Blogs > Cliopatria > Boundaries

Mar 26, 2011


Man on a battlefield picks up a rifle and shoots at a passing squad of soldiers. The soldiers bound toward him, weapons raised, and the man throws down the rifle."Don't shoot," he shouts, waving a press card."I'm a reporter!"

Professor at a public university, known for his smart scholarship in the field of nineteenth century U.S. environmental history, writes a blog post attacking a contemporary political initiative undertaken by his governor. The governor's political party tries to embarrass and intimidate him, and he scrambles onto a pedestal as he shouts for them to stop. You can't attack me, he says. I'm a scholar.

How far does the umbrella of"scholarship" extend? What are the limits of academic protection? Can scholars claim the safe harbor of"academic freedom" while engaged in political activities that are unrelated, or not directly related, to their scholarly field?

We've had a highly personal discussion about this in comments below, and I'd like to change the tone and the nature of the question. As a general principle, may scholars reasonably take refuge in the claim of academic freedom for political activity outside their field of scholarship?

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Andrew D. Todd - 3/29/2011

You understand, or perhaps you may not, that the marginal cost of an e-mail, in terms of computer resources, is on the order of a millionth of a cent. If you stay late in your office, and consequently have to visit the "gents" before going home, that costs the institution much more money than an e-mail. As a general rule, most of the money a computer support department spends is in running a tutoring service to teach people how to use computers, especially people who do not take to it like ducks to water. That is what is expensive. That and addressing the needs of new groups of customers who are doing things which the computer establishment had not previously foreseen. These are often related concepts, eg. redesigning a computer system so that it can be used by someone who flunked math. The purpose of restrictions on e-mail is not to save money, but to control people.

Obviously a manager in the state highway department is supposed to build roads where the governor says to build roads. The governor, being elected, does have the right to set policy. A manager in the state highway department would probably be in trouble if he criticized the governor, writing at home, using his own private e-mail account, and not using his official title. Some jealous rival would point out that he was the author of such and such a piece. What the governor objects to, of course, is the statement that "I am John Smith, and I know all about roads by virtue of having built a lot of them, and in employing me, the government concedes that I am a good road engineer, and I think this piece of government policy is a dumb idea."

Of course, there is a certain justification to the governor's viewpoint. A manager in the highway department has operational responsibility. He might not make the extra effort to make something work if he thinks it is a dumb idea in the first place.

People like that generally feel they need pseudonyms. For example, I know of a man called "6," though I don't know his real name. He's a patent examiner, or at least he says he is (and I believe him, based on circumstantial evidence), and he critiques the patent office from within. The patent system is fantastically corrupt, you understand, not merely in the sense of being beholden to powerful interests, but in the more basic sense of being dominated by petty corruptions, like the policeman who steals things out of stores on his beat, and doesn't even feel the need to conceal his thefts, and who pays his desk sergeant a percentage. That level. Like "Junius" before him, "6" needs to be anonymous.

For what it's worth, Maarja Krusten seems to worry at least as much about showing that she wrote things during her break time as about not using government computers.

Universities are different from the ordinary civil service. Professors are paid to think, and often to think about political matters. If you combine that with allowing the Governor to set policy, you get Moscow State University, where the history department was required to "prove" that the Communist Party of the Soviet Union is the best of all possible worlds, and that the the Great Purge, the Liquidation of the Kulaks, and the Gulag Archipelago never happened. And so on and so forth. For example, Andrei Amalrik, the famous author of _Will the Soviet Union Survive Until 1984_ (*) and _Involuntary Journey to Siberia_, started his career as a political dissident when he wrote a university thesis suggesting that there might have been a Scandinavian component in the early Russian state of Kiev, circa 900 A.D. They flunked him out, of course, and he was launched on his career as a subversive. One of the things he did was to run an underground art gallery in his dormitory room, where dissident painters could sell their work. Inevitably, the KGB came down on him for "social parasitism." Intelligent Russians tended to steer away from humanities and social sciences toward things like basic science which were reasonably apolitical. The case for an independent professoriate is not dissimilar to the case for an independent judiciary.

(*) He was only off by six years.

Chris Bray - 3/28/2011

Replied at your site -- thanks for the comment.

Jeremy Young - 3/28/2011

I've been reading these comment threads for a couple of days now, and they've made me think a lot about the issues at hand. Unfortunately, after all that thinking, I wasn't able to fit my response in the comment box, so I've put it here instead.

Chris Bray - 3/28/2011

About this: "There are people holding patronage appointments, who exercise independent judgment, and there are people holding civil service status who do not exercise independent judgment, and who obey lawful orders."

As a newspaper reporter, I routinely used my state's public records law to obtain the email messages of low level civil service types who just obeyed orders. No one ever tried to keep them from me, except to claim narrow exemptions for particular documents under particular sections of the law.

If a mid-level regional manager at the highway department used his state email address to write public attacks on the governor, we wouldn't be having this conversation -- he'd be unemployed or out on a long suspension.

Ralph M. Hitchens - 3/28/2011

I believe it's proper from both a personal and institutional standpoint to require personal political expression involving the Internet to be done via one's personal e-mail account outside the employer's domain. Ergo, the university itself should have come down hard on Cronon -- take it to gmail, or yahoo, or wherever, but don't use "badger.edu." If he does keep such expression off-site, and otherwise discharges his professorial responsibilities in a satisfactory manner, those petty, vengeful Republicans would have no leg on which to stand.

Andrew D. Todd - 3/28/2011

The question is not whether the Republicans can say nasty things about William Cronon. The question is whether they can get access to his e-mails or not, under the open records law. The Republican contention is essentially that Cronon was acting in his capacity as a government official when he wrote a letter to the New York Times. Within officialdom, there are two kinds of people. There are people holding patronage appointments, who exercise independent judgment, and there are people holding civil service status who do not exercise independent judgment, and who obey lawful orders. The governor's speechwriter belongs to the former category, a welfare disbursing clerk to the latter. Professors do not fit into this dichotomy.

I understand that the law of E-mail is still rather undefined, as yet. E-mail is simply too new to have much of a body of case law. However, if one looks at the established law of paper mail, the offense of paper mail tampering is defined in a reasonably expansive way, as in the Carslake case cited below. Carslake accepted letters from the postal carrier, saying in effect, yes, I can deliver these to the person named, and then he turned around and maliciously retained and destroyed the letters for his own profit. In accepting mail for someone, you take on responsibilities to deliver it. You can't just open someone's mail because it comes to the office. This applies especially if you do something overt like putting up a mailbox with someone's name on it. Of course, some kind of reasonable accommodation has to be made for junk mail, and spam in the e-mail sphere, but that is a separate matter.

A letter a professor receives, let us say, in his capacity as chairman of the admissions committee, does fall within the scope of official business. However, a letter concerning his writings which fall within the scope of academic freedom does not. I grant you that academic freedom does not necessarily include the freedom to do nothing, but the obligations are not closely tied to employment either. For example, someone who has published much more than anyone else in the department, before he came to a given university, and who was hired to tenure, is effectively immune to criticisms of not having publishing anything recently. The obligation is not so much to publish, as to be a person who has published, and the grade of Assistant Professor is simply a concession to the fact that most people do not have enough private means to carry them along until their merit is clearly established.

In e-mail practice, official communications tend to be segregated out, to a greater extent than in snailmail. There is a designated address for applying to graduate school in a particular department, as well as one for each search committee. Likewise, it is increasingly common to create separate e-mail accounts for particular sections of particular courses in particular terms, so that all the homework papers get sorted out. It is much easier to create new e-mail addresses than to carve new holes in the wall separating the department office from a corridor and to install new cubbyhole mailboxes in that space. A standard mail-client running on a personal computer can methodically gather up mail from any number of different accounts. For that matter, there used to be a distinction between standard letters, where one stuck a stamp on a letter-sized envelope, and dropped it in a blue mailbox on the street, versus big manila envelopes, which one had to carry to a post office, so that a clerk could weigh them and assess postage. That sort of distinction has largely dropped out with e-mail. At any rate, the residue of e-mail arriving in a professor's named e-mail account tends increasing to be material relating to his identity as a scholar, not his identity as an academic official.

Now, as it happens, institutions such as universities have assumed much of the role for e-mail and internet access which the post office performs for snail mail. The military paid for e-mail, and the internet, in the first instance, when it was a new technology, and rolled it out to universities via DARPA. There were arrangements whereby, once you were affiliated with a university, you could keep an e-mail address even if you cease to be employed or enrolled. You got your e-mail address with your alumni T-shirt, so to speak. This worked out to the universities taking on the role of the post office. That only works on the assumption that they play by the same rules. The whole public utility standard. The mayor is not allowed to turn off the water to your house because you disagree with him in the local newspaper. Comcast keeps insisting that it has the right to sell your confidential information for its own profit. The universities represent the principal bulwark against that kind of thing. The generals and the admirals were entitled to assume that the universities would operate e-mail and internet access with the same commitment to integrity and universal access as the United States Postal Service. If the military had not trusted professors, they would have rolled out e-mail through the Post Office instead. The pattern of E-mail is not something unique. In the nineteenth century, for example, the United States Navy had a practice of giving Annapolis-trained naval officers paid leave-of-absence so that they could become professors of mechanical engineering in state land-grant universities. The idea was that the Navy would carry the new professors in a new field across the awkward interval before they could draw salaries from the state legislature. The pattern was simply reproduced for computers. The military recognized the universities as agents of the public interest.

There are technical improvements which can be made in e-mail, of course. I can envision a system in which e-mail travels encrypted, and you have to download a key from a separate website. This is not unbreakable, of course, but it does turn the act of reading someone's e-mail into an overt act, similar to tearing open a letter, and it might be much cheaper to implement than personal cryptographic certificates. If both parties have certificates, they can publish these wherever they post their e-mail addresses, and the correspondence can be encrypted from the first. One interesting proposal, some years ago, was that everyone should have his own personal home or office e-mail server, similar to a telephone answering machine, and quite possibly built into one. That would eliminate the need to store e-mails in public facilities. It would give an e-mail the same "sealed against inspection" quality of a first-class snailmail letter.

Here is an illustrative case. Reduced to essentials, the defendant, Carslake, recruited Russian guest-workers on false pretenses, employed them as ice-cream-truck drivers, housing them in apartments controlled by a confederate (presumably about ten to a room), and, by fraud and terror, sought to reduce them to a condition of slavery. When the immigrants filed for working papers, in order to find another employer, they were obliged, presumably for want of any alternative address, to use their employer's address. Carslake intercepted mail sent to the immigrants by the United States government, in order to hang onto his labor force. He pled guilty to Obstruction of Mail, presumably in a plea bargain to avoid more serious charges.


Chris Bray - 3/27/2011

That's a careful and well-balanced assessment, and a good way to look at it. Well said.

Aaron Bady - 3/27/2011

If Cronon's emails are only going to be used to intimidate and embarrass him, then this seems like the usual nothing-to-see-here kind of thing; he got political, he gets dirty.

But if those emails are going to be used to get thim fired for using state property in political advocacy activities or something (or to establish that university professors are not to engage in politics, at risk of their job), then something very like "academic freedom" is at stake here.

In other words, it really matters what "academic freedom" is being used as a shield from. To use it as a shield from "attacks" (by which you mean, I take it, the rough and tumble of rhetorical politics) would be as silly as when a politician claims that being criticized is an offense against their first amendment rights. But when we're talking about the prospect (or threat) of him losing his job at a state institution of higher learning as a result of expressing political opinions, well, then we're talking about something very different. Morever, while Bill Cronon is unlikely to be fired from UW, he's not wrong to note the chilling effect this is likely to have on other, less distinguished professors.

Chris Bray - 3/27/2011

But of course you're free to speak about whatever you want, wherever you want. The question is about where you might invoke the protection of status against the responses that you might provoke: you can't attack me, 'cause I'm a scholar.

I mean, thank god scholars work outside their field. But here we have someone who is claiming that his academic freedom is in jeopardy because he's under attack over something that wasn't a piece of historical research or a lecture in a classroom. He's invoking his status as a scholar for something unrelated to his work as a scholar, and for plainly partisan political engagement.

"Chris Bray, I hate what you write at Cliopatria -- you're an asshole."

"My god, you're attacking my academic freedom? Are you trying to chill my ability to engage in historical inquiry?!"

The one thing is not the other thing.

(We have a three year-old daughter, is why I'm pathetically blogging on a Saturday night....)

Jonathan Dresner - 3/27/2011

You're assuming that "field of scholarship," i.e. research, is the limit of academic freedom. We all teach well outside of our areas of research -- some of us much more than others, granted -- and academic freedom has generally been extended to the classroom as well as to publication. If we have the right to speak and teach freely in areas of expertise in the classroom, why not outside of it?