Just a quick update, several organizations filed an amicus curiae brief on August 17 on the side of UVA. It didn’t get any press attention (and I haven’t had a chance to read it), but it can be found linked from my court filing page. The organizations involved are Union of Concerned Scientists, the American Association of University Professors, the American Civil Liberties Union, and the Thomas Jefferson Center for Free Speech. It is worth noting that 3 of these 4 organizations are non-partisan (I would personally argue that the Union of Concerned Scientists is the exception).
UPDATE: I have finished reading the document. Nothing terribly new other than some longer quotes from previous cases on academic freedom. However, one is worth mentioning. It was the Dow Chem Co. v. Allen (1982) (672 F.2d 1262), in which Dow sued a university scientists for all of his research notes on potential harmful effects of one of Dow’s chemicals. Dow lost, badly. And the leading judge had this to say about turning over scientific research to political opponents with an axe to grind:
To begin with, the burden of compliance certainly would not be insubstantial. More important, enforcement of the subpoenas would leave the researchers with the knowledge throughout continuation of their studies that the fruits of their labors had been appropriated by and were being scrutinized by a not-unbiased third party whose interests were arguably antithetical to theirs. It is not difficult to imagine that that realization might well be both unnerving and discouraging. Indeed, it is probably fair to say that the character and extent of intervention would be such that, regardless of its purpose, it would “inevitably tend( ) to check the ardor and fearlessness of scholars, qualities at once so fragile and so indispensable for fruitful academic labor.” Sweezy, supra, 354 U.S. at 262, 77 S.Ct. at 1217-18 (Frankfurter, J., concurring in result).24 In addition, the researchers could reasonably fear that additional demands for disclosure would be made in the future. If a private corporation can subpoena the entire work product of months of study, what is to say further down the line the company will not seek other subpoenas to determine how the research is coming along?25 To these factors must be added the knowledge of the researchers that even inadvertent disclosure of the subpoenaed data could jeopardize both the studies and their careers. Clearly, enforcement of the subpoenas carries the potential for chilling the exercise of First Amendment rights.
It’s nice to see that sometimes, the courts just get it.