Thoughts At 75000 Pageviews

Today the pageview counter at SLB turned over 75,000 pageviews, another milestone of sorts.   These views are from a bit more than 39,000 unique visitors from 143 countries. As always, it is amazing to see such numbers.  

Lately, the pace of pageviews has sharply increased.  That is most likely due to the 30-part series on Truth About Nuclear Power, TANP beginning in March and concluding in August.  Cumulatively, the TANP articles have almost 9,000 views to date, with the Summary article (part 30) and US Nuclear Plants are Heavily Subsidized (part 13) sharing the most views with just over 1,200 views each.   Nuclear plants typically are lauded by the industry and supporters as being cheap, safe, long-lasting, and reliable.  TANP articles shows the truth, that none of those claims are accurate.   New technologies under development are also touted by supporters (small reactors, fusion, thorium, and high temperature gas reactors), and these are shown in TANP to be hopelessly uneconomic or unsafe, or both.  see link to Article One of TANP. Links to all 30 articles are provided there. 

As my readers know very well, my views on man-made climate change are that the science does not support an alarmist view.  see link  That is based on a critical examination of the available data.  What is disappointing is that so many skeptics of climate alarmism are also nuclear power supporters.  How nice it would be if they applied the same scrutiny of climate data to the nuclear plant data.  It appears to me that the nuclear power supporters are being led by smooth-talking dis-informers.  An article on this appeared here:  see link. 

Also, another series is underway, this one on wind energy.  see link  There is much mis-information spread by the anti-wind group.  Truth About Wind Energy will dispel those myths and show why and how wind energy presently is providing valuable energy, and will in a few years be supplying reliable, low-cost, low environmental impact energy via grid-scale storage.  See link for additional SLB articles on wind energy. 

A few articles discussed coal as an energy source, (see link) concluding that coal is being used up much faster than in the past.  The grim consequence of this is that an economic and reliable replacement for forty percent of the world's electricity production must be found, tested, and proven long before the coal runs out.   The best candidates for coal replacement are renewable energy with grid-scale storage.  Candidates in this area include solar thermal, and offshore wind with submersible pumped storage.  Ocean current energy needs no storage, nor does energy from river mouth osmosis.  

A trio of legal-oriented articles from SLB were republished on other blogs, those being Are Climate Skeptics Legally Liable for Criminal Negligence (see link), Climate Science, Free Speech and Legal Liability (see link), and Prosecuting Those Who Force a Scientist to Resign (see link).  

It was also very interesting to rebut the false claims of the US President in his recent commencement speech to UC-Irvine (2014).  The President spoke on the urgency to combat dangerous man-made climate change.  see link   There is no man-made climate change, and therefore there is no urgency to combat it. 

Finally, it is is gratifying that several groups continue to request me to speak to them on various topics.   In the past three years, I have made formal speeches to Southern California Section of AIChE, to the student chapter of AIChE at University of California at Irvine, and the student chapter of AIChE at UCLA (University of California at Los Angeles).    I am very pleased that UCLA students have asked me to present a four-part series of lectures on approaches to the national student design competition.   See link for a list of recent speeches. 

Roger E. Sowell, Esq.
Marina del Rey, California

Climate Science, Free Speech and Legal Liability - Part 1

Subtitle: Lies and Legal Liability

The field of climate science, with controversial issues such as whether the planet is warming

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.