The rule of law: litigation as a legitimate strategy and the need to encourage “whistle blowers” from the denial movement

A magic formula?

Within the science community, and it’s supporters, litigation is viewed often with suspicion or beneath the scientific community. Reticence is based on two arguments:

  • This is a scientific question, therefore we should let the evidence speak for itself.
  • Resorting to litigation or (civil action) is seen to be “beneath” the methodology and reputation of the science community.

Litigation implies “dirty hands”, a course of action that compromises the “purity” of science.

However I would contend that the litigation process – primarily as a response to libel and defamation of individuals and institutions – is a legitimate strategy to counter the denial movement.

The comparison to the “tobacco wars” and wave of class actions that effectively neutered the industry is not simply analogous, but a good model for how we can fight the industry funded think tanks and the armies of professional PR “hacks”.

They not only mislead the public, but through their websites, blogs, YouTube video’s, newspaper articles and books defame both individual scientists and institutions.

It’s often been said the climate debate is a street fight, and the denial movement is not afraid to throw some low blows. While I’d not advocate adopting the same “dirty tricks” of the deniers, there are legitimate counter strategies and tactics to neutralise their effectiveness.

Suing for defamation is a legitimate and perhaps effective strategy.

The “tobacco wars” as a model

“For 40 years, the US tobacco industry was invincible in court. Tobacco companies have long been among the most profitable in the US, and used that money to fund a seemingly unbeatable legal defence team…” ~ Tobacco Wars, BBC

The denial movement is a direct outgrowth of the tobacco industries campaign to discredit science by establishing “independent” think tanks that challenged the scientific evidence. Groups such as “The Advancement of Sound Science Association” (TASSA) where established and seeded with money from Philip Morris.

Let’s not forget our old friend, Richard S. Courtney, who works for a think tank that challenges both climate change and the effects of second hand smoke.

For almost thirty years the denial movement has thrown the wildest accusations at the scientific community. They have defamed the reputation of scientists calling them “frauds”, “liars” and “criminals” and accusing them of deliberately fudging data, making up “global warming” and wanting to tear down industrial civilisation.

These wild claims and been thrown around by the denial movement with careless abandon.

And for those same thirty years the scientific community ignored these attacks. By not engaging with the denial movement, or directly countering these charges, it was hoped they would simply go away. Given how preposterous these charges where, many felt the public would reject them outright.

Sadly, they have not. Being “skeptical” of climate change is now mainstream.

There are many ways to challenge the claims of the deniers. Sites such as Skeptical Science perform an invaluable service in countering the many obvious flaws in their misrepresentation of the science. But facts will not move people alone.

Helping the public understand how they have been deceived will cripple the legitimacy of the denial movement.

For a good comparison I’d urge people to view the the BBC series “Tobacco Wars”. It traces the history of their campaign of denial and how they where effectively countered. Here’s our model.

Episode One: Smokescreen

See also:

I’d also also the great website Tobacco.Org. They continue to effectively monitor the tobacco industry.

What are the possible gains in such a strategy

Firstly, it would shut down the most outrageous lies and slander peddled by the deniers. By setting a precedent it would as a precautionary example to many in the denial movement. It signals that they will be held to account – something they have lacked for decades.

Secondly, during what is called the discovery process (when both sides exchange documents) we would gain access to the emails, documents and memos that detail just how deliberate and considered their misinformation campaign. The tobacco litigation in the US made available thousands of documents that simultaneously:

  • demonstrated how they deliberately mislead the public
  • damned them with their own words as outlined in the tens of thousands of documents that demonstrated their premeditated deceit

How deep are the pockets of the deniers?

Deep.

But so were the pockets of the tobacco industry.

And yet they still lost. They can be challenged. It’s been done before.

Strangling free speech?

I’ll be the first to defend free speech. However, there are limits to free speech and this is recognised in the various libel and defamation laws found in most common law countries. Already we have two examples of scientists either  or contemplating or starting legal action for libel/defamation.

Obviously this is a very complex issue, and the effectiveness of pursuing such a strategy needs to be debated. However the counter balance to this is challenging obvious falsehoods or the statements that slander the reputation of individuals.

The denial movement needs to be held to account. When you make outrageous claims you have the responsibility to back up those claims. Freedom of speech does not exempt one from responsibility.

Encouraging whistle blowers: a few good men and women

As the scientific evidence gets clearer the deniers have ratcheted up their campaign of confusion. By making more “noise” they hope to mislead the public and drown out ever increasing number of studies that confirm the reality of AGW.

I believe there are individuals of good conscience who have – for what ever reason – found themselves enmeshed in the denial movement. And yet they may find themselves questioning the actions of the denial movement.

We need our very own “Insider”, a heroic individual in the mould of Jeffrey Wigand who blew the lid on the tobacco industries deceit:

“Wigand became nationally known as a whistle blower regarding the company’s decisions involving the selection of ingredients in their cigarettes when on February 4, 1996 on the CBS news program 60 Minutes, he stated Brown & Williamson intentionally manipulates the tobacco blend to increase the amount of nicotine in cigarette smoke, thereby increasing the ‘impact’ to the smoker. Nicotine is a naturally occurring substance in tobacco that is widely held to be responsible for the habit-forming and addictive effects of cigarette smoking. Wigand claims that he was subsequently harassed and received anonymous death threats…”

We should encourage and make ourselves available to “whistle blowers”.

I have no doubt that some of those individuals deeply embedded within the denial movement have come to realise that the actions of the TASSA, Heartland and Exxon-Mobil not only confuse the public but stymie our response to the challenge of climate change.

Such “insiders” would be privy to documents, emails and sources of funding that could be made public.

Their release would open the door to challenge the denial movement and mobilise public opinion in the same way the revelations about the tobacco industry made clear their deliberate campaign to mislead.

We need to tear down the wall the deniers operate behind and expose their “dirty secrets”.

It’s time to turn the tables.

[Note:  I am not a lawyer, and note this is a complex area. Thoughts, comments or criticism on this idea welcome]

7 thoughts on “The rule of law: litigation as a legitimate strategy and the need to encourage “whistle blowers” from the denial movement

  1. Sou says:

    I agree 100%.

    There are a few reasons in addition to the one’s you’ve suggested for scientists being reluctant to take legal action. Firstly, as I understand it the laws in the USA, UK, Australia and elsewhere differ in regard to defamation. So it can be difficult to prepare a legal strategy that guarantees success even when from a normal standpoint the defamation is clear.

    Secondly, it costs big bucks to mount a case and very few scientists have access to such funds. A while ago I posted around a few blogs, the idea that a ‘fighting fund’ be created – accessible internationally, for the primary purpose of defending the reputation of scientists through legal cases. But few bit. I think largely because scientists and their organisations don’t have a culture of having to fight against tactics the deniers are using.

    Thirdly, scientists realise the enormous pressure such a case would bring to them personally – in terms of time and public exposure. They would understandably prefer to get on with their work. Most scientists, with very few exceptions, don’t seek the limelight except within their own professional circles.

    If a scientist were to lose their job they might be motivated. Otherwise, it will be up to people like Prof Andrew Weaver to lead the charge. I wish him every success.

    Maybe some law firms will take on more cases pro bono, to do their bit to help mitigate climate change.

    • Watching the Deniers says:

      Sou – my thoughts exactly. Funding litigation is an expensive process, and scientists are used to the cut and thrust of debate via the peer review process. Litigation is a much different process, with different “rules” and a heavy price tag.

      But – your idea of a “fighting” fund, or alternatively a plaintiff firm taking up the cause for either pro-bono or wrapping up several claims into a class action may be the way.

      Weaver is doing the right thing. However, what I note is how piece meal the scientific communities response to the denial movement. Weaver could set a precedent – at least in Canada. However, a action brought successfully against deniers in the US would have world wide implications.

      I think we should push this idea – it may seem “extreme” to some, but as I’ve stated defamation and libel laws are there for a reason. I believe the denial movement has been conducting a vicious and slanderous campaign against individual scientists for decades. Statue of limitations aside (depending on jurisdiction) the evidence is there in abundance. The interwebz leaves a perfect trail. Perhaps a group of individuals who have been subject to defamation and harassment (Jones etc. in the UK) could use local defamation laws to take on the denial lobby specific to their country and push back.

      This is where other individuals and professionals can help. Concerned lawyers, information professionals… the network is there, waiting to be brought to life somehow.

      I like your ideas. Anyone else?

      [Note: upon reflection the idea of a “class action” is most likely not feasible, proving the damages would be hard. Easier at the individual level]

  2. […] The order of law: litigation as the bona fide plan as well as the need … […]

  3. manuelg says:

    The example of tobacco carcinogenicity denialism is encouraging, but I would not put too much hope in it.

    Individual ex-smokers were able to win multi-million dollar judgement and settlements, once the facade of denialism was cracked. So trial lawyers, on the ex-smoker plaintiff side, found motivation to do the necessary heavy lifting.

    With climate disruption, I think the money will only enter into it as the groups of countries affected by property loss and food insecurity (by disruption) tax the carbon emission externalities of imports at their borders – even to the point of taxing imports from countries that do not themselves emit, but simply refuse to tax carbon externalities, likewise, themselves.

    • Watching the Deniers says:

      I see you points Manual – motivation on behalf of the plaintiff lawyers/firms was dependent on both the facade cracking and the fact that their was sufficient financial incentive for them to run large, complex litigation. Ultimately, there was a “pay off” for them.

      Payouts for defamation/libel are generally on a much smaller scale – in the hundreds of thousands or few millions (at very best), unlike the tobacco litigation where payments where easily in the tens/hundreds millions.

      You last point is correct, and would tend to be the result of large climate change related events (though proving causation is going to be the issue) resulting in class actions. There have been several such attempts, though none successful to date:

      Comer v. Murphy Oil USA
      http://www.consumerclassactionsmasstorts.com/2009/10/articles/standing/fifth-circuit-reverses-dismissal-of-climate-change-class-action-brought-by-private-plaintiffs-who-blame-hurricane-katrina-on-global-warming/

      Native Village of Kivalina v. ExxonMobil Corporation
      http://en.wikipedia.org/wiki/Kivalina_v._ExxonMobil_Corp.,_Et_al.

      An appeal on the second is likely.

      The question is, by the time successful class actions are brought to bear against energy companies such as Exxon it will be too late: it will be much further into the future when Co2 emissions and their impact on the climate will be even more significant.

      Still, I think there an example like Dover v Kitzmiller is also important. In this the creationists/ID crowd where challenged and successfully defeated in their attempts to inject pseudo-science into the public education system on the US. It set an important precedent: while not big money was up for grabs, had they won.

      The incentive in this case is the reputation of individual scientists who have been attacked over a period of years. Weaver in Canada is the first as far as I can tell – Mann in the US is considering it. I think it should be encouraged for the reasons I’ve cited as but one of the many, and varied, responses to the orchestrated campaigns of the deniers.

      Ultimately, this is a public relations war. As we have been busy trying to fight the issue on facts, the deniers have been steadily undermining the reputation of scientists and attacking science.

      I would not place all my faith in litigation as the answer – I fully appreciate how complex, and risky, such a strategy is. But one can’t help feel that like the tobacco wars this is an important public health and policy issue. Given the stakes, we should be bringing the “war” to them.

      Perhaps the idea of encouraging or looking for a “whistle blower” is a more fruitful avenue.

      Thanks – this is a good discussion.

      • manuelg says:

        I agree that waiting for the circumstance that could enable a class action lawsuit would be closing the barn door after the horses have bolted.

        What I meant was that carbon externalities taxation would be made part of trade regulation *now*.

        Hopefully, when China and India come to their senses and see that their huge populations mean that their collective legacy will be most harmed by climate disruption (also, the sheer amount of territory under sea level), they could then lead the way and tax carbon externalities against imports, and also punitively tax exporters who are not themselves emitters but who allow international trade without taxing carbon externalities.

        The point would be, anyone who didn’t play along with a rational carbon externalities taxation program, for all goods entering or leaving borders, would be punished in world trade.

        China and India are huge markets, and only getting bigger. China is in a place of unique leverage as the #1 buyer of US debt.

        This would be a very hopeful future, and not impossible to come about.

  4. Watching the Deniers says:

    I see your point more clearly now, and yes I tend to agree.

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