Preview of Thursday’s VA Supreme Court Hearing: University of Virginia v. American Tradition Institute

, former deputy director, Center for Science & Democracy | January 7, 2014, 6:13 pm EDT
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UPDATE: I have now posted a recap of the January 9 hearing.

On Thursday, the Virginia Supreme Court will hear oral arguments in the American Tradition Institute’s lawsuit seeking the private correspondence of climate scientist Michael Mann and dozens of other scientists. UCS and several other scientific and educational organizations argue that granting this access would damage scientists’ ability to communicate frankly and openly with their peers, and to explore new ideas free from harassment. UCS and the American Association of University Professors filed a brief with the court supporting the university. The National Academy of Sciences joined a number of higher education associations in a similar brief.

I’ll be at Thursday’s hearing, which will likely happen around noon EST, and will tweet out and blog about highlights.

How We Got Here
A brief primer: In 2010, Virginia Attorney General Ken Cuccinelli issued subpoenas for the personal correspondence of Dr. Mann and dozens of other researchers through the Virginia Fraud Against Taxpayers Act. Presumably, he was not looking for data or research methods—that information has been publicly available through Dr. Mann for years (and repeatedly validated by other scientists).

University of Virginia Rotunda

The University of Virginia spent more than $600,000 defending itself from its own attorney general–and is now spending thousands more defending itself from an intrusive public records request. Photo: Flickr user Ukenaut

Even climate skeptics called it a “witch hunt.” After hundreds of thousands of dollars were unnecessarily spent, the Virginia Supreme Court ruled that the attorney general did not have the authority to issue the subpoenas against the university. The attorney general’s political opponents used these actions to paint him as an extremist in the 2013 gubernatorial election. More on the Cuccinelli case is here.

When the attorney general started losing in court, the American Tradition Institute submitted requests under Virginia’s Freedom of Information Act seeking the exact same information. At first, UVa President Teresa Sullivan committed to using exemptions in the law to protect the scientists’ correspondence. Later, though, the university entered into a protective order that would have given ATI special access to the documents (we didn’t like this); the protective order was later annulled, and Dr. Mann was given standing in the case.

The university and Dr. Mann argued in circuit court that it has the right to exempt certain information to protect scholarly communications.  A circuit court judge found in favor of the university and Dr. Mann. ATI appealed the decision to the Virginia Supreme Court.

ATI has also gone after climate scientists in Texas and Arizona and at NASA, and was behind ultimately successful efforts to prevent the state of North Carolina from using climate change science in planning decisions. The questionably-funded organization itself, of course, is not very transparent. (ATI has since changed its name to the innocuous-sounding Energy and Environment Legal Institute—following in the footsteps of front groups like the Center for Consumer Freedom—but for the purposes of covering this issue, I stuck with the name that is in court documents).

What’s at Stake

Freedom of information laws are designed to create accountability while protecting free speech. Interpreters of these laws are asked to balance these two interests, and internal communications and deliberations are rightly exempted in order to facilitate the free exchange of ideas. From the UCS/AAUP brief:

“Amici fully endorse the University’s obligation to respond appropriately to public-records requests, and recognize that freedom-of-information laws are critical for keeping public institutions and their employees accountable. But the public’s right to information…must be balanced against other important interests, including the constitutional interest…in preserving scientists’ ability to freely conduct research and correspond with other researchers in a quest for new discoveries and understanding…

“ATI’s sweeping request, if allowed, would have a severe chilling effect on scientists and other scholars and researchers at public institutions throughout the Commonwealth (and perhaps beyond). Put simply, Dr. Mann is a scientist and an academic, not a policy maker. And his unpublished research and internal communications with scientists are not part of any policy making function….

“As the circuit court here correctly noted, progress in science rests upon the “churn of intellectual debate, i.e., the robust give-and-take in the scientific literature, a rigorous process testing the validity of propositions, data, and conclusions. This peer review–not the forced public disclosure of unpublished data and research or private communications among academics and researchers–is what ensures the honesty and quality of academic scholarship…

“Exposing such preliminary thoughts and deliberations to the public eye would inhibit researchers from speaking freely with colleagues, with no discernible countervailing benefit.”

How Researchers and Institutions Become More Resilient

UCS worked with scientists who have been harassed to develop a guide for researchers to figure out how they can best defend their research and reputations. It’s helpful for all scientists to consider how they would respond to all kinds of attacks, including intrusive public records requests.

It’s also helpful for scientific societies and universities to pay more attention to how they can be more responsive to the public while protecting their members and employees, and there is increasing evidence that they are doing so. The amicus brief from the National Academy of Sciences and affiliated groups is one encouraging signal. In December, the American Geophysical Union made lawyers available to scientists facing harassment. And recently, I gave a talk to the Association of American Health Care Centers about this very issue.

Demanding private email correspondence among scientists is the 21st Century equivalent to eavesdropping on conversations around the water cooler. All of us need safe space to develop ideas and open them up to scrutiny so that we can make them better. Hopefully, the Virginia Supreme Court will affirm this space for scientists who work at public universities in the commonwealth.

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  • Barb Coddington

    The Freedom of info Act should be used to investigate The American Tradition Institute, which clearly HAS a political agenda, as opposed to scientists who deal with facts, not tradition or politics. If these facts interfere with tradition or politics, this is not a reason for investigation

  • I recently read “Galileo’s daughter”, the Vatican and Inquisitors reviewed Galileo’s coorespondences with other scientists and then forbade him from making further correspondences. His daughter orchestrated from her convent the protection of many of his letters and manuscripts from his home when he was under arrest to prevent years of work from being taken and destroyed. Discussions between scientists are invaluable and a critical forum for bouncing around ideas, even ideas that might not be solid yet. The process of discussion has led to new theories and designing future experiments. I hope tomorrow’s proceedings don’t set us back to the 1600’s.

  • Not so much a witch hunt. Rather, I think Galileo would find tomorrow’s Supreme Court hearing eerily familiar if he were alive today.