Subtitle: Lies and Legal Liability
The field of climate science, with controversial issues such
as whether the planet is warming
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| Courthouse in Central Texas |
due to man's burning of fossil fuels, or the
world is blissfully ignoring additional carbon dioxide in the atmosphere, or
perhaps the globe is cooling down into the next ice age, has created and still
creates vigorous expressions of opinion, and some name-calling, defamatory
statements, and calls for deliberate lies and deceit. There appears to have also been outright
lies, false statements, and fabrication of data, among other deceitful
practices. This article explores some
of the legal ramifications, criminal cases and Defamation in Part One.
Part Two will continue the discussion on more of the civil causes of
action.
We begin with what is Freedom of Speech? United States law is the basis here, with the
understanding that other countries have different laws respecting Free
Speech. Free Speech is a fundamental
right guaranteed by the First Amendment to the US Constitution, "Congress
shall make no law... abridging the freedom of speech . . . " From that simple phrase, many thousands of
pages have been written over many decades.
Free Speech means, in general, that a person can say or write whatever
he or she pleases, however, there are quite a number of restrictions that
legally limit this. In effect, a person
may still say or write whatever he or she pleases, but there can be legal
consequences. Those consequences can
range from a nominal award of $1, to millions of dollars in damages, up to the
ultimate penalty of death after trial and conviction. The death penalty sounds harsh, for simply
speaking some words, but that is the case and will be examined shortly. The Free Speech clause in the Constitution
limits the government from passing laws regulating speech. The courts have allowed quite a number of
exceptions to Congress’ power regarding Free Speech, so that we have a more
orderly society. There are both Federal
and State laws regulating speech. Also,
Free Speech has been recognized to include oral and written communication, plus
expressive conduct.
It is convenient to categorize Free Speech laws by the type
of court in which the case will be heard, either criminal or civil. Crimes are examined first.
Speech as a Crime
In the criminal courts, speech can be a crime; for example
perjury, sedition, treason, death threats, child pornography, unlawful campaign
contributions, false statement to a government official, false statements as an
element of fraud, impersonation of another, hate speech, and conspiracy to
commit other crimes. Punishments range
from a monetary fine and jail, to prison, to the death penalty.
Perjury is the willful utterance of false statements while
under oath. The penalty can be prison of
a few years, however if the false statements under oath result in the
conviction and execution of an innocent person, the perjurer is also liable for
execution after trial and conviction.
In the climate science context, it is conceivable that a person could be
charged and convicted of perjury. One
must merely give false statements while under oath, as a general statement of
the rule. There are numerous caveats,
however.
Sedition is “an agreement, communication, or other
preliminary activity aimed at inciting treason or some lower commotion against
public authority.” (Black’s Law Dictionary; the Federal law has similar
language but more detail.)
Treason is “attempting to overthrow the government of the
state to which one owes allegiance, either by making war against the state or
by materially supporting its enemies.” (Black’s Law Dictionary; as with
Sedition above, the Federal law has similar language but much more detail.)
A death threat is a “threat to commit a crime which will
result in death or great bodily injury to another person, with the specific
intent that the statement, made verbally, in writing, or by means of an
electronic communication device, is to be taken as a threat, even if there is
no intent of actually carrying it out, which, on its face and under the
circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to
convey to the person threatened, a gravity of purpose and an immediate prospect
of execution of the threat, and thereby causes that person reasonably to be in
sustained fear for his or her own safety or for his or her immediate family's
safety. . .” (California Penal Code Section 422) Within the climate science context, it is
unfortunate to observe some of the participants escalating the verbal wars to
this level.
Child pornography is “material depicting a child under 18 in
sexual activity.” (Black’s Law Dictionary; various state laws have similar
definitions; see e.g. California Penal Code Section 311.2(b)). One hopes that the various players in the
climate change arena do not commit this crime.
Campaign contributions can be considered speech by
expressive conduct. Such campaign
contributions are limited by the Federal Election Commission regulations found
in 11 CFR 110 and following.
False statement to a government official is a crime, for
example, a false statement to a police officer that a crime has been committed.
(California Penal Code Section 148.5)
False statements are an element of fraud where it is a crime
to deprive another of money or property by a false statement or
misrepresentation. (California Penal
Code Section 484). This can apply to
anyone who obtains money, as in a research grant, based upon false statements
in the grant proposal.
Impersonation of another is a crime where a “person . .
.knowingly and without consent credibly impersonates another actual person
through or on an Internet Web site or by other electronic means for purposes of
harming, intimidating, threatening, or defrauding another person. . .” Punishment is up to $1,000 and one year in
county jail. (California Penal Code
528.5) It is also a crime to impersonate
a police officer. In the climate
science context, a famous case is that of Dr. Peter Gleick, who allegedly
impersonated another in order to gain access to confidential information at the
Heartland Institute, a known skeptic organization active in the climate science
arena. See link.
Hate speech is the crime where a “person, whether or not
acting under color of law, shall by force or threat of force, willfully injure,
intimidate, interfere with, oppress, or threaten any other person in the free
exercise or enjoyment of any right or privilege secured to him or her by the
Constitution or laws of this state or by the Constitution or laws of the United
States in whole or in part because of one or more of the actual or perceived
characteristics of the victim listed: (1) Disability, (2) Gender, (3)
Nationality, (4) Race or ethnicity, (5) Religion, (6) Sexual orientation, (7)
Association with a person or group with one or more of these actual or
perceived characteristics.” (California Penal Code Section 422.55 and 422.6)
Conspiracy to commit other crimes is “an agreement by two or
more persons to commit an unlawful act.” (Black’s Law Dictionary) Where the agreement is made by discussions,
or speech, such speech is unlawful. This
brings a great number of crimes within the realm of illegal speech, literally
hundreds. Any crime without a speech
requirement, such as but not limited to burglary, theft, arson, robbery, rape,
mayhem, murder, manslaughter, assault, battery, trespass, etc. that have an
associated crime of conspiracy to commit X, makes the speech illegal.
Speech as Civil Causes of Action - Defamation
In the civil courts, speech can give rise to causes of
action in defamation, false light, copyright violation, false claim of
inventor, fraud (contract context), deceit, fraudulent statements (intentional,
negligent, concealment, opinion as fact), appropriation of likeness, false
claim against the government, infliction of severe emotional distress
(intentional and negligent) and others.
The remedy for the prevailing party in such actions generally is money
damages, but can also include restitution, an injunction, a public apology,
public retraction, payment of attorneys’ fees, and punitive damages. Defamation is discussed briefly below. The climate science context is emphasized,
where the cause of action may involve climate science. The remaining dozen or so categories will be
discussed in Part Two.
Defamation is “the act of harming the reputation of another
by making a false statement to a third person.”
(Black’s Law Dictionary) Where
the false statement is made verbally, the tort is slander. Where the publication is made in writing, the
tort is libel. There are several
important distinctions in the tort of defamation, including whether the plaintiff is a public figure or private figure, whether the matter is one of
public concern or private concern, whether the false statements were made with
malice or not, and whether the false statements were one of a category for
which no damages need be proven, or per se.
Given the number of distinctions, libel/slander, plaintiff is a
public/private figure, public/private concern, malice or not, and per se or
not, there are many possible combinations of the tort and detailed laws for
each. Here, an example is given only
with the combination of libel, plaintiff is a private figure, the matter is one
of public concern, no malice need be shown, and the statements needed no
damages to be proven. These
distinctions are chosen to best match the issue in climate science.
The elements that must be proven are a false statement, made
about another, that injured the other’s reputation, and the statement was made
to one or more third parties. In
addition, plaintiff must prove that the third party reasonably understood that
the statement was about plaintiff; that because of the facts and circumstances
known to the reader of the statement, it tended to injure plaintiff in his
occupation, or expose him to hatred, contempt, ridicule, or shame, or to
discourage others from associating or dealing with him. Also, plaintiff must prove that defendant
failed to use reasonable care to determine the truth or falsity of the
statement; that plaintiff suffered harm to his property, business, profession,
or occupation including money spent as a result of the statement; and that the
statement was a substantial factor in causing plaintiff’s harm.
Regarding the issue of what is a public concern, courts have
observed: “if the issue was being debated publicly and if it had foreseeable
and substantial ramifications for nonparticipants, it was a public
controversy.” ( Copp v Paxton (1996) 45 Cal.App.4th 829, 845) Climate science,
and especially global warming or climate change as it is now known, would
certainly qualify as a public controversy.
Governments and non-governmental bodies have produced lengthy volumes of
climate science documents, held highly publicized meetings all over the world
for decades, and have had the topic front and center in many publications and
internet websites, all on climate change.
The next major point is, what is a false statement in
climate science? A false statement can
be intentional, negligent, or by concealment.
An intentional false statement is one which the defendant did not
believe to be true. A negligent false
statement is one which the defendant had no reasonable ground for believing to
be true. A false statement by
concealment is one in which defendant suppressed a fact when he was bound to
disclose it, or when defendant gives information of other facts which are
likely to mislead for want of communication of that fact. (California Civil
Code 1710).
This is the heart of the matter, the falsity of the
statement. One can imagine numerous
scenarios of defendants making false statements about another that qualify for
one or more of the above three definitions: intentional, negligent, or
concealment. Examples of intentionally
false would be “he has no training”, “he is incompetent,” “he makes things up,” “he takes money from oil companies,” and
such. Negligent falsehoods would be
those for which no data exists, or the scientist simply makes up data. Concealment would be the case where
scientists deliberately decline to state the facts that clarify or even provide
the true state of affairs. One of the
finest arts of telling a lie, it is said, is to tell only that part of the
truth that misleads the other.
If the statement or statements can be shown to be false,
they must next be published to a third party.
In effect, if anyone other than plaintiff reads the libelous statement,
that is sufficient. With the internet,
there can be millions of third parties who read the libelous statement.
Next, the false statement must have injured the plaintiff’s
reputation. Injury to reputation is
shown that because of the facts and circumstances known to the reader of the
statement (the third party), the false statement tended to injure plaintiff in
his occupation, or expose him to hatred, contempt, ridicule, or shame, or to
discourage others from associating or dealing with him. This can be shown by testimony, by business
records showing a decline, by statements showing hatred or contempt or
ridicule, by plaintiff testifying to feelings of shame, or that others were
discouraged or actually stopped associating or dealing with plaintiff.
Also, plaintiff must prove that defendant failed to use
reasonable care to determine the truth or falsity of the statement; that
plaintiff suffered harm to his property, business, profession, or occupation
including money spent as a result of the statement; and that the statement was
a substantial factor in causing plaintiff’s harm.
In the climate science context, it appears that defamation
by libel occurs regularly on the various internet blogs (weblogs). An actual lawsuit for libel is currently in
process between plaintiff Michael E. Mann, PhD, and defendants Mark Steyn,
National Review, and Competitive Enterprise Institute. Professor Mann filed the lawsuit alleging
libel. See link
Note: a related article discussed legal liability for criminal negligence in terms of climate science, see link
Roger E. Sowell, Esq.
Marina del Rey, California
The above is written to provide an overview of a general area of the law, and is not intended, nor is it to be relied on, as legal advice for a particular set of facts. Specific legal advice is available from a qualified attorney; and anyone who seeks such advice is encouraged to contact a qualified attorney.
