Eugene Volokh's Blog, page 2610

Eleventh Circuit Finds Fifth Amendment Right Against Self Incrimination Protects Against Being Forced to Decrypt Hard Drive Contents

(Orin Kerr)

The important decision is In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011. From the opinion by Judge Tjoflat:

We hold that the act of Doe's decryption and production of the contents of the hard drives would sufficiently implicate the Fifth Amendment privilege. We reach this holding by concluding that (1) Doe's decryption and production of the contents of the drives would be testimonial, not merely a physical act; and (2) the explicit and implicit factual communications associated with the decryption and production are not foregone conclusions.

First, the decryption and production of the hard drives would require the use of the contents of Doe's mind and could not be fairly characterized as a physical act that would be nontestimonial in nature. We conclude that the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.

We are unpersuaded by the Government's derivation of the key/combination analogy in arguing that Doe's production of the unencrypted files would be nothing more than a physical nontestimonial transfer. The Government attempts to avoid the analogy by arguing that it does not seek the combination or the key,

but rather the contents. This argument badly misses the mark. In Fisher, where the analogy was born, and again in Hubbell, the Government never sought the "key" or the "combination" to the safe for its own sake; rather, the Government sought the files being withheld, just as the Government does here. Hubbell, 530 U.S. at 38, 120 S. Ct. at 2044 (trying to compel production of documents); Fisher v. United States, 425 U.S. at 394–95, 96 S. Ct. at 1572–73 (seeking to access contents possessed by attorneys).

Requiring Doe to use a decryption password is most certainly more akin to requiring the production of a combination because both demand the use of the contents of the mind, and the production is accompanied by the implied factual statements noted above that could prove to be incriminatory. See Hubbell, 530 U.S. at 43, 120 S. Ct. at 2047. Hence, we conclude that what the Government seeks to compel in this case, the decryption and production of the contents of the hard drives, is testimonial in character.

Moving to the second point, the question becomes whether the purported testimony was a "foregone conclusion." We think not. Nothing in the record before us reveals that the Government knew whether any files exist or the location of those files on the hard drives; what's more, nothing in the record illustrates that the Government knew with reasonable particularity that Doe was even capable of accessing the encrypted portions of the drives. . . .

To be fair, the Government has shown that the combined storage space of the drives could contain files that number well into the millions. And the Government has also shown that the drives are encrypted. The Government has not shown, however, that the drives actually contain any files, nor has it shown which of the estimated twenty million files the drives are capable of holding may prove useful. The Government has emphasized at every stage of the proceedings in this case that the forensic analysis showed random characters. But random characters are not files; because the TrueCrypt program displays random characters if there are files and if there is empty space, we simply do not know what, if anything, was hidden based on the facts before us. It is not enough for the Government to argue that the encrypted drives are capable of storing vast amounts of data, some of which may be incriminating. In short, the Government physically possesses the media devices, but it does not know what, if anything, is held on the

encrypted drives. Along the same lines, we are not persuaded by the suggestion that simply because the devices were encrypted necessarily means that Doe was trying to hide something. Just as a vault is capable of storing mountains of incriminating documents, that alone does not mean that it contains incriminating documents, or anything at all.

Based on a very quick skim, the analysis seems mostly right to me — in result, at least, although perhaps not as to all of the analysis. I hope to blog more on the case later on when I have a bit more time.

Also note that the court's analysis isn't inconsistent with Boucher and Fricosu, the two district court cases on 5th Amendment limits on decryption. In both of those prior cases, the district courts merely held on the facts of the case that the testimony was a foregone conclusion.

Do Lexis and Westlaw Infringe Copyright When They Post Briefs Filed in Court?

(Eugene Volokh)

I briefly blogged about this question in 2009; now there's a lawsuit, White v. West Publishing Corp. & Reed Elsevier Inc. (S.D.N.Y. filed Feb. 22, 2012) that argues that such posting does indeed infringe copyright. Here's my summary from 2009, very slightly edited:

The argument for infringement is actually moderately strong. Like most other documents, briefs are protected by copyright the moment they are written. The fact that they're filed in court doesn't waive any copyright. That something becomes publicly available doesn't strip it of copyright protection — the point of copyright protection is largely to prevent copying even of material that is publicly available. Lexis and Westlaw's distribution of the briefs is thus presumptively copyright infrigngement.

The question is whether the commercial posting of the briefs is fair use; and fair use law is, as usual, vague enough that there's no clear answer. I do think that the posting is quite valuable to researchers and to others who are trying to figure out what actually happened in a case, and why courts reached the results they did, and I think courts can consider this social value in the fair use analysis. It's also quite unlikely that allowing such posting would materially diminish the incentive to write good briefs, or the market value of a good brief; that too is potentially relevant to the fair use inquiry. But the case isn't open and shut, because there are no precedents (at least that I know of) that are clearly on point, because the various fair use factors seem to cut in both directions, and because fair use analysis is so vague in such situations.

Note that there is a statutory provision that says works of the federal government are free of copyright, which includes federal court opinions; and there is longstanding caselaw that says state court opinions are free of copyright. But there is no such existing doctrine as to briefs filed in court.

Thanks to Prof. Eric Goldman for the pointer to the case. Special note: Gregory Blue is representing Edward White, who is presumably also Nice Guy Eddie. No word on Messrs. Orange, Blonde, Pink, or Brown.

Emotional Distress, Knowing Lies, Xavier Alvarez, Warren Spahn, and the Bronze Star

(Eugene Volokh)

In today's United States v. Alvarez argument, the Justices at times asked: When should knowing lies be restrictable on the ground that they cause emotional distress? True statements and statements of opinion are, after all, generally protected even when they cause very serious emotional distress (see, e.g., Snyder v. Phelps). Yet, as some of the Justices pointed out, the rule is often different for knowing falsehoods, including ones that don't fit within the narrow exceptions for defamation and financial fraud.

A classic example of speech actionable under the intentional infliction of emotional distress tort involves a knowing lie: "As a practical joke, A falsely tells B that her husband has been badly injured in an accident, and is in the hospital with both legs broken. B suffers severe emotional distress. A is subject to liability to B for her emotional distress." (Restatement (Second) of Torts § 46 ill. 1.) This is of course the same tort involved in Snyder v. Phelps, yet the Justices seemed to agree that Snyder wouldn't apply to lies; the Court's earlier emotional distress tort decision in Hustler Magazine, Inc. v. Falwell suggested the same. Perhaps this case can be distinguished on the grounds that the speech here is not on a matter of "public concern" (a distinction that Snyder suggested might be relevant), but I doubt that this is the proper basis: Even if the lie is said to a politician about some politics-related trauma ("your husband the presidential candidate was just shot"), in a context where the speech was aimed to be conveyed to the public (imagine this being asked as a political stunt in a radio or television interview), I think the Justices would rightly conclude that the speech is unprotected. The fact that the speech is a lie seems to make the difference, even when the harm is just emotional distress.

The same applies even to speech that is considerably less distressing, under the rubric of the false light tort (upheld as constitutional, at least when applied to knowing falsehoods, by the Supreme Court in Cantrell v. Forest City Publishing Co.; see also Time, Inc. v. Hill, which had suggested the same thing). Even speech that is not defamatory but is knowingly false and said about a particular person could lead to a lawsuit by that person based on the emotional distress that the speech causes, even when there is no other harm to the plaintiff (such as injury to reputation).

Interestingly, one leading false light case — cited by the Court in Time, Inc. v. Hill — involved, among other things, a knowing lie about a military decoration. Julian Messner, Inc. published a supposed biography of baseball great Warren Spahn, written by one Milton Shapiro; the biography was aimed at children. The biography was largely fictionalized, but, in keeping with its genre and target audience, didn't say things that made Spahn look bad (and thus wasn't libelous). Rather, it made him look more heroic than he was, including by falsely claiming that he had earned a Bronze Star:

Two chapters of the book are devoted to Spahn's experiences in World War II. The book mistakenly states that Warren Spahn had been decorated with the Bronze Star. In truth, Spahn had not been the recipient of this award, customarily bestowed for outstanding valor in war. Yet the whole tenor of the description of Spahn's war experiences reflects this basic error. Plaintiff thus clearly established that the heroics attributed to him constituted a gross nonfactual and embarrassing distortion as did the description of the circumstances surrounding his being wounded. Sergeant Spahn was not in charge of "supervision of the repairs" (p. 10) of the Bridge at Remagen; Spahn did not go "from man to man, urging them on" (p. 9); Sergeant Spahn did not go "into the town of Remagen to check with his company commander on his orders for the day" (p. 11) and, consequently, the whole description thereof is imaginary; Spahn had not "raced out into the teeth of the enemy barrage" (p. 13); and in addition to other untruthful statements surrounding his being wounded, Spahn was not "rolled * * * onto a stretcher" (p. 14); but remained ambulatory at all times after treatment in the first-aid station.

The New York courts held that such speech was constitutionally unprotected, and therefore could give rise to a tort recovery, simply because of the emotional distress that the falsehoods caused Spahn. To this day, this is a classic and often-cited example of speech actionable under the false light tort. The Court's decisions in Cantrell v. Forest City Publishing Co. and Time, Inc. v. Hill would allow such speech to give rise to liability — again, even without a showing of injury to reputation, financial fraud, or even the sort of severe emotional distress involved in the "A falsely tells B that her husband has been badly injured in an accident" intentional infliction of emotional distress scenario.

So one question in Alvarez is: Given that knowing lies (including about others' military medals) may be punished because of the emotional distress they cause to their targets, why can't knowing lies about one's own military medals be punished because of the emotional distress they cause to others who learn about the lies (for instance, people who realize they've been deceived by the liar, or even people who are just outraged that others are lying about this)? Indeed, one category involves lies about a particular other person that distress that person and the other lies about oneself that distress others, but why should that distinction make a constitutionally significant difference?

I'm inclined to say that there should be no difference, and that Alvarez's lie about his own Bronze Star should be as constitutionally unprotected as Milton Shapiro's lie about Warren Spahn's Bronze Star? If anything, the potential chilling effect on true speech of punishing the lies about oneself (a matter on which one should rarely fear an honest mistake that could be misinterpreted as a deliberate lie) is less than the potential chilling effect on true speech of punishing lies about others. So this is one of the things that leads me to think that the Stolen Valor Act should be upheld (though I should note that the likely result in Alvarez seems far from clear, given the oral argument). But in any case, I thought that the Bronze Star item from the Spahn case was interesting enough to be worth mentioning.

Finally, note that it's quite unlikely that the Court would distinguish civil liability, as in the false light tort, from criminal liability for First Amendment purposes (at least where knowing lies are involved). As the Court noted in New York Times Co. v. Sullivan,

What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute. Alabama, for example, has a criminal libel law which subjects to prosecution "any person who speaks, writes, or prints of and concerning another any accusation falsely and maliciously importing the commission by such person of a felony, or any other indictable offense involving moral turpitude," and which allows as punishment upon conviction a fine not exceeding $500 and a prison sentence of six months. Presumably a person charged with violation of this statute enjoys ordinary criminal-law safeguards such as the requirements of an indictment and of proof beyond a reasonable doubt. These safeguards are not available to the defendant in a civil action. The judgment awarded in this case—without the need for any proof of actual pecuniary loss—was one thousand times greater than the maximum fine provided by the Alabama criminal statute, and one hundred times greater than that provided by the Sedition Act. And since there is no double-jeopardy limitation applicable to civil lawsuits, this is not the only judgment that may be awarded against petitioners for the same publication. Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive. Plainly the Alabama law of civil libel is "a form of regulation that creates hazards to protected freedoms markedly greater than those that attend reliance upon the criminal law."

The same would be true of false light, which would suggest that "What a state may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of [false light]," which means that speech that is within the reach of the civil law of false light would also be criminally punishable.

District Court Judge Holds that DOMA is Unconstitutional as to Federal Law

(Eugene Volokh)

The opinion is today's United States v. Office of Personnel Mgmt. (N.D. Cal. Feb. 22, 2012). The conclusion: "In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse."

Thanks to Chris Geidner (Metro Weekly) for the pointer.

Supreme Court Hands Down Messerschmidt v. Millender

(Orin Kerr)

This morning the Supreme Court handed down Messerschmidt v. Millender, a Fourth Amendment and qualified immunity case that I blogged about here and here. As I had expected based on the briefs — although not necessarily the oral argument, which was more closely divided than I expected — the Court reversed, holding that the officers were entitled to qualified immunity.

The result in Millender isn't such a big deal, and I suspect the press won't pick up on the case very much. But for Fourth Amendment nerds, the majority opinion by Chief Justice Roberts has some noteworthy language — language that is very friendly to the police. Three points stand out:

1) The opinion has language suggesting a broad reading of probable cause. By way of background, the Court has said that probable cause to get a search warrant is "a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213 (1983). The definition of "contraband" is well-established; it's property that is illegal to possess, such as narcotics. But exactly what counts as "evidence" under the probable cause test has long been a bit murky. How direct a connection to the elements of the crime does the item need to be to constitute "evidence"? It doesn't need to be direct, Roberts concludes:

The Fourth Amendment does not require probable cause to believe evidence will conclusively establish a fact before permitting a search, but only "probable cause . . . to believe the evidence sought will aid in a particular apprehension or conviction." Warden, Md. Penitentiary v. Hayden, 387 U. S. 294, 307 (1967) (emphasis added).

In the Millender case, the issue is whether the government had probable cause to search for gang evidence in a case involving a domestic assault by a gang member. Roberts concludes that a reasonable officer could have thought so, mostly because it could help connect the gang member to the other evidence found at the house. In other words, the gang evidence would help to show that the stuff belonged to the gang member. Roberts then adds this point:

In addition, a reasonable officer could believe that evidence demonstrating Bowen's membership in a gang might prove helpful in impeaching Bowen or rebutting various defenses he could raise at trial. For example, evidence that Bowen had ties to a gang that uses guns such as the one he used to assault Kelly would certainly be relevant to establish that he had familiarity with or access to this type of weapon.

As best I understand the Chief Justice, "evidence" for probable cause purposes can include not only evidence for the government's case in chief, but also evidence useful to impeach witnesses and respond to potential defenses.

If I'm reading Roberts correctly, that strikes me as a significant expansion of the probable cause standard. Off the top of my head, I can't think of a case in which the government obtained a warrant seeking evidence that was not actually to be used in its case in chief, assuming the case goes to trial. indeed, in Warden v. Hayden, the Court had said that the "[t]here must, of course, be a nexus . . . between the item to be seized and criminal behavior." An approach to probable cause that includes impeachment evidence and evidence relating to possible defenses strikes me as quite different: The probable cause is as to what might end up being useful to the government in a trial, not what is evidence of the elements that make up the criminal behavior.

This is particularly interesting because very few defendants testify, and at the time of a search the government can't predict with any confidence what defenses might be raised if the search proves successful and the case goes to trial. As a result, what kind of impeachment evidence and evidence to counter defenses requires lots of conjecture. I wonder, are judges just supposed to assume at the time they review the warrant application that the defendant will certainly testify, and all defenses will be raised? Or does probable cause inquiry discount the chances this would happen? If the former, then Millender now allows warrants to be obtained for all sorts of evidence that might be impeachment evidence or respond to any number of defenses, but that has nothing to do with the elements of the crime or the case in chief. But if the latter, how do judges estimate the chances that these pieces of evidence might be relevant at the time of the search?

2) According to Chief Justice Roberts, when the police rely on a warrant, the good faith exception ordinarily applies. Note the new language: "the threshold for establishing" that the good-faith exception does not apply because the defect is major "is a high one, and it should be," amounting to a "narrow exception" to the good faith rule in a "rare" case. Note how Roberts flips the usual phrasing: At least in the warrant setting, good faith is the "rule" and the exclusionary rule is the "narrow exception" to the good faith rule. It's not a huge shift from prior decisions, but it does strike me as a shift in emphasis. Roberts correctly notes that this standard applies both for qualified immunity and the good-faith exception to the exclusionary rule, which gives it particular significance. Given that the Court has consistently expanded the good-faith exception over time, and may be moving towards a regime of limiting the exclusionary rule to cases of clear violations when there would be no qualified immunity, the bar for remedies for Fourth Amendment violations seems to be getting higher and higher.

3) Finally, Millender also has language limiting the scope of Groh v. Ramirez. The Court limits Groh to errors in warrants that are visible at a quick glance. A warrant defect that requires an understanding of the relevant case doesn't trigger Groh. That's consistent with what some lower courts have said, but it's still a noteworthy limitation.

Religious Objectors Have Constitutional Right to Exemption from "Plan B" Pharmacy Mandate

(Eugene Volokh)

So holds a federal district court in today's Stormans Inc. v. Selecky (W.D. Wash. Feb. 22, 2012):

This case presents a novel question: can the State compel licensed pharmacies and pharmacists to dispense lawfully prescribed emergency contraceptives over their sincere religious belief that doing so terminates a human life? In 2007, under pressure from the Governor, Planned Parenthood, and the Northwest Women's Law Center, the Washington State Board of Pharmacy enacted regulations designed to do just that.

The rule primarily at issue, commonly known as the "delivery rule," requires pharmacies to timely deliver all lawfully prescribed medications, including the emergency contraceptives Plan B and ella. Under the delivery rule, a pharmacy's refusal to deliver is grounds for discipline, up to and including revocation of its license. In operation, the delivery rule bars a pharmacy from referring patients seeking Plan B to other pharmacies, meaning they must dispense the drugs.

In violation of the regulations, but in conformity with their religious beliefs, the Plaintiffs refused to dispense Plan B to Planned Parenthood test shoppers and others. The Board launched a series of investigations, and this suit was the result. Based on the evidence presented at trial, the Board's regulations, while facially acceptable, are in practice unconstitutional….

The Board of Pharmacy's 2007 rules are not neutral, and they are not generally applicable. They were designed instead to force religious objectors to dispense Plan B, and they sought to do so despite the fact that refusals to deliver for all sorts of secular reasons were permitted. The rules are unconstitutional as applied to Plaintiffs. The Court will therefore permanently enjoin their enforcement against Plaintiffs.

There's also a more detailed Findings of Fact and Conclusions of Law available, and here's the Permanent Injunction. I haven't had a chance to read through all this yet, but I hope to blog more about it when I get a chance. [UPDATE: Ed Whelan (National Review Online's Bench Memos) has a post on the subject.]

Substantive Due Process News

(David Bernstein)

(1) Discussion of SDP continues over at Cato Unbound.   Too many interesting posts there to pick out one, so just start from Tim Sandefur's lead essay and keep reading.

(2) Professor Michael McConnell and Nathan Chapman have posted an article on SSRN, Due Process as Separation of Powers.  The article cautions against "resorts to originalism to support modern due process doctrines," finding that modern due process doctrines bear little similarity to the scope of the requirement of "due process of law" when the Fourteenth Amendment was enacted. On other hand, and contrary to standard originalist critiques emanating of SDP and its antecedents going back to Edward S. Corwin in the 1910s, the authors acknowledge that "due process of law" was understood to protect a (in their view very limited) category of substantive rights, in particular vested property rights.

I don't agree with everything in this paper–in particular, I think the authors give short shrift to the influence of abolitionist constitutional thought.  The authors correctly note that before the Civil War, the (expansive, rights-oriented) abolitionist understanding of due process of law was not "adopted by more than a fringe," but they fail to seriously grapple with the extent to which the Radical Republicans who drafted the Fourteenth Amendment after the Civil War were influenced by abolitionist thought. (I'm not sure how great the influence was, but it can't be dismissed by reference to the state of constitutional law in 1860; the abolitionists were, after all, among the primary ideological victors of the war).

In any event, it's a very valuable contribution to the debate over the meaning of the Due Process Clause, both in 1868 and today.

Effective Self-Promotion in Cover Letters

(Eugene Volokh)

How do you effectively promote yourself in a cover letter or similar pitch urging someone to hire you — as a lawyer, a law clerk, or whatever else? Law students often ask me about this, so I thought I'd blog some tentative thoughts of mine, and invite suggestions from others.

1. Business manners aren't social manners, and excessive modesty can hurt you badly in business. You don't start a conversation in a social context by saying that you were #1 in your law school class, but you often should say this in a cover letter.

2. At the same time, the rule in cover letters isn't "anything goes"; some self-promotion will indeed be seen as excessive.

3. My tentative sense is that the main peril with self-promotion in cover letters isn't the reaction "the applicant it too self-promoting" but rather "I'm skeptical of the applicant's self-promoting claims." So objectively verifiable credentials are good, but unverifiable claims are often bad: "I got an A+ in my Legal Writing class" works, but "I'm an excellent writer" — without any accompanying evidence — doesn't. Readers are on guard for what they see as overstatement of one's abilities, and any unsupported self-promotion will reinforce their initial assumption that the applicant isn't to be trusted.

4. The same applies, though to a lesser degree, to unadorned claims of enthusiasm. "I'm really excited about the possibility of working at your firm, because I'm very interested in ERISA law" won't be that effective. "I'm really excited about the possibility of working at your firm, because the Employee Benefits class that I took made me very interested in ERISA law" will be considerably more effective, because it gives concrete evidence of interest that overcomes the reader's skepticism.

5. Relatedly, framing your concrete accomplishments in the language of enthusiasm is a nice way of promoting yourself while minimizing any visceral disapproval of perceived immodesty that some readers might have (notwithstanding item 1). "I published three articles in law school" is OK in a cover letter seeking an appellate clerkship, but "I've long loved legal writing; my experience publishing three articles reaffirmed this for me, and made me realize how much I would enjoy clerking" is better.

6. If you have several excellent relevant credentials, focus on them, and don't dilute them by discussing your more mediocre ones or your much less relevant ones. If you have a degree in German literature from Ohio Wesleyan, you should mention it on your resume, which is supposed to provide a relatively complete summary of your educational career; but you shouldn't mention it in your cover letter unless you think the reader will for personal reasons find the matter particularly interesting (e.g., because he went to Ohio Wesleyan). Everyone has some undergraduate degree. The point in your cover letter is to show how you're better than the great majority of applicants, not how similar you are to them.

7. Finally, proofread your cover letter, and your resume, especially carefully. Many readers will assume that if you erred in documents that are so important to your own success, you'll also be sloppy on other matters.

In any case, these are some quick thoughts of mine; I'd love to hear what others might say.

Climategate Turnabout

(Jonathan H. Adler)

In 2010 and 2011 the climate science community was rocked by the release of e-mails from the University of East Anglia's Climate Research Unit showing that climate scientists can be just as petty, political and (at times) unethical as any other group.  To this day, it has not been determined who obtained the e-mail files and posted them online.

Last week, another potentially explosive trove of climate-related private documents was released on the web, in this case a set of documents prepared for a board meeting of the Heartland Institute, a libertarian think tank based in Chicago that sponsors the Nongovernmental International Panel on Climate Change and other efforts designed to downplay the threat posed by anthropogentic climate change and discourage the adoption of climate change policies.  Among the documents was a "Climate Strategy" memorandum purporting to outline Heartland's secret efforts to, among other things, suppress "warmist" views and discourage the teaching of climate science in schools.  Someone calling himself "Heartland Insider" distributed these documents to several progressive bloggers who promptly posted the materials on the web.

Other than the "Climate Strategy" memo, the documents were relatively pedestrian — revealing but not earth-shattering.  If anything, these documents suggested that the Heartland Institute's efforts — and those of climate skeptics generally — are less well-funded than some suspect (and certainly less well-funded than major environmentalist groups).  Yet almost immediately, questions were raised about the memo's authenticity.  The content and tone of the memorandum were a bit off, and it contained subtle errors of the sort someone on the inside would have been unlikely to make.  Megan McArdle dissected the memo here and here, while others identified evidence the memo had a different provenance than the other purloined materials.  Heartland, for its part, declared the memo a fake (while also making threats and going on the warpath against anyone who dared post the purloined documents).  Meanwhile, speculation swirled about the memo's actual author.

Yesterday, a big part of the mystery was solved when a climate scientist, Peter Gleick of the Pacific Institute, came forward as the source of the documents, but not as the author of the suspicious memo.  Wrote Gleick:

At the beginning of 2012, I received an anonymous document in the mail describing what appeared to be details of the Heartland Institute's climate program strategy. It contained information about their funders and the Institute's apparent efforts to muddy public understanding about climate science and policy. I do not know the source of that original document but assumed it was sent to me because of my past exchanges with Heartland and because I was named in it.

Given the potential impact however, I attempted to confirm the accuracy of the information in this document. In an effort to do so, and in a serious lapse of my own and professional judgment and ethics, I solicited and received additional materials directly from the Heartland Institute under someone else's name. The materials the Heartland Institute sent to me confirmed many of the facts in the original document, including especially their 2012 fundraising strategy and budget. I forwarded, anonymously, the documents I had received to a set of journalists and experts working on climate issues. I can explicitly confirm, as can the Heartland Institute, that the documents they emailed to me are identical to the documents that have been made public. I made no changes or alterations of any kind to any of the Heartland Institute documents or to the original anonymous communication.

This is just incredible (and not only because Gleick was chairing a working group on scientific integrity at the time of his actions). McArdle, again, is all over this.

The very, very best thing that one can say about this is that this would be an absolutely astonishing lapse of judgement for someone in their mid-twenties, and is truly flabbergasting coming from a research institute head in his mid-fifties. Let's walk through the thought process:

You receive an anonymous memo in the mail purporting to be the secret climate strategy of the Heartland Institute. It is not printed on Heartland Institute letterhead, has no information identifying the supposed author or audience, contains weird locutions more typical of Heartland's opponents than of climate skeptics, and appears to have been written in a somewhat slapdash fashion. Do you:

A. Throw it in the trash

B. Reach out to like-minded friends to see how you might go about confirming its provenance

C. Tell no one, but risk a wire-fraud conviction, the destruction of your career, and a serious PR blow to your movement by impersonating a Heartland board member in order to obtain confidential documents.

As a journalist, I am in fact the semi-frequent recipient of documents promising amazing scoops, and depending on the circumstances, my answer is always "A" or "B", never "C".

In this case, however, we are to believe that Gleick was so overcome with his rage at the Heartland Institute that he chose option "C" and, upon receiving additional documents from Heartland, sent the whole package of materials around without ever doing any investigation of his own as to the authenticity of the "Climate Strategy" memo. It's hard to believe, but it's also hard to believe that Gleick himself would have forged the document (as many suspected even before he came forward). Is there a third alternative?

In any event, Gleick's actions will have serious repurcussions. From the NYT's Andrew Revkin:

Another question, of course, is who wrote the climate strategy document that Gleick now says was mailed to him. His admitted acts of deception in acquiring the cache of authentic Heartland documents surely will sustain suspicion that he created the summary, which Heartland's leadership insists is fake.

One way or the other, Gleick's use of deception in pursuit of his cause after years of calling out climate deception has destroyed his credibility and harmed others. (Some of the released documents contain information about Heartland employees that has no bearing on the climate fight.) That is his personal tragedy and shame (and I'm sure devastating for his colleagues, friends and family).

The broader tragedy is that his decision to go to such extremes in his fight with Heartland has greatly set back any prospects of the country having the "rational public debate" that he wrote — correctly — is so desperately needed.

Others have reached similar conclusions, but the feelings are not universal.

Much of the clmate science community seems unable to condemn Gleick's conduct (see, e.g. here), just as some environmentalist groups and climate activists have a hard time acknowledging the frequent exaggeration or "sexing up" of climate studies to accentuate the threat posed by climate change. (And I say this as someone who believes climate change is a problem and supports appropriate policies to address the threat.)

McArdle again:

When skeptics complain that global warming activists are apparently willing to go to any lengths–including lying–to advance their worldview, I'd say one of the movement's top priorities should be not proving them right. And if one rogue member of the community does something crazy that provides such proof, I'd say it is crucial that the other members of the community say "Oh, how horrible, this is so far beyond the pale that I cannot imagine how this ever could have happened!" and not, "Well, he's apologized and I really think it's pretty crude and opportunistic to make a fuss about something that's so unimportant in the grand scheme of things."

After you have convinced people that you fervently believe your cause to be more important than telling the truth, you've lost the power to convince them of anything else.

 

Drone Warfare Getting Out of Hand

(Kenneth Anderson)

Comments are open.