Silencing EPA Science

By Lindsey Stiles (Rutgers Law Student)

White House directives put a muzzle on federal agencies as landing teams were put in place to manage agency re-alignment with the incoming Administration’s political agenda.  These so-called “gag orders” halted external communication, prohibiting agency employees from publishing news releases, social media posts and blog updates, a move that led to cries of censorship and violations of free speech.  Advocates rebelled on social media while other media outlets reported accusations that the Administration was specifically targeting agencies and programs that focus on climate change research, such as the Environmental Protection Agency.

This is not surprising considering President Trump’s history of climate change denial, tweeting as early as 2012 following President Obama’s reelection that “[t]he concept of global warming was created by and for the Chinese in order to make U.S. manufacturing non-competitive.”  Nor are they calmed by his choice of Oklahoma Attorney General Scott Pruitt (R), who has downplayed the nature and extent of climate change, to lead the EPA.  Additional concerns arose following comments made by incoming EPA official, David Kreutzer, when he suggested that we think of the positives of more carbon dioxide in the atmosphere, such as that it promotes plant growth.

But attacks on the Administration’s freeze of external communications suggesting a violation of free speech is overblown and, perhaps for the foregoing reasons, misguided.  A number of commentators, including members of the Administration’s landing team, maintain that public response has distort[ed] “what appear[s] to be typical events … into perceived acts of political malice.”  In other words, it is not uncommon for new Administrations to “pause” communication so that they can review the information and make sure that the information being disseminated aligns with its policy goals.  Nor is it abnormal for administrations to try and control information in an effort to promote their political agenda. However, there is concern that this Administration’s attempt to control information appears to be “more sweeping” than ever before.

Spokesmen for the Administration’s EPA transition team announced that scientists’ research will be subject to review on a “case by case basis” before it may be published in an effort to ensure “that the voice coming from the EPA is one that’s going to reflect the new Administration.”  More recently, congressional leaders have been inspired by the new climate change-doubting Administration in their renewed discussions of legislation designed to restructure the procedure by which the EPA utilizes scientific research in creating regulations.  The first bill, also known as the Secret Science Reform Act, would permit regulations based only on scientific findings that are both reproducible and publicly available. Under the second bill, the EPA Science Advisory Board Reform Act, the board would be reconstructed so as to have fewer scientists and more “public input,” including industry representatives.  While both certainly violate the agency’s integrity policy, which protects scientific findings from political interference and personal motivations, it is less certain whether they constitute an abridgment of free speech.

Although the question of whether scientific research is subject to constitutional protection remains unsettled, the Supreme Court has hinted that scientific speech is a protected form of expression.  Specifically, and especially relevant here, the Court found that “[t]he First Amendment protects works which, taken as a whole, have serious … scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent.” (emphasis added.)  Thus, it would appear that the proposed legislation, which specifically targets scientific research conducted and utilized by the EPA, might directly and/or indirectly violate free speech. The proposed limitation on “useable” scientific data would indirectly prohibit the use of protected personal health information as well as studies of one-time events, (think Gulf oil spill), delegitimizing otherwise valuable and reliable studies.  Similarly, opponents of the Science Advisory Board Reform Act allege that it would lead to a stacking of the board with scientifically unqualified, industry-friendly members who will suppress or otherwise misrepresent any research which interfere with industry goals.  Moreover, the pressure to produce politically favorable results not only undermines the marketplace of ideas, but also discourages and represses true scientific inquiry.

So what of the fact that we are talking about government employees?  On the surface it appears that the government is free to suppress their scientific findings not in alignment with its political agenda.  It is generally accepted that the government as an employer may exert more control over its employees than it may over the average citizen.  Moreover, in 2006, the Supreme Court found that speech owing its existence to a public employee’s professional responsibilities is not protected. However, the 2012 Whistleblower Protection Enhancement Act might extend these First Amendment protections to those government scientists who report any manipulation or other political interference with their work to the extent they can show such disclosure concerned government activity they reasonably believed to violate a rule (such as the EPA’s integrity policy), is an abuse of authority or where they can show a substantial and specific danger to public health or safety.

As much of the outcry appears to stem from assumptions based on campaign rhetoric and political appointments, whether the EPA’s research is in danger remains to be seen.  That being said, agency scientists who enjoy less protections than the average citizen may be limited to whistleblowing as their only means by which to protect their research.

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Free Speech on Berkeley Campus

By Lori Smith (Rutgers Law Student)

As the birthplace of the free speech movement, it is ironic that the University of California, Berkeley (UC Berkeley) has been under attack with allegations of stifling free speech on its campus. It started when the Berkeley College Republicans booked controversial writer and now former Breitbart news editor, Milo Yiannopoulos, to be a guest speaker. Almost 100 faculty members immediately signed letters of protest urging the administration to cancel his visit; and on the night Yiannopoulos arrived, 1,500 people showed up to protest. While initially peaceful, the protests escalated to dangerous riots when roughly 150 anti-fascist radicals appeared with clubs and shields and caused over $100,000 in damage. The “masked agitators” lit fires, hurled Molotov cocktails, smashed windows, and tore down police barricades. Out of concern for public safety, UC Berkeley administrators canceled the right-wing event just hours before Yiannopoulos was set to speak.

Believing UC Berkeley was obstructing conservatives’ First Amendment right to free speech, critics reacted strongly, including President Trump who tweeted this threat:

Federal funds account for $370 million of the total $673.9 million UC Berkeley receives in research funding from external sources each year. This figure does not include the millions of federal dollars that flow to UC Berkeley in the form student loans and grants to cover the cost of attendance (e.g. 31% of students receive income-based federal Pell grants). Coupled with Trump’s viewpoint of California in general, one cannot help but wonder whether President Trump was just engaging in another Twitter rant, or if UC Berkeley should brace itself to lose a significant chunk of change, including more than half of its total research funding.

While the federal government is permitted to impose certain conditions on federal spending, there are no prior instances of a POTUS linking free speech and federal funds. President Obama once issued a warning to public schools regarding the use of bathrooms by transgender students, but it was grounded in Title IX law that penalizes schools found to be discriminatory with a loss of Title IX funds. While the executive branch may try to pull federal funds from public institutions for civil rights violations, experts agree that, as of now, it cannot do so on free-speech grounds. For Trump to withdraw funding from UC Berkeley, he would first have to ask Congress to pass a new law.

Hypothetically, at President Trump’s urging, the Republican-majority Congress could pass a law or budget bill that puts conditions on the federal funding provided to “out-of-control” California and liberal-leaning UC Berkeley, but numerous Supreme Court decisions have imposed limits on any such conditions that protect states from vindictive policymaking. For starters, if Congress wants to condition states’ receipt of federal funds, it must do so unambiguously, enabling states to knowingly exercise their choice of participating in a federally funded program. Conditions must also be legitimately related to the federal interest in the particular project or program being funded.

But more importantly, and on point with the situation here, any conditional spending must not be “coercive,” whereby a state is unconstitutionally forced to comply because it needs the federal money to operate. For example, in an opinion primarily authored by Chief Justice Roberts, the Court held that Congress’ conditioning of a state’s federal Medicaid funds on whether the state acted in accordance with the Affordable Care Act was unconstitutionally coercive. While they did not unite under any single opinion, a majority of the Justices concluded that Congress has no authority to order the states to regulate according to its instructions. Congress may offer the states grants and require the states to comply with accompanying conditions, but the states must have a genuine choice whether or not to accept the offer.

Thus, given relevant case law, it is unlikely that Trump and Congress could succeed in penalizing UC Berkeley for events like that which occurred with Yiannopoulos’ visit, for they would have to show that withholding federal funds is uncoercive, unambiguous, and legitimately related to their interests in subsidizing UC Berkeley’s research program and in providing tuition assistance.

Not only is case law against President Trump here, but so are the facts of this case. Despite strong protest, UC Berkeley had actually refused to ban Yiannopoulos, and only cancelled the event (to be later rescheduled) due to real violence, i.e. not just the threat of imminent violence. Moreover, in an open letter to the campus community, UC Berkeley Chancellor Nicholas Dirks deemed the violence “an attack on fundamental values,” and reaffirmed UC Berkeley’s commitment to free speech not only as a “vital component of . . . campus identity but as essential to [UC Berkeley’s] educational mission.” And so, rather than attempt to unconstitutionally coerce UC Berkeley into complying with conditional funding, President Trump should just allow UC Berkeley to continue on with its unwavering pledge to honor the First Amendment.




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One Mann’s Assault on the First Amendment Continues

By Robert Lufrano (Rutgers Law Student)

It has been over four years since Dr. Michael E. Mann, climate scientist at Pennsylvania State University, filed an anti-defamation lawsuit against conservative magazine National Review and its columnist Mark Steyn, and public policy think tank Competitive Enterprise Institute (CEI) and its former adjunct fellow Rand Simberg. Yet the D.C. Superior Court has still not decided this case on the merits. The case had been stayed pending an appeal regarding procedural matters with respect to D.C.’s Anti-SLAPP Act, when finally this past December the D.C. Court of Appeals decided to allow the case to proceed and that Mann had offered sufficient evidence to succeed on the merits, and thus dismissed the defendants’ motion.

Mann filed suit in response to online columns published by Steyn and Simberg criticizing Mann and his 1999 “Hockey Stick” graph, which had been heavily promoted by Mann and the IPCC (Intergovernmental Panel on Climate Change) as proof of man-made global warming.

Referring to the so-called “Climategate” scandal of 2009, wherein leaked emails allegedly showed Mann and U.K. researchers attempting to cover-up scientific data that didn’t support Mann’s global warming graph, Simberg wrote an online article for CEI stating that Mann could be said to be the Jerry Sandusky of climate science, except for instead of molesting children, he has molested and tortured data in the service of politicized science”, with Simberg playing on the fact that Mann and the infamous child molester Sandusky were both employed at Penn State. Steyn then wrote for National Review that “Michael Mann was the man behind the fraudulent climate-change ‘hockey-stick’ graph, the very ringmaster of the tree-ring circus”, alluding to Mann’s use of tree ring data to support his graph. It is principally these comments that led Mann to file his lawsuit, claiming that they harmed his reputation.

The defendants’ primary contention is that Mann is attempting to silence their views on contentious political issues in violation of their First Amendment rights. The defendants assert that their statements are constitutionally protected statements of opinion that were not made with actual malice or reckless disregard for the truth under NY Times Co. v. Sullivan, and Steyn in particular also insists that his assertions were in fact completely true, i.e. that Mann’s “Hockey Stick” was created with fraudulent data.

Aside from the First Amendment implications, Mann’s lawsuit is troubling in several other respects. As an initial matter, how is the Anti-SLAPP Act doing its job of deterring lawsuits that chill free speech when it takes years to resolve a special motion to dismiss? Moreover, the pleadings evince a rather hypocritical Mann, employing ad hominem attacks and making misrepresentations about his credentials. The complaint repeatedly refers to the defendants as climate change “deniers”, and the original complaint contained multiple false assertions that Mann was a Nobel Peace Prize recipient. This being untrue, Mann eventually had to amend his complaint to “clarify” that he was never in fact awarded the Nobel Prize (though how Mann could be confused on this point in the first place is still unclear). It is also unclear what reputational damage Mann has suffered, as he is still employed at Penn State, and is still being touted as a climate change authority by news outlets.

Finally, even though Mann proclaims to be defending science by initiating his lawsuit, not a single scientist has filed a brief on his behalf. In contrast, climate scientist Dr. Judith Curry has recently filed an amicus brief on behalf of the defendants. The brief is a scathing rebuke of Mann, his research, and his apparent pattern of trying to silence his detractors instead of allowing his research to speak for itself and stand up to scientific scrutiny. Indeed, Mann has also filed an anti-defamation lawsuit in Vancouver against Canadian geographer Dr. Tim Ball after Ball questioned the integrity of Mann’s data. Also of note is that in 2015, Steyn, while waiting for the case to go to trial, released a book entitled A Disgrace to the Profession, The World’s Scientists in Their Own Words on Michael E. Mann, His Hockey Stock, and Their Damage to Science. The book is a compilation of lengthy quotes from climate scientists the world over, criticizing Mann and the legitimacy of his “Hockey Stick”.

Not surprisingly, free-speech advocates are aligned against Mann. Numerous briefs have been filed in support of the defendants by such diverse media and public policy outlets as the Washington Post, the ACLU, Cato Institute, Fox News, NBCUniversal, Time, etc. It is clear that the importance of the free speech issues here have brought together an unusual alliance of climate change skeptics and proponents, scientists, and both conservative and liberal organizations. Should Mann prevail on the merits, it could have a very chilling effect on the free speech rights of news and opinion outlets, especially those which often thrive on provocative and incendiary commentary spanning the entire political spectrum, from Breitbart News to The Huffington Post.

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Proposed Indiana Senate Bill 285 Will Fence In Protesters

By  Timothy McMahon (Rutgers Law Student) 

When a massive crowd of people takes to the streets marching for a cause it is breathtaking to behold, and could have a symbolic effect that can last generations. From the Selma Marches to The Million Woman March, the images and messages that emerged from these demonstrations have left lasting imprints on America’s history. It is natural that when protesters look at the best way to effectuate their message, they turn to these marches as examples and take their message to the streets. We have seen over the last few years activist groups such as  Occupy Wall Street and Black Lives Matter do just that, by taking their fight to the streets. These protesters feel that by blocking traffic they are raising awareness for causes of social justice. Similar to the protesters who marched in those historic marches, today’s protesters hope that by taking to the streets they bring about social change.

Several Republican State Legislatures have introduced bills in 2017 addressing these protesters who spontaneously demonstrate in the middle of streets. My home state of Indiana is one of such states to propose a version of this bill. The proposed bill, Senate Bill 285, states that a public official must after fifteen minutes of receiving news about a road blockage due to protesters blocking the roadway send all available law enforcement to remove the protesters by “any means necessary”. The sponsor of the bill, Senator Tomes, claims that the bill is designed to keep traffic flowing smoothly, keep the roads open for emergency services, and for commerce related reasons. Opponents claim this bill is designed chill political speech and also justifies the use of brutal police tactics. If this proposed bill passes and becomes law, it may be challenged as being unconstitutional.

Time, place, and manner restrictions are constitutional, so long as they are content neutral, narrowly tailored, serve a significant government interest, and it leaves ample alternative channels for communication. Following this guideline, it is likely this proposed Indiana bill will likely pass constitutional muster. First the bill is content neutral, it does not specifically say certain groups or messages can protest in the street and certain groups or messages cannot. Second the bill serves a significant government interest, to promote the free flow of travel and prevent the disruption of emergency services are the stated government interest. The government could also state safety and disturbance of the peace as an interest as well. There have been several incidents that show protesters being mowed down by vehicles and fights erupting that would support a claim that safety and keeping the peace are significant government interests.

This restriction leaves ample alternative channels for communication available to groups who protest. Courts have read alternative channels to mean other things including different channels and mediums of communication. An alternative does not need to be first choice of a way to communicat . In The City of Chicago v. Alexander, the court said that protesters being denied overnight stay at a park could come back the next day to protest, or take the protests to the sidewalks right outside the park, or any number of different things. The proposed bill is designed only to prevent spontaneous protests in the street. Protesters may still take their cause to the local park or to the sidewalk without any quarrel, or as Senator Tomes claims that groups that want to hold a demonstration in the streets should apply for permits in advance in order to so.

While permits requiring advance notice that follow time, place, and manner restrictions are generally deemed constitutional, courts have created a way out for spontaneous demonstrations to circumvent these usual restrictions. A permit or ordinance must allow for some alternative for expression for “fast breaking” events. If there are no alternative form of expression or exception to these permits or ordinances for these fast breaking events, then these notice requirements may place a heavy restriction on freedom of speech.  “Spontaneous expression may be vital to a speaker’s message because a spontaneous event expressing a viewpoint on a topical issue will almost inevitably attract more participants and more press attention, and generate more emotion, than the “same” event 30 days later,” Doyle v. Commissioner, New Hampshire Department of Recourses and Economic Development. A general outright ban on spontaneous demonstrations in public spaces are also deemed to overly infringe on protester’s freedom of speech.

The state will argue that there are plenty of alternative ways to get the message out there including sidewalks and parks. Opponents of the bill will claim that their message losses the same effect by not taking in to the streets. Would the Selma Marches and the other famous marches have had the same social impact as they did if they been force to a park or had to be on the sidewalk? In the protester’s view, blocking traffic is essential for their protests to be effective. That being said the general population has a right to move freely, and police usually do not violate the protester’s first amendment rights by arresting them for impeding others from traveling or entering into public places. Plainly speaking, protesters do not have a first amendment right to block vehicles or pedestrians.

If there is a fatal flaw with this bill, it could be argued that it does not provide an alternative for fast breaking events. If the Indiana Legislature would like this bill not to be struck down, they would be wise to add a sentence or two that would make it clear that the officers are to move the protesters to an appropriate place or another alternative place where they could demonstrate.

This proposed bill would likely satisfy the final requirement, in being narrowly tailored. It does not appear to be overbroad by including more speech than is required to achieve their legitimate government interests.

It is also worth noting that “any means necessary” would not mean that police could use brutal tactics. The police would still be subject to the fourth amendment excessive force laws as they were laid out in Graham v. Connor. In conclusion, this bill is likely to pass intermediate scrutiny for the time, place and manner restrictions. That being said, there are still questions on whether it provides an alternative channel or an exception for spontaneous demonstrations.

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