaintiff “demonstrates that the claim is likely to succeed on the merits.” D.C. Code §16-5502.

Together, the “actual malice” requirement and anti-SLAPP statutes place significant hurdles in the path of public figures seeking to silence their critics. So if a public figure – a famous scientist, for example, who had joined the public debate around a controversial policy – came to my office after suffering harsh criticism impugning his integrity and competence and asked whether to sue for defamation, I would probably demur.

On the other hand, if he showed me a stack of published statements describing him as a careless, irresponsible, hypocritical, paranoid conspiracy theorist with a cavalier attitude to data analysis, guilty of planting crimes on other scientists, and whose employers should conduct an investigation of him, I would think again.

Those are the exact terms – including the phrase “planting crimes on others” – various critics have employed to describe Richard Lindzen, the atmospheric physicist who taught at MIT until his retirement last year. As a scientist, albeit retired, Richard Lindzen might wonder whether some of those statements were actionable.

But Richard Lindzen is not the scientist who is suing for defamation. That scientist is Michael E. Mann.

As readers may recall, back in 2009 somebody misappropriated emails from the University of East Anglia’s Climate Research Unit occasioning a scandal of sorts.  One of the emails mentioned Michael Mann and referred to one aspect of his work, rather ambiguously, as a “trick.” Professor Mann’s employer, Penn State University, investigated Mann (or, at least, interviewed him) and cleared him of three out of four charges. But a later investigation by the National Science Foundation criticized Penn State for “not adequately review[ing] the allegation” against Mann and for failing to interview critics of his work.

In 2012, writing in the conservative National Review Online, Mark Steyn quoted Rand Simberg’s previously published comment about Professor Mann, comparing Penn State’s investigation of Mann to its investigation of Jerry Sandusky:

“Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.”

Mann sued Simberg, Steyn, and the two entities that published their statements. The defendants filed a motion to dismiss under the D.C. anti-SLAPP statute. The judge denied the motion. That threshold decision means that the case will go forward, with all parties incurring significant legal fees and the defendants facing the risk of a large damages award. Alternatively, the defendants may choose to pay Professor Mann to settle the matter short of trial.

According to the judge, Mann’s defamation claim is “likely to succeed on the merits.”  In stating that Mann had “molested and tortured data” Simberg and Steyn did more than express an opinion through rhetorical hyperbole, said the judge. Rather, they made “statements based on provably false facts.”  Therefore, the judge reasoned, Professor Mann would likely prevail at trial, meaning the court should deny the writers’ and publishers’ anti-SLAPP motion. The decision is troubling: not because falsely accusing scientists of deceptive practices is right, but because muzzling contrarians is wrong.

When applied to a distinguished scientist and his data, the words “molest” and “torture” may strike some readers as vulgar and others as amusing. Either way, the words are disparaging. Of course, any reasonable reader would understand that Simberg and Steyn were using a metaphor to convey an opinion. Data are not sentient beings, after all. They are capable of being tortured and molested only figuratively, not literally. But clearly the writers meant their statements to denigrate Professor Mann by implying that he had distorted the facts to suit his agenda, an allegation similar to the one Richard Lindzen’s critics throw about.

Does that mean the government, in its role as guarantor of Michael Mann’s reputational interests, should effectively ban them? If Richard Lindzen sued, should the government silence his critics too?

Perhaps climate science is the sole area of study where we already know all there is to know, where we have incontrovertible proof about not only what has already happened but also what will happen. Perhaps, but probably not.

From what I have read, it is beyond reasonable doubt that Earth’s climate is changing and that humans are contributing to that change. Assessments of the climate’s sensitivity and predictions about future global temperatures, however, do not seem quite so clear cut. Still less obvious are the most effective ways to adapt human behavior so as to reduce the risk that the changing climate poses to the species. This aspect of the climate-and-energy policy debate is not an open-and-shut case. Answers will emerge, if at all, through rigorous exchanges in the metaphorical marketplace of ideas.

Free speech begets better policies than censored speech. So when we favor some speech rights at the expense of others, there are trade-offs and real costs. For example, in copyright and trademark law we sacrifice some free speech in exchange for encouraging creativity and preventing consumer confusion. In attempting to strike the right balance courts use use the doctrine of fair use. Similarly, in the realm of reputation, in order to promote robust debate we require that public figures accept a greater degree of uncompensated denigration than private citizens have to endure. In the language of economics, when public figures endure ignominy and absorb its cost, society as a whole acquires a positive externality.

The trade-offs here are considerable. We can hold climate scientists harmless and insulate their reputations even when their predictions serve as the basis for policy decisions that could cause more damage than they prevent. That is the decision the judge made in Professor Mann’s case. We know that Simberg, Steyn, and their publishers are paying a heavy price. But what price will fall on society as a whole?

Simberg and Steyn wrote words that undermined the reputation of a famous scientist. They expressed an opinion that seems to fly in the face of the facts. If the case goes to trial, the central question for the court will be whether their allegations were baseless. But the deeper question for all of us is this: Should the law accord Simberg and Steyn’s speech the same level of protection it gives pornography, or a lower level; as much as flag-burning receives, or not so much; safeguards equal to those it grants the open advocacy of ethnic cleansing, or less than equal?

As we ponder these questions, it is worth bearing in mind whether our answers would be different if the aggrieved scientist was not Michael Mann but Richard LIndzen.