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FIRE Criticizes Virginia Attorney General's Investigation of Professor

In a letter today, FIRE criticizes Virginia Attorney General Ken Cuccinelli's decision to open a civil investigation of former University of Virginia professor Dr. Michael Mann. On April 23, Attorney General Cuccinelli sent a Civil Investigative Demand (CID) to the Rector and Visitors of the University of Virginia (UVa) pursuant to his authority under the Virginia Fraud Against Taxpayers Act (FATA), requesting that the university produce the "data, materials and communications" created by Dr. Mann in conjunction with five research grants he and others obtained during his employment at UVa.

Our letter documents the clear threat to academic freedom and free inquiry presented by Attorney General Cuccinelli's actions:

By requesting production of the "data, materials and communications" created by former UVa professor Dr. Michael Mann in conjunction with five research grants he and others obtained during his employment at UVa, among other documents, your office has put academic freedom in jeopardy.

The Supreme Court has held that academic freedom is a "special concern of the First Amendment" and that "[o]ur nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to teachers concerned." Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967) (internal citations omitted). This and other longstanding precedents from our nation's highest court weigh heavily against the course of action you have chosen in this matter. Further, the Supreme Court has made clear "that legislative investigations, whether on a federal or state level, are capable of encroaching upon the constitutional liberties of individuals." Sweezy v. New Hampshire, 354 U.S. 234, 245 (1957). When the New Hampshire state legislature questioned a professor from a state college about his views, the Court found the investigation unconstitutional, holding that it "unquestionably was an invasion of petitioner's liberties in the areas of academic freedom and political expression—areas in which government should be extremely reticent to tread." Id. at 250. See also Baird v. State Bar of Arizona, 401 U.S. 1, 7 (1971) (observing that "[b]road and sweeping state inquiries" into protected speech "discourage citizens from exercising rights protected by the Constitution"); De Gregory v. Attorney General of New Hampshire, 383 U.S. 825, 829 (1966) (holding that "[t]he First Amendment prevents use of the power to investigate enforced by the contempt power to probe at will and without relation to existing need").

Our letter makes clear that FIRE takes no position on Dr. Mann's research, but points out that absent any evidence of unlawful, fraudulent conduct, the investigation is unwarranted:

As a nonpartisan civil liberties organization, FIRE takes no position on the merits of Dr. Mann's research, methods, or conclusions; nor are we qualified to do so. Rather, the worth of Dr. Mann's contributions to his field is properly assessed by his peers. As you likely know, all previous investigations of Dr. Mann's research conducted by those best equipped to determine the reliability and soundness of his work—his fellow scientists—have failed to find any evidence of fraudulent conduct or the intent to engage in such conduct.

By undertaking an investigation of Dr. Mann's research in search of evidence of fraud and by demanding cooperation from UVa, you have confused the standard processes of academic inquiry with unlawful conduct.

Today's letter also points out the regrettable precedent the investigation sets:

This investigation provides a dangerous opening for politically motivated attacks on the academy from elected officials. Once the precedent of using FATA to investigate academic research has been set, no professor studying anything controversial at a Virginia public institution of higher education will be safe. Professors in academic fields of study such as nuclear energy, evolution, sociology, and genetics, in which research conclusions are often highly controversial, will have reason to fear that publishing results unpopular with the elected officials currently in power in Virginia will lead to time-consuming, expensive, and intrusive investigations. Ultimately, scientists and researchers will feel political pressure to alter their peer-reviewed research agendas or hide their peer-reviewed results in order to avoid investigations, which would retard the progress of science in Virginia and cause a "brain drain" as the best and most independent scientists leave for institutions in other states. Worse yet, such a precedent could lead Virginia universities themselves to discourage research into controversial fields of study lest any unpopular conclusions attract politically motivated and unfair investigations by elected officials.

In condemning the danger posed to academic freedom by the investigation, FIRE joins the University of Virginia Faculty Senate Executive Council, the American Association of University Professors, the American Civil Liberties Union of Virginia, and The Washington Post, which wrote in a blistering editorial last Friday:

By equating controversial results with legal fraud, Mr. Cuccinelli demonstrates a dangerous disregard for scientific method and academic freedom. The remedy for unsatisfactory data or analysis is public criticism from peers and more data, not a politically tinged witch hunt or, worse, a civil penalty. Scientists and other academics inevitably will get things wrong, and they will use public funds in the process, because failure is as important to producing good scholarship as success. For the commonwealth to persecute scientists because one official or another dislikes their findings is the fastest way to cripple not only its stellar flagship university, but also its entire public higher education system.

We agree fully and hope that Attorney General Cuccinelli ends his ill-considered investigation.

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