The recent demands by the state of Colorado's Governor and by some members of the Colorado legislature that the University of Colorado at Boulder terminate professor Ward Churchill by, in essence, any means possible is reminiscent of the state of New Hampshire's legislative inquisition visited upon a certain university professor named Sweezy in New Hampshire in the 1950s, in the dark ages of the once infamous "McCarthy Era".
Both of these cases raise important questions regarding what it means to actually and substantively enjoy the constitutional rights of "freedom of expression and association" that our post-9/11 society claims to cherish and defend, demonstrating some important examples and expressions of what it really means to live in a constitutional democracy under the 1st Amendment to the US Constitution, as well as to what depths fear and loathing has, in the recent past, reduced our population's sentiments to that of a jingoistic and primitive mob.
Fed by the bellicose ramblings of Colorado's Governor and members of Colorado’s legislature, political paparazzi in the electronic media carefully note party associations of their featured highly partisan guests who vehemently emote in favor of Churchill's termination for any number of nebulous, baseless, and nitpicking reasons, while ignoring the core newsworthy question raised, that is - the relevant freedom of speech rights involved.
These sanctimonious drumbeats for removing Churchill fail to transcend subjective emotionalism, "flavor of the day" populist entertainment, and far more pernicious intents.
To many, it seems simple - Ward Churchill holds "outrageous" political views that we find repugnant, we pay taxes, so he should be terminated, pronto, with or without just cause. After all, "we're at war" (with ourselves, no less).
On Feb 7, 2005 CNN asked some of the right questions - relating to the freedom of speech and "slippery slopes" - but bought without question the self-serving and legally inaccurate diatribes of Governor Owens as some kind of answer to anything but the most knee jerk and unquestioning populist outrage. Such failure to objectively present and explore this core issue constitutes a diversion from journalism to a ratings and advertising revenue driven netherworld of jingoistic state-ism and fear mongering, with academic freedom the victim.
On Feb 10, 2005 CNN interviewed the only University of Colorado Regent who has legal expertise as an attorney, who stated that the (personally civilly liable) Regents rightfully fear the existing federal case law, and stated that he - as well as the Board of Regent's own legal counsel - is convinced that Churchill would, upon termination for any cause related to the exercise of his free speech rights, very likely subsequently prevail in the federal courts.
Further, we find that this CU Regent feels as if whipped from the bully pulpits of the state's executive as well as legislative branches in a long term era of persecution of the University of Colorado by the state's Governor, relegating the "news story" to an exploration of the internal vendettas of the Colorado Governor Owens and Legislature as directed against CU.
Thus, the "news story", it seems, has "legs" due solely to the fact that administrative daggers are flying, completely unrelated to the core important issue, that is - does Ward Churchill have a constitutional legal right to express his viewpoints in today's United States without resultantly being tyrannized by (any) particular majority (including the populace and media)?
As we can see today from the short sightedness of the fervor of "flavor of the day" sentiments, the McCarthy Era was only recent past. It's unlikely that John Stewart Mill, the author of "On Liberty", could have come up with a better modern example of "tyranny of the majority", of which he cautioned so eloquently and prophetically a very long time ago.
Today the game is very real, and it places cheerleading for war without end in order to "sell soap" above all substance where it comes to the media, and the burgeoning "blogo-sphere" of partisan digital fiefdoms serve to provide such media bottom-fishers with fodder for their "Thunderdome". The politics of personal destruction - where "solutions" search for "problems" like the Red Queen in Alice in Wonderland - rules these days of blind hubris.
Evidently, the media sees no option but to similarly pervert the high minded journalistic mission of "speaking truth to power" into "speaking power without regard to truth", and only pursuing matters of truth when so dictated by "soap manufacturers". Consequentially, the truth has little relevance here. Providing the macabre and lame entertainment that today, more than ever, masquerades as substantive political discourse in the media rules the day.
If folks are really so outraged regarding Churchill's comparison of behaviors reminiscent of Adolph Eichmann, why then resemble such behaviors by finding threatening scapegoats whose books must be burned in order to shield our eyes from ideas which challenge the foregone conclusions of the day? Must mere ideas be considered as heresy to be silenced in a free society where it comes to (public or private) universities engaged in the education of adults capable of thinking for themselves? Yet, the "fear we favor" has prevailed mightily.
It seems our society's capacities for willful ignorance of the very essence of our strengths as a free society expands nearly as rapidly as our grand politically evangelical delusions of moral conquest and conversion of hearts and minds by brute force. In such an environment, false precepts may flourish unhindered by critical thought, false leaders by the inertia of fear and self interest. History is written by the winners, and we must therefore "win" at any cost. The "triumph of (our) wills" over the world views of others must dominate to make the delusion complete. And, unlike the Nazis, we have "God" on our side - a blessed genocide.
Professor Churchill accurately states in his recent (March 5, 2005) internet blog post at:
'The principle of self-defense is not mysterious: When one is subjected to aggression, it is the perpetrator, not the victim, who dictates the terms of engagement.'
That idea that the "perpetrators" might also include "us", as well as "them", should not surprise any American with even the slightest knowledge of history. Whether Ward Churchill is of partial Native American ancestry, or not - our nation's original legacy itself is clearly an ignorant, aggressive, cruel, and shameful story of the total domination, demonization, marginalization, and near extinction of the original, actual, and Native American peoples. Those who are not troubled and rightly shamed by this reality have not a conscience.
While visiting the web site of the American Indian Movement of Colorado, Denver/Boulder Chapter, consider signing the electronic petition to "Defend Ward Churchill and Protect Academic Freedom", found at: http://coloradoaim.org/wardpetition.htm
As a nation of laws, and not persons, news media performs a public service when it recognizes and preserves our nation's core principles, but performs a profound betrayal of the same when it succumbs to the powerful elixir of populist pontification as a justifier for inflicting ritualized and patently unconstitutional persecutions upon certain other persons based upon their mere thoughts and ideas, and not upon their actual actions and deeds.
That these dangers are more than theoretical in nature is witnessed by the following history of what occurred in the US not long ago, and involving a New Hampshire university professor named Sweezy, who had at one time co-authored an article which was described by the US Supreme Court (below) as one that:
'deplored the use of violence by the United States and other capitalist countries in attempting to preserve a social order which the writers thought must inevitably fall. This resistance, the article continued, will be met by violence from the oncoming socialism, violence which is to be less condemned morally than that of capitalism since its purpose is to create a "truly human society." Petitioner affirmed that he styled himself a "classical Marxist" and a "socialist" and that the article expressed his continuing opinion.'
Here we have a previous instance of a university professor whose professed opinions that offended and enraged certain individuals now referred to as "McCarthy-ites". The written majority opinions of the five Supreme Court Justices Black, Douglas, and Brennan, and those of Frankfurter and Harland clearly ring true, and remain relevant today, as we as a people once again are called upon to contemplate the fetters upon our very own freedoms that we risk forging with our own privileged and powerful hands, executed in the name of peace and liberty while we wage a war of moral hubris without either definition or criterion for victory, thus without end, upon none other than ourselves, by believing that physical dominance over peoples who do not agree with us constitutes a victory that is any more lasting than our last conquest, that their silence of today somehow equals their loyal consent to our physical dominance tomorrow.
So that history may not be so soon forgotten, and thus likely repeated, the 1957 statements of these five US Supreme Court Justices offer important cautionary words today:
U.S. Supreme Court, SWEEZY v. NEW HAMPSHIRE, 354 U.S. 234 (1957)
'The investigation in which petitioner was summoned to testify had its origins in a statute passed by the New Hampshire legislature in 1951. It was a comprehensive scheme of regulation of subversive activities. There was a section defining criminal conduct in the nature of sedition. "Subversive organizations" were declared unlawful and ordered dissolved. "Subversive persons" were made ineligible for employment by the state government. Included in the disability were those employed as teachers or in other capacities by any public educational institution. A loyalty program was instituted to eliminate "subversive persons" among government personnel. All present employees, as well as candidates for elective office in the future, were required to make sworn statements that they were not "subversive persons".'
The opinions of the Justices constituting the majority of the Court:
Opinion of THE CHIEF JUSTICE, joined by MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and MR. JUSTICE BRENNAN:
'There is no doubt that legislative investigations, whether on a federal or state level, 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 speech or press, freedom of political association, and freedom of communication of ideas, particularly in the academic community.'
'There can be no dispute about the consequences visited upon a person excluded from public employment on disloyalty grounds. In the view of the community, the stain is a deep one; indeed, it has become a badge of infamy. Especially is this so in time of cold war and hot emotions when each man begins to eye his neighbor as a possible enemy.'
'The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.'
'Equally manifest as a fundamental principle of a democratic society is political freedom of the individual. Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents. All political ideas cannot and should not be channeled into the programs of our two major parties. History has amply proved the virtue of political activity by minority, dissident groups, who innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted. Mere unorthodoxy or dissent from the prevailing mores is not to be condemned. The absence of such voices would be a symptom of grave illness in our society.'
Opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE HARLAN, concurring in the result:
'Progress in the natural sciences is not remotely confined to findings made in the laboratory. Insights into the mysteries of nature are born of hypothesis and speculation. The more so is this true in the pursuit of understanding in the groping endeavors of what are called the social sciences, the concern of which is man and society. The problems that are the respective preoccupations of anthropology, economics, law, psychology, sociology and related areas of scholarship are merely departmentalized dealing, by way of manageable division of analysis, with interpenetrating aspects of holistic perplexities. For society's good - if understanding be an essential need of society - inquiries into these problems, speculations about them, stimulation in others of reflection upon them, must be left as unfettered as possible. Political power must abstain from intrusion into this activity of freedom, pursued in the interest of wise government and the people's well-being, except for reasons that are exigent and obviously compelling.'
'In a university knowledge is its own end, not merely a means to an end. A university ceases to be true to its own nature if it becomes the tool of Church or State or any sectional interest. A university is characterized by the spirit of free inquiry, its ideal being the ideal of Socrates – "to follow the argument where it leads." This implies the right to examine, question, modify or reject traditional ideas and beliefs. Dogma and hypothesis are incompatible, and the concept of an immutable doctrine is repugnant to the spirit of a university. The concern of its scholars is not merely to add and revise facts in relation to an accepted framework, but to be ever examining and modifying the framework itself.'
'Freedom to reason and freedom for disputation on the basis of observation and experiment are the necessary conditions for the advancement of scientific knowledge. A sense of freedom is also necessary for creative work in the arts which, equally with scientific research, is the concern of the university.'
'In the political realm, as in the academic, thought and action are presumptively immune from inquisition by political authority.'
'For a citizen to be made to forego even a part of so basic a liberty as his political autonomy, the subordinating interest of the State must be compelling.'
'It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure.' (Boyd v United States, 116 US 616, 635)
But, you might ask, have the lofty words of the Supreme Court of yesteryear been eclipsed by subsequent US Supreme Court Rulings? In "Free Speech on Public College Campuses" at: http://www.fac.org/speech/pubcollege/overview.aspx
Kermit L. Hall, President of Utah State University wrote:
'In many ways the Supreme Court dealt speech codes a seemingly devastating blow in its 1992 decision R.A.V. v. City of St. Paul. Though the case dealt with a St. Paul, Minn., ordinance that made it a crime, among other things, to place on public or private property a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender, it also had broad implications for universities. The unanimous Court held the ordinance unconstitutional on the grounds that it sought to ban speech based on content. The effect of the decision was to slow but not altogether end the use of bans on hate speech, either on or off campus.'
What vagaries, you might wonder, must surely be brewing these days in the current Supreme Court that would serve to undermine such concrete statements of liberty of thought and expression as the 1992 R.A.V. vs. City of St. Paul decision described above? At:
http://www.fac.org/analysis.aspx?id=14506 Tony Mauro, Special to the First Amendment Center Online wrote of the Supreme Court's Dec 2004 decision in City of San Diego v. Roe:
' ... the Court may have subtly weakened protection for more common forms of expression, emphasizing a requirement that speech be of "legitimate news interest" and "of value and concern to the public" to win top-tier First Amendment status.'
'The "threshold inquiry", the Court said, was whether the expression touched on a matter of public concern.'
'Invoking decisions from its privacy jurisprudence, the Court said "public concern" is something that is a subject of "legitimate news interest"; that is, a subject of general interest and "of value and concern to the public" at the time of publication.'
'The Court’s requirement of "legitimate" news interest also drew the attention of astute bloggers on Supreme Court matters. On the SCOTUS blog, former Justice Department lawyer Marty Lederman said, "This embrace of ‘newsworthiness,’ and matters of public, as opposed to private, interest, as criteria on which First Amendment protection should turn, is fast becoming a more prominent theme in several threads of the Court's free speech jurisprudence ... What makes this latest case even more interesting, and potentially quite significant, is that the Court is now suggesting that actual public concern, or actual public interest, is not sufficient to endow speech with full constitutional protection - the speech must also be, in the Court's view, of ‘legitimate’ news interest, and must, in the Court's view, have ‘value’ to the public."'
'Applying those subjective terms to Officer Roe’s videotapes may have been an easy task. But they could prove perilous in future cases involving, for example, supermarket tabloids or gossipy Web sites. That may define the long-range impact of this case.'
We in a free society would be wise to guard against the day in which the unfettered exercise of freedom of speech under the First Amendment by the ruled is chilled by the ominous prospect that, at some later date, the designation of what constitutes a "legitimate news interest" may be defined in retrospect by dictum of the federal, state, or municipal courts, thus potentially rendering one's speech of today as unlawful based upon nothing more than a subsequent determination of failing to constitute a "legitimate news interest" in the eyes of the of the State.
There are, by their nature, plenty of matters as well as specific activities that merchants (selling everything from soap to warheads), as well as elected public officials, their appointed bureaucrats, and political operatives of various ilk would dearly prefer that the great unwashed neither have knowledge of, or possess any meaningful power base by which to in meaningful ways affect, certain facts, events, and their often profound collateral effects.
A shameful day it is, indeed, when the corporate media defines "legitimate news interest" based upon no more than the soap sellers want you to see, and the State, their carpetbags quite possibly stuffed with free soap, may, by posthumously deeming your speech to be "not a legitimate news interest", thus render such speech forbidden in the name of freedom.
The ACLU, as well as CU's President Hoffman (on multiple occasions) have come forward publicly defending Churchill's rights to express his opinions.
Boulder County ACLU supports Churchill
Organization decries efforts to curb free speech
By Ellen Lokajaya, For the Camera
February 24, 2005
'The Boulder County chapter of the American Civil Liberties Union on Wednesday urged Gov. Bill Owens and state lawmakers to "cease any efforts to abridge" University of Colorado professor Ward Churchill's freedom of speech and academic freedom.'
'Hoffman repeatedly has said Churchill's opinion is protected under academic freedom. She also said that with that freedom comes "heavy responsibility to behave with integrity and professionalism and meet the highest ethical standards our disciplines demand."'
The CU at Boulder "Student Body" organization has come forward publicly defending Churchill's rights to speak and write his opinions.
Churchill review expected in mid-March
By Elizabeth Mattern Clark, Camera Staff Writer
February 25, 2005
'DiStefano would not say specifically whether his investigation of the controversial tenured professor includes allegations of academic fraud. As announced Feb. 3, it was designed as a 30-day review of Churchill's conduct, speech, writings and recordings to see if he has "overstepped his bounds as a faculty member" and should be fired.'
'Student leaders from the Boulder and Colorado Springs campuses told regents Thursday that lawmakers should respect academic freedom. Benjamin Martin, student body co-executive at UCCS, said students "do not need, nor will we tolerate, a politically motivated filter for our curriculum."'
On Monday, Feb 28, 2005, nearly 200 CU at Boulder faculty members came forward publicly defending Churchill's rights to speak and write his opinions. The total number of the CU Boulder instructional faculty is around 2066 http://www.colorado.edu/news/facts2004/pdf/budget_employees.pdf
Ad demands halt to review
200 faculty members call for halt to investigation
By Elizabeth Mattern Clark, Camera Staff Writer
February 26, 2005
'Nearly 200 University of Colorado faculty members have bought a full-page newspaper ad demanding that school officials halt their investigation of Ward Churchill's work. The ad is scheduled to run in Monday's Daily Camera. It calls for an end to the 30-day review of the American Indian studies professor that school officials expect to complete by mid-March. The investigation was a response to political pressure and not based on "any prior formal complaint of specific professional or academic misconduct on his part" it said.'
'The statement defends Churchill's "right to speak what he believes to be the truth" based on academic freedom rules designed to prevent faculty members from being fired for unpopular views.'
Nevertheless, it appears that many death threats have been sent to Ward Churchill:
The Orlando Weekly
The Man in the Maelstrom
by Pamela White
February 17, 2005
'Pamela White: How many death threats have you received?
Ward Churchill: That's hard to say. There are 3,200 unopened e-mails in my queue right now. I opened some 900, but became overburdened. … As for the effectiveness of the tactic, if you're going to swamp me with "fuck you" e-mails, they're not going to get read because I simply can't read them, so you would have done better with 300 of them than 3,000 of them. But interspersed in there there's about 130 that I'm aware of [that are death threats]. …'
For those who would be so quick to abandon "rule of law" for the politics of personal destruction, I recommend that they take the following test - imagine a weird, wacky world where Albert Gore had won in 2000 (bear with me). Everywhere one turns one would see fellows wearing berets pompously stroking their goatees, psychedelic pixies dressed in turtle suits frolicking in the streets, Saddam-ites infiltrating our youth, mass conversions to Islam, the total breakdown of American life as such deep thinkers and intellectual luminaries as John Wayne, Spiro Agnew, and Dan Quayle envisioned.
Like a lone "gem" in the rough of the alleged "liberal-dominated left wing academic community", one lone professor at a State funded university writes and speaks of what is perceived by an angry public as outrageous beliefs, that - The US should unilaterally choose to invade Iraq, killing 8,000 to 10,000 Iraqi civilians in the Baghdad area in a "shock and awe" bombing campaign calculated to assassinate one man in the name of peace, followed by killing 80,000 to 100,000 Iraqi civilians in a "catastrophic success" (in the words of Rumsfeld and Bush) that would serve to create, rather than destroy, far more actual as well as potential and upcoming terrorists than existed previously, while spending hundreds of billions of dollars that our nation must borrow from foreign banks, at the same time alienating most of the Western, Middle and Far Eastern nations of the world in the very process itself.
Now, should the shoe be (it would seem) "on the other foot" - would you feel any differently about professor "Gem's" constitutional rights to express his (what some would term "crackpot" and "incendiary") viewpoints? If you would, in such a case, feel differently, I say that you (conveniently, arbitrarily, and capriciously) want things "both ways", and either do not recognize or do not respect the concept of a "Republic" (where the rule of law via uniformly applied principles supercedes the emotions of even a majority of the populace).
The fact that a university professor is supported by funds collected from the taxpayer does not give us license to trammel his/her ideas, speech, and writings simply because they disagree with the political "flavor of the day". These days, in our modern "Age of Reason", "Simplicios" are not free to censure "Galileos" on the basis of a lack of faith in propaganda.
Those who would should find little surprise when, someday, it is they who are silenced, themselves unable to fall back upon the common freedoms that they (out of their own fear of mere ideas) have themselves trammeled in such a partisan, divisive, and prejudicial manner, in a short-sighted attempt to impose their momentary will over the rule of uniform principles.
Let us, in our passionate fear of not physically dominating the planet by force, not forge our own fetters upon our very own liberties - those that we seem so anxious to artificially impose upon 22 theocratic Arab monarchies, blind to all but our own sanctimonious delusions.
Despite the fact that Churchill’s mere ideas appear outrageous and repugnant to many, a society so compelled to place ideological blinders over the eyes of it’s young adults in attempted "socio-political engineering" has no right to call itself a free one, whatsoever.
Such acts are, in my opinion, anathema to the concept of "Republic" (being a nation governed by the rule of law, as opposed to the sometimes fickle and self serving whims of majority rule), and represent precisely what John Stuart Mill warned of in his classic essay "On Liberty", excerpted below:
'… the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant – society collectively, over the separate individuals who compose it – its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough: there needs to be protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct upon those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own.'
To the chagrin, no doubt, of the many self-styled "armchair administrators" who see themselves as fit to objectively indict, try, and execute Ward Churchill's persona as a public employee for the high crime of possessing a world view not in keeping with their own myopic vision of "American Empire uber alles" at all costs, the University of Colorado at Boulder, in Chancellor Destefano's much awaited March 24 2005 report, opines:
'Analysis and Bases for Action
1. Did certain statements by Professor Churchill, made in his writings and speeches, exceed the boundaries of a public employee's constitutionally protected speech?
In considering these statements and their bearing on Professor Churchill's employment, the University of Colorado as a public employer is constitutionally required to abide by the right to freedom of expression guaranteed by the First Amendment to the United States Constitution. The First Amendment prevents government employers such as the University from abridging protected speech by taking adverse action against public employees, including University professors, because of their expression or views on matters of public concern.
Speech that is purely political in nature receives the strongest constitutional protection. Constitutional protection of political expression is most often raised when the expression is unpopular. As the Supreme Court has said, "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Professor Churchill's referenced statements concerning United States policies and global affairs, though repugnant in many respects, constitute political expression.'
'Summary of the Chancellor's Review and Decisions
As repugnant as his statements are to many in the University community, however, they are protected by the First Amendment.'
If Ward Churchill is determined by the official processes of the University of Colorado at Boulder to be unfit for duty as a professor for reasons not related to the free expression of his world view, so be it. That the tar and feathers and the (burning) stake and kindling of the jingoistic mob (that has self-appointed itself as the moral equivalent of the "founding fathers" of our constitutional republic) have been rightly buried as a result of due public process is an encouraging testament to the idea that there may exist hope for the continued existence free speech in a society dangerously approaching the mores and whims of a facist and imperlialist empire, self righteously goose stepping towards a "Thunderdome" mentality, and wrapping the entire bloody and morally bankrupt mess in a crucible of theocratic superiority.
If the "end" is to personally destroy Ward Churchill's public persona because his world view does not resemble that of a tyrannical majority, the "means" shall not, under law, include his rights to free speech under the First Amendment to the Constitution of the United States.