Whose E-Mail Is It, Anyway?

The National Association of Scholars

Peter Wood and Peter Lake
April 03, 2011

Point: The Public Has a Right to Know

By Peter Wood

Last month, Stephan Thompson, deputy executive director of the Wisconsin Republican Party, filed a request under the state's open-records law asking the University of Wisconsin at Madison to turn over copies of e-mails from William J. Cronon, a tenured professor of environmental history. The request appears to have been prompted by Cronon's political activism, including a blog post and an op-ed essay in The New York Times. In both, he criticized Gov. Scott Walker and conservatives in general.

The request has been widely interpreted as a political reprisal, and I see no reason to disagree. A week later, a conservative-leaning think tank sent a similar request to three state universities in Michigan, asking for all e-mails from employees of their labor-studies centers relating to "the collective-bargaining situation in Wisconsin." Both the Wisconsin and the Michigan actions have been decried by the American Association of University Professors and others as obvious assaults on academic freedom.

But such claims strike me as doubtful. Cronon's ability to engage in research in his field and teach within the area of his expertise would not in any obvious way be impaired by the university's turning over e-mails he may have written on the handful of subjects covered by the open-records request. It applies only to Cronon's university e-mail, and is based on the premise that he may, as a state employee, have misused his access to public resources.

Petty? Yes, the Wisconsin Republican Party might have been better advised not to strain after so small a victory. But poor political calculation is not the same thing as violating academic freedom.

The larger context here is that Professor Cronon took a partisan political stand—as he is entitled to do as a citizen. But that entitlement does not extend to his using the perquisites of his position as a state employee to advance his political interests. Politicians and public officials routinely face indictments and dismissals for more extreme forms of such conduct, and academic freedom can be no legitimate shield from equal enforcement of the law. Faculty members at public universities are as subject to that law as tax collectors, justices of the peace, police officers, and firefighters.

If Professor Cronon were in jeopardy of losing his job for what he wrote on his personal blog or published in the Times, I would agree that academic freedom in that case would be at risk. He faces no such risk. Separating the ostensible motive of the Wisconsin Republican Party (i.e., political reprisal for his public writings) from its chosen tactic (the open-records request) may seem a fine distinction, but it is a necessary one. It's necessary because the doctrine of academic freedom will lose legitimacy if it is allowed to become an excuse for breaking the law.

What's needed is some level-headedness and clarity about what academic freedom can and cannot protect. I regret that Stephan Thompson filed this request, but umbrage, and the AAUP's ire, distract from the real point. Professors who sow the political wind reap the political whirlwind.

Peter Wood is president of the National Association of Scholars.

Counterpoint: An Old Attack on Academic Freedom in a New Form

By Peter Lake

The calendar says it's spring, but there is an unconstitutional chill on academic freedom in the air. In Michigan and Wisconsin, "freedom of information" requests are being used in targeted ways to gather information about academics—with chilling effect. Courts should intervene to protect core academic freedoms. The tactics are new; the legal issues are not.

Many years ago the U.S. Supreme Court, and even some state courts, encountered a disturbingly similar phenomenon—the use of unconstitutional tactics to silence academics or make them political scapegoats. During the McCarthy era, the federal government and many states held hearings to root out "subversives." In 1957, in Sweezy v. New Hampshire, the Supreme Court held that investigative bodies must respect academic freedom and be conscious of the potential chilling effect of freewheeling legal investigation.

Events in Michigan and Wisconsin may seem to be different. Concerned citizens demanding their right to know are availing themselves of state laws that facilitate access to government records. Unlike Sweezy, the chill is not the result of direct government action, but comes from citizens using state law. However, the Supreme Court has repeatedly recognized that private citizens cannot compromise First Amendment rights by attempting to avail themselves of otherwise facially neutral legal rights. Think of the recent Westboro Baptist Church case, a lawsuit against a group picketing a soldier's funeral. A state law against inflicting emotional distress had to give way to the pre-eminent right to free speech. The First Amendment sometimes trumps state and even federal law.

What is disturbingly similar is that the current attempts to use freedom-of-information laws have overtones of the investigations of the past. There is a balance to be struck between the legitimate rights of citizens to know and the rights of academics to communicate without the fear that all or some of their discourse will be made public.

If academic freedom is to have meaning, academics must have some space in which to communicate and set reasonable boundaries for access to their communication. Certainly such rights would be outweighed in circumstances where actual crimes have occurred or the safety of the public is at stake. But very little of what academics do and say is of significant public concern, unless it is made to appear so by others.

It seems that we live in a world where academic freedom is at a nadir; it is fading by accretion. Yet the Supreme Court has repeatedly and recently pointed out the special role of higher education in a constitutional democracy, a role rooted in fundamental precepts of academic freedom arising under the First Amendment. Academic freedom may be dormant, even seemingly in retreat, but its heart is still beating. It will be up to the courts to play their crucial role in setting reasonable boundaries for a fair balancing of rights to know versus the rights of the academy.

Peter Lake is director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law.