On Cronon: History, Law, and the Public, 1 of 2

What follows is the first of a pair of posts on the recent events involving William Cronon, Wisconsin Republicans, and the intersections between historical scholarship, public engagement, and current politics.

Here, Lukas focuses on the paradoxical relationship between the legal apparatus of the Freedom of Information Act (FOIA) and Academic Freedom; tomorrow, Hank will elaborate on a distinction between Cronon's contributions of historical methods and historical knowledge, and the role of each in the the present controversy.

Part I: Lukas: FOIA vs. Academic Freedom

First some context & background on what appears to have happened here. I think it’s safe to say that Bill Cronon ranks among the country’s leading environmental historians so readers of this blog will no doubt be familiar with his scholarship. On March 15, he inaugurated a new blog—Scholar as Citizen—with a post on “Who’s Really Behind the Republican Legislation in Wisconsin". In the post, he focuses on one political group in particular: The American Legislative Exchange Council (ALEC). This group drafts “model bills” for conservative legislators to introduce in their respective state governments.

ALEC has had a remarkably successful track record, with roughly 1,000 pieces of its legislation introduced in various states, about 18% of which were subsequently enacted into law. Cronon is very critical of the influence that ALEC and other such groups wield, primarily because they tend to move political discussion out of the public sphere. Their success, he charges, has made government less transparent.

Cronon’s blog entry, though critical, struck me as remarkably measured. Still, it immediately garnered extremely wide attention: within two days his blog received over half a million hits! Then, on March 17th, the University of Wisconsin’s legal office was contacted by Stephen Thompson of the Wisconsin Republican Party.  Thompson was requesting access to any of Cronon’s e-mails on the University servers that contained one of a number of search terms, including: Republican, Scott Walker, recall, collective bargaining, rally, and union.

The request was made under Wisconsin’s Open Records Law, which is roughly equivalent to the federal Freedom of Information Act (FOIA). Cronon subsequently posted a harsh critique of this move on his blog. His most interesting argument, the one I want to focus on here, is that the e-mail request violates his academic freedom. He says:

I find it simply outrageous that the Wisconsin Republican Party would seek to employ the state’s Open Records Law for the nakedly political purpose of trying to embarrass, harass, or silence a university professor (and a citizen) who has asked legitimate questions and identified potentially legitimate criticisms concerning the influence of a national organization on state legislative activity. I’m offended … because it’s such an obvious assault on academic freedom at a great research university that helped invent the concept of academic freedom way back in 1894.

Writing for Slate, Jack Shafer responds: “There’s No Such Thing as a Bad FOIA Request”. Shafer’s arguments are shockingly shallow, but he does gesture towards a real irony at the heart of these developments. Traditionally, progressive journalists and academics have (rightly) championed FOIA as an essential tool in the effort to keep our government honest, accountable, and transparent. Now, Cronon is no fool, so he obviously recognizes this irony too. To quote from his recent blog entry again:

First signed into law by Lyndon Johnson in 1966, the Freedom of Information Act is a bastion of American democracy, making it possible for citizens to scrutinize the actions of their government and elected officials in ways that are possible in few other nations on earth. FOIA is a precious political heritage of the United States, and I would not want to argue that public universities should enjoy a blanket exemption from its requirements.

So what should we make of this? I have a couple of thoughts, but first, it is worth pointing out that what has happened here is not entirely unique. I know of no other attempt to intimidate an academic into self-censorship using FOIA or similar laws in particular. But the general tactic of using the courts to force scholars to turn over their e-mails and other private documents appears to have become something of a vogue recently.

Perhaps the most striking case (covered on Slate) is a decision by the Attorney General of Virginia, Ken Cuccinelli, to subpoena e-mails between Michael Mann, a former UVA climate scientist, and his colleagues around the world using a state fraud statute. A similar case, though one with somewhat different modalities, is confronting Stanford historian Robert Proctor. As detailed in The Nation, lawyers for Big Tobacco have subpoenaed e-mails, an unfinished book manuscript, and a hard drive from Proctor, a historian of science who routinely testifies against cigarette makers in court.

Although academic freedom is at stake in all of these cases, each involves a different set of legal tactics, so it’s hard to comment on them all at once. Let’s focus on FOIA in particular. As far as I can tell, the initial argument for its enactment back in 1966 was that citizens have a legitimate interest in and right to know what their government is doing. However, (as I have discussed in a previous post) there are also legitimate reasons why government should have the power to keep some things secret.

Federal legislation designed to govern the disclosure of government information did exist prior to FOIA.  However, it was seen as too vague and therefore ineffective. As I understand it, FOIA was thus primarily enacted to set out clear, specific, and coherent guidelines of what information was exempted from disclosure. In some ways, then, FOIA was actually a secrecy act! But by clearly specifying what information is exempted from disclosure, it also implied what information ought to be disclosed when requested.

Among the many exemptions to disclosure that FOIA currently specifies, there are matters of national defense, trade secrets, personal information affecting an individual’s privacy, and, interestingly, geographical and geophysical information concerning the location of wells. (For a full list of the FOIA exemptions, see the US Department of Commerce website.)

Notice that none of these exemptions list academic freedom. So how would we put Cronon’s argument into legal practice?

As my favorite legal journalist, Dalia Lithwick, points out, “the phrase ‘academic freedom’ appears nowhere in the Constitution.” That said, we do have the First Amendment, which explicitly protects speech. In her piece on academic freedom, Lithwick goes on to quote from a 1967 Supreme Court decision in which Justice William Brennan concluded, “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment.”

One way to put Cronon’s argument into legal practice would thus be to object that Stephen Thompson’s request violates the First Amendment. What is interesting about this strategy is that it basically sets two pieces of legislation, both cherished by most academics as foundational to the proper working of our democracy, in opposition to one another: freedom of speech versus freedom of information!

How are the courts likely to adjudicate such an issue? The most recent case that pits these two values against one another that I am aware of is Doe v. Reed, which was decided by the Supreme Court on June 24, 2010.   In 2009 the state of Washington passed legislation that extended nearly all state-wide spousal rights and responsibilities to registered domestic partners, even those of the same sex. Opponents of the law sought to negate it by way of a ballot initiative. What was at stake in the case was whether the list of signatories to the initiative was exempt from Washington’s Public Records Act or if it could be disclosed and made widely available.

Writing the majority opinion, Chief Justice Roberts argued that signatories to the ballot initiative were not exempt from public disclosure laws under the First Amendment. In his decision, he ruled on precedent that First Amendment challenges to public disclosure laws must meet so-called “exacting scrutiny."  In particular, he cited Citizens United v. Federal Elections Comm’n, to argue that if disclosure represents a potential threat to someone’s First Amendment rights, then “a substantial relation” must be show to exist “between the disclosure requirement and a sufficiently important government interest.” “To withstand this scrutiny,” he continued, “the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment Rights.”

Roberts went on to argue that in this particular case, disclosure meets the exacting standard of scrutiny because it is required to “preserve the integrity of the electoral process by combating fraud, detecting invalid signatures, and fostering government transparency and accountability.”

Perhaps even more interesting for our purposes than Roberts’ majority decision is Justice Breyer’s concurring opinion, in which he explicitly adds the caveat that in circumstances where  freedom of speech and information come into conflict, “the law significantly implicates constitutionally protected interests in complex ways.” This is an important point, one that I think deserves to be stressed, because it demonstrates that practicing law, especially constitutional law, is a subtle interpretive enterprise.

There is no simple way to answer the question of whether academic freedom is so important to the proper functioning of democracy that it automatically trumps FOIA requests. Rather, we have to engage in a delicate balancing act, weighing competing goods, rights, and legitimate interests against one another.

Once again (as I've noted before), American constitutional law reveals itself to be an extremely complex and supple social technology, one that requires close reading and careful judgment.  The law does not make decisions for us, lawyers and judges have to do it themselves. Unfortunately, but unsurprisingly, this is precisely the opposite of what politicians tend to argue when furthering their own ideological goals.

Coming tomorrow: Hank on Methods and Knowledge in Public History...