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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I am increasing puzzled by the apparent enthusiasm that some {many?} here have for the UVA mann emails. What significant information about the AGW theory do they think might be revealed???
There are three possible senarios that I can think of;
1}- like the CRU hack they reveal a degree of partiality in the presentation of the data, so that as with “Mike’s Nature trick” there is some evidence of putting the ‘best’ presentation of the data, but nothing that refutes the underlying findings. After all the original MBH98 paper has been confirmed by multiple other lines of evidence, and the paleoclimate data have little or no relevance to the AGW theory beyond indicating that climate sensitivity may be higher than suspected if the MWP was warmer than previously thought.
2}- The emails reveal a deliberate exercise in data falsification and dishonest results as a fraudulent conspiracy to distort paleoclimate findings.
But that would still have no impact on AGW theory which is not dependent of paleoclimate evidence beyond the possible indication of higher climate sensitivity.
3}- The emails reveal the extent of a worldwide conspiracy to construct a global warming process with false observations of animal and plant migration and the use of russian and US submarines to destroy Arctic ice to create the falling extent since the 1970s.
Although why this would also include falsification of the paleoclimate record is … Obscure.!
Perhaps some of those that express such anticipation of revealing the Mann UvA emails could provide a credible example of what they might contain that would have a significant effect on AGW theory.
Because I cannot see any possible email content that would be of significance unless it revealed a massive conspiracy starting with Callender in the 1930s to construct a complete false body of knowledge encompassing everything from temperature records to borehole data and satellite sensor readings!
Friends:
This case is interesting because it reveals the ideas and inconsistencies which govern policy behaviour of at least one US university; i.e. Penn State. Those ideas and inconsistencies are interesting in so far as they imply attitudes of the Administration of this and probably other universities.
But there is no point in discussion of the case itself because the court(s) will do that and provide judgement. Subsequently, discussions of the judgement may be worthwhile and can be anticipated.
In my opinion, the important points of policy and inconsistency revealed by the documents tabled to the court are as follows.
(a) The university has a policy on “private” emails which it applies at a whim .
In one documented case the university fired an employee for not labeling private emails as be being “private”. However, the same university seems to be arguing to the court that emails of Dr Mann must be assumed to be private whether or not they are labelled as such. This would seem to undermine the legal redress for ‘unfair dismissal’ to which all employees are entitled: it gives the university an ability to ‘hire & fire’ which the law does not afford to other employers.
(b) Dr Mann circulates extremely defamatory emails about at least one other scientist (viz. Roy Spencer) but expects his activities to be secret to only those whom he selects for receipt of those emails .
It is difficult to understand how this can be understood as being other than an attempt to create a conspiracy to defame both the person and the work of another scientist.
(c) The university is claiming that the activities of Dr Mann in circulating the defamatory emails should be kept secret because otherwise the academic freedom of Dr Mann would be inhibited .
This would seem to be a prima facie case of the university assisting – or at least condoning – attempted conspiracy to defame the person and work of a scientist employed by another university, and that other university competes with Penn State for funding.
(d) It is not clear what Penn State means by “academic freedom” .
Points (a) to (c) suggest that Penn State considers “academic freedom” to mean “the university has a right to keep from public disclosure whatever the administration of Penn State considers would cause difficulty for the university if it were public knowledge”.
Richard
In the end, it will be Robert’s Rule or Kennedy’s Rule. That is if Mann and/or his funders decide to try to block the likely state rulings by appealing the VA case or bringing a seperate action should cert be denied when the case is finally ruled upon by the top VA court.
Another few years to go.
What really needs to be done is to pressure the legislative bodies to make all publicly paid for work, especially “studies” to have all their records online and freely accessible immediately upon creation. That means all data, all contracts, all email, all drafts, all papers, etc. And withhold all funding for non-compliance and make it both civil and criminally fraudulent for those attempting to circumvent the law (such as simply delaying “completing” a study). If the academics don’t like it, go find a job in all those “infrastructure” stimulus jobs we hear so much about.
I am increasing puzzled by the apparent enthusiasm that some {many?} here have for the UVA mann emails. What significant information about the AGW theory do they think might be revealed???
There are three possible senarios that I can think of;
1}- like the CRU hack they reveal a degree of partiality in the presentation of the data, so that as with “Mike’s Nature trick” there is some evidence of putting the ‘best’ presentation of the data, but nothing that refutes the underlying findings. After all the original MBH98 paper has been confirmed by multiple other lines of evidence, and the paleoclimate data have little or no relevance to the AGW theory beyond indicating that climate sensitivity may be higher than suspected if the MWP was warmer than previously thought.
2}- The emails reveal a deliberate exercise in data falsification and dishonest results as a fraudulent conspiracy.
But that would still have no impact on AGW theory which is not dependent of paleoclimate evidence beyond the possible indication of higher climate sensitivity.
3}- The emails reveal the extent of a worldwide conspiracy to construct a global warming process with false observations of animal and plant migration and the use of russian and US submarines to destroy Arctic ice to create the falling extent since the 1970s.
Although why this would also include falsification of the paleoclimate record is … Obscure.!
Perhaps some of those that express such anticipation of revealing the Mann UvA emails could provide a credible example of what they might contain that would have a significant effect on AGW theory.
Because I cannot see any possible email content that would be of significance unless it revealed a massive conspiracy starting with Callender in the 1930s to construct a complete false body of knowledge encompassing everything from temperature records to borehole data and satellite sensor readings!
Mann is now involved in three law suits. He is very busy deleting beetle larvae from his facebook page. He is trying to flog some book with a silly title. He must be aware that his emails with CRU will come to light anyway via the password protected FOIA batch. What kind of person gets into such a mess? It’s like watching an accident in slow motion.
Shouldn’t that question be turned around, to the proper prime. What is Mann, so afraid of, in his emails, that great treasure, must be spent to keep hidden. THAT IS WHAT YOU SHOULD FIND PUZZLING! Either the public has a right to know, or it does not. Either the public is the client through public funding, or it isn’t. GK
Mann’s Climategate e-mail demonstrates his efforts to obstruct, deny, and chill academic free speech rights of the public who paid for the data and analyses contained in the e-mail.
@- cedarhill
“What really needs to be done is to pressure the legislative bodies to make all publicly paid for work, especially “studies” to have all their records online and freely accessible immediately upon creation.”
There are several reasons why that is a ridiculous suggestion out of touch with the realities of scientific research.
The publishing of research journals is big business, requiring papers to be freely available is a direct government interference with the private business system of scientific publishing. It is more government regulation stopping commercial activity and would transgress copyright laws.
In the medical field it would stop pharmaceutical development. Nearly all drug research and testing has some public funding involvement, if this required full disclosure then the commercial advantages of drug invention would be removed and new treatments would not be developed except by government edict.
There are a number of other serious problems with any call to make all data, testing and results freely available that are obvious and well known to anyone familiar with scientific research. The suggestion that there could be full public access to such data and results beyond that published in the commercial literature indicates a deep ignorance of how science is actually done.
@izen
I know you think that you put all of your thoughts/questions in a nice easy to read 3 question post.
However, question 1 is almost the correct answer. Anyone reading it would think that you were correct in your assertions.
ie{you said}: 1}- like the CRU (1) hack they reveal a degree of partiality in the presentation of the data, so that as with “Mike’s Nature trick” there is some evidence of putting the ‘best’ presentation of the data, (2)but nothing that refutes the underlying findings. (3)After all the original MBH98 paper has been confirmed by multiple other lines of evidence, and the paleoclimate data have little or no relevance to the AGW theory beyond indicating that climate sensitivity may be higher than suspected if the MWP was warmer than previously thought.
1. Hack or release?
2. Lots of people have refuted the findings. You can go find them yourself. {hint, the are not on the website fakeclimate}
3. Confirmed by people who have a vested interest in the global warming scam maybe, but discredited by others. But I am sure you want to believe the hype and not do your own research, just let your high priest tell you what to believe.
Perhaps {like lazyteenager} you should read some of the information here at WUWT instead of just posting BS.
izen says:
July 27, 2012 at 7:29 am
The publishing of research journals is big business, requiring papers to be freely available is a direct government interference with the private business system of scientific publishing…
Nearly all drug research and testing has some public funding involvement, if this required full disclosure then the commercial advantages of drug invention would be removed….
________________________________
Sorry, If the drug companies use TAXPAYER MONEY to develop a drug THEN TAXPAYERS OWN the patent not them.
What you are describing is called Neo-corporatism. That is collusion between large corporations and government to fleece the public and stifle all other competition. Let the corporations stand on their own darn feet!
I am a capitalist and I absolutely HATE Neo-corporatism because it stifles competition and creativity, it fosters mediocrity, useless red tape and huge wastes of a countries wealth.
@- Roy UK
“1. Hack or release?”
Hack.
The police investigation has confirmed it was an outside intrusion.
@-“2. Lots of people have refuted the findings. You can go find them yourself. {hint, the are not on the website fakeclimate}”
Even M&M did not refute the findings, just quibbled with the statistical methodology. There has been no credible research that shows that global temperatures significantly exceeded the error bars established by by Mann et al originally. If you really think there are any paleoclimate reconstructions put there that DO refute the NAS findings and all the other confirming research out there please post it.
@-“3. Confirmed by people who have a vested interest in the global warming scam maybe, but discredited by others. But I am sure you want to believe the hype and not do your own research, just let your high priest tell you what to believe.”
I do not want to ‘believe’ anything, I want to find the best {BEST?} data and analysis done by the most competent scientists so that I have the best understanding of the issue.
The idea that people have a vested interest in AGW is silly. Unless you WANT serious problems with future agriculture and environmental conditions! It is like saying that the medical establishment in the 1950s had a ‘vested interest’ in smoking causing cancer.
On the other hand there are very powerful, wealthy and influential commercial vested interests in portraying climate research as ‘junk science’ just as the tobacco companies did with cancer.
@-“Perhaps {like lazyteenager} you should read some of the information here at WUWT instead of just posting BS.”
I make a point of reading information from ALL possible sources, even Lord Monckton and Tim Curtain. Although that is mainly for the entertainment value
izen says:
July 27, 2012 at 8:48 am
“1. Hack or release?”
Hack.
The police investigation has confirmed it was an outside intrusion.
___________________________________________
HA HA HA HA – ROTFLMAO! you have got to be kidding.
The Norfolk Police found EXACTLY what the politicos wanted them to find. Anyone who has ever had to work with the police in real life vs watching the crap on the Boob Tube has learned justice and truth is more miss than hit and that is if it was not clubbed to death. The Norfolk police found NOTHING and wrapped it up in a big red POLITICALLY CORRECT bow.
izen says:
July 27, 2012 at 8:48 am
…. I do not want to ‘believe’ anything, I want to find the best {BEST?} data and analysis done by the most competent scientists so that I have the best understanding of the issue….
___________________________________________________
Then I suggest you read this from a NASA engineer: link and look at this graph and this graph and this graph.
As well as these graphs and this graph.
This is a set of data the “Team” forgot to manipulate.
And that is only the tip of the iceberg. The Hockey Stick wiping out the temperature cycles hasn’t stuck an more than the crap from the Flat Earth Society. There is just too darn much evidence and the lump under the rug looks like the Rocky Mountains.
@- Gail Combs
“HA HA HA HA – ROTFLMAO! you have got to be kidding.
…. The Norfolk police found NOTHING and wrapped it up in a big red POLITICALLY CORRECT bow.”
The grossly exaggerated ‘LAUGHTER’ and claim you were rolling on the floor as a result of my reply makes me suspect you are one of those people who basks in the sense of self-superiority of regarding all and every official announcement as part of a grand conspiracy to fool the public.
I am well aware of the ineptitude and inefficiency of real life policing compared with the dramatic fiction. But that does not justify categorising every report from officialdom as false, deceptive or intentional fraudulent. It is more rational to assess each on its merits in context without imposing personal ideological assumptions.
Given the fact that no whistleblower has stepped forward to claim responsibility as an insider releasing the data, along with the politically astute timing of the cyberattack and the other external attempts to subvert other climate associated IT systems in the adjacent weeks there is strong circumstantial evidence that the claims by Norfolk police are credible.
The psychological tendency to view any denial of a particular scenario by an official body as strong evidence for the truth of the claim is unduly cynical and strays dangerously close to tinfoil-hat land.
izen says:
July 27, 2012 at 8:48 am
…The idea that people have a vested interest in AGW is silly. Unless you WANT serious problems with future agriculture and environmental conditions!
_______________________________
That has to be the most laughable of your statements.
The multi-national corporations owe no loyalty to any country and are only interested in PROFIT. As one commenter pointed out corporation HATE capitalism because they hate real competition. Corporations sucking money out of tax payers via the government has been around since the gold smiths talked the kings and princes into ignoring the fraud inherent in fractional reserve banking in return for unlimited “Loans” of fiat currency.
I also suggest you read about the Regulating Class
So lets take ONE example. Biofuels and grain. (If you do nothing else read this well documented History of US Agriculture since WWII )
1.) WHO has the political clout?
Here is an example:
izen,
Best not to fool with Gail Combs. She has her ducks in a row, and she will smother you with facts.
In business, I see basically two models/
1) I pay you, I own all the rights to what you do.. (British, perhaps US)
2) I pay you, you keep the rights but sign an exclusivity deal with me and get a royalty.
Either way, whoever pays gets the rights.
Mann doesn’t own the work and even if he did, he could get a non disclosure agreement on the conclusion of no fraud.
Why is he stonewalling? Don’t know but the very act looks suspicious.
As an engineer, I had to document what I did. That document had to be freely available for 2 reasons.
1) if I died tomorrow, who is going to maintain my work? Because there are certainly going to be faults.
2) If I killed someone because I made a mistake…
DaveE.
I’m doing well for getting thrown in the spam bucket today. Last post.Down, down, down.
DaveE.
Izen = old time “concern troll”.
We have had a good look at many FOI/EIR cases over the years in various jurisdictions.
What never ceases to amaze me is how participants in these cases still produce swathes of information and submissions that are irrelevant to the actual issues.
Even in this case we are still seeing, from counsel and from Mann, continuing allegations that have no place.
1) The motives of those who want or will see the documents is “Bad”, as are the consequences of disclosure – Mann mentions how he has been treated by genuinely nasty people who have seen CG emails, and how CG has affected his job, reputation, etc. – presumably as a means of indicating this will happen again if disclosure occurs. We also get the guilt trip about a shy but brilliant student wanting a career in science but who will be turned off by the prospect of people wanting to know what she gets up to – all irrelevant. The court has already made clear its (correct) understanding that FOI has no regard whatever to the motives of those who seek disclosure, (and one would assume it would take the same view about the affect on individuals as a result of disclosure) and yet Mann and counsel continue to push this line. FOI straddles government oblivious to egos, consequences, or sensitivities. In that respect it is designed to be blind and unfeeling, rightly sacrificing the sensitivites of the few for the interests of the many.
2) The “chiiling effect” argument. Disclosure will chill academic discourse and development (which is arguably untrue and has seen to be so since FOI has been around for many years). This is half of that issue. Non-disclsoure will chill the purpose of FOI – upholding this academic freedom argument will hugely chill the ability of the public to the very access FOI contemplates that they should have – and will give academics (elite and lowly) the same protection as legislators who rightly enjoy a unique protection. Mann’s and UVA’s “chilling effect” argument is one side of a coin. If one or other side is “chilled” that has no relevance to how FOI operates – it may be an intended or unintended consequence of FOI, but does not impact on its operation and cannot logically be an argument that decides how the mechanism of FOI operates. It is a consequence of the machine’s operation, not a cog within it. If legislation has a particular consequence that must be taken to be intended by legislators until and unless they change the law.
The case would be served by throttling these arguments now and going forward without them.
RB says:
July 28, 2012 at 4:30 am
We have had a good look at many FOI/EIR cases over the years in various jurisdictions.
What never ceases to amaze me is how participants in these cases still produce swathes of information and submissions that are irrelevant to the actual issues….
___________________________
“If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.” ~ old lawyers’ nostrum
They are busy pounding on the table and yelling because they have neither the facts nor the law.
RB says:
July 28, 2012 at 4:30 am
What never ceases to amaze me is how participants in these cases still produce swathes of information and submissions that are irrelevant to the actual issues….
I had jury duty on a civil case about thirty years ago — the plaintiff’s lawyer had three good-sized cartons of papers he wanted to enter into evidence. The judge told the barrister that he’d review them all, and for every page he found that wasn’t germane to the suit, he’d fine the plaintiff $10.
The look on the lawyer’s face was priceless…
That old adage is well known, Gail. Fact is that any judge can instantly tell where a lawyer is coming from in that regard.
I have other issues with Mann’s intervention and am frankly surprised at his counsel’s handling of the case. Mann’s recent affidavit, for example. A basic rule of witness evidence is that it is just that – the evidence of the witness. Mann’s affidavit is almost in its entirety nothing more than a re-hash of his counsel’s legal submissions. Mann is arguing legal points in his affidavit. Any newly trained lawyer knows that this is a basic mistake when drafting a witnesses’ statement/affidavit. The judge will already have noted this.
Where Mann does momentarily stop regurgitating his counsel’s legal opinion, he strays into areas where he will be demolished in cross examination. He quotes all of the flawed inquiries as having exonerated him, repeating the mantra he, and others on his behalf, have been pushing for years. But this oft repeated untruth is now before the court. There is no doubt that the reality is different and cross examination on these points will, if counsel is any good, show him to be bigging up one side of a story and ignoring the fact that the inquiries were flawed and have demonstrably been shown to be so – and so his affidavit is not open and honest in this regard – he will not come out of that particular aspect of the affidavit well.
Further, he continues the allegations that CG emails were “out of context” and that the way they were released and reported was to make him and colleagues look bad. He invites a line by line cross examination from which he will end up looking like a thin skinned advocate of CAGW who is boorish, rude, and arrogant. I make no comment as to the accuracy or not of such an impression, but he has given decent counsel a great opportunity to leave that impression indelibly in the court’s mind.
If his affidavit was more honest and less self serving, including for example an acknowledgement that there are different views on the efficacy of inquiries into CG, and acceptance that not everyone who disagrees with his work is a fossil fuel funded shill, etc. etc., his evidence to the court would be much better regarded. But it is not an open and reasoned and grown up exposition of the situation. It is tribal, self serving, and completely one sided. The judge will see this and it will affect his view of Mann and his evidence.
I really dont think his counsel is much good, in all honesty.
RB says:
July 29, 2012 at 5:30 am
….I really dont think his counsel is much good, in all honesty.
_______________________
My own experience is that you are lucky to find 1 out of 5 lawyers who are actually any good. Many just dump the stuff on their law clerks, many have no real knowledge or desire to do research into the aspects of the law pertaining to your case. And if you have an older lawyer who went to school in the late 1960’s early 1970s you are looking at someone who went into the law to avoid the Vietnam era draft here in the USA and not from any real desire.
I have a friend (businessman) who finally gave up in disgust and actually went back to school to get a degree in law because he could not find a decent lawyer!
Lets just hope ATI has a really good lawyer and the judge is honest.
Observations:
UVa is using a baseless First Amendment (FA) argument.
Why?
a) To buy time, so the problem can be dumped on the shoulders of the successors to current UVa management, and
b) in the very faint hope that the FA argument may succeed with the right judge, and
c) the Mann emails contain information that is highly embarrassing and costly to UVa, its finances, and its academic reputation.
More fearless predictions:
UVa’s First Amendment argument should fail in this instance.
Unless the judge is crooked or incompetent, the UVa/Mann documents will be publicly revealed by the court.
UVa and Mann will be discredited by the revealed documents.