Last Friday, I commented on the legal issues raised by the Republican Party of Wisconsin’s recent open records request of the University of Wisconsin-Madison (UWM). Specifically, the Wisconsin Republicans are asking that UWM turn over all emails sent and received by Professor William Cronon on his university email account that reference a variety of terms and names connected to controversial state legislation regarding the rights of public sector employees to bargain collectively.
I pointed out that while the request itself is perfectly legal, the question of whether Cronon must turn over "all emails into and out of" his university account isn’t so cut-and-dry. The Supreme Court of Wisconsin ruled last year in Schill v. Wisconsin Rapids School District, 327 Wis. 2d 572 (2010) that personal emails sent by government employees on government computers and networks aren’t necessarily records within the meaning of the state’s open records law. Even if the emails are connected to a "government function" and thus count as records, a reviewing court must still "undertake a balancing test to decide whether the statutory presumption favoring disclosure of public records is outweighed by any other public interest." Were a court to undertake this balancing act in analyzing Cronon’s emails, I noted that it was easy to imagine academic freedom being cited as one of the countervailing public interests. This point needs some expanding.
While the precise contours of academic freedom have proven somewhat elusive to both courts and legal scholars—see my colleague Erica Goldberg’s excellent legal scholarship on institutional academic freedom, which discusses this nebulosity in depth—any conception of academic freedom includes, at a minimum, the professor’s general right to discuss ideas with his or her colleagues and students without fear of official reprisal. An open records request like the one at issue here is of course not official reprisal—for one, it is generated by a fellow citizen or group of citizens, not the state, although the state itself must enforce it. But were open records requests to be regularly invoked by private citizens in attempts to burden, embarrass, or otherwise hassle those professors whose research and scholarship they found objectionable, these legal requests might soon amount to a real threat to academic freedom, casting a chill on speech in the academy and encouraging professors and students to avoid dialogue about unpopular or controversial subjects. Put another way: If professors worried that every time they wrote anything controversial, they’d be forced to submit all of their emails into the public record, they would certainly think twice about writing anything remotely controversial. That would negatively impact both their right to speak as citizens and the robust academic exchange we expect on our campuses.
In that sense, the potential for abuse of legal avenues presented by open records laws to harass or silence a particular speaker reminds me of so-called SLAPP litigation—that is, "strategic lawsuits against public participation." SLAPP lawsuits are those complaints filed by an aggrieved party against a vocal critic in an attempt to embarrass, burden, or intimidate the critic into silence. The idea is that if one can’t best (or can’t be bothered to best) a critic in public debate—or if one just wants to avoid debate altogether—one can simply haul one’s critics into court with a barrage of claims that are too costly or time-consuming to fight. SLAPPs have become such a problem in recent years that 26 states have passed "anti-SLAPP" legislation, providing various means for defendants faced with SLAPP suits to avoid such litigation.
While the comparison is inexact, the abuse of litigation in this way and with this intent mirrors my concerns about the potential effect on academic freedom posed by the abuse of open records laws. Anyone can file an open records request; anyone can file a complaint. This is how it should be, and both recourses are necessary and of vital importance to our modern liberal democracy. However, using these entirely legal avenues in an effort to burden speech or academic inquiry deserves to be criticized.