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Court ruling: Journalists must not treat a scientist as “unavoidable road kill on the highway of public controversy”

13 February 2015
Canadian press reports success for climate researcher Andrew Weaver's libel suit—which calls to mind that of US climatologist Michael Mann.

Canadian climate scientist Andrew Weaver, tired of verbal viciousness targeting him, targeted it back. On a bulletin board outside his University of Victoria office, he used some of it in assembling what he called a “Wall of Hate.” Then he filed a libel suit. On 5 February a court vindicated him. Though little noticed so far outside the Canadian media, Weaver’s story matters—and not just for its resonances with the comparable US case involving climate researcher Michael Mann.

Consider an example of the viciousness cited by Justice Emily Burke of British Columbia’s supreme court in her “Reasons for Judgment” document. An online commenter at Canada’s National Post called Weaver “as big a hypocrite as he is a fraudster. He was front and center with his ‘global warming’ lies and deception and should be made to repay his research monies and lose his tenure and degrees.”

The commenter was responding to one of four commentaries targeted in Weaver’s libel suit. That commentary gleefully reported that a “catastrophic heatwave” appeared “to be closing in” on the Intergovernmental Panel on Climate Change (IPCC). It asked, “How hot is it getting in the scientific kitchen where they’ve been cooking the books and spicing up the stew pots?” It answered, “So hot, apparently, that Andrew Weaver, probably Canada’s leading climate scientist, is calling for replacement of IPCC leadership and institutional reform.”

The online commenter continued: “A few centuries in jail would give him time to reflect on his part in the biggest fraud in the history of mankind. Perhaps he would settle for a 100-year sentence by giving evidence against his fellow fraudsters?”

Let excerpts from Justice Burke's 29 000-word judgment—the length of a short book—tell the story:

In brief, Dr. Weaver says the words used in the various publications state or contain innuendos or inferences that he attempted to divert public attention from a scandal involving “Climategate” and the Intergovernmental Panel on Climate Change . . . by fabricating stories about the involvement of the fossil fuel industry with respect to the break-ins at his office; that he is untrustworthy, unscientific and incompetent; and that he distorts and conceals scientific data to promote a public agenda and receive government funding. . . . The question in this case is not who is right in the debate on climate change. Rather, the issue is whether the words and statements in the four articles defame the character of Dr. Weaver.

After the justice reproduces the offending commentaries, she outlines Weaver’s career:

At the time the above statements were made, Dr. Weaver was a professor in the Faculty of Arts and Science in the School of Earth and Ocean Sciences Department. He joined the University of Victoria in 1992; became a tenured associate professor in 1994 and a full professor in 1997. Dr. Weaver’s extensive curriculum vitae reflects a number of degrees including a Ph.D. of Applied Mathematics granted by the University of British Columbia in 1987. Dr. Weaver’s academic background includes the Canada Research Chair in Climate Modeling and Analysis in the School of Earth and Ocean Sciences at the University of Victoria from 2001 to 2013. He has also been a Lansdowne professor from 2012 to the present. Since May 2013, Dr. Weaver has been the BC Green party Member of the Legislative Assembly for Oak Bay/Gordon Head. . . . [He] has also participated in the Nobel Prize-winning organization, the United Nations’ IPCC [and] has contributed, as a lead author, to several IPCC assessment reports.

Justice Burke implicitly, but also flatly, rejects the false-balance principle, the often-heard climate-wars claim that scientists’ climate consensus constitutes established fact and that scoffers’ views therefore not only lack standing to be treated as even roughly equivalent, they harm public understanding if accorded any standing at all. She wrote, “The debate for the purpose of this matter, as at the date of the publication of the articles, can be described as follows: on the one hand, scientists espouse the view that recent global temperatures demonstrate human-induced warming. On the other hand, other scientists say the science has not established this proposition.” She adds:

Part of the debate at the time of the publication of the four articles centered around an event referred to as “Climategate”, where a large cache of emails were leaked or stolen from the University of East Anglia’s Climate Research Unit. . . . The emails were alleged to show imperfect data, the withholding of information by scientists and impacted the credibility of climate scientists who maintain climate change is occurring.

There was extensive media coverage of Climategate in 2009 and negative commentary on the scientific practices and the comments by the scientists in those emails.

After reemphasizing that the scientific debate “is not something that can or should be resolved in this case,” she calls it “part of the context that informs [her] determinations.” After stipulating that she “will not deal with the specifics of each word or sentence alleged to be defamatory,” she summarizes the “general allegations” as “the following innuendos or inferences” that Weaver

(a) attempted to divert public attention from the IPCC and Climategate scandal by fabricating stories about the involvement of the fossil fuel industry with respect to the break-ins at his office, theft of emails from a UK University, and hack attacks at the [Canadian Centre for Climate Modelling and Analysis];

(b) engaged in deceptive misconduct in the news media to do so;

(c) engaged in willful manipulation and distortion of scientific data for the purposes of deceiving the public in order to promote a public agenda;

(d) in doing so, is motivated by a corrupt interest in receiving government funding and financial rewards;

(e) is willfully concealing scientific climate data;

(f) knows or believes the IPCC reports concerning global warming are unscientific and fraudulent and seeks to avoid personal accountability for the manipulation/distortion of those reports by disassociating himself from that organization;

(g) has deceitfully or incompetently linked current weather and temperature events with global warming;

(h) authored a deceitful and manipulative work of agitation propaganda known as The Copenhagen Diagnosis; and

(i) is untrustworthy, unscientific and incompetent.

At one point, quoting an earlier court decision, Justice Burke observes, “While the Supreme Court of Canada is clear about the critical importance of free speech . . . this does not provide a roadmap to the individual’s reputation as a ‘regrettable but unavoidable road kill on the highway of public controversy.’” She writes: “In my view, a reasonable person, after a review of the combination of the articles would conclude that Dr. Weaver, in his position as a scientist and professor, is incompetent and/or deceitful.” She continues:

Dr. Weaver’s reputation is blotted with innuendos of research misconduct. . . .

It is one thing to debate the merits of a theory. It is quite another to impugn a person’s character with innuendos concerning honesty, ethics and competence in the course of that debate. . . .

A reading of the articles as a whole leads me to conclude an ordinary person would find the inferences from the words complained of defamatory. . . .

I conclude the defendants have been careless or indifferent to the accuracy of the facts. As evident from the testimony of the defendants, they were more interested in espousing a particular view than assessing the accuracy of the facts. This lack of accuracy has led in part to my conclusion that certain aspects of the articles, especially when read together, are defamatory and are not saved by the fair comment defence. This is not sufficient, however, to lead to a finding of malice. . . .

[T]he defamation in this case was serious. It offended Dr. Weaver’s character and the defendants refused to publish a retraction. The libel was widely published by at least one high profile journalist and two others. In addition, the libel effectively ran through a serious of articles in a national newspaper published over a short and continuous time period. Re-publication of the libel occurred as established by the plaintiff.

The justice spelled out consequences:

I am of the view a significant award is appropriate. The inferential meaning of the words implies a serious defect in character that impacts Dr. Weaver’s academic and professional world. The evidence establishes Dr. Weaver was deeply affected by what he perceived as a barrage of articles impugning his integrity and academic reputation. These gave rise to the “Wall of Hate” that he maintained outside his office. . . .

I consider an award of $50,000 in general damages against all defendants jointly and severally to be appropriate in this case. . . .

I direct the defendants to remove the offending articles from any electronic database, where they are accessible under the control of the National Post Internet sites and electronic databases. In addition, the defendants are required to expressly withdraw any consent given to third parties to re-publish the defamatory expression and to require these third parties to cease re-publication.

Further, the defendants will publish a complete retraction of the defamatory expression in the hardcopy National Post Internet sites and electronic databases in a form agreed to by the plaintiff.

How does this concluded Canadian libel suit compare to the ongoing defamation suit that Penn State climatologist Michael Mann filed in Washington, DC, in 2012 against National Review Online’s Mark Steyn and others?

It’s important to stipulate that the complexities of comparative libel law far exceed the scope of this media report and the capacities of the reporter. But it doesn’t take a legal scholar to report what has apparently not yet been noticed in the media: Steyn has deep connections to the National Post, the newspaper that published the commentaries targeted in Weaver’s suit. He even served as a columnist there.

Steyn describes himself as “a popular guest host” of two leading conservative broadcasters’ shows: “America's Number One radio show The Rush Limbaugh Program, as well as the top-rated Fox News TV show Hannity.” At National Review Online, his blog posting targeted by Mann’s defamation suit quoted a Competitive Enterprise Institute posting likening Mann to a notoriously criminal Penn State football coach. That CEI posting now contains a note saying, “Two inappropriate sentences that originally appeared in this post have been removed by the editor.” Here’s part of what Steyn quoted from the original: “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.”

Surely anybody would pluck that one immediately for display on a Wall of Hate. Still, cautions from the legal scholar and Washington Post online columnist Jonathan H. Adler might merit considering. In 2012 he wrote:

Given that Dr. Mann is a public figure and a prominent participant in climate policy debates, and that debate over the soundness of the “hockey stick” graph continues, I am skeptical of this suit—and I say this as someone who believes human activity is contributing to climate change and supports appropriate policy responses. All sorts of outrageous charges are made all the time in the rough and tumble of the current climate debate, and many people forthrightly believe that Mann and others have cut corners in their scientific research. I think this will make it difficult for Mann to show that those involved acted with “reckless disregard” of the truth. I also doubt the courts will be too eager to police the word choices of polemical blog posts made by political commentators in the course of heated policy debates.

Adler added this disclosure: “I am a contributing editor at National Review Online, for which I write occasional articles and blog posts, and I worked for CEI in the 1990s.” In 2014 at the Post, he expanded on his earlier take:

The climate policy debate is quite heated. Partisans hurl charges against each others with impunity, challenging the honesty, intelligence, and integrity of those on the other side. So it’s understandable that many environmentalists hope Mann will win. Yet should he prevail, many on his side may come to rue this result. Should Mann win, it will not be long before defamation suits are filed in the other direction. Every time an environmental activist suggests someone on the other side is “bought” by fossil fuel interests, they had better be able to substantiate their claim, or they will be inviting a lawsuit. And while it would be nice to have less ad hominem in our political debates, and more serious discussion of climate policy in particular, the threat of defamation suits is not a good way to achieve this result.

Meanwhile, Weaver is promoting environmentalism in elective office. At the Vancouver Sun a few days after the court ruling, a political article began:

He’s a climate scientist who’s become a political lightning rod at British Columbia’s legislature.

Andrew Weaver, B.C.’s lone Green party member of the legislature, spent years espousing and debating climate change theories in the academic world. Now he finds himself in the middle of a gathering political storm, with the Opposition New Democrats and governing Liberals on his left and right.

The article never mentioned the libel case. It also appeared at The Province. Its ending calls out to be borrowed as the ending here:

Weaver’s academic boss at the University of Victoria said life as a scientist, and especially a climate scientist, provides Weaver with the perfect training ground for B.C. politics.

“When you are involved in climate science and modelling the climate, and indeed demonstrating that global warming is real and driven in large part by humans, you kind of necessarily become political whether you want to or not,” said Stephen Johnston, director of the school of ocean sciences.

“He’s always been tough-skinned,” said Johnston. “Science is not for the gentle hearted.”

(Since science is indeed not always for the gentle-hearted, maybe it’s important to tack on this addendum: At , the Climate Science Legal Defense Fund seeks donations with a goal that it calls “simple: let scientists conduct research without the threat of politically motivated attacks.”)


Steven T. Corneliussen, a media analyst for the American Institute of Physics, monitors three national newspapers, the weeklies Nature and Science, and occasionally other publications. He has published op-eds in the Washington Post and other newspapers, has written for NASA's history program, and is a science writer at a particle-accelerator laboratory.

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