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« Raising the game | Main | The Cook timeline »
Thursday
Sep222011

Time to Mann up – Part 2

This is a guest post by Richard Brearley, following up on his article yesterday.

Some mention has been made of the precedent upon which Mann relies, namely Sweezy –v- New Hampshire and of the link by Mann’s lawyers in their intervention to the appeal by Cuccinelli in the Virginia Fraud Against Taxpayers Act case.

In Cuccinelli’s case the issue in dispute is the extent to which the government can investigate people like Dr Mann, given that their rights to freedom of expression/academic freedom are indeed protected by the First Amendment (although those rights are not absolute). This sits squarely with the Sweezy case, which is itself related to government investigations.

The Cuccinelli case is clearly about government investigation.  The Sweezy case is also cited in the Cuccinelli case as justification for refusing access to the emails.  But the Cuccinelli litigation does not really touch on the FOI regime (it is about government investigations and first amendment rights).  It does, however, contain an identical call to protection of first amendment rights as that which Mann makes in the UVA FOI case.  Mann’s lawyers are essentially saying that at present Cuccinelli has not been able under an entirely different legal framework to access these emails and that this should be justification in the UVA FOI case to refuse disclosure.  Fair enough - as must be conceded, they bring to the table the same first amendment issues.  They do not mention that the challenge to the Civil Investigative Demands rested not only on first amendment rights to academic freedom, but also on an alleged failure of those CIDs to comply with the requirements of investigative instruments that impact on first amendment rights. This goes into issues of whether fraud could reasonably have been suspected, Mann having been “exonerated” repeatedly, etc. etc. and is unrelated to the FOI regime that we are talking about.  In any event that case will go on to a conclusion that I imagine will not comment in great detail on the interaction between FOI and first amendment rights.

Obviously the FOI regime is not legislation enabling government investigation.  It enables public access to anyone in the Commonwealth and so perhaps the balance is to be struck differently or maybe not.  Of course some would say, perhaps rightly, that the Sweezy case is a product of its time.  America in the 1950s was a very different place than it is today.  Now we are talking about the balance between first amendment rights and the right of the public to have access to information that has lead in very large part to the expenditure of stupendous amounts of public money in various ways and the rebalancing of entire economies and energy policies throughout the world.  That is, I would suggest, rather more important than the issue of whether one university professor was a communist and entitled to refuse to answer questions put to him by the government.

The Sweezy case does make a powerful statement, as follows:

No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

(Sceptics will no doubt smile wryly at the two sentences beginning “No field of education…” – they are germaine and have comedy value (and were, in fact, omitted from Mann’s documentation in support of his intervention in the UVA FOI case)).

But does this Sweezy case give a blanket protection to academics?  Clearly not if the words are given their ordinary meanings.  The first amendment protection appears, in the academic context, to relate to “scholarship”; “inquiry”; “study”; “evaluation”; and academic “maturity and understanding”.  The opponents to Cuccinelli also refer to the freedom to make “academic decisions” and to the need to allow academics to “create”, “discover”; “innovate”, and “move society forward”. 

Whether any of the above defined academic activity includes emails slagging off those with different views, cooking the books, conspiring to block opponents from publication, agreeing to hide relevant information or data or to fudge it, redefining peer review, getting rid of the MWP, hiding or failing to highlight uncertainty, or serving a political rather than academic aim, is highly doubtful.  I do not make any allegation that such emails exist at all.  I merely make the point that if there are emails that fall into this class of correspondence they are probably not subject to first amendment rights in respect of academic freedom since they are not scholarship, inquiry, study, evaluation, and do not contribute to academic maturity or understanding, are not academically creative or innovative and do not move society forward.  Similarly emails relating to obtaining funding and how those applications were put or phrased do not to me appear to fall under academic freedom rights.

Clearly one might think, probably with justification, that first amendment academic freedom rights will not apply to all emails Mann and others might have written to each other (even if those first amendment rights are found to “trump” the FOI regime, which is by no means a given and which would, of itself, be a very significant reduction in the applicability of the FOI regime).  Judging by the Climategate correspondence I suspect that there will be much correspondence that falls way outside the terms of the Sweezy judgment.

Also, both the opposition to Cuccinelli’s case and that in the UVA case are talking about the chilling effect on intellectual debate of requiring an academic to turn over his private emails to professional colleagues.  Indeed the submission in opposition to Cuccinelli’s case can’t seem to stop using the words chilled or chilling. 

But one might hope that the courts will accept that the game has changed.  Climate change is a huge issue where the public interest in allowing those who pay for everything to see what is going on just could not be any more pressing or important.  Perhaps the courts will decide that academia will just have to take a back seat for the time being in this regard.  It is rather depressing to see universities all over the world resisting public access against such a backdrop.

One can see why Mann is making this punt on his first amendment rights.  But even if he succeeds in this attempt I cannot envisage that it will be the end of the matter since much may be revealed in any event.

We will have to wait and see.

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Reader Comments (29)

Sadly, I don't think this fever can be broken short of global cooling.
================

Sep 22, 2011 at 2:38 PM | Unregistered Commenterkim

Lemme get this right. His appeal to free speech is in order to conceal what he wrote?

Sep 22, 2011 at 2:55 PM | Unregistered CommenterRhoda

And in doing so, he's pointing a huge finger at what he hopes to conceal. Academic careers will fall, apparently. My take is that they will only fall if they can be shown to have 1) known they were wrong 2) conspired to keep it secret by foul means 3) openly admit doing so for political/career reasons

If it's just the Team bitching about Steve McIntyre then nobody will be surprised, and nobody's career will fall. We're all human. We all moan about work rivals and enemies. People will understand that, even if the language gets a bit choice. (Although Steve may not agree :)

But if careers WILL fall, then it must be something MUCH jucier. And we can all guess what that something will be - since it's all in THSI - subversion of the peer review process, manipulation of journal editors, bad science hidden from view by obfuscation. We all know this stuff went on, so the emails must prove it.

IF we get to see them. Big IF in my opinion.

Sep 22, 2011 at 3:05 PM | Unregistered CommenterTheBigYinJames

I don't see the connection to First Amendment rights at all. "Congress shall make no law ... abridging the freedom of speech..."

First Amendment cases focus on whether the government can forbid individuals from expressing their point of view. For example, if the government were to bar persons from saying that "We have to immediately curtail CO2 emissions or mankind will become extinct" -- that would be a clear violation of the First Amendment. Mann's objection does not concern an allegation of suppression of his speech (in his emails). In fact, it's exactly the opposite.

"Academic freedom" has concerned whether a teacher can express a controversial view -- e.g. endorsing Darwinism in the Scopes trial, or conversely in recent times, endorsing creationism or intelligent design. If UVa (or Penn State) tried to prevent Mann from expressing the point of view that current temperatures exceed that of the past millennium, Sweezy would be apropos. But that's not the case.

And, for what it's worth, I suspect that the effect on reputations (which Mann mentions in his filing) will be because the emails contain snippets such as this one from the UEA emails: "his [Ray Bradley's] air of papal infallibility is really quite nauseating at times." Yes, people can be catty. If the pursuit of truth is the goal, scientists should be able to get past the fact that not everyone else agrees with them. If they can't put such things behind them, well ... it wouldn't surprise me.

Sep 22, 2011 at 3:11 PM | Unregistered CommenterHaroldW

Win or lose ... I can't see Mann wanting to progress his court case against Tim Ball.

Sep 22, 2011 at 3:16 PM | Unregistered Commentermatthu

Again, Richard an excellent review. However, there are several other issues. First, the work under question was not funded by Dr. Mann, but by federal and/or state grants. That makes the work a work-for-hire and certainly under the purview of the people who paid for it -- the people.

Second, isn't Dr. Mann claiming that the legal authorities should not be permitted to look at his writings much like Al Capone claiming that the Feds can't look at his business records because they are protected by the First Amendment? Talk about non sequiturs.

Sounds like a blatant attempt to hide something to me. And that is why we have the legal system we do. Responsible legal authority has the right and duty to examine the evidence to see what may be there. This is the jest of Cuccinelli’s case --- there is no element of suppression of expression. It is a search for fraud. One cannot use the somewhat nebulous legal theory of substantive due process to hide fraud behind. You can use it to prevent punishment as in the Sweezy case or the more recent Lawrence v Texas case, but the investigation is not punishment but due diligence conducted under established procedural due process.

As for the FOIA issues, may I point out that Dr. Mann used his employer's resources to send those emails and under the terms of his employment contract (I am sure of that if it was signed after 1990) all correspondence that used the university's resources (i.e. internet infrastructure) was the proprietary property of the university. Perhaps he should have read his contract better.

HaroldW Very nicely made points -- as usual.

Sep 22, 2011 at 3:55 PM | Unregistered CommenterDon Pablo de la Sierra

RE: "Mann further states that release of documents will damage the reputations of dozens of scientists around the world (although he does not specifically include himself in this group)."

I'm sure it's here somewhere but I've lost track of the time frame for which this FOI covers. Specifically whether the 'Hockey Stick' (&/or subsequent referenced papers) would have been discussed?

I'm guessing that personal messages discussing say, nefarious 'goings-on' at a particular Climate conference, that would no doubt damage the reputations of those involved, be kept confidential.

I can think of 2 ways one's reputaion can be damaged: 1) personal misconduct, and; 2) professional misconduct. Are there any others?

-barn

Sep 22, 2011 at 4:04 PM | Unregistered Commenterbarn E. rubble

"Academic Freedom" comes from the time that we could trust science (Feynman and the likes). Too much has happened recently and more and more scientists became activists with their own agenda. This requires more control. Recently one of the dutch most respected psychologists with numerous publications has been outed as a fraud (http://retractionwatch.wordpress.com/2011/09/07/dutch-university-investigating-psych-researcher-stapel-for-data-fraud/) in his quest to more fame and money.

Sep 22, 2011 at 4:05 PM | Unregistered CommenterHoi Polloi

matthu,

Sure, Tim Ball would be formidable, but does he have the financial backing to fight Mann's rich friends ?

Tim has a 'Legal Fund' donation jar on his site !
http://drtimball.com/

Sep 22, 2011 at 4:24 PM | Unregistered Commenterjazznick

There is a comprehensive story about this on Climate Realists site by John O'Sullivan showing that the prior case is not relevant and why they Uni must disclose to the court. It is a few stories down the page.

Sep 22, 2011 at 5:30 PM | Unregistered CommenterJanet James

Perhaps it's time now to speculate on what the likely contents of Mann's UVA emails show?

Where did Michael Mann come from? Why did he has a relatively meteoric rise to fame in the climatology field given his previous lack of notoriety? Who was his mentor during his rise to fame? Who was his unavailable for baby sitting duty on July 19th 2006 which mant that Michael Mann couldn't attend the House of Energy and Commerce congressional meeting to discuss 'Questions surrounding the 'Hockey Stick' temperature studies - Implications for Climate Change assessments'?

With the exception of the last one, I think the answer to all those questions will be contained in Micheal Mann's UVA emails. In particular I think they will show that Micheal Mann was picked from obscurity and given the promise of his current job with PSU by at least two key members of the NAS, one of which is Mann's pre-decessor at PSU and the other the current Chair in GeoSciences and former head of Atmospheric Sciences at Texas A&M. He was promised the job and fame and relative taxpayer funded fortune provided he made the paleoclimatological section of the IPCC TAR a success.

Prior to MBH 98,99 and the IPCC TAR the paleo-climatological sections of the previous IPCC AR's were pretty unconvincining in regard to their support for man's influence on climate. The whole area of of proxy temperature reconstructions needed a shack up and in particular needed someone with political convictions and academic ambitions who was prepared to organise the then disparate paleo-climate research institutions that fe dinto the IPCC process into one united front.

As the Climategate emails show Michael Mann was more than up for this task and was happy to take control of the whole climate research peer review process. He had no quarms with the idea of using novel statistical methods (de-centred PCA) nor with 'hiding' any adverse results that came out of his tests of statistical (utter lack of) robustness.

The rest is history as they say and slowly but surely the facts of that history are being revealed. He has become more and more desperate to continue to try to hide these facts and hopefully very shortly once teh judge has had enough of his latest antics they will be revealed and for once Michael Mann will be proven right. The reputations of many of the world's leading climate scientists (most the ones associated withthe IPCC AR process post the IPCC SAR) WILL be in tatters. They will be shown to have originated, sponsored and colluded in the whole 'Hockey Stick' debacle and as a consequence all of science will suffer and not just climate science.

Sep 22, 2011 at 6:13 PM | Unregistered CommenterKevinUK

The first amendment forbids restraint of speech, but doesn't insure privacy. The concept of "academic freedom" has no legal definition that I know of and in any case is not a constitutional issue. Any public employee using a publicly owned computer system should be aware that his use of that system can be monitored. If Mann's emails were strictly work-related, they are public property as part of the work product that the taxpayers funded, and therefore should be available for public inspection. If they were not strictly work-related, they are a misuse of public property and therefore should be available for public inspection.

Sep 22, 2011 at 6:30 PM | Unregistered Commentermikesixes

mikesixes
Couldn't have put it better .
'Nothing to hide nothing to fear ' Mr Mann that is how the government justifies their look into our [the minions] lives so why should you be exempt ?

Sep 22, 2011 at 6:58 PM | Unregistered Commenterzx

barn - "I can think of 2 ways one's reputaion can be damaged: 1) personal misconduct, and; 2) professional misconduct. Are there any others?"

Yep - for example one can be an innocent party subject to entirely fabricated allegations. It may be that the nature of the allegations allows you recourse through law and if you are successful your reputation may be restored. However there are lots of occassions when this redress doesn't happen, or perhaps you are subjected to a "whispering" campaign of which you know nothing. And on the other side of the coin, I am sure there are lots of examples of misconduct which never impact reputations.

http://www.enotes.com/everyday-law-encyclopedia/libel-and-slander

Sep 22, 2011 at 7:13 PM | Unregistered Commenternot banned yet

I have always viewed the 'first amendment' as a recognition that Founding Fathers got the original constitution wrong

'hide the decline nothing to fear'

Sep 22, 2011 at 7:31 PM | Unregistered CommenterAnoneumouse

KevinUK

So is Mann basically threatening or begging his colleagues into an "I'm Spartacus" moment, so they all get crucified?

Sep 22, 2011 at 7:57 PM | Unregistered Commentergolf charley

golf charley

I don't know that they will nail Mann to a cross and leave him hanging by the side of the road, but I suspect that he may end up under the bus and left by the side of the road. Mighty Mikey is going to be in for a really bad time before the end of the year. He has clearly become an embarrassment. It should be interesting to see what role he plays in AR 5, if any.

Sep 22, 2011 at 8:09 PM | Unregistered CommenterDon Pablo de la Sierra

They do not mention that the challenge to the Civil Investigative Demands rested not only on first amendment rights to academic freedom, but also on an alleged failure of those CIDs to comply with the requirements of investigative instruments that impact on first amendment rights.

My impression is the same thing happens in Sweezy.
This is from Sweezy

In our view, the answer is clear. No one would deny that the infringement of constitutional rights of individuals would violate the guarantee of due process where no state interest underlies the state action. Thus, if the Attorney General's interrogation of petitioner were in fact wholly unrelated to the object of the legislature in authorizing the inquiry, the Due Process Clause would preclude the endangering of constitutional liberties. We believe that an equivalent situation is presented in this case. The lack of any indications that the legislature wanted the information the Attorney General attempted to elicit from petitioner must be treated as the absence of authority. It follows that the use of the contempt power, notwithstanding the interference with constitutional rights,

Page 354 U. S. 255

was not in accordance with the due process requirements of the Fourteenth Amendment.

To me this seems to say that some infringement of academic freedom might be permissible if there is a state interest but it's not permitted if there is no state interest. And it appears that in Sweezy, there was no state interest. The attorney general acting for the state legislature was asking questions to obtain information the legislature had not requested. This means he had no authority to ask these questions and also no authority to compel answers using the contempt power.

.... Our conclusion does rest upon a separation of the power of a state legislature to conduct investigations from the responsibility to direct the use of that power insofar as that separation causes a deprivation of the constitutional rights of individuals and a denial of due process of law.

I think this means: Even though a state legislature is permitted to borrow a member of the executive branch (i.e. the attorney general) and grant him the power to conduct investigations, the member of the executive branch can't then do things that go beyond the power granted by the legislature. Though making use of a member of the executive branch, the legislature still has the responsibility to to direct the use of that power-- and in this case they AG was acting at his own discretion. My take is that even if the legislature approved, of what the AG was doing, the court thinks they had to actually pass an act that granted that power explicitly-- and they didn't do so. That meant the AG did not have legal power to charge Sweezy with contempt, and poof! Due process prohibits the AG from charging him with contempt.

So-- once again INAL. But it seems to me that in Sweezy, "academic freedom" and "first amendement" alone weren't what reversed the contempt charge. There could, hypothetically, have been some circumstance where Sweezy might have been compelled to answer questions like "Was she, Nancy Sweezy, your wife, active in the formation of the Progressive Citizens of America?" and academic freedom alone wouldn't protect him under any and all circumstances. But in this case, the AG -- acting in a legislative capacity-- hadn't been formally authorized by the legislature to investigate whatever specific thing he was digging into. That is: the legislature didn't ever actually formally say that this was what they wanted to learn. They weren't officially interested in the info. So, since there was no state interest, Sweezy couldn't be compelled to answer.

On the general relationship between Sweezy and UVA/Mann/ITA, I'm not at all sure how this is going to pann out. There seem to be many points of difference between the particulars of Sweezy and the Mann case, and quite a few strike me as possibly important. It will be interesting to read what the various briefs and the court ultimately have to say.

Sep 22, 2011 at 8:48 PM | Unregistered Commenterlucia

The more people, groups, and Mann pushes back on this FOIA request, the more interested I get in it.

Sep 22, 2011 at 8:55 PM | Unregistered Commenterkramer

Don Pablo, agreed, but my point is that he is now ensuring that as and when he falls from grace, a lot of his colleagues are going to fall too, as identified by KevinUK, it is almost like blackmailing them for support, financial or otherwise.

Every trick he plays now is just going to increase the scale of the bloodbath. rising faster than any normal data would support.

A bit like a hockey stick graph really.

I wonder what a graph, plotting careers ruined, will look like in the years/months after release of his e mails?

Sep 22, 2011 at 9:00 PM | Unregistered Commentergolf charley

(Just posted this on the earlier thread in mistake for this one, so repeated here)

Copies of the Mann, D'Arrigo, Santer, Trenberth and Bradley letters are in body of the pdf file which is downloadable here -

http://www.atinstitute.org/wp-content/uploads/2011/09/9-2-11-memo-of-law-interve-pt-2.pdf

Suffice to say, they contrast vastly in spirit with that encapsulated in this recent comment, from another climate scientist-

'I don't have any objection to the publishing of these emails and so will ask that the university, on my behalf, recovers them for me. Assuming that I am able to recover them I will then post them here with the permission of my correspondents and the Bishop.'

Sep 22, 2011 at 9:17 PM | Unregistered CommenterPharos

Yale says today Mann's discredited hockey stick should continue to be used as a "particularly effective climate graphic"

http://hockeyschtick.blogspot.com/2011/09/yale-says-manns-discredited-hockey.html

Sep 22, 2011 at 10:54 PM | Unregistered CommenterHockey Schtick

The good guys have been using FOI legislation as well. But in their case, it's fine to show emails.

Sep 22, 2011 at 11:53 PM | Unregistered CommenterMaurizio Morabito

I would also add that their is a big difference between the state asking for documents in which a criminal or civil investigation could hinge vs a private organization asking a government entity for release of information as provided by law. The state is not the one investigating or trying to get answers in this case.

For instance, the government cannot go into your house and check out your computer for crimes you may have committed without just cause and a warrant. However if someone breaks into your home, stole your computer and found incriminating things on the hard drive and turned the computer over to the police, the police can charge the computer owner with a crime. As long as the police didn't ask the person to break in, then use of the material obtained is legal.

I have a feeling this will be how the judge will rule. If the law says a private citizen may request documents from a government entity, there is no first amendment violation. It does not hinge on what is being asked for or why it is being asked for, it is who is asking for it. The state cannot ask for it without reason, a person can.

Sep 23, 2011 at 3:31 AM | Unregistered CommenterMatt K

Despite the marginal increase on the speed of light observed by Ereditato's team, the result is intriguing because its statistical significance, the measure by which particle physics discoveries stand and fall, is so strong.

A pity that climate science in general and Mann in particular, couldn't follow this path.....

Sep 23, 2011 at 7:33 AM | Unregistered CommenterRick Bradford

Via Leo Hickman on Twitter, news of the CIA refusing to release anything it knows, has or does about climate change:

Last week, the CIA categorically denied (pdf) a request under the Freedom of Information Act for a copy of any Center studies or reports concerning the impacts of global warming.

Sep 23, 2011 at 9:36 AM | Unregistered CommenterMaurizio Morabito

From 'Time to Mann up - Part I' Comments ....

“When the record says the opposite of what you cite the record for, or when the record doesn’t say what you cite the record for, there’s simply an absence of data, then that is a further misleading of the court. That is a further, if you will, distortion of the truth.”

http://green.blogs.nytimes.com/2011/09/21/more-interior-scientists-are-taking-heat/

Sep 23, 2011 at 11:04 AM | Unregistered Commenterb_C

RE: barn - "I can think of 2 ways one's reputaion can be damaged: 1) personal misconduct, and; 2) professional misconduct. Are there any others?"

RE: "Yep - for example one can be an innocent party subject to entirely fabricated allegations."

Good point. I stand corrected. Simply being charged will be enuff for many to believe guilt was proven. Even if charges are later dropped because they were, as you say, 'subject to entirely fabricated allegations.'

However, I don't see that sort of thing being an issue here. What could be in the documents that fall within the UVa., FOI that *will* damage reputations other than professional misconduct? I'm assuming again that anything of a personal nature will not be released regardless of the (non-criminal) content.

-barn

Sep 23, 2011 at 1:00 PM | Unregistered Commenterbarn E. rubble

I completely disagree with Richard Brearley's convoluted analysis.

First, I thought Cuccinelli was initially turned down because he didn't adequately describe the documents being sought, and the second time because he was asking for materials that were unrelated to Virginia fraud statutes. I don't recall anything being invoked by anyone about the first amendment or "academic freedom" (whatever that means) being a problem.

Second, in the case of Sweezy v. NH, it seemed to me that the case rested on the actual verbal teachings that Sweezy was conducting at the Univ. of NH and whether these were were "subversive" teachings and hence in violation of NH law at that time (1959). I recall that this literally was a freedom of speech issue.

So even though Mann has invoked Sweezy v. NH, I really don't see any connection or precedent whatsoever between Mann and Sweezy, or ATI and Sweezy, or Sweezy and Cuccinelli. These are all apples and oranges that are unrelated to the issue of Virginia FOIA.

The actual bottom line is that Mann does not "own" his UVA email archives, the University does. That is indisputable. It is the only issue here, period. Mann has no standing.

I would hope that the court will not grant legal standing to Mann under this bogus claim of "academic freedom," due to the larger adverse impact that would have on Virginia FOIA law in all spheres (academic, commercial, other public employees). Certainly to provide Mann standing would carve out some kind of unique exception which is unconstitutional under the principle of equal protection. To wit, the illusory "academic freedom" cannot and should not shield state-employed academics (or any state employee) from FOIA.

Sep 24, 2011 at 11:03 PM | Unregistered CommenterGarry

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