Saturday, March 26, 2011

Emails From Wisconsin Professor Are Protected By Right of Academic Freedom

A constitutional issue concerning emails has arisen in the Wisconsin Union debate.  According to news reports, the Wisconsin state Republic Party has requested copies of the emails from a history professor who had spoken and written critically of the Republican governor.  “There is an academic freedom issue here,” he said in the report.

The issue is whether there is a First Amendment right to "academic freedom," and whether a subjecting a professor’s emails to state open records laws violates that right.  The argument in favor of this conclusion is that requiring the production of the emails will have an unduly chilling effect on academic freedom and free speech.

I think that the academic freedom issue here outweighs the interests in the provision of the records, and that the professor has a good argument that his emails are protected by the First Amendment.

The Supreme Court has recognized the crucial role universities play in the dissemination of ideas in our society.  In doing so, it recognized academic freedom as a “special concern of the First Amendment.”   In a 1967 case, Keyishian v. Board of Regents of University of New York, the Court said:  “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.”  And, in the famous Baake case on affirmative action, the Court said:  “Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment.”

In 1957, the Court in Sweezy v. New Hampshire, considered a college professor's refusal to answer questions about the content of his lectures and his knowledge of the Communist party.  A plurality of the Court concluded:

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. 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.

I think that the Wisconsin Professor has a good argument that the First Amendment protects his emails from disclosure.  The state argument is the open records law is a reasonable regulation that assists in good government.  This is undoubtedly correct, although the interest is less substantial than when applied to primary and secondary schools. 

A key feature of academics – and part of the reason public universities grant tenure – is that academics serve a state interest by engaging in scholarly research and debate.  There is no doubt that emails exchanged with colleagues contain ideas that are not only controversial but in the developmental stage.  Likely, a professor will suggest an idea to a colleague, only to later reject the idea upon further deliberation or the receipt of comments.  Requiring a professor to disclose emails will have a significant chilling effect on this exchange of ideas.  This is especially true when the professor is discussing controversial or high profile issues.

I hope that the professor in Wisconsin considers a fight against this request.


  1. It is not the state that is chilling the suppression of an idea. The First Amendment protects against state action. Here, the action is taken by a private group. I think this may be a decisive issue.

  2. Thanks for the comment. The state action in this case would bs the Wisconsin law that requiresthe disclosure of the emails.