BY HANK REICHMAN
[CORRECTION: Professor Mann has pointed out to me that the damage award was made two years ago. Someone tweeted a link to a story on it this week and I mistakenly thought it was current. Nevertheless, the issue certainly is still alive]
The Virginia Supreme Court
has [in July 2014] ordered the conservative nonprofit Energy and Environmental Legal Institute to pay $250 in damages to the University of Virginia (UVA) and climate scientist Michael Mann, a member of AAUP’s Committee A on Academic Freedom and Tenure, who previously worked there.
The organization lost a lawsuit in April against the university and Mann, with the state’s high court ruling that Mann’s unpublished research and e-mails about global warming, written when he was still at the school, were exempt from the Virginia Freedom of Information Act. This month, the court ordered that the group pay damages to the school and the scientist, who now works at Pennsylvania State University.
Mann’s research became a target during a 2009 controversy dubbed “Climate-gate,” in which a hacker released more than a thousand e-mails exchanged among climate researchers. Some of the e-mails were seized upon by skeptics as evidence that scientists had manipulated or falsified data and tried to suppress criticism. E-mails written by Mann were among those released, but two reviews by Penn State and an investigation by the inspector general of the National Science Foundation cleared Mann of misconduct.
Ken Cuccinelli III, former Virginia attorney general and 2013 Republican gubernatorial nominee, was among those who targeted Mann. Cuccinelli tried and failed to obtain a civil subpoena to gain access to Mann’s work papers to scrutinize his use of grants. After public pressure from the AAUP and other organizations, UVA filed a petition in Virginia court to set aside the subpoena, invoking academic freedom and arguing that Cuccinelli’s subpoena did not satisfy the requirements of FATA. The AAUP, the ACLU of Virginia, the Thomas Jefferson Center for the Protection of Free Expression, and the Union of Concerned Scientists filed an amicus brief in support of UVA’s position. The brief argued that the requested items were protected by the First Amendment and that the attorney general’s actions could seriously chill academic freedom, university scholarship, and intellectual debate.
The Energy and Environmental Legal Institute then tried to follow up on Cuccinelli’s efforts by requesting the same documents through a FOIA request; the group subsequently sued the school for refusing to comply. The AAUP and the Union of Concerned Scientists filed a joint amicus brief with the Circuit Court in the case. On April 2, 2013 the Circuit Court held that all of the records sought qualified for exclusion under the Virginia FOIA exemption for “data, records or information of a proprietary nature produced or collected by or for faculty of staff of public institutions of higher education….. in the conduct of or as a result of study or research on medical, scientific or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body, where such data, records or information has not been publicly released, copyrighted or patented” or under the exemption for personnel records. The court also ruled that purely personal email messages are not public records under the Virginia FOIA.
The Virginia Supreme Court granted a petition for review and the AAUP, in partnership with the Union of Concerned Scientists, filed a brief with the court supporting Professor Mann and UVA and arguing that granting access to the private materials would have a severe chilling effect on scientists and other scholars and researchers. The brief urged that “in evaluating disclosure under FOIA, the public’s right to know must be balanced against the significant risk of chilling academic freedom that FOIA requests may pose.” The brief also argued that enforcement of broad FOIA requests that seek correspondence with other academics, as ATI sought here, “will invariably chill intellectual debate among researchers and scientists.” Also, exposing researchers’ “initial thoughts, suspicions, and hypotheses” to public scrutiny would “inhibit researchers from speaking freely with colleagues, with no discernible countervailing benefit.”
In April 2014, the Virginia Supreme Court issued a unanimous decision upholding the trial court’s decision that none of the requested records were subject to disclosure. The primary issue was whether the research records were “proprietary” under the statute. The Court found that the legislature wanted to ensure that public universities were not at a competitive disadvantage in relation to private universities. The Court noted that this applied not only to financial injury, but also to “undermining of faculty expectations of privacy and confidentiality, and impairment of free thought and expression.” The Court also cited the numerous affidavits attesting to the harmful nature of the disclosures, quoting extensively from one that discussed the threats to possible collaborations with faculty at public institutions. Therefore, the Court found that the term proprietary was intended to have a broad definition that resulted in the exclusion from disclosure of the requested research material.
For Mann, the ruling exempting his academic work from FOIA and the order that the nonprofit group pay damages have set a precedent for other states to defend researchers’ documents from what he calls “assaults” by fossil fuel investors and their supporters.
“Below the radar screen, there are many other climate scientists that are being harassed by these very same groups,” Mann said. “The court recognized that threat.” He added that while the $250 amount isn’t large, it carries weight in the big picture. “It was a token amount, but I think it’s still important,” Mann said.
In a recent interview with the radio show Democracy Now!, Mann emphasized the importance of scientists’ freedom to conduct research on climate change free of political interference and harassment:
. . . the wonderful thing about science is that it doesn’t matter whether or not you believe it; it’s still true. And so, while politicians like Donald Trump can say they don’t believe in climate change, they’re not entitled to their own facts. And the facts are in. There’s very widespread consensus among the world scientists that climate change is real, it’s caused by human activity, it’s already causing lots of problems, it will cause far more problems if we don’t do anything about it. . . .
Fossil fuel interests are doing exactly what tobacco interests did decades ago. They have manufactured a campaign of misinformation and disinformation to confuse the public and policymakers from acting. In the case of tobacco, we know that millions of people died because the tobacco industry hid the adverse health impacts of their product. With climate change, many more people will suffer and perish if we don’t act. In some ways, the campaign by fossil fuel interests to confuse the public about the reality and threat of climate change is an even greater crime against, you could say, humanity or the planet. It’s literally a crime against the planet.
And we need to make sure that they’re answerable for the disinformation campaign that they have run. They’ve set us back decades. If we had acted on this problem when ExxonMobil’s own internal documents from the 1970s revealed that they recognized—this is their own words—they recognized the impacts of climate change could be catastrophic. These are in their own internal documents from the 1970s. But what did ExxonMobil do in the subsequent decades? They spent tens of millions of dollars on a disinformation campaign to deny the reality of climate change.
We can’t allow that. We have to move on. We have to hold bad actors accountable, and we have to move on to the worthy debate, which is what we should be debating in Congress: how to solve this problem. What are the mechanisms to decrease our carbon emissions and to transition to renewable energy? There’s a worthy political debate between progressives and conservatives to be had about that topic, but there’s no worthy debate to be had about whether the threat exists. We have to get past that. Again, in November, we may have an opportunity to try to get past that by electing leaders who will act on climate.
Putting his scholarship into practice, Mann has teamed up with Pulitzer Prize-winning cartoonist Tom Toles to publish The Madhouse Effect, an entertaining demolition of the climate change denial narrative and a sensible call for further action, published this Fall by Columbia University Press.
But it’s not only climate change; it now seems that science itself is under assault. This is the argument of a powerful editorial published last month by the venerable popular science journal Scientific American:
Scientific American is not in the business of endorsing political candidates. But we do take a stand for science—the most reliable path to objective knowledge the world has seen—and the Enlightenment values that gave rise to it. For more than 170 years we have documented, for better and for worse, the rise of science and technology and their impact on the nation and the world. We have strived to assert in our reporting, writing and editing the principle that decision making in the sphere of public policy should accept the conclusions that evidence, gathered in the spirit and with the methods of science, tells us to be true.
It won’t come as a surprise to anyone who pays even superficial attention to politics that over the past few decades facts have become an undervalued commodity. Many politicians are hostile to science, on both sides of the political aisle. The House Committee on Science, Space, and Technology has a routine practice of meddling in petty science-funding matters to score political points. Science has not played nearly as prominent a role as it should in informing debates over the labeling of genetically modified foods, end of life care and energy policy, among many issues.
The current presidential race, however, is something special. It takes antiscience to previously unexplored terrain. When the major Republican candidate for president has tweeted that global warming is a Chinese plot, threatens to dismantle a climate agreement 20 years in the making and to eliminate an agency that enforces clean air and water regulations, and speaks passionately about a link between vaccines and autism that was utterly discredited years ago, we can only hope that there is nowhere to go but up.
In October, as we did four years previously, we will assemble answers from the campaigns of the Democratic and Republican nominees on the public policy questions that touch on science, technology and public health and then publish them online. We will support ScienceDebate.org’s efforts to persuade moderators to ask important science-related questions during the presidential debates. We encourage the nation’s political leaders to demonstrate a respect for scientific truths in word and deed. And we urge the people who vote to hold them to that standard.
Such efforts deserve broad support. As minimal as Mann’s award by the Virginia Supreme Court may be, one can hope that it begins to send a message.