William Cronon is a professor of History at the University of Wisconsin, Madison and the President-elect of the American Historical Association. For those of you who do not know his work he has been a major figure in the development of environmental history and a leading figure in the study of United States history. He recently began a blog "Scholar As Citizen" to engage public discussion and debates where he can bring his scholarly knowledge to bear. He is now a target of the Wisconsin Republican Party.
His "mistake," apparently was writing a blog entry on the efforts of Wisconsin Republicans to strip collective bargaining rights from public employees and the connections between those efforts and the work of the American Legislative Exchange Council. ALEC is an organization founded in the 1970s to help draft conservative legislation. Cronon subsequently published an op-ed in the NYT that showed what a radical departure the Walker Administration was from previous Wisconsin history and especially from the long history of Wisconsin's Republican Party. In the course of the opinion piece Cronon drew some pretty tentative comparisons between Walker's style and that of Joseph McCarthy in the 1950s.
The Wisconsin Republican Party apparently found Cronon's writing on the links between Walker's initiatives and ALEC unacceptable. In response they demanded--under Wisconsin's Open Records Law--copies of any of Cronon's University emails relating to a series of names and topics. Cronon has provided the request on his blog and I reproduce it here:
For those who have not followed the Wisconsin matter some of the names belong to Republican legislatures who are facing recall movements, other topics relate obviously to the history and practice of collective bargaining. It is hard to imagine the purpose of the request except to discredit or intimidate Cronon, or to suggest that he violated some term of employment.******************************************
From: Stephan Thompson [mailto:SThompson@wisgop.org]
Sent: Thursday, March 17, 2011 2:37 PM
To: Dowling, John
Subject: Open Records Request
Dear Mr. Dowling,
Under Wisconsin open records law, we are requesting copies of the following items:
Copies of all emails into and out of Prof. William Cronon’s state email account from January 1, 2011 to present which reference any of the following terms: Republican, Scott Walker, recall, collective bargaining, AFSCME, WEAC, rally, union, Alberta Darling, Randy Hopper, Dan Kapanke, Rob Cowles, Scott Fitzgerald, Sheila Harsdorf, Luther Olsen, Glenn Grothman, Mary Lazich, Jeff Fitzgerald, Marty Beil, or Mary Bell.
We are making this request under Chapter 19.32 of the Wisconsin state statutes, through the Open Records law. Specifically, we would like to cite the following section of Wis. Stat. 19.32 (2) that defines a public record as “anything recorded or preserved that has been created or is being kept by the agency. This includes tapes, films, charts, photographs, computer printouts, etc.”
Thank you for your prompt attention, and please make us aware of any costs in advance of preparation of this request.
Sincerely,
Stephan Thompson
Republican Party of Wisconsin
608-257-4765
******************************************
I won't belabor the issue here except to note as I have done before that Wisconsin's Republican party seems to be at the forefront of the assault on labor rights and public employees. But of course they are not alone in that. Nor are they alone in this effort either. In Virginia, the Attorney General has subpoenaed the records of a former professor who does research on climate change alleging fraud while in Illinois a prosecutor subpoenaed the records and notes of students who participated in a Journalism class connected to the Innocence Project. Each of these cases are ongoing. Combined with other recent cases concerning Academic Freedom they show a disturbing trend of trying to limit the critical speech of academics.
As Cronon himself notes, the use of Public Records Laws is a complex issue. We all, scholars and citizens (to use Cronon's pairing) benefit from the federal FOIA and the numerous state open records laws here in California and elsewhere. Individuals at UC and CSU have used these laws to pry open records relating to auxiliaries, investment decisions, budgetary allocations etc. The efforts by both the Bush and Obama administrations to eviscerate FOIA under an expanded claim of state secrets is a profound danger to our democracy.
But like the efforts to use shield laws to protect high government officials when they seek to mislead the public or damage the reputation of whistle-blowers, these efforts are something different than preserving governmental openness. Here, instead, is an effort by the politically powerful to use practices designed to protect citizens in order to harass them; here is an effort to deploy the rhetoric of free speech to stifle it; here is an effort to use tools designed to make government more open to make it make it harder to understand the forces shaping government. Sunshine laws in the interest of secrecy.
We all have our criticisms of the University as it really exists. But it is, at least at this point, still one of the spaces where the normal systems regulating thought and speech are held at bay. It would be a disaster for all if this space was lost entirely.
For other commentary you can see here, here, and here.
The Wisconsin Republican Party has responded to insist that they are victims of Cronon's attempt to intimidate them. Cronon has made that available here.
You can follow this story as it unfolds at Cronon's blog. It is an important moment to defend academic freedom--both Cronon's and everyone else's.
Update 1: New York Times Editorial
Update 2: Cronon Has a List of Links of Commentary on the Issue
The request was sent by a "Stephan Thompson". It's interesting to note that there is a "Stephan Thompson" in the Governor's office.
ReplyDeletehttp://doa.wi.gov/divisions_bureau_staff.asp?divid=155&bureauid=64&locid=0
Is this the same person?
JoelN
"The Dean of the University of Texas Law school said:
ReplyDelete... I am deeply troubled by the concept of academic freedom defined in terms of the intellectual autonomy of the professor. In particular, how does the claim to academic freedom rise to the level of a constitutional entitlement under the first amendment to the Constitution?
Mark Yudof, "Three Faces of Academic Freedom," 32 Loyola Law Review 831, 837 (1987).
"He then goes on criticize the idea that professors should have greater autonomy than other professions:
... why do not engineers at NASA have the constitutional right to engineer rockets in the most efficient, productive and self-realizing manner – even if their managers and the Congress disagree with them?
Id. at 840."
http://www.rbs2.com/afree.htm
Gerry--
ReplyDeleteThanks for the reference. But if you read the Yudof argument you will see that it is not in fact appropriate for the present discussion. Yudof's comments in that section are concerned solely with whether or not there can be any limits placed on the professor (or as is clear from his real concern the public school teacher) within the classroom. Whereas Standler wants to suggest that the only protection outside of the classroom lies in an employment contract, Yudof would insist that it lies in the first amendment rights to speech. His position is basically a Kantian one in terms of being a cog in a wheel versus a participant in the public sphere. The quotation is about a completely different fact situation.
We are working here on the idea that what is happening is an attack on academic freedom. We have a faculty member operating outside the classroom but possibly using university resources. Wisconsin public disclosure law says that if he is, he is creating public records to which any requester is entitled.
ReplyDeleteYudof argued that the faculty member doesn't apparently have intellectual autonomy--i.e., "academic freedom" via first amendment for classroom activities. Does the argument Yudof makes get any better for a faculty member once the context is no longer the classroom but still within scope as an emloyee, using university resources? Are you saying Yudof would argue, "well academic freedom outside the classroom is a different thing, and there should be *more* autonomy given the faculty, or on a different basis? If so, where does the *more* come from. Not the first amendment. Not some special treatment better than other employees, apparently. Rather than see the classroom as a narrow case, perhaps it is the best case to be made for intellectual autonomy.
What is the academic freedom that is attacked by requesting public records? Is there a special right to privacy enjoyed by faculty members in using state-provided email systems? It's possible there is, but is the basis for that right *academic freedom*. I don't see it. It's certainly not in the Wisconsin open records act.
If one wants to get at the academic freedom issue, it would come up if the emails revealed something the government didn't like by way of expression and that led to job actions or penalties imposed on the university or efforts to suppress further such statements. None of that appears to have happened or even been indicated.
So we are back to how this is a matter of academic freedom and not, say, personal privacy.
Gerry--
ReplyDeleteActually as I said in the previous comment I was concerned with whether or not the Yudof quotation was about this sort of issue and nothing that you have said convinces me that it is. And yes, there is an argument if you want to make it that according to his argument the classroom is not the strongest place to make the case since there you are speaking as an official of a government body and also you are hired to speak about certain subjects. As I said it is a basically Kantian argument right out of "What is Enlightenment"?
As to the larger question it seems to me that we are discussing something that depends on context. Academic freedom has been claimed as a special form of first amendment rights. Here you have a case where a professor is speaking on a matter of public debate not as a matter of his or her classroom responsibilities but rather as a citizen and a scholar. He presumes--perhaps falsely--that he is entitled to speak as an authority on a public matter without fear of reprisal (other than criticism of his views). The whole thing has come about because of the fact that Cronon is a noted historian and that Wisconsin has a long tradition of scholar-activists. Do you honestly think that the Wisconsin Republican party would have gone after him if, say, he had written a blog post and he was chemist? I doubt it.
So yes it is an attack on academic freedom. You are certainly correct that the University does not seem likely to penalize cronon in any way. But the whole question is about more than whether or not the University penalizes Cronon. It is the about the effect of this and other efforts on the practical freedom of faculty to speak out on public subjects. As I indicated in my post this effort is not the only one that has happened.
You will note that in my post I, like Cronon, did not say that this was illegal. I simply said it was an attack on academic freedom. You are the one who has sought to make it into a narrowly legal as opposed to a political question (which is what rights' questions actually are).
Although if it is a question of rights then it is odd that you would think that the Wisconsin Open Records Act would be any place to find a definition.
Oh, and by the way, FIRE has raised some questions as to whether under recent Wisconsin Supreme Court Decisions these actually would fall under the Wisconsin Public Records Act: http://thefire.org/article/12998.html
Chancellor Martin's take on it: http://www.news.wisc.edu/19163
ReplyDeleteHere's the thing. If there's an attack on academic freedom, it is an expansive open records law. There, the attack is not directed at any one person, but is essentially a government intrusion into how members of a university faculty communicate, by giving anyone access to that communication when in writing, as in email.
As for the existing state of affairs, if the email communications are "records" under the Wisconsin statute, then how is their disclosure in this instance any attack on academic freedom? No. Can't be. Doesn't matter what the NYT says tomorrow. There is no privilege of privacy accorded to faculty with regard to email that is a public record.
There are still ways to resist an open records act request. One way is to request under 19.39 a state attorney general opinion regarding email of faculty not pertaining to teaching, research, or administrative duties. That would put pressure on this part of 19.32(2), which identifies stuff not within the definition of a "record": "'Record' does not include drafts, notes, preliminary computations and like materials prepared for the originator’s personal use or prepared by the originator in the name of a person for whom the originator is working; materials which are purely the personal property of the
custodian and have no relation to his or her office; materials to
which access is limited by copyright, patent or bequest;...."
It's just a matter of where the University is going to be on the definition. From the sound of things, the university's position is that faculty would do well to get a private email account for their personal communications.
I don't see how faculty speaking out on public issues is adversely affected by an open records request with regard to that speaking out. Is there something damning in the emails to be hidden?
ReplyDeleteIt's like there's some special rule that says it's private if you shake out one one side of the politics and not on the other. It may be there's an attack on the presumption of private communications by a state employee being kept private. It didn't help the Indiana state deputy prosecutor with his emails (and he resigned, the poor GOP activist). While it has to do with a kind of freedom, it doesn't have to do with academic freedom.
Gerry,
ReplyDeleteHere's how it's an attack on academic freedom. My area of research concerns global climate change (a politically contentious issue). If I happen to offend someone somewhere, should they be able to gain access to all of my emails related to global climate change, either for harassment or in the hope of finding out that I have committed scientific fraud? Yes, I don't have anything to hide, but on the other hand, these emails would include discussions with students, postdocs, and colleagues around the world about ongoing research that is preliminary and unpublished. Perhaps I could avoid disclosure by using a non-university email account, but why should I do that when research and advising Ph.D. students is an essential part of my work at UC? The prospect that my email correspondence can be opened to hostile readers without probable cause of wrongdoing chills academic freedom because it inhibits full and candid discourse.
JoelN
Is it just me or the guy has actually had this coming by (seemingly) failing to use his private email address instead of the university .edu address for what sounds like political rather than professional activity?
ReplyDeleteI should also note, in response to the first comment, that whether or not the request came from '"Stephan Thompson" in the Governor's office', it *did not* come from the .gov address but rather from his political organization's .org address.
Now, I am no fan of the Republican Party (Wisconsin or nation-wide), but one should not be so clueless as to use taxpayer-supported resources, even such trivial ones as an email account at a public university, for political purposes. This gives your opponents a direct invitation for precisely this type of attacks, petty and malicious yet perfectly legitimate. Please get a clue (along with a Gmail account)!
If you read Cronon's blog you will see that he does indeed have a separate, personal account for non-university business.
ReplyDeleteLeslie: my bad, I have overlooked it.
ReplyDeleteBut then I don't see what the fuss is about. Cronon's personal account is not subject to the FOIA request, and the request itself is very specific. None of the names listed there appear to have anything to do with Prof. Cronon's research or teaching, so surely they should not appear in any of the emails he sent from his University account.
In general, I tend to agree with the main point of the Slate article: http://www.slate.com/id/2289482/ (And Slate is hardly a right-wing publication.)
@JoeIN,
ReplyDeleteI'm looking for something more compelling than an argument that the Cronon request for records pertaining to the governor and various legislators is an attack on academic freedom because if it had been a request for a bunch of other things pertaining to scholarship and academic advising then it would have been an attack on academic freedom.
Again, I'm not trying to argue that there isn't a cause for concern. And I recognize there's a lot of polarizing rhetoric going on to make folks take notice.
The Wisconsin open records act was the subject of a state supreme court case last year, with a finding that private email on public servers was not a record, a ruling which the state AG (a Republican, fwiw) wanted interpreted narrowly, arguing for the disclosure of anything that could shed light on public duties.
http://sunshinereview.org/index.php/Wisconsin_AG_asks_government_agencies_to_narrowly_construe_Supreme_Court_email_ruling
What is being attacked is not academic freedom but academic privacy. To get at what ought not to be disclosed, folks have to come to grips with the tension between the claims made by laws regarding public employees' writings and the expectations that academics have to communicate in private until they choose to communicate publicly. Are faculty at a public university public employees for matters of government open records laws? Isn't that the crux of it?
Check out the comment on this case in Washington state: http://www.localopengovernment.com/2011/03/articles/public-records/clash-of-principles-academic-freedom-v-freedom-of-information/
An animal rights group went after an unfunded grant proposal, which was ruled a public record by the state supreme court, which did not see why faculty should have any advantage over other public employees.