04 October 2011
Image by AAUP via Flickr
Discredited global warming scientist, Michael Mann, sees his last-ditch efforts to hide data fall apart as legal experts reveal a mountain of legal precedents against him.
In his recent papers (filed on September 2, 2011) Mann claims ‘academic freedom’ and ‘proprietary materials’ as his defense. But legal experts who have since reviewed Mann’s submission to the Circuit Court of Prince William County, Va., say they are so full of holes they are doomed to fail.
In this article we show why the Virginia court isn’t likely to give Michael Mann a ‘get out of jail free’ card when it comes to covering up what looks increasingly like a monumental climate conspiracy.
The three facts likely to be fatal to Mann’s case are:
- Of more than 240 reported cases involving professor-v-university disputes the university almost always wins (note: Mann’s former university employer has already agreed to surrender Mann’s files).
- Freedom of speech for professors at state universities has been restricted in a series of U.S. Supreme Court case rulings since 1977.
- No American court has ever ruled to protect a former employee (Mann is no longer employed in Virginia).
Doomsayer’s Defeat Looms in Hockey Stick Face Off
The match summary so far: Professor Mann played ‘home ice’ advantage last year when three friendly ‘independent’ inquiries gave him temporary respite when they cleared him of foul play.
Mann has been skating on thin ice ever since November 2009 when he and a clique of global warming colleagues were caught personal fouling freedom of information (FOIA) requests in the Climategate scandal.
Leaked emails proved global warming climatologists had been getting away with cynically hiding unfavorable key data concerning past global temperature proxies for years.
But late in the game (May 2011) Mann’s former employer, the University of Virginia (UVa) agreed to comply with a court order to comply with a Freedom of Information (FOIA) request. They had 90 days to release from their computer files Mann’s alleged dodgy data kept hidden for over a decade.
Then, deep into overtime (September 2, 2011), Mann came off the bench to mount a delaying blocking defense asserting ‘academic freedom’ plus his ‘private ownership’ of such data trumps the FOIA rights of taxpayers.
Academic Freedom: A Quasi-legal Concept
A leading authority on education law, Ronald B. Standler, shows that academic freedom has been nothing but an amorphous quasi-legal concept since it first appeared in American courts in the late 1950’s. [1.]
Courts have consistently upheld that the fundamental principle in America is that the law applies equally to everyone. A mountain of U.S. case law shows that academic freedom is nothing more than any citizen’s right to free speech on issues including: (i.) political free speech (ii.) freedom of association and (iii.) religious expression [2.]
For arrogant academics to claim that their occupational group should have greater rights than any other occupational group is, by definition, discriminatory.
Standler’s reasoning is a telling assist to the climate skeptics’ legal playmaker, Chris Horner of ATI who now looks set be the attorney who scores the courtroom winner.
First Amendment Free Speech Extols Openness Not Censorship
The case boils down to a personal interest versus public interest question: are voters more entitled to see all the scientific evidence they paid for so that they may knowledgably apply their free speech in the debate over so-called man-made climate change?
The real perversity in Mann’s legal position is that he argues for free speech in reverse – he wants courts to chill debate over the climate controversy and not let voters be properly informed.
In his court papers Professor Mann argues for censorship to suit him. He is seeking a NEGATIVE application of a POSITIVE right. Indeed, it may be shown that Mann’s application of his ‘right’ is as a tool to aid and abet a cover up of misconduct and/or fraud.
But in no small part, academics in a democracy have a moral imperative to not undermine openness and transparency for all. Professors should never abuse their position by claiming any special personal privilege to facilitate censorship and contradict freedom of information laws.
Along the theme of skewed reasoning Mann’s attorneys disingenuously cite Sweezy v. New Hampshire, 354 U.S. 234 (1957), being that the ‘Sweezy’ case addressed freedom of association rather than free speech. And when we examine ‘Sweezy’ this is what we find:
“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.”
Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).
Mann may now wish he hadn’t cited ‘Sweezy’ because he has been caught cherry-picking and misapplying what ‘Sweezy’ actually says. That case was specifically about freedom of association; upholding that community interest allows us open debate where we may apply free speech and be better informed to make democratic decisions on a contentious public policy (e.g. climate taxes).
To apply the words of ‘Sweezy’ we need to ensure “students” of climate science gain “maturity and understanding.” But how can they do that when their “teacher” [Mann] refuses to show his “students” how he derived his conclusions?
When we are not allowed to methodically follow our “teacher’s” line of reasoning and to apply our own interpretations of the evidence we are thereby denied proper access to informed free speech.
Academic Freedom is Subordinate to Function of Educators
It is here where Standler offers us case law to further rebut Mann’s perversion of academic freedom with Stastny v. Central Washington University [3.]. Applying the more recent case of ‘Stastny’ (1983) as opposed to the outmoded ‘Sweezy’ (1957), Standler reveals:
“Academic freedom is not a license for activity at variance with job related procedures and requirements, nor does it encompass activities which are internally destructive to the proper function of the university or disruptive to the education process. .... Academic freedom does not mean freedom from academic responsibility to students, colleagues and the orderly administration of the university.“
‘Stastny’ thus trumps Michael Mann and explicitly requires academics to uphold their contractual commitments (i.e. Mann’s respect for Virginia’s freedom of information laws). Professors cannot flout the normal orderly functions of their (ex) university. Thus Mann must not interfere with his former employer’s duty to comply with lawful requests to disseminate publicly owned information.
The ‘Proprietary Materials’ Argument Exposed
This is easiest prong of Mann’s case to defeat because he offers no evidence to back his opinions. The law has long protected inventors and innovators so as they may legitimately claim entitlement to ‘proprietary materials.’ But Mann’s intervention papers (PDF) provide the court with not a shred of proof that he is an inventor or innovator who actually ‘owned’ the work he did while an employee at UVa.
In addition, UVa employment contracts are also especially unavailing. Significantly, the Virginia Personnel Act is an unassailable obstacle for Mann because it states:
“No user shall have any expectation of privacy in any message, file, image or data created, sent, retrieved, received, or posted in the use of the Commonwealth’s equipment and/or access.”
Moreover, under the Act, “electronic records may be subject to the Freedom of Information Act (FOIA).”
Thus, the aforementioned body of facts proves there is nowhere for Michael Mann to hide his decline. Indeed, if we equate the law courts with the frozen pond game, we may conclude nimble footwork by attorney, Chris Horner, has caught out the flat footed hockey sticker in overtime. But don’t expect any post game handshakes from the sour grapes loser in this contest.
[1.] Standler, R. B., ‘Academic Freedom in the USA’ (2000), www.rbs2.com (accessed online: September 23, 2011).
[2.] (i) (publicly criticizing school administration) Pickering v. Board of Education, 391 U.S. 563 (1968); (ii) (loyalty oaths e.g. Communist Party) Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967);Shelton v. Tucker, 364 U.S. 479 (1960); Sweezy v. New Hampshire, 354 U.S. 234 (1957); Slochower v. Board of Higher Education, 350 U.S. 551 (1956);Wieman v. Updegraff, 344 U.S. 183 (1952); (iii) (Biblical theory of creation) Edwards v. Aguillard, 482 U.S. 578 (1987); Epperson v. Arkansas, 393 U.S. 97 (1968).
[3.] Stastny v. Central Washington University, 647 P.2d 496, 504 (Wash.Ct.App. 1982), cert. denied, 460 U.S. 1071 (1983).