When newspapers are under threat of lawsuit for any opinion that a jury might find objectionable, what remains of freedom of the press? How will public pursuit of the truth be advanced if anyone can sue for defamation to shield himself from honest critique?

Monday, Nov. 25, the United States Supreme Court denied certiorari to National Review Inc. (NRO) v. Mann and the parallel case, Competitive Enterprise Institute (CEI) v. Mann. Their decision means that climate scientist Dr. Michael Mann can go forward in his defamation lawsuit. He is suing these news outlets for printing two opinion columns on July 13, 2012 and July 15, 2012, respectively.

Justice Samuel Alito dissented. He wrote that this case goes “to the very heart of the constitutional guarantee of freedom of speech and freedom of the press: the protection afforded to journalists and others who use harsh language in criticizing opposing advocacy on one of the most important public issues of the day.” 

Alito supported this statement with two basic arguments. First, he questions whether a jury, untrained in science, is competent to judge “[w]hether an academic’s use and presentation of data falls within the range deemed reasonable by those in the field.” Juries judge matters of justice and common sense, but they should not be expected to judge the validity of data and methods hotly and politically contested.

Second, Alito writes that even the best-case scenario for the accused journalist is a burden that could suppress freedom of expression. “A journalist who prevails after trial in a defamation case will still have been required to shoulder all the burdens of difficult litigation and may be faced with hefty attorney’s fees. Those prospects may deter the uninhibited expression of views that would contribute to healthy public debate.”

Alito’s dissent is spot on. In fact, his concerns are not only theoretical possibilities. I recently watched these twin pressures operate in real time to scrub my own true and verifiable words from the public record. This is my story:

On Sept. 3, I wrote a column in the Uinta County Herald titled, “Is man-made global warming Mann-made?” It discussed how Mann’s years-long, multimillion-dollar suit against fellow scientist Dr. Timothy Ball had recently been dismissed with prejudice from the Supreme Court of British Columbia.

The article described how Mann had drastically rewritten surface temperature data for the past millennia by publishing his “hockey stick graph” in 1998. This became an iconic rallying cry in debates about man-made global warming. The article asserted that Mann has kept some details of his data from public scrutiny by asserting the rights of “intellectual property.”

The central claim of the article was that “In January 2017, a judge agreed that Mann would have to hand over the data and gave him two years to do so. ... The deadline came and went with no data ever produced. In May, Ball’s legal team asked the judge to throw out the lawsuit based on Mann’s refusal to release the data. On August 23, the judge granted the motion to dismiss. Not only that, but he also took the unusual step of requiring Mann to reimburse all of Dr. Ball’s legal costs.”

A shortened version of that article was subsequently published in the Wyoming Tribune Eagle later that week. That’s when the fireworks began. Hours after the article appeared in Cheyenne, Mann wrote an email to the editor and publisher of the Uinta County Herald which he then copied to Brian Martin, editor of the Wyoming Tribune Eagle: “Your newspaper has just published a commentary that makes false and defamatory statements about me and my research. The claims made in the piece that our data are not available or that we did not provide materials requested by the court are provably false. And they are libelous.”

Mann concluded the email with an implicit threat, “I expect the column to be taken down immediately. I have copied my lawyers John B Williams of Williams Lopatto PLLC, Peter Fontaine of Cozen-O’Connor, and Roger McConchie of McConchie Law.”

Less than an hour and a half after receiving the menacing email, the Cheyenne paper informed me that my article was taken offline. At some point, the Uinta County Herald also took it down. For evidence of error Mann supplied two links. First was an FTP site with reams of numerical data. Second was an article from a fellow scientist who wrote about the “robustness” of Mann’s research. 

Robust is not the same as infallible. Nor is a data-dump equivalent to full disclosure. But name recognition and legal threat caused both papers not only to amend some specific point of error, but to quietly scrub an entire published article.

Asked to comment on the publisher’s decision, I sent my sources to Martin with the following note:

I believe that my article accurately represents the data presented above. Specific to Dr. Mann’s assertion about data disclosure, Dr. Ball reports, “We agreed to an adjournment with conditions. The major one was that he [Mann] produce all documents including computer codes by February 20th, 2017. He failed to meet the deadline.” If Ball spoke wrongly in this published statement, Dr. Mann has had two years to prove it in open court. He obviously has not proven this before the British Columbia Supreme Court. 

I waited for the paper to weigh the evidence and either repost the article or ask for a correction. After several days, I called Martin directly. He informed me that the newspaper simply did not have either time or manpower to check the sources.

This is precisely Alito’s point. If a capitol newspaper, staffed by investigative reporters with decades of combined experience, does not feel competent to judge the falsifiability of a claim, how can jurors picked from the untrained public be expected to do the same?

The Wyoming Tribune Eagle also forward my note to Mann with the following inquiry: “Mr. Mann, The column has been taken down, but here is the columnist’s response. Do you have any response to this? Are his sources all biased against climate change?”

Mann’s reply is telling: “These are a list of right-wing blogs, not a single legitimate media source in that list. The claims made in the piece are, as I explained and demonstrated to you previously, false and defamatory, and would readily be shown as such in court. I trust that is adequate to resolve this matter.”

To a newspaper with the circulation of only 14,000 the words “defamatory” and “court” must be frightening. Martin confirmed this to me by noting that the Tribune Eagle is not in a position to mount legal defense against a libel lawsuit. Alito’s dissent anticipated exactly this response. But what does it matter? After all, it’s only a couple of small newspapers. 

Consider that despite Mann’s strong language, he never directly disputed the quote from his adversary. Dr. Timothy Ball was the only other party in the courtroom. His public statement, published over two years ago, is that Mann did not “produce all documents including computer codes by Feb. 20, 2016.” At my suggestion, Martin specifically asked Mann about that. He responded, “I’m happy to let things stand where they are.”

Four days later, I wrote Mann directly. I sought to know his specific objections and address them honestly. Then, I concluded, “I am not happy to let things stand as they are. I would rather either retract or clarify my article than to allow false information to stand uncorrected. … If Dr. Ball’s statement is untrue, I stand ready to correct or retract the article. I am even willing to issue an apology for the public record.” That email went unanswered. Three days later, I re-sent it — this time with a subject line sure to get Mann’s attention.

As of this writing, Mann has never once disputed Dr. Ball’s published statement. Nor has he ever asked for a retraction or correction. He, rather, ignored my offers to make one. His final word on the matter remains, “I’m happy to let things stand where they are.” 

As things are, two “legitimate media sources” have printed over 15,000 copies of a statement that is undisputed by Mann or anyone else present in the courtroom. And yet, nobody could know that fact by executing an internet search. 

Without retraction or correction, it has simply disappeared into the memory hole. By threatening to sue a couple of struggling newspapers one party to an important and vigorous debate has succeeded in keeping critical words off established print-news websites. As far as internet users are concerned, this information has never been published in a “legitimate media source,” but only in “right-wing blogs.”

If the U.S. Supreme Court will not deny participants in public discourse this power to silence opponents, it will happen with increasing frequency. Justice Alito was absolutely right to dissent. What he presented as a possible scenario has, in fact, already happened. 

Jonathan Lange is an LCMS pastor in Evanston and Kemmerer and serves the Wyoming Pastors Network. He can be reached at JLange64@allwest.net. Follow his blog at OnlyHuman-JL.blogspot.com.