How Ken Cuccinelli Distorts the Meaning of 'Liberty'

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Show me a politician who doesn't love "liberty," and I will show you an ex-politician.

In American history, "liberty" doesn't mean precisely the same thing as "individual freedom," and it doesn't have much to do with "equality." Dr. Samuel Johnson famously commented during the American Revolution that "the loudest yelps for liberty come from" Southern slave-owners. A century and a half later, the dyspeptic Sinclair Lewis wrote, "I tell you, an honest man gets sick when he hears the word 'Liberty' today, after what the Republicans did to it!"

When a federal district court in Florida held that the Affordable Care Act is unconstitutional, Virginia Attorney General Ken Cuccinelli hailed the result:  "Liberty has scored another victory today."

Freedom to write and think doesn't mean much if one has to worry about being charged with fraud if the government doesn't like your conclusions.

What would American liberty look like if--as he clearly hopes will happen--Ken Cuccinelli and his Tea Party allies take over?

Would it, for example, include broad freedom to think and write as we wish?

Cuccinelli recently underlined his support for the First Amendment in the wake of the Supreme Court's decision in Snyder v. Phelps (PDF). That case affirmed the right of members of the Westboro Baptist Church to picket the funerals of American service personnel as protest against our society's tolerance of homosexuality. "I absolutely deplore the vile and despicable acts of Fred Phelps and his followers," Cuccinelli told the Richmond Times-Dispatch after the decision. But the First Amendment "protects the rights of speakers we agree with, but also -- and more importantly -- it protects those speakers we would condemn."

Cuccinelli was one of only two state attorneys general who did not sign a brief urging to Court to permit tort damages against the Church for inflicting emotional distress on the grieving family. 

The decision in Snyder was pretty clearly correct. But we should take a second look at the Virginia AG's devotion to the rights of "speakers we would condemn."

As a Virginia state senator, Cuccinelli tried to make it a criminal offense for reporters to ring the doorbells of the recently bereaved. Senate Bill 1120, Cuccinelli explained, was designed "to keep reporters from bugging people" who are grieving. "There's obviously more than enough scuzzball reporters out there who don't have a shred of human decency to give a flying rat's tail about the condition or feelings or circumstances of these families -- they just want a juicy quote from them," he said shortly before the bill died an ignominious death in the General Assembly.

So the pain of the grieving family can't be protected from homophobic troglodytes -- but the city reporter for the local paper can be jailed. Cuccinelli's spokesman, Brian Gottstein, explained to me that there's no contradiction at all between the two positions. "SB1120 was about more about regulating private property," he wrote in an email. "As far as we know, the Westboro protestors have always protested on public property." 

This "property rights" formalism won't wash.  As the Supreme Court pointed out in the recent case of Watchtower Bible & Tract Society v. Village of Stratton, government can't forbid non-commercial speakers from knocking on doors unless the homeowner has told them their presence isn't welcome. Having been a city reporter myself, I can tell you that the standard procedure is to ring the family's doorbell and ask them if they want to make a comment on their loss. If they say no, the reporter turns and goes.

But often the bereaved want to speak to the public about the person they have lost.  After Matthew Snyder died, for example, the Baltimore Sun published this report:

At his mother's townhouse in Westminster last night, the family was still reeling from the news of his death, which was delivered to them Friday.  Corporal Snyder's mother, Julie Snyder, was too grief-stricken to talk but allowed her sister, Cathy Menefee, to speak for the family. She spoke of his keen sense of humor and an unwavering sense of responsibility, which culminated in his decision to join the military. "It sounds so cliche, but he died doing what he wanted to do," Menefee said. "He always wanted to be a Marine."

Was this intrusion by The Sun really worse than Westboro Baptist Church's picketing of Matthew's funeral?  Who are the "scuzzballs" in this story? 

If it were just a matter of this one idiotic bill, it wouldn't really be worth talking about. But Cuccinelli's recent actions evince a real hostility toward some "speakers we would condemn"-- at least if those speakers are disagreeing with him about an important public policy issue.

The Virginia Supreme Court this week granted review in Cuccinelli v. University of Virginia, Cuccinelli's probe of Michael E. Mann, a climate scientist at Penn State who once taught at the University of Virginia. Mann incurred the ire of the right-wing blogosphere when hacked emails were made public that some critics suggest showed him and other climate researchers fudging data to bolster the case that human activity is contributing to a rapid and potential catastrophic change in the earth's climate.

After the emails became public, Penn State conducted two separate inquiries (here and here) into his conduct as a scientist, and concluded that the attacks on him are unfounded. That wasn't enough for Cuccinelli, a loud denier of climate change. The attorney general demanded that the University of Virginia, Mann's previous employer, turn over to him hundreds of emails and records so that he could investigate him for fraud.

There's a First Amendment issue here. Freedom to write and think doesn't mean much if one has to worry about being charged with fraud if the government doesn't like your conclusions. Spokesman Gottstein again explained there's no contradiction:

[T]he attorney general encourages honest scientific inquiry . . . .  What sparked the inquiry was controversy over whether Dr. Mann may have used intentionally manipulated research results to obtain government-funded research grants, which would be fraud.

But four of the five grants Cuccinelli wanted to investigate were federal grants. As a Virginia judge pointed out when he dismissed the demand, Virginia's fraud statutes don't actually give the attorney general jurisdiction over federal grants (PDF). In addition, the judge said, Cuccinelli had not actually alleged that Mann had done anything wrong. "What the Attorney General suspects Mr. Mann did that was false or fraudulent . . . is simply not stated" in the state's briefs to the court, he wrote.

At oral argument, Judge Peatross asked the lawyer from Cuccinelli's office what the charges really amounted to.  The lawyer "referred the Court to the first 15 pages of his brief."

From reading those pages, the AG's quarrel with Mann appears to be not about fraud but about the philosophy of science. Two climate researchers, Silvio Funtowicz and Jerry Ravetz, have coined the term "post-normal science" to describe the problems of research into huge global problems like climate change, where information is incomplete and the potential consequences of error are catastrophic.  The idea builds on ideas developed by the late Thomas Kuhn, author of The Structure of Scientific Research, who divided scientific history into periods of "paradigm shift," when ideas change rapidly, and "normal science," when researchers work on smaller results within a generally accepted theory.  Kuhn disputed the idea that scientists pursue objective truth, without subjective preconceptions.

Cuccinelli's recent actions evince a real hostility toward some "speakers we would condemn"—at least if those speakers are disagreeing with him about an important public policy issue.

Call me a nerd: I spend my free time reading about the philosophy of science. Even so, I am not a scientist, and I'm far from sure I understand the subject. But apparently Cuccinelli has actually penetrated the "post-normal science" idea and found in it a danger to the state. Here's why Mann needs a good dose of investigation, the brief explains: Some of Mann's email refer to "the community" of climate change researchers. "Mann's reference to 'the community' . . . appears to be Post Normal jargon. Academics are free to follow any philosophy of science they wish.  Nonetheless, Post Normal Science has produced jargon which might be misleading/fraudulent in the context of a grant application if its specialized meaning is not disclosed or otherwise known to the grant maker."  

Cuccinelli's evidence of wrongdoing is that some language in Mann's emails indicate that he might have been influenced by a philosophy of inquiry Cuccinelli disapproves of, and that if he was, that language might have influenced some officials to award the grants and even though those officials might not have understood exactly what those words meant.
 
As attorney general, he has proclaimed himself chief scientific officer of the Commonwealth. Cuccinelli is in favor of "honest scientific inquiry"--as long, that is, as the scientists promise to prove their epistemological purity on demand.

"The spirit of liberty," Judge Learned Hand once wrote, "is the spirit which is not too sure that it is right."  Cuccinelli may be a friend of "liberty" but perhaps not of Hand's version.
 
I am grateful for his defense of my right to die in the gutter without federal health insurance.

But he's no friend of the First Amendment I know.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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