Libel -- a falsity that smears a reputation -- can be dreadful, and you ought to be able to sue and maybe win money if untrue, harmful things are being publicized about you. But watch out in public debates, because, if people are then allowed to sue too easily, they can squeeze needed discussion to puniness, as the Supreme Court recognized in a case against The New York Times half a century ago.
The court saw how the First Amendment's guarantees of free speech and free press could be endangered by financially destructive suits brought by public figures wishing to zip contrary lips. And so it famously pronounced that such plaintiffs in libel cases would have to demonstrate "actual malice," which legally means the defendant knew that a false, damaging message was indeed false or at the very least entertained doubts about its truth without checking further.
All of that is hard to prove, which is how the court wanted it. In the written decision, Justice William J. Brennan observed, first, that error is inevitable in broad-based argumentation, and then, employing eloquence, made it clear we don't want the fear of courtroom retaliation to rob us of the kind of public debate we need -- "uninhibited, robust and wide open."
Now come those who would render it a meek whisper. Supported by errant judges, Michael Mann, a climate scientist, is pursuing a libel suit with targets including Mark Steyn, an unbelievably talented and thoughtful writer, and National Review, a terrific magazine.
Mann is well-known for his "hockey stick" graph maintaining that temperatures on this earth were roughly level for eons and then shot up dramatically because of greenhouse gas emissions. Although his graph came in for some lambasting criticism, a significant number of researchers have agreed with his results, even if some questioned aspects of his methodology. He himself has been fiercely antagonistic toward scientists on different pages, referring to the exceptional Judith Curry of the Georgia Institute of Technology as a "serial climate misinformer."
You would think someone dishing it out that way could take it, but a chief thrust of the Mann suit is that Steyn, in a blog for National Review, used the word "fraudulent' to describe some of Mann's work. There are lots of researchers backing Mann up, one judge says, as if that legitimizes the suit. There are also researchers who seriously question his work, and the law says the suit can go on only if Steyn was in doubt. Why would anyone assume he was?
There is a ton more here there's not space to explore, but the short of it is that a vital principle has as much as been ignored and what's at risk is conceivable ruination of a superb journalist, the demise of a fine magazine and a major deterrence to uninhibited, wide open speech. Even if Mann should lose the suit, the expensive defense process is itself punishment, as Steyn has written. The unleashing of such suits could easily produce the kind of thing happening in the South in the 1960s before the Supreme Court decision mentioned above: costs to newspapers of hundreds of millions of dollars as they tried to report on civil rights injustices.
A chief culprit in this go-around is easily identified. It is the dogmatic global warming religion that leads, among other things, to expunging heretics from their jobs. As much recently happened to a statistician showing how futilely the alarmists struggle for data essential to confirming their revelation of approaching apocalypse.
The religion is expressed as well when adherents call skeptics "deniers," even though many skeptics, while worried about overreaching, agree there has been warming and that human causes are a factor. "Deniers" has long been the term used to describe anti-Semitic, moral thugs who deny there was a Holocaust. To associate the two groups is inexcusably vile, and tells you a lot about the fanaticism of true believers who use it. Under the possible new way of things, should skeptics sue?
(Jay Ambrose is an op-ed columnist for McClatchy-Tribune.)