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Megan McArdle: What’s FOIA for? Not to chill free speech

Two University of Virginia students have filed a Freedom of Information Act request for professor Douglas Laycock’s emails and other correspondence. The intent does not seem to be to actually gain information, but rather to punish the law professor for supporting legal causes that they view as inimical to gay rights.

Presumably, it has occurred to them that this could have a chilling effect on other professors who might be tempted to give aid and comfort to the enemy. A local news station obtained a copy of an open letter that the students wrote to Laycock; notably absent is any malfeasance they hope to uncover through the FOIA request, other than Laycock’s writing things they disagree with. They do say they want a dialogue, but they seem to have an exceedingly strange idea of what constitutes a good icebreaker.

Is it too obvious to point out that this is not what FOIA requests are for? Well, apparently it’s not obvious to the students, Greg Lewis and Stephanie Montenegro, so let’s go ahead and point that out. The purpose of the requests is to allow citizens and taxpayers to keep track of what their public servants are doing, not to hassle public servants whose opinions you don’t like.

This seems somehow of a piece with the recent foofaraw over commencement speakers. There has always been a segment of the left that views free speech with suspicion — as a tool of the oppressor against the oppressed. That strain seems to have become more dominant in the last few years.

I view this as deeply wrong on many levels: It’s incompatible with a pluralistic society, and it infantilizes the groups it wants to protect (including, as a woman, me). Like Timothy Burke, I also view it as tactical suicide when the majority of the country is well to the right of you and doesn’t particularly care to be told to shut up. As he laments, these groups have now begun advancing on academic freedom, not understanding that they are bombarding the very foundations of the amphitheater in which they are safely proclaiming on the dangers of everyone else’s speech.

If these students succeed, they will of course open up a new line of attack for all sorts of people they hate. If they can FOIA Laycock for supporting Hobby Lobby Stores Inc.’s fight against the Affordable Care Act’s contraception mandate, then why can’t religious conservatives file such requests against law professors who oppose Hobby Lobby’s position?

Ultimately, the effect would be to radically curtail academic freedom for any professor at a public university. I gather that is not their goal; their goal is to stop only those whose views they consider odious. Which, again, is not really possible in a pluralistic society.

The good news is that the FOIA request might not get very far. Earlier this year, the Virginia Supreme Court rejected efforts by conservative groups to obtain email correspondence and other records from controversial climate scientist Michael Mann. In its opinion, the court explained it would not read the Virginia open records law in a way that would place public universities at a competitive disadvantage with private universities.

Which seems to mean that the students are going to have to open their dialogue with something a little less attention-grabbing. Here’s a suggestion: “How do you do, Professor Laycock? I’m Stephanie Montenegro, and I wondered if you had a few minutes to talk.”

Megan McArdle writes for Bloomberg News.

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