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.