May 2010

Update (12:46 p.m., 5/14/10): Under the Fraud Against Taxpayers Act, the recipient of a Civil Investigative Demand can ask the court to modify or set aside the demand on the basis of procedural flaws or the recipient's "constitutional or other legal right or privilege." Because the period of time to petition the court is shorter than the period to respond to the demand itself, the deadline for the University of Virginia to file such a petition had been Thursday, May 20. It has recently been reported, however, that the University plans to ask Cuccinelli for more time to file such a petition. If Cuccinelli refuses, the Act suggests that the court cannot extend the time on its own; no word yet on when the request will formally be made or what Cuccinelli's response will be.  

In 1951, at the height of the McCarthy era, the New Hampshire legislature passed a statute intended to root out subversive persons and organizations in the state. Several years later, the legislature followed up with a resolution that gave the state attorney general nearly unfettered power to conduct investigations, determine whether subversive persons still lingered in the New Hampshire woods, and launch criminal prosecutions.

The attorney general, Louis Wyman, enthusiastically took to his task, targeting Paul Sweezy, founder of the Socialist magazine Monthly Review. Sweezy proved to be an unwilling witness, refusing to answer such questions as whether he and his wife were active in the Progressive Party and declining to describe the substance of a guest lecture he had delivered to a humanities course at the University of New Hampshire. Frustrated by Sweezy's refusal to answer, Wyman had Sweezy adjudged in contempt in court and thrown in county jail.

Sweezy sued, arguing that the questions violated his rights under the First Amendment. At the Supreme Court, Chief Justice Warren admonished the New Hampshire legislature and its eager attorney general in the only opinion that garnered more than one joiner (his compatriots were Black, Douglas, and Brennan):

[L]egislative investigations ... are capable of encroaching upon the constitutional liberties of individuals. It is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as ... freedom of communication of ideas, particularly in the academic community.

Warren went on, "No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made .... Scholarship cannot flourish in an atmosphere of suspicion and distrust."

Ken Cuccinelli apparently did not get the memo. Cuccinelli, you may recall, is the Virginia state attorney general who briefly introduced lapel pins featuring a Confederate-era state seal with the Roman Goddess Virtus' traditionally bare breast modestly covered up. That folly, which Cuccinelli is now desperately trying to downplay, pales in comparison to Cuccinelli's current mission: to intimidate scientists, scholars, and the state's flagship university by using five-year-old grant applications as the hook for a sweeping civil subpoena demanding years worth of documents from the University of Virginia.