Free speech and openness often ‘uneasy allies,’ scholar says

Friday, March 16, 2012

WASHINGTON — When a quest for information collides with the right to free expression, which freedom should take precedence? According First Amendment scholar Robert O’Neil, both should.

O’Neil, former director of the Thomas Jefferson Center for the Protection of Free Expression, was keynote speaker today at the First Amendment Center’s 14th annual National Freedom of Information Day Conference, which is held each year on or near James Madison’s birthday, March 16.

In his speech, titled “Celebrating Mr. Madison’s Birthday in Style,” O’Neil told the audience gathered at the Newseum that open government and free speech are not adversaries but rather are often “uneasy allies.”

Several disputes nationwide involving academic freedom and freedom of information highlight the tension between free expression and openness, O’Neil said.

At the University of Virginia, where O’Neil once served as president, the conservative think-tank American Tradition Institute sued for access to records produced by a former professor studying climate change. The university and the group eventually reached an agreement to share the documents. Late last year, meanwhile, a judge ruled in favor of the university and allowed the professor to intervene in the lawsuit.

In a separate but related case, Virginia’s high court recently rejected the state attorney general’s demand for climate-change records from the same professor. Ruling that the attorney general did not have authority to subpoena the records, the justices found it unnecessary to address academic-freedom concerns.

In Maryland, meanwhile, lawmakers are considering legislation to protect the work of academic researchers and scholars from compelled disclosure under the state’s open-records law. If the measure passes, the state would join several others in allowing such a protection for academic research.

O’Neil said the headline for a recent editorial in a Maryland newspaper — “Academic Freedom versus Freedom of Information” — captures the inescapable tension involved in such cases. But, he said, the issue should not be framed as “a choice between A and B.” Instead, he said, we should recognize the “coexistence” of the two protective rights.

Although access to information is guaranteed statutorily through the Freedom of Information Act, O’Neil said, its constitutional underpinning is the same as that for free speech — the First Amendment.

This fact should not be forgotten, he said.

“The time is long past for a systematic quest to reinstate constitutional as well as statutory protection for access and openness,” he said. “I can think of few developments that would more clearly please Mr. Madison.”