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  • Junger v. Daley, 209 F.3d 481 (6th Cir. 2000) | AAUP
    Gender Identity Teaching Evaluation Tenure Women in Higher Education Reports Publications AAUP Policies Reports Academe Economic Status Report Compensation Survey Bulletin of the AAUP The Redbook Journal of Academic Freedom AAUP Bookstore News AAUP in the News AAUP Updates For the Media Get Involved Upcoming Events Local Toolkit Issue Campaigns Find Chapters Conferences Start a Chapter I Need Help With Workplace Issues Understanding Terms and Abbreviations Responding to Financial Crisis You are here Home Junger v Daley 209 F 3d 481 6th Cir 2000 This case involved a faculty member s right to post his own encryption programs on the Internet Professor Junger is a law professor at Case Western Reserve University who teaches a course called Computers and the Law Asserting his First Amendment rights he sued the U S Department of Commerce challenging regulations that prohibit him from posting to his website various encryption programs that he has written to show his students how computers work AAUP and The Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia filed an amicus brief with the Sixth Circuit in March 1999 The brief contended that the cryptographic source code is expression that is protected under

    Original URL path: http://www.aaup.org/brief/junger-v-daley-209-f3d-481-6th-cir-2000 (2016-02-13)
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  • ASA, AAUP, AAADC, BCPR, and Habib v. Secretaries of Homeland Security and State, 588 F. Supp. 2d 166 (D. Mass. 2008) | AAUP
    Association in August 2007 the government failed to act on his visa application by the time of the meeting rendering him unable to come and the attendees unable to speak with or hear from him On October 26 2007 the American consul in South Africa sent Professor Habib a letter informing him that he was inadmissible under a section of the USA Patriot Act that empowers the government to exclude an alien who has engaged in terrorism The consul also indicated that if Professor Habib were to apply for a waiver of ineligibility it would not be granted The government has never provided evidence supporting its assertion that Professor Habib has engaged in terrorism The complaint pdf filed on September 25 2007 contended that censorship at the border prevents U S citizens and residents from hearing speech that is protected by the First Amendment The lawsuit sought the immediate processing of Professor Habib s pending visa application and a declaration that his exclusion without explanation since October 2006 violates the First Amendment rights of U S organizations citizens and residents On November 14 2007 the plaintiffs filed an amended complaint and on December 3 2007 filed a second amended complaint pdf The second amended complaint asked the court to declare that the government s denial of a visa and a waiver of inadmissibility to Professor Habib violates the First Amendment and the Administrative Procedures Act which requires that actions by government agencies not be arbitrary and capricious in violation of constitutional rights or in excess of statutory authority or limitations The complaint also asked the court to prohibit the government from relying on the engaged in terrorism section of the Patriot Act to exclude Professor Habib and to enjoin the government from denying a visa to Professor Habib on the basis of speech that U S residents have a constitutional right to hear Update On January 14 2008 the government filed a motion to dismiss pdf the lawsuit in light of the decision in favor of the government in the Ramadan litigation described above The motion asserts that courts do not have the authority to review consular decisions denying visas or waiver requests even where the First Amendment rights of U S citizens and residents may be affected by the exclusion On February 13 the AAUP and the other plaintiffs filed a motion for summary judgment pdf and motion in opposition to the government s motion to dismiss accompanied by a declaration pdf from AAUP president Cary Nelson The AAUP s motion for summary judgment argues that the government s denial of a visa and waiver to Professor Habib violates the First Amendment that contrary to the government s argument courts may review visa related decisions where First Amendment rights are implicated or where governmental officials other than consular officials made those decisions and that the government s denial of a visa to Professor Habib violates the Administrative Procedures Act On March 20 2008 the government filed a reply pdf

    Original URL path: http://www.aaup.org/brief/asa-aaup-aaadc-bcpr-and-habib-v-secretaries-homeland-security-and-state-588-f-supp-2d-166-d (2016-02-13)
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  • John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008 ) | AAUP
    protect against international terrorism or clandestine intelligence activities violates the First Amendment The district court ruled that the categorical indefinite non disclosure provision of the law violated the First Amendment because the secrecy provision was not narrowly tailored enough to advance the government s compelling interest in protecting terrorism investigations and because the permanent ban on disclosure operates as an unconstitutional prior restraint on speech in violation of the First Amendment The federal government appealed and the enforcement of the order was stayed pending the appeal to the Second Circuit On August 1 2005 the AAUP joined with the American Booksellers Foundation for Free Expression the American Library Association the Association of American Publishers the Freedom to Read Foundation and the PEN American Center in filing an amicus brief pdf which was written by Jenner Block The brief argues that by giving the government an unprecedented ability to intrude on the intellectual and academic freedom of the above organizations their members and patrons and the general public Section 2709 violates the First Amendment in at least two respects First it authorizes the compelled disclosure of constitutionally protected information without any governmental showing that the information actually further a terrorism investigation or any other substantial governmental interest Second Section 2709 s automatic gag rule violates the First Amendment because it unjustifiably imposes a blanket ban of secrecy upon recipients of orders without any showing of need for such secrecy Status In March 2006 Congress amended the relevant provision of the Patriot Act to allow for judicial review of NSLs and to permit recipients of NSLs to consult with an attorney Because of these changes the Second Circuit declined to decide the First Amendment implications of the revised provision of the Patriot Act before the trial court had had a chance to do so The appeals court therefore vacated and remanded the case to the U S District Court for the Southern District of New York On September 9 2007 the District Court issued a decision pdf in which it struck down the amended National Security Letter provision The opinion held that the Patriot Act provision permitting the FBI to prevent those who received NSLs from speaking about them was unconstitutional and also held that because the Patriot Act prevented courts from engaging in meaningful judicial review of that gag power the statute violated the First Amendment and the principle of separation of powers Update Attorney General Michael Mukasey appealed to the Second Circuit the portions of the District Court s decision relating to when an NSL can be issued and the breadth of the gag order that accompanies an NSL The plaintiffs opposed this appeal urging the Second Circuit s affirmance of the decision of the lower court On March 17 2008 the AAUP filed an amicus brief pdf with the American Library Association the American Booksellers Foundation for Free Expression the Association of American Publishers the Freedom to Read Foundation and the PEN American Center in support of the plaintiff

    Original URL path: http://www.aaup.org/brief/john-doe-inc-v-mukasey-549-f3d-861-2d-cir-2008 (2016-02-13)
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  • ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007 ) | AAUP
    the U S Court of Appeals for the Sixth Circuit by a large coalition of civil rights organizations in support of the American Civil Liberties Union s case against the National Security Agency challenging the government s warrantless wiretapping program The wiretapping program which was authorized by President Bush shortly after September 11 2001 involves the warrantless interception of telephone and email communications between one person in the United States and one person who is according to the NSA s reasonable belief a member of al Qaeda affiliated with al Qaeda or a member of an organization affiliated with al Qaeda or working in support of al Qaeda The suit which was filed in January 2006 on behalf of prominent journalists scholars attorneys and national nonprofit organizations who frequently communicate by phone and e mail with people in the Middle East argues that the wiretapping program violates the plaintiffs First Amendment rights by impairing their ability to obtain information from sources abroad conduct scholarship and engage in advocacy as the people they would want to speak to are the types of people who might be targeted by the NSA In August 2006 a federal district court judge ruled that the wiretapping program violated the Fourth Amendment by operating without warrants and was therefore unconstitutional The government appealed that decision to the Sixth Circuit Court of Appeals The amicus brief submitted by the AAUP and other groups focuses on the historical effect of wiretapping on the civil rights movement and the consequent chilling of speech and open communication The brief also notes that the wiretapping program has constrained faculty and graduate students from fully pursuing research or scholarship while traveling abroad because of the legitimate fear that they or their sources will be subject to reprisal thus inhibiting academic freedom Oral

    Original URL path: http://www.aaup.org/brief/aclu-v-nsa-493-f3d-644-6th-cir-2007 (2016-02-13)
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  • The American Tradition Institute v. Rector & Visitors of the University of Virginia & Michael Mann, 287 Va. 330 (Va. April 17, 2014) | AAUP
    The case began in 2011 when the American Tradition Institute served a FOI request on the University of Virginia regarding Professor Michael Mann s climate research This request mirrored the subpoena previously served on the University by Attorney General Cuccinelli We previously reported on the conclusion of the Cuccinelli v UVA case which was decided by the Virginia Supreme Court The University supplied some records but took the position that the majority of the records were not subject to public disclosures Thereafter ATI petitioned to compel the production of these documents Professor Michael Mann sought to intervene arguing that the emails in question were his and therefore he should have standing in any litigation relevant to any document release AAUP submitted a letter to the trial court the 31st Judicial Circuit Court of Virginia in support of Mann s intervention and the court granted him standing The AAUP and the Union of Concerned Scientists subsequently filed a joint amicus brief with the Circuit Court On April 2 2013 the Circuit Court held that all of the records sought by petitioners qualified for exclusion under the Virginia FOIA exemption for data records or information of a proprietary nature produced or collected by or for faculty of staff of public institutions of higher education in the conduct of or as a result of study or research on medical scientific or scholarly issues whether sponsored by the institution alone or in conjunction with a governmental body where such data records or information has not been publicly released copyrighted or patented or under the exemption for personnel records The court also ruled that purely personal email messages are not public records under the Virginia FOIA The Virginia Supreme Court granted a petition for review and the AAUP in partnership with the Union of Concerned

    Original URL path: http://www.aaup.org/brief/american-tradition-institute-v-rector-visitors-university-virginia-michael-mann-287-va-330-va (2016-02-13)
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  • Cuccinelli v. Rector & Visitors of the University of Virginia, 283 Va. 420 (2010) | AAUP
    materials and documents relating to Michael Mann a climate scientist who was a faculty member at UVA until 2005 when he left for Pennsylvania State University Professor Mann was one of the scientists involved in Climategate the November December 2009 episode at the University of East Anglia in which a leaked email from Mann referenced a trick he used to create the hockey stick graph showing a sharp increase in global warming during the recent industrialized period Although some suggested that the emails proved that global warming was a hoax investigations by the National Academies of Science Penn State and an independent British review panel concluded that no research misconduct had occurred and that Mann s reference was to statistical methods rather than to fraudulent manipulations of the data Despite these conclusions Attorney General Cuccinelli who a week before serving the subpoena filed suit challenging the U S Environmental Protection Agency s fuel standards on the grounds that the East Anglia emails constituted after discovered evidence regarding global warming apparently concluded that the actions reflected in Mann s emails might constitute fraud under Virginia s Fraud Against Taxpayers Act FATA which relates to expenditures of Commonwealth funds He therefore served the University of Virginia with an extremely broad subpoena or civil investigative demand that asked for Mann s communications with any of 39 other scientists his communications with administrative assistants at UVA and all materials including computer programs related to five grants for which he applied while at UVA After public pressure from the AAUP and other organizations UVA filed a petition in Virginia court to set aside the subpoena invoking academic freedom and arguing that Cuccinelli s subpoena did not satisfy the requirements of FATA The AAUP the ACLU of Virginia the Thomas Jefferson Center for the Protection of Free Expression and the Union of Concerned Scientists filed an amicus brief in support of UVA s position The brief argued that the requested items were protected by the First Amendment and that the attorney general s actions could seriously chill academic freedom university scholarship and intellectual debate The brief also argued that the political controversy surrounding Professor Mann s work did not rise to the level of fraud under FATA or federal law In late August 2010 the Virginia state court set aside the attorney s general subpoena holding that some of Mann s grants could be the subject of a request under FATA if they used Commonwealth rather than federal funds but that the attorney general had failed to show any reason to believe that fraud had occurred and that the scope of any information request must be more limited The decision allowed Cuccinelli to try again with a more narrowly drawn subpoena and in October 2010 Cuccinelli served another information request on UVA Cuccinelli also appealed the judge s decision to the Virginia Supreme Court and UVA cross appealed and the university asked the circuit court to stay its decision on the follow up subpoena pending the

    Original URL path: http://www.aaup.org/brief/cuccinelli-v-rector-visitors-university-virginia-283-va-420-2010 (2016-02-13)
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  • Sussex Commons Associates, LLC v. Rutgers, 416 N.J. Super. 537 (App.Div. 2010) | AAUP
    of Rutgers faculty and students as well as the First Amendment rights of citizens to access and use law clinics In 2005 and 2006 the Rutgers Environmental Law Clinic represented a group of New Jersey citizens opposed to a particular commercial development project The development company behind the project unsuccessfully attempted to pressure the citizens group and the law clinic through several legal actions before filing an Open Public Records Act OPRA request with the university for documents related to the clinic s operation The university refused to provide most of the requested documents and the development company sued to compel production under the OPRA On October 7 2008 the Superior Court of New Jersey ruled that the clinical programs of Rutgers School of Law are unique hybrid institutions and therefore exempt from New Jersey s open records law In its decision the court analogized the OPRA request to similar questions about the application of conflict of interest laws and the collection of attorneys fees in the clinical education setting In the end the court found that the unique hybrid nature of the Rutgers School of Law Clinics as subdivisions of Rutgers the State University entitles them to an exemption from OPRA which is necessary to protect the unique and valuable function the law clinic provides in both education and jurisprudence It is from this decision that the development company has appealed The amicus brief begins by focusing on the premise that law clinics are a fundamental component of legal education For example in order for law schools to attain accreditation the American Bar Association ABA requires schools to provide each student with substantial instruction in the professional skills necessary for effective and responsible participation in the legal profession including live client or other real life practice experiences In light of ABA requirements for accreditation the brief points out t he profession thus recognizes that law school clinics in which faculty teach students through the vehicle of actual cases are necessary to the professional education of law students After establishing the fundamental nature of clinical programs in legal education the brief then discusses the role of law school faculty in educating and molding competent future lawyers and the threat that this public records request represents to the academic freedom of faculty and students The United States Supreme Court has recognized the importance of academic freedom including the role that academic freedom plays in the development of new ideas and the role of academic freedom in educating future leaders The brief therefore urges the court to view legal clinics as the law schools research laboratories where clinical instructors train their students in developing new legal theories and expanding existing legal doctrine through litigation of actual cases In order to encourage that type of education p rofessional educators must have the academic freedom to consider all aspects of skills instruction in developing and structuring law school clinics Requiring law clinics to release documents related to their operation risks forcing law clinics and

    Original URL path: http://www.aaup.org/brief/sussex-commons-associates-llc-v-rutgers-416-nj-super-537-appdiv-2010 (2016-02-13)
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  • Burt v. Rumsfeld, 322 F. Supp. 2d 189 (D. Conn. 2004); Burt v. Gates, 502 F.3d 183 (2d Cir. 2007) | AAUP
    District Court issued a decision granting the faculty plaintiffs request for summary judgment and criticizing the government for its refusal to come forward with information within its control and denial of facts without supporting evidence By threatening to cut off federal funding to the University unless it allowed military recruiters to participate in recruiting the court concluded the Solomon Amendment imposed unconstitutional conditions upon the receipt of federal funds The district court found the condition imposed by the Solomon Amendment to be in no way related to the purposes for which the federal funds have been given to Yale and thus dismissed the Department of Defense s argument that such restrictions were allowed under the Spending Clause of the Constitution Instead the court concluded that the Solomon Amendment interfered with the faculty members First Amendment right to expression by compelling them to allow military recruiters to participate in school sponsored programs and thus coerced them into assisting DoD in sending its message The court also held that the Solomon Amendment violates faculty members First Amendment freedom of association rights by blocking them from using their freedom to associate or disassociate as a means of inculcat ing their values in their students and propagat ing publicly their beliefs regarding discrimination Finally the court declined to find the new substantive due process right of educational autonomy advocated by the faculty The faculty had put forth the novel argument that the right to ban discriminatory conduct from all of the Law School s activities in order to protect their students and to create the environment necessary to carry out the Faculty Members educational mission was a substantive due process right under the Fifth Amendment Instead however the court noted that such a claim was functionally a First Amendment academic freedom claim and affirmed

    Original URL path: http://www.aaup.org/brief/burt-v-rumsfeld-322-f-supp-2d-189-d-conn-2004-burt-v-gates-502-f3d-183-2d-cir-2007 (2016-02-13)
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