AMERICAN TRADITION INSTITUTE – PRESS RELEASE July 26, 2012
The ongoing saga of the American Tradition Institute versus the University of Virginia moved forward this week with filing of the arguments of the parties http://www.atinstitute.org/law-ctr/hosted-foia-documents/ on the central issues of the case. The legal arguments are shaping up to be all about academic freedom and less about whether the University can exempt the Michael Mann emails.
Under its primary argument under the Freedom of Information Act, the only emails the University can withhold are those that were produced or collected in the conduct of or as a result of study or research where such data records or information has not been publicly released, published, copyrighted or patented. A careful examination of the 31 emails placed before the court as “exemplars” of the 12,000 emails show that all but two of them reference research in some manner and of these 25 actually contain data, records or information produced or collected in the conduct of study or research.
Comparing those emails against Mann’s professional papers, ATI found that in every case, the data or information had long been released through publication. Facing this situation, the University has only one refuge – to claim academic freedom. Their argument is quite simple and quite wrong. They argue that release of the emails would chill academic discussions and those discussions are protected speech under the first amendment. They are joined in this argument by Michael Mann and in a separate amicus brief filed by the American Association of University Professors.
Here is the central question the court will face – does the First Amendment right to free speech in a public forum trump the right of citizens to see communications made by a public employee conducting government business. Because all but possibly one ambiguous email was made by a public employee in the conduct of public business, the First Amendment is not applicable. This is old, settled law: See, United States v. National Treasury Employees Union, 513 U.S. 454, 465 (1995) (speech on an issue unrelated to the speaker’s employment duties is protected speech, but where the speech is by an employee in his capacity as an employee on an issue involving their duties, the speech does not meet the Pickering threshold test.); and, Holland v. Rimmer, 25 F.3d 1251, 1254-55 & n.11 (4th Cir. 1994).
Lead Counsel for ATI, David Schnare, explained, “There have been few careful analyses of the Constitutional protections of Academic Freedom. Where the court has looked carefully, the First Amendment has never been found to offer any protection greater than that afforded any citizen.” He continued, “This case will tear down much of the opaque mystic university faculty have raised around their activities. It will give citizens the opportunity to monitor their university employees, something clearly needed in the climate debate.”
The ATI brief raises many more arguments showing why the University has no First Amendment rights under the banner of academic freedom. The Court will hear the parties arguments in a hearing on September 17th.
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Sorry for posting in the wrong thread. Reposted in the Greenland ice.
Interesting to see them struggling to come up with a new rationale….
1st Amendment to the US Constitution:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The actual 1st Amendment applies solely to what the US CONGRESS may and may not do. Then since the “Gitlow” case courts have extended it to apply to states. However, there is no plausibility at all to claiming that the 1st Amendment describes academic freedom. Even taking UVa as a “state” institution the emails issue and FOI don’t relate to “abridging the freedom of speech” and the AAUP is about private as well as public universities (so whatever doctrine of academic freedom they promulgate is not about a special status for employees of public institutions). It’s simply not an academic freedom issue.
For a Mann who has nothing to hide …………………..
War is Peace. Freedom is Slavery. And Freedom of Speech allows you to keep something secret.
The issue seems pretty simple to me: I have a right to see anything produced by UVA, because as a Virginia taxpayer, I damn well paid for it. If you want your work to be private, fine: but don’t insist on being paid with public funds.
If the judge were to rule that academics have a first amendment right to keep their official communications private, then that ruling would effectively gut all of the sunshine laws. First, why would we consider academics to be a special class apart from other public employees? I know that climate scientists they often consider themselves to be special — in the same way that the Blues Brothers claimed to be special because they were on “a mission from god”. But in reality, they are not. We don’t have special aristocratic classes in the American system — that’s what the revolution was partly about. Second, every public employee could then claim a first amendment right to keep their official communications out of the public eye. City councils could claim this right as justification for back room dealing. EPA employees could claim this right to prevent the public from knowing the technical basis for regulations. Where would it stop?
I think UVA has a weak hand, but I suspect the real game here is to simply drag this out for as long as possible.
But, you see, the “liberals” don’t want Steyn (or other conservatives) or other writers such as M&M to have “free speech” ABOUT public policy …
They want to claim that “free speech” is ONLY allowed for the emails (written at work on public computers about public research in publicly-paid offices using publicly-paid servers) about “paid speech” that UVA or Penn State or NASA-GISS can claim based on the “speech” ABOUT money received for public research affecting trillions in public policy tax money worldwide and public policy towards energy and commerce affecting billions of innocents worldwide.
/sarchasm – That gaping whole between a liberal and the real world 8<)
It will chill academic
debatemalfeasance.These emails were taken out of context!
Just warming up the old refrain to keep it in prime running condition for when needed.
At the end of the day they might need to plead the 5th…
You would think that Nixon’s former secretary Rose Mary Woods (of the “18-minute gap in the Nixon Watergate Tapes” fame) has a grandchild working at UVa.
Piltdown Mann… another science fraud. Looks like UVA is getting ethics guidance from Penn State. That long thick track of slime associated with this guy has the bottom feeding lawyers torturing “transparency” into bunker mentality.
Time for a new label to counter their AGW.
I propose MCF . . Mannian Climate Fearmongering.
Must be some other good ones . . .
ATI is going to need more money. UVA will go all the way to the Supreme Court to avoid it or ATI will have to to get it. And it will still depend on a muddy 5-4 decision. Since Roberts seems to want an express enumeration of protections and academic freedom is not expressly enumerated, it might go ATI’s way, but predicting that is going way out on a limb.
Academic freedom is just another one of those phrases they trout out when they don’t want to be held accountable. As individuals, they have no more or less freedom than anyone else and as public employees, they’re official communications are public property, except in very few cases.
Check out Manns mails in the filing.
I keep thinking of the courts decision on the Nixon tapes. The President, claiming executive privilege, filed a motion to quash the subpoena.
This is from the Full Text of the Supreme Court Decision In The Watergate Case.
Seems Mann and U of VA seem to think they have special privileges that the court did not see fit to grant a sitting president of the USA.
Modern courts have a tendency to ignore the original intent of the First Amendment free speech guarantee: that citizens may criticize the government, its policies and officials, and assemble with others to discuss what the government is doing and organize peaceful opposition (or support) of those policies and officials.
In this context, interpreting the First Amendment to prevent citizens from leaning what their government is doing (indirectly, through funding of research) and thereby forstall potential criticism and opposition is an absolute perversion (but not, alas, unthinkable for modern courts). The FOI legislation formalizes the presumption that if it is public business, or carried out with public funding, then the public has a right to know what was said and done.
“Academic Freedom” has no basis in law. It is simply an ideal, not a law, created by universities and professors. Usually trotted out to support some university’s or professor’s position and never with concomitant responsibilities – like many liberal social programs.
Often I’ve read CAGW defenders describing FOI request as harassment, distracting etc.
But in this case, everything is already buddled.
Just turn it over. End of harassment. End of distraction. … Assuming what’s in them shows Mann was on the up and up.
A most interesting legal argument. Perhaps it is time for the public to find out what really happens when academics are free “to think the unthinkable”, and the monstrous immorality of some conceptions nourished with care before being allowed out to rampage on the street.
“Time for a new label to counter their AGW.
I propose MCF . . Mannian Climate Fearmongering.
Must be some other good ones . . .” – Fred
They already have an acronym for it, it’s “BS”. I’ll leave it to you to figure out what that means, I’m sure you’ve heard it before.
‘to claim academic freedom’ and the legal validity of ‘academic freedom ‘ is what .
This a a question of the law not the nicety of academia, and if were lucky UVa will fail to realise that and think all they need is usual ivory tower approach of a few quite word and some back stroking to make the problem go away .
The other point is the The “open fields” doctrine and the expectation of privacy issue.
Even a locked gate with a “No Trespassing” sign did not give rise to the expectation of privacy in this court decision
There is also the Cell Phone warrantless search controversy that is going on right now. “…courts have reached conflicting opinions on whether a search warrant is necessary for cell phone location tracking records that are held by wireless company providers…”
As far as e-mails sent in the work place goes.
It would seem that the employee/student handbook may be a key factor in the case.
Insane logic. How does The right to say something allow it to be hidden from the rest of us? Add to that the use of public resources. As a tax payer I have a right to the product of my employees (government workers) work. Their argument is nothing but elitist crap and it sickens me that the VA legislature doesn’t just drop on them like a ton of bricks and put them in their places. This should never have had to go to court. They’ve wasted the taxpayers money defending the indefensible.
Steven Mosher says:
July 26, 2012 at 12:41 pm
Check out Manns mails in the filing.
I did, lots of mentions of a Frank Very or a Very Frank but never heard of him 😉