Weaver on Tortious Sarcasm towards an Academic

In 2005, serial litigant Andrew Weaver, now a politician but then an academic at University of Victoria active in public controversy, threatened Climate Audit about alleged defamatory remarks.  I asked Weaver to explain why the seemingly innocuous remarks (by John A, not myself) were supposedly defamatory. As I understand Weaver’s theory of libel, sarcasm towards an academic is supposed to be tortious. It may seem -preposterous spelled out like this, but so does the decision in Weaver v National Post.
I will present the correspondence pertaining to Weaver’s libel allegations in full, so that readers can judge for themselves whether I have accurately characterized the Weaver’s doctrine of tortious sarcasm towards an academic. [Note: I was concurrently discussing issues related to Rutherford et al, 2005, of which Weaver was editor. To focus on the flow of discussion on Weaver’s libel allegations, I haven’t shown these sections of the emails, but, to reassure Brandon, will place a pdf online of the emails including Rutherford discussion – see here]

The Climate Audit Post, March 16, 2005
Weaver’s legal threats arose when Climate Audit was in its infancy. On March 16, 2005,  John A wrote a post entitled Spot the Hockey Stick #9: Andrew Weaver, which showed a hockey stick together with the following caption:

“Thus we come to Dr Andrew Weaver, of the School of Earth and Ocean Sciences at the University of Victoria in Canada, who has tirelessly promoted the Hockey Stick in the past, and to prove his scientific prowess, he bequeaths the Hockey Stick to the next generation of brave environmental guardians, media stars and possibly, the occasional climatologist.”

More florid than my style, but free speech about public affairs would be dreary indeed if one can’t say something like this about an academic who’s placed himself in public debate.
Weaver’s Complaint, March 31
On March 31, 2005, Weaver sent me an email stating that the post contained “defamatory remarks about [Weaver] which publicly undermine [his] professional integrity”. In particular, Weaver stated that he had never “‘promoted’ Mann et al” in the past and that the statement that he had “promoted” Mann et al was defamatory to him.

Dear Mr. McIntyre,
I recently came across a website: http://www.climateaudit.org which is registered to you and administered by you (see below). On that particular web site I noticed “Spot the Hockey Stick #9: Andrew Weaver”: http://www.climateaudit.org/index.php?p=139#more-139
In this piece I find that a selected component of one panel in Lecture 1 of EOS 460 course notes has been taken and posted without my permission. In addition, I find that the discussion has misrepresented the intent of that figure. I would ask that you immediately remove that figure from your web site.
Second, it is my opinion that your site contains defamatory remarks about me which publicly undermine my professional integrity.
First, with respect to the statement:
“Thus we come to Dr Andrew Weaver, of the School of Earth and Ocean Sciences at the University of Victoria in Canada, who has tirelessly promoted the Hockey Stick in the past, and to prove his scientific prowess, he bequeaths the Hockey Stick to the next generation of brave environmental guardians, media stars and possibly, the occasional climatologist.”
I have never ‘promoted’ Mann et al. in the past. Not only that, I did not ‘promote’ it in my lectures, which of course you were not at. I request that you immediately remove the defamatory statement from your web site.
Second, it is clear to me that an average lay reader also has a similar impression to mine as to the defamatory nature of your site (please see one of the posts on your site):
“I don’t know. In your efforts to find any way possible of villifying the ‘Hockey Stick’ you search around the net, rummage through someones on-line notes for something (anything?) to triumphantly post here (like some kind of self appointed climate truth policeman meeting his masters?), and ritually submit yet another scientist to CAtype ridicule. Just what *is* it with you and this place John? It’s worse than disrespect, it’s shameful.”
Third, [… complaint about inline discussion of my complaint about Rutherford et al 2005 in CA post http://www.climateaudit.org/index.php?p=138]
Yours sincerely
Andrew Weaver

McIntyre Reply, April 6
I was puzzled as to why Weaver believed it was defamatory to say that he had promoted the Hockey Stick and asked Weaver to explain whether the problem was that he didn’t think that the Hockey Stick was a valid representation of past temperature history or that he took the position that he had not disseminated such views:

Dear Andrew, I’ve had a chance to review some of the materials involved in your complaint and would like to resolve matters.
It was certainly not the intent of climateaudit to convey defamatory remarks about you or anyone else. However, I’m a little unclear as to what aspects of the sentences in question that you find untrue or defamatory. It was my understanding that (1) you believed the Hockey Stick graph to be a valid representation of past climate history; (2) that you had publicly endorsed this representation of climate history. The contents of the lecture appear to be consistent with your public posture. Dissemination of viewpoints to the public is what I understand to be “promotion”. Is the problem that you do not believe the Hockey Stick to be a valid representation of past climate history or that you have not in fact disseminated this view to the public? If both of these are correct, I do not understand why you believe that the claim that you have disseminated the Hockey Stick representation of climate history to be defamatory to you.
Secondly, in connection with my own correspondence, it was my understanding that I communicated with you in your capacity as Editor, Journal of Climate and not in a personal capacity. […discussion of Rutherford et al 2005]
In the interim, if you wish me to post up your letter to me at climateaudit.org in full, I am quite prepared to do so.
Regards, Steve McIntyre

Weaver: the Tort of Sarcasm towards an Academic, April 7
Weaver answered later the same day (April 7) but did not respond to either of my questions.  In particular, he seemed to concur that he did in fact believe the Hockey Stick to be a valid representation of past temperature history and that he had disseminated such beliefs.
Weaver explained that it wasn’t the “words themselves” but the “the sneering tone and the implications that make the case”. And, for those of you who wonder why a “sneering tone” towards an academic would engage the interest of libel law, Weaver explained that the “implications” of the sneering tone were  “that I am (essentially) incompetent in my field”.  (I’ll return to this in the conclusions.)

Dear Mr. McIntyre, thank you for your email. You stated that: “However, I’m a little unclear as to what aspects of the sentences in question that you find untrue or defamatory.”

As I mentioned in my original email, I deem the sentence below to be defamatory and to publicly undermine my professional integrity:

“Thus we come to Dr Andrew Weaver, of the School of Earth and Ocean Sciences at the University of Victoria in Canada, who has tirelessly promoted the Hockey Stick in the past, and to prove his scientific prowess, he bequeaths the Hockey Stick to the next generation of brave environmental guardians, media stars and possibly, the occasional climatologist.”

I once more reiterate the comments from one of your posters which underscore how other, lay readers, clearly agree with me:

“I don’t know. In your efforts to find any way possible of villifying the ‘Hockey Stick’ you search around the net, rummage through someones on-line notes for something (anything?) to triumphantly post here (like some kind of self appointed climate truth policeman meeting his masters?), and ritually submit yet another scientist to CAtype ridicule. Just what *is* it with you and this place John? It’s worse than disrespect, it’s shameful.”

Your questions concerning my ‘opinion’ of the Mann et al ‘hockey stick’ are not relevant to the issue at hand since if you had attended my class you would have known the context with which I discussed my modified figure (which you still have not removed I note). In addition neither you nor the writer on your site attended my class so you have no basis for any of assertions as to my position.
As I see it, it is the implications that I am (essentially) incompetent in my field that is the defamatory issue – the tone and phrasing effectively is designed to hold me up to contempt. For example, if I say: “John Doe is incompetent”, that’s clearly defamatory. If I say, “Good old John Doe, always trudging behind the leaders in his field”, I have expressed the same thought. It is the sneering tone and the implications that make the case, not the words themselves (maybe John Doe isn’t always the first to publish an idea or concept, so the substance might even be true, but the conclusion implicated is not!). It would not be defamatory if I said, “John Doe is not always first to publish the ideas he writes about” (assuming this is true).
With respect to the correspondence, […. discussion of Rutherford et al ]

McIntyre Reply, April 11
By this time (h/t John A), I had become aware of Weaver’s much more derogatory remarks about our 2003 article at UBC Thunderbird (see discussion here).  I pointed out to Weaver that he himself had used more offensive words about our work.  I wasn’t convinced at all by Weaver’s explanation of the tort. I again asked him to explain the supposed defamation, inquiring (in light of his explanation of John Doe trudging) whether he “objected not so much to being portrayed as a promoter of the hockey stick, but in being given insufficient credit for being a leader in hockey stick theory”. But I couldn’t be bothered squabbling further and removed them, though I left Weaver’s hockey stick image in the post untouched, responding to Weaver as follows:

Dear Andrew,
I remain unable to follow your reasoning below as to why you consider the posting in question to be defamatory and disagree that it is.
As I read your complaint, you have objected not so much to being portrayed as a promoter of the hockey stick, but in being given insufficient credit for being a leader in hockey stick theory. Be that as it may, the tone of the posting is not a tone that I would have used and, although I did not make the posting, I have elected in this instance to substantially edit the posting to remove potentially offensive language and hope that this resolves this aspect of the matter.
I notice that you have elsewhere not been averse to using offensive language in discussing our material, saying, for example, that our first article should never have been published.
[…Rutherford discussion]
Regards, Steve McIntyre

Weaver Sign Off, April 11
Later that day, Weaver acknowledged the change at the post and complained that I had not “responded to all of [his] questions” in his “previous post” (by which, re-examining it seems that he meant two posts earlier):

Dear Mr. McIntyre, thank’s for the email and changing the language on the web site. Of course I do not agree with your assertions below. You have not responded to all of my questions in my previous post as you stated you would but I can tell at this stage that you are not really willing to address the issues in anything more than a rhetorical manner.
[…Rutherford discussion.]
Yours sincerely
Andrew Weaver

McIntyre Sign-Off, April 11
I responded:

Dear Andrew,
I advised you previously that: “I disagree with some other points and will respond on all matters following receipt of the above clarifications. I look forward to a prompt and amicable resolution of this matter.”    You have no basis for asserting that I have no intention of responding fully or in other than a rhetorical manner. Even though you failed to provide any reasonable argument as to why the disputed posting was defamatory, I modified language.
[..Rutherford discussion]

The matter petered out at that point.  Looking back, the other questions relate to his dispute about an inline comment (http://www.climateaudit.org/index.php?p=138) about Weaver’s handling as Journal of Climate editor of Mannian PCs, which I’ll discuss separately.
Tortious Sarcasm towards an Academic
A tort similar to proposed tort of sarcasm towards an academic also arose in Mann v Steyn, where Mann advocated the related tort of “professional and personal defamation of a Nobel prize recipient” and J Combs-Greene found that it was actionable in D.C. to “call [Mann’s] work a sham or to question [Mann’s] intellect and reasoning”.
If I had ever said, for example, that “Weaver ought to have spent more time figuring out the trick in hide-the-decline and less time complaining about minor sarcasms,” that would presumably have been tortious sarcasm towards an academic and actionable in Weaver-world.
As I understand Weaver’s theory, the tort of sarcasm towards an academic arises because the “implications” of a “sneering tone” towards an academic are that “[he is] (essentially) incompetent in [his] field”.  Together with the supposed doctrine that it is “clearly defamatory” to say that an academic is “incompetent”, we have the novel tort of sarcasm towards an academic. Once again, here is Weaver’s exposition in full – watch the phrase “in my field” as the connection to academics:

As I see it, it is the implications that I am (essentially) incompetent in my field that is the defamatory issue – the tone and phrasing effectively is designed to hold me up to contempt. For example, if I say: “John Doe is incompetent”, that’s clearly defamatory. If I say, “Good old John Doe, always trudging behind the leaders in his field“, I have expressed the same thought. It is the sneering tone and the implications that make the case, not the words themselves (maybe John Doe isn’t always the first to publish an idea or concept, so the substance might even be true, but the conclusion implicated is not!). It would not be defamatory if I said, “John Doe is not always first to publish the ideas he writes about” (assuming this is true).

As I understand Weaver’s proposed tort,  even if an academic has himself engaged in public controversy, sarcasm towards him is an imputation on his academic reputation within the field and therefore actionable.  The corollary appears to be that academics like Weaver have complete licence to slag the competence of their opponents (as Weaver did with us), while anyone opposing them with sarcasm is commiting a tort.   It seems unconscionable, but Weaver seems to have convinced novice judge Burke of the doctrine.
Surely Weaver’s proposed tort of sarcasm towards academics should be extinguished as quickly and firmly as possible. If Weaver (in his pre-politician career) wanted to engage in public controversy, he should be prepared to accept the sort of sarcasm that anyone else has to endure in public controversy.   Judge Burke should have said to Weaver what Lucia would have said to him:  Now Andrew, put on your big boy pants.
Postscript: Correspondence without elision of Rutherford material here.
 

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