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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Interesting allusion when Mann writes to Michael Oppenheimer at Princeton (among others including S. Schneider), requesting urgent help in finding free legal advice because McIntyre and McKittrick have been showing up so many of his lies that it will “make things impossible for me”:
Oppenheimer replies promptly, “I’ll contact some people who may be able to help right away”
Now that email does not say who those “some people” might be, but Oppenheimer spent most of his career with the activist “Environmental Defense Fund” before landing the Princeton gig… and EDF has been at the heart of enviro-activism for decades.
http://en.wikipedia.org/wiki/Environmental_Defense_Fund
Including connections with Soros, Tides Found., etc. So it will not be any surprise if it should turn out that the “some people” Oppenheimer thought could help with funds and/or free legal advice would be from those circles.
=============================================================================================
on p.147 of the “Petitioners Exemplars”:
http://www.atinstitute.org/wp-content/uploads/2012/01/2012-1-24-Petitioners-Exemplars.pdf
———————————————–
Michael Oppenheimer wrote:
Michael:
This is outrageous. I’ll contact some people who may be able to help right away.
From: Michael E. Mann [[2]mailto:mann@virginia.edu]
Sent: Friday, June 24, 2005 4:27 PM
To: shs@stanford.edu;
omichael@Princeton.EDU;….[and others]
Subject: NEED HELP!
Importance: High
dear all,
this was predicted–they’re of course trying to make things impossible for me. I need
immediate help regarding recourse for free legal advice, etc.
mike
______________________________________________________________
Professor Michael E. Mann
Department of Environmental Sciences, Clark Hall
University of Virginia
Charlottesville, VA 22903
_______________________________________________________________________
e-mail: mann@virginia.edu
Academic freedom means a professor can’t be fired for taking an unpopular position. ie. MIT can’t fire Richard Lindzen because he says CO2 is not causing CAGW. The reason professors can’t be fired is that they have tenure. Academic freedom, thus, seems to be the main argument for tenure.
As far as I can tell, academic freedom is a good thing.
Is the UVa employee handbook available online?
Interesting that Mann would try to apply the first amendment to this.
“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.”
Are they literally applying an establishment of the religion of CAGW? Is their god CO2? Is Al Gore their Jesus? Does Mann think he’s a high Priest? Are the academic institutions the houses of worship? Are government grants simply required tithes and penance due by the masses? Is hell a slight warming benefiting crop growth and mankind? Is the bible the IPCC reports whose writings are adjusted to pay tribute to the high priests? Is anyone who questions their religious beliefs a witch? Will they burn these witches as they have done in the past to cleans the soul of their beliefs?
This is not about the academic freedom issue but a substantive scientific matter. Hope it’s ok for this thread since the point of debating the legal aspect is to see whether Mann can be held accountable for non-disclosures of scientific uncertainties and worse over the past 12+ years.
Ray Bradley in July 2000 shows that he knows 1000 yr. proxy reconstruction in which he participated with Mann and Hughes is full of wide uncertainties, even while he still over-estimates the quality of the reconstruction and assumes non-existent statistical significance. Prior to M&M’s work Bradley seems to have only a weak grasp of the issues, even though he is supposed to be one of the eminences of the field.
His email, while acknowledging the problems in a limited way, shows a remarkable lack of curiosity about the real statistical and scientific issues, and it also reeks of confirmation bias: “We tried to demonstrate that this was not a problem of the tree ring data we used”….
Careless phrasing, or a clear indication of how he/they want the results to turn out?? I’d say the latter.
from pp. 17-18 of Petitioners Exemplars:
From: “Raymond S. Bradley”
To: Frank Oldfield
Subject: Re: the ghost of futures past
Date: Mon, 10 Jul 2000 08:57:19 -0400
Cc: alverson@pages.unibe.ch, jto@u.arizona.edu, k.briffa@uea.ac.uk, mhughes@ltrr.arizona.edu, pedersen@eos.ubc.ca, whitlock@oregon.uoregon.edu, mann@multiproxy.evsc.virginia.edu
….
What is weird to me is how publicly funded non-defense, non national security research can be considered intellectual property somehow, by the researcher. Where are the data? Let’s see the emails. What is being hidden?
I own and operate a design engineering and manufacturing company. We are acutely aware of intellectual property and who owns it on a daily basis. These examiners and researchers do not impress me with their ideas about keeping their publicly funded efforts opaque and invisible from scrutiny because somehow they think they “own” public property.
As far as emails – if anyone in our organization even came close to the gutter-level crap communication as exemplified in Climategate 1.0 and 2.0 they would summarily be fired and they know it. Every email we write can stand up to legal public scrutiny. And we are just a small manufacturing company. These climate scientists are saving the world (in their minds at least) and cannot tolerate even the slightest scrutiny? Make me laugh.
JohnH says:
July 26, 2012 at 1:31 pm
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 😉
________________________________
No wonder you have not heard of Frank Very
Ask an untenured professor sometime about “academic freedom”…
commieBob says: “Academic freedom means a professor can’t be fired for taking an unpopular position. ie. MIT can’t fire Richard Lindzen because he says CO2 is not causing CAGW. The reason professors can’t be fired is that they have tenure. Academic freedom, thus, seems to be the main argument for tenure. As far as I can tell, academic freedom is a good thing.”
No, tenure is a good thing. Tenure means a prof can’t be fired (easily) for his unpopular position. Academic freedom is a fictitious concept that academics try to use to justify their elitism.
The Petitioners Memorandum of Fact and Law makes for interesting reading. A few years back, UVA fired an employee:
In that case the employee argued that her email was protected under the first amendment. UVA argued in court that this was not true:
Yet here, in the Mann case, the university is arguing that Mann’s emails sent from university computers are personal, despite the fact that Mann did not label any of them as “personal” pursuant the the universities policies.
Apparently, what’s good for the goose, does not go to the climate scientist.
It would seem they are not concerned with protecting free speech in the context of academic freedom but instead silence. Probably as in “you have the right to remain silent”.
mpaul says:
July 26, 2012 at 3:59 pm
Incredible (though nothing seems beyond belief with such clowns)…. they can’t even pretend to be consistent and rational.
We have seen no emails from Mann in Climategate that were marked “personal”…. ergo, at least those and similar of his UVa emails are presumed to be official state business and subject to FOI.
I read the transcript of the last hearing. IIRC, the judge seemed unimpressed with this notion.
IIRC, I think the UVA lawyers tried arguing that emails could still be private in nature even if they were part of job related communications. When the judged asked how this could be, I think they gave an example of making travel arrangements or dinner arrangements with work colleagues.
I think that everyone involved in this, the lawyers, the judge the clerks, all of them know what is in these emails, likely they have read most of them. The purpose of the hearing is to find out who is allowed to say and write about what they already know.
It is like the police seeing a crime and chasing the perpetrator in to a church, the police know the perpetrator is in there as does the judge the bishop and everyone else, everyone know that the perpetrator did it but the bishop cries out ‘sanctuary of the church’; so the game moves to the court. The police don’t stop watching the building, they just wait out side in the hope that the judge on the case is of sound mind.
This is not a fishing expedition, the fish are already hooked, landed and tanked.
This is a gutting expedition and they are driving home to the cutting board.
Tick, tick tick.
read the mails at the end of the filing. post climategate. slamming spencer, and asking mandia for help.
the penn state handbook is part of the filing as well as the notice by computers that indicates email is not private.
interesting read
“This case will tear down much of the opaque mystic university faculty have raised around their activities”
“Mystique”, surely.
If (in liberal theory) the government can force the Catholic Church to provide condoms and abortions, what twisted logic gives rise to academic freedom which is not specifically mentioned in the US Constitution?
The filing’s emails of Michael Mann show him in “political war” mode, joined at the hip with activists like Joe Romm and ClimateProgress/Think Progress, Naomi Oreskes, and Scott Mandia:
From: Michael Mann
To: Ben Santer
Cc: Abraham, John P.; Dessler; mandias@xxxxx Mandia;
Weymann; gs210@columbia.xxxxx Schmidt; trenbert@ucar.xxxxx Trenberth; carl mears; Frank Wentz; s.sherwood@unsw.xxxxx Sherwood; Karl Taylor; Tom Wigley; Naomi Oreskes
Subject: Re: Serious accusations made by Roy Spencer against Andrew Dessler
Date: Friday, December 10, 2010 12:41:57 PM
Ben et al,
I’ve taken the liberty of copying Naomi in on this message. Her book w/ Eric Conway (“Merchants of Doubt”) i required reading for any of us. It provides the further historical context essential to understand this latest incident. This incident hardly represents the rogue behavior of a single contrarian scientist. Rather, Spencer lending his scientific credibility (well-what, if any, is left of it) to a coordinated, longterm, industry-funded smear and disinformation campaign. Spencer couldn’t have pulled this off on his own. Rather, he had the full resources of the fossil fuel front group known as “CFACT”
(http://www.sourcewatch.org/index.php/Committee_for_a_Constructive_Tomorrow) behind him. They are the ones who organized the press conference, rolled out their fake “Lord” Monckton for further theater, etc. we ignore this larger context at our peril.
Mike
From: Michael Mann
To: Abraham, John P.
Cc: Scott Mandia; trenbert@ucar.xxxxx Trenberth; Dessler;
Weymann; gs210@columbia.xxxxx Schmidt; Ben Santer
Subject: Re: Serious accusations made by Roy Spencer against Andrew Dessler
Date: Friday, December 10, 2010 9:11:53 AM
yes, no question. we’ve got a rolodex. we need to use it,
m
On Dec 10, 2010, at 10:08 AM, Abraham, John P. wrote:
Mike,
We can provide the quotes from experts but we need a media person to run with the
story c..
Scott, this is really for Eli to do c. Can he write a story about this,
–]John
From: Michael Mann [mailto:mann@meteo.psu.xxxxx]
Sent: Friday, December 10, 2010 9:05 AM
To: Abraham, John P.
Cc: Scott Mandia; trenbert@xxxxx Trenberth; Dessler;
Weymann; gs210@columbia.xxxxx Schmidt; Ben Santer
Subject: Re: Serious accusations made by Roy Spencer against Andrew Dessler
folks, Joe Romm’s comments on this might be of some interest:
The right wing and deniers are very good at repeating over and over again attacks on our best
spokespeople and scientists in order to delegitimize them.
The fact is Spencer should have been delegitimize on the basis of 1) his being obstinately dead wrong about the satellite data, 2) his creationism, and 3) his generally bizarre views: ”I predict that the proposed cure for global warming. reducing greenhouse gas emissions. will someday seem as outdated as using leeches to cure human illnesses.”
http://climateprogress.org/2010/04/20/the-great-global-warmingblunder-roy-spencer-marc-morano-cureglobal-warming-reducinggreenhouse-gas-emissions-leeches/
Folks need to repeat these over and over again. That’s what I did in my post — but the Spencer stuff was buried at the end of a long post. Now, on the specific inanity of clouds causing El Nino — you need to round up a bunch of the country’s leading experts on climate modeling and/or El Nino to just mock him for that.
This is a busy day for me, but I really can’t emphasize this enough. Get a half dozen quotes from leading experts in the field, post them, and repeat them over and over again.
I don’t know what it takes to discredit a pathological crank-case like Spencer, but the alternative is that he keeps doing this over and over again.
From: Michael Mann [mailto:mann@meteo.psu.edu]
Sent: Friday, December 10, 2010 8:45 AM
To: Scott Mandia
Cc: trenbert@ucar.xxxxx Trenberth; Abraham, John P.; Dessler;
Weymann; gs210@columbia.xxxxx Schmidt; Ben Santer
Subject: Re: Serious accusations made by Roy Spencer against Andrew Dessler
well put Scott, Specer’s actions are an affront to the scientific profession. reminds me of Pons and Fleischman holding a press conference back in the 1980s to announce they had achieved cold fusion. only this is worse, because Spencer doesn’t even have any results of his to announce, he’s simply slandering others.
this needs to be called out, publicy and loudly. we ought to be able to get some journalists nterested in this.
Scott/John–you guys ought to have quite a rolodex of names now–I suggest we use it, perhaps we need to use the CCRRN in an even more pro-active mode for situations like this?
mike
—
Michael E. Mann
Professor
Director, Earth System Science Center (ESSC)
Department of Meteorology Phone: (814) xxxxx
Walker Building FAX: (814) xxxxx
The Pennsylvania State University
Given that the U of Va fired a person over “personal e-mails”
and
Steven Mosher says:
July 26, 2012 at 6:14 pm
It would seem that what is on trial here is not Mike Mann and the FOIA but our actually court system. Do we have a country ruled by law or do we have a country ruled by men. Is the law applied with an even hand or with favoritism.
With luck the judge/jury will be aware of that fact and take into account the repeated obstruction of justice by Mann, the right of the tax payer to view ALL the work done on their dime and the used of FOIA for citizens to investigate the fraudulent use of tax payer funds.
And to top it all off here is a Memorandum direct from Whitehouse.gov:
So we even have the president backing up our right to the information we paid for.
Apparently the University is arguing that Mann’s scheming to turn the media against Roy Spencer is a proprietary work product whose public disclosure would result in a material loss of profit potential for the university. I guess they were planning to license his Character Assassination Techniques(TM) to other universities and climate scientists.
Whoosh!
I originally choked trying to read through Mann’s Affidavits. I gagged trying to read (chin up, shoulders back) through Mann’s egocentric manic twaddle (like the Judge will be overwhelmed by his copiously self documented grandeur). So I appreciate others posting some of the email excerpts.
Two thoughts come to mind…
The first; is this some indication of the remaining FOIA emails in that password protected file?
The second rumination is that if these are the average less juicy email maunnderings, no wonder the manniacal one is so desperate to prevent their release.
Well, actually there was a third thought, but I’m sure it occurred to everyone else. A lot of those Mann affidavits either look like they were source for his book or his book was source for his affidavits. Makes one wonder how much of his affidavits are his versions of the world.
Reading the “Petitioners Memorandum of Fact and Law” ATI recommends the Judge read sections of Urofsk , 216 F3d at 412 n12. I’d love a fly-on-the-wall at that reading. Some background.
In Urofsky, six professors employed by public colleges and universities in Virginia brought a federal suit against Virginia’s governor challenging a state law restricting state employees from accessing sexually explicit material on computers owned or leased by the state. The professors contended that state university and college professors have the constitutional right to determine for themselves, without the input of the state, the subjects of their research, writing and teaching. However the federal 4th Circuit Court ruled:
“[The professors] ask us to recognize First Amendment right of academic freedom that belongs to the professor as an individual. The Supreme Court, to the extent it has constitutionalized a right of academic freedom at all, appears to have recognized only an institutional right of self governance in academic affairs.”
The 4th Circuit Court clarified that public employees generally (and therefore college professors) have no First Amendment protection when they are speaking as public employees. It is only when they are speaking as individual citizens on their own time that they enjoy First amendment protection.
Moreover, the court ruled that professors employed by public universities do not have free speech rights not enjoyed by any other public employee (or any other citizen); because academic freedom, to the extent it is recognized by the federal courts, belongs to the institution, not to the individual faculty member. Specifically the court stated:
“that the argument raises the specter of a constitutional right enjoyed by only a limited class of citizens. Indeed, the audacity of Appellee’s’ claim is revealed by it potential impact in this litigation.” … “Such a result is manifestly at odds with a constitutional system premised on equality”
I’ve always felt the idea that the academic community is entitled to First Amendment rights not reserved for all Americans is repugnant… as violation of the principal of “equality before the law”. It would appear the 4th Circuit agrees with this proposition.
Regards,
Kforestcat
How many elections/appeals before they drag it out in the Supreme court?
more soylent green! says:
July 26, 2012 at 12:41 pm
Academic freedom is just another one of those phrases they trout out…
The perfect typo — because they’re telling ATI to “Go Fish”…