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Scientific Row over Renewables Leads to Free Speech Legal Fight

Earth & Space Science News - February 15, 2018

Cohen Seglias partner Paul Thaler is quoted in the Earth & Space Science News article, " Scientific Row over Renewables Leads to Free Speech Legal Fight", in regards to his representation of  Mark Z. Jacobson.

By: Ilima Loomis

After a leading U.S. scientific journal published a paper that claimed that Mark Z. Jacobson’s research on renewable energy was flawed, the Stanford University climate scientist sued the journal and the paper’s lead author for defamation. That lead author, Christopher Clack, CEO of Vibrant Clean Energy in Boulder, Colo., and the journal—Proceedings of the National Academy of Sciences of the United States of America (PNAS)—now are asking that the suit be thrown out.

The defendants, Clack and PNAS, say that the suit’s true aim is to suppress free speech and scientific debate. If that argument prevails, said Los Angeles attorney Kenneth White (who is not involved in the case but has litigated numerous First Amendment cases), it will indicate that suits like Jacobson’s can be successfully defended under “anti-SLAPP” laws, statutes intended to prevent people from using litigation as a tactic to intimidate and silence critics. A hearing on the motion to dismiss the lawsuit is scheduled for 20 February in the Superior Court of the District of Columbia.

Anti-SLAPP laws—the acronym stands for strategic lawsuit against public participation—allow defendants to argue that a lawsuit should be dismissed on the basis that it’s intended to suppress their free speech. That avoids, or at least postpones, the more expensive process of discovery involved in arguing the substance of the claims themselves. “It takes away the litigation terrorism approach, where we’re just going to cost you tons of money by suing you,” said White, who writes about First Amendment issues at the blog Popehat. “Hopefully it will be [thrown out], and that will represent an early victory; it means this kind of thing can be fought back successfully.”

Attorney Paul Thaler, who is representing Jacobson in the case, told Eos that characterizing the lawsuit as an attack on scientific debate misrepresents the complaint. The suit isn’t asking a judge to determine which scientific argument is correct, he explained, but rather, whether Clack and PNAS lied in a way that damaged Jacobson’s reputation.

“We’re not litigating science, we’re litigating defamation claims,” he said. “To cloak it in science and say, ‘We’re protected because we’re talking about science,’ in our opinion, is not enough. You can’t lie about someone in the context of science, just like you can’t lie about someone in other fields.”

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