Mann was a target of criticism over his “hockey stick graph” showing global warming. Stolen e-mails allegedly showed that the underlying data was manipulated to show the trend. However, Penn State ultimately found no wrongdoing.
The letter from Cozen O’Connor accused of the makers of the video of “illegally us[ing] his image and defam[ing] him.” That would make for an interesting case. The video is clearly opinion, which is generally not actionable. It does refer to criminal conduct but it would seem to fall into the same category opinion involved in the Ollman v. Novak case. In a case where an academic alleged defamation, Judge Starr wrote the opinion for the Fourth Circuit finding the opinion expressed to be non-defamatory under the “totality of the circumstances.” The court found that the appearance of the allegations of Marxism of the professor were made on an opinion page in a piece clearly stating the view of the conservative writers as opposed to fact. It found that courts had to drive a wide latitude for such public debate:
most fundamentally, we are reminded that in the accommodation of the conflicting concerns reflected in the First Amendment and the law of defamation, the deep-seated constitutional values embodied in the Bill of Rights require that we not engage, without bearing clearly in mind the context before us, in a Talmudic parsing of a single sentence or two, as if we were occupied with a philosophical enterprise or linguistic analysis. Ours is a practical task, with elemental constitutional values of freedom looming large as we go about our work. And in that undertaking, we are reminded by Gertz itself of our duty “to assure to the freedoms of speech and press that ‘breathing space’ essential to their fruitful exercise.” Gertz, supra, 418 U.S. at 342, 94 S.Ct. at 3008. For the contraction of liberty’s “breathing space” can only mean inhibition of the scope of public discussion on matters of general interest and concern. The provision of breathing space counsels strongly against straining to squeeze factual content from a single sentence in a column that is otherwise clearly opinion.44 As the Ninth Circuit so succinctly put it, “[t]he court must consider all the words used, not merely a particular phrase or sentence.” Information Control Corp. v. Genesis One Computer Corp., supra, 611 F.2d at 784.45
The other suggested claim of use of name or likeness is also interesting. This is not just limited to use for commercial purpose but anyone who “appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.” Rest. 2d Section 652C. This tort has always raised difficult questions with regard to celebrities and newsworthy stories. Defamation law accommodates such free speech and free press areas through rulings like New York Times v. Sullivan. Past tort cases have generally favored celebrities and resulted in rulings like White v. Samsung, a perfectly ludicrous ruling where Vanna White successfully sued over the use of a robotic with a blond wig turning cards as the appropriation of her name or likeness. If the use of an image constitutes a tort in this case, it would cut deeply into public debate and discourse.
For a copy of the letter, click here.
