Chilling Effect

How the attacks on a University of Virginia law professor are bad for academia, and all of us.

View from the rotunda at the UVA campus, March 2008.
University of Virginia law school professor Douglas Laycock is the target of an “open letter” and a FOIA request regarding his connections to right-wing and religious liberty groups.

Courtesy of Karen Blaha/Flickr

Agree or disagree with him, University of Virginia law school professor Douglas Laycock has had a lengthy and distinguished academic career. As a scholar and advocate in the constitutional field of religious liberties, he has taken positions that have alarmed both the political left and the political right in about equal measure. He is currently representing a Muslim prisoner who wants to be able to grow a beard, in violation of prison regulations. He co-wrote an amicus brief in last year’s blockbuster United States v. Windsor, arguing that states should all afford citizens the right to same-sex marriage. He argued Town of Greece v. Galloway on behalf of objectors to sectarian religious prayer before town legislative meetings.

But because his constitutional principles don’t necessarily dovetail with set policy outcomes, he also filed an amicus brief on the side of the religious business owners in the Hobby Lobby case now pending at the U.S. Supreme Court. Perhaps more controversially, he authored a letter on behalf of a group of religious liberty scholars to clarify the scope of SB 1062, a much-publicized Arizona law that would have given individuals and businesses broader latitude to opt out of state anti-discrimination laws if they opposed gay rights on religious grounds. As he explained at the start of that letter, many (unspecified) signatories supported same-sex marriage, and many urged Gov. Jan Brewer to veto the bill, which she ultimately did. The point of the letter, as indicated upfront, was not to support the bill but to correct misperceptions about what the proposed bill did and did not do. In Laycock’s view, the Arizona bill did not say the religious objectors win, but rather afforded them new defenses that would be settled by courts who would still have to determine that religious objections overcome a “compelling government interest.” Scholars agreed and disagreed about the merits of that argument, but it was never an argument for blanket protections for discriminating or discriminators.

Still, it was enough to fire up two Charlottesville activists, who, backed by a national LGBTQ rights advocacy group, GetEQUAL, decided to go after Laycock, according to this report in last week’s C-Ville Weekly. The two young people, one a rising senior and another who is now a UVA alum sent an “open letter” to Laycock asking him to consider the “real-world consequences that [his] work is having.” Then they submitted a Freedom of Information Act request, asking to see emails and phone records between Laycock and various right-wing and religious liberty groups. And, according to the C-Ville, GetEQUAL has also launched a national email campaign calling out Laycock for his role in shoring up the legal arguments of those who support “religious bigotry.”

Laycock, who is married to UVA President Teresa A. Sullivan, seems to have taken both the FOIA request and the “open letter” in stride. He told the Charlottesville Daily Progress that the campaign is based on guilt by association. But academics across the legal spectrum have reacted with amusement, fury, and disgust. It’s easy to dismiss both the open letter and the FOIA fishing trip as the sort of overzealous and thoughtless student activism to which most of us have fallen prey at some juncture. The two young people deny that this is an effort to smear or bully Laycock, or a try at chilling his or anyone else’s academic freedom. What they really want to do, they told C-Ville, is to initiate a dialogue: “I think it would be really constructive for him to hear how his work is being used to hurt the LGBTQ community,” said one of the students behind the campaign. “I don’t think he has any ill intent. I think he’s very thoughtful and moderate, and willing to hear both sides. But I think that everyone really has a lot to learn.”

As the open letter indicates, the project here is seemingly to have a frank conversation about the real-world implications of Laycock’s academic writing: “As leaders on the UVA campus, we strongly believe in engaging in dialogue, and, equally as important [is] for professors to truly understand the implications of their work.”

That sounds nice, but according to the Daily Progress, the FOIA request seeks, “among other things, university-funded travel expenses and cellphone records for the past two-and-a-half years.” The students wrote that the request merely seeks “a full, transparent accounting of the resources used by Professor Laycock which may be going towards halting the progress of the LGBT community and to erode the reproductive rights of women across the country.” So the first question is whether the best way to “teach” Laycock that his work is sometimes cited by opponents of gay rights and contraceptive choice is by way of a FOIA request and a letter campaign accusing him of aiding and abetting religious bigotry. The more urgent question is what part of a “public dialogue” opens with a FOIA request of personal cellphone records? Or as UCLA law professor Stephen Bainbridge puts it, “You don’t start a dialogue with FOIA requests.”

The commonwealth is well aware of what happens when ideological groups attempt to chill academic freedom with intimidating demands that they empty their pockets out for the public. The last time this happened was when former Virginia Attorney General Ken Cuccinelli attempted “to open a public dialogue” by going after climate scientist Michael Mann’s emails a few years back. He was stymied in the courts, which rejected the effort to obtain those emails. But the courts have been clear that they understand what is at stake when public universities are subject to these kinds of fishing expeditions. The authors of the “open letter” to Laycock certainly suggest that they are familiar with what it means to chill academic freedom too; they merely assert that a larger value is at stake: “While academic freedom has immense value within the walls of the classroom, we’re writing this open letter to you in order to gauge your understanding of the real-world consequences that your work is having, and to invite you into a dialogue with UVA students who are negatively impacted by your work. It is vitally important to balance the collective work of our academic community with the collective impact of that work in communities across the country.”

The argument seems to be that Laycock’s academic ideas, while safe in the confines of the ivory tower, need to remain locked there so as to avoid having any impact in the world as experienced by the rest of us. Ignore for now the patronizing implication that academics need to be made aware of the impact of their work. The use of FOIA—in tandem with an email campaign calling out a respected academic as a hater or an enabler of haters—is also a form of intimidation and public shaming. Whether it comes from the right or the left, the increase in such requests are not a win for openness. Walter Olson points out that this particular tactic is becoming depressingly familiar: “Conservative-leaning groups have launched a series of FOIA requests seeking records of professors at state universities in North Carolina, Virginia, Wisconsin, Michigan, and Texas.” They are an effort to draw negative attention to the academic work of a scholar with whom one disagrees. In both Mann’s and Laycock’s cases, the practical effects of all this will be nothing. Both have been lightning rods for a long time. But the impact on academic institutions, on younger faculty, and on the very idea of open discourse is more serious. A smear campaign is a smear campaign, regardless of whether it’s couched in the language of transparency and tolerance.

The effort to intimidate or—more charitably—“educate” professor Laycock is misdirected toward an academic career that has been protective of gay rights and gay marriage and only, in the two instances cited, collides with them through a larger vision of religious liberty. The groups who don’t like that anti-LGBT movements get intellectual cover from Laycock’s legal arguments are free to say so, loudly, passionately, and publicly. But using a FOIA request to try to get dirt on him, to imply that he is doing something unsavory with those groups, is simply a smear tactic with no objective beyond embarrassing and chilling that work. Nobody is claiming that legal academics are untouchable. But academic freedom isn’t something you want to mess with recreationally either.

Law professors need to be held as accountable for their controversial stances as anyone else, and they should certainly be invited into real-world dialogue with political activists. Dialogue is generally a great thing. But we should be careful about throwing around disingenuous terms like “dialogue” and “transparency” and “conversation” when we are really attempting to lecture and embarrass and chill. The consequences of that kind of conduct reach far beyond the classroom.