History > 2006 > USA > Free Speech (II-VI)

Editorial

A Gag on Free Speech

December 15, 2006
The New York Times
 

The Bush administration is trampling on the First Amendment and well-established criminal law by trying to use a subpoena to force the American Civil Liberties Union to hand over a classified document in its possession. The dispute is shrouded in secrecy, and very little has been made public about the document, but we do not need to know what’s in it to know what’s at stake: if the government prevails, it will have engaged in prior restraint — almost always a serious infringement on free speech — and it could start using subpoenas to block reporting on matters of vital public concern.

Justice Department lawyers have issued a grand jury subpoena to the A.C.L.U. demanding that it hand over “any and all copies” of the three-and-a-half-page government document, which was recently leaked to the group. The A.C.L.U. is asking a Federal District Court judge in Manhattan to quash the subpoena.

There are at least two serious problems with the government’s action. It goes far beyond what the law recognizes as the legitimate purpose of a subpoena. Subpoenas are supposed to assist an investigation, but the government does not need access to the A.C.L.U.’s document for an investigation since it already has its own copy. It is instead trying to confiscate every available copy of the document to keep its contents secret. The A.C.L.U. says it knows of no other case in which a grand jury subpoena has been used this way.

The subpoena is also a prior restraint because the government is trying to stop the A.C.L.U. in advance from speaking about the document’s contents. The Supreme Court has held that prior restraints are almost always unconstitutional. The danger is too great that the government will overreach and use them to ban protected speech or interfere with free expression by forcing the media, and other speakers, to wait for their words to be cleared in advance. The correct way to deal with speech is to evaluate its legality after it has occurred.

The Supreme Court affirmed these vital principles in the Pentagon Papers case, when it rejected the Nixon administration’s attempts to stop The Times and The Washington Post from publishing government documents that reflected badly on its prosecution of the Vietnam War. If the Nixon administration had been able to use the technique that the Bush administration is trying now, it could have blocked publication simply by ordering the newspapers to hand over every copy they had of the papers.

If the A.C.L.U.’s description of its secret document is correct, there is no legitimate national defense issue. The document does not contain anything like intelligence sources or troop movements, the group says. It is merely a general statement of policy whose release “might perhaps be mildly embarrassing to the government.” Given this administration’s abysmal record on these issues, this case could set a disturbing and dangerous precedent. If the subpoena is enforced, the administration will have gained a powerful new tool for rolling back free-speech rights — one that could be used to deprive Americans of information they need to make informed judgments about their elected leaders’ policies and actions.

    A Gag on Free Speech, NYT, 15.12.2006, http://www.nytimes.com/2006/12/15/opinion/15fri1.html

Court takes 'Bong Hits 4 Jesus'

free speech case

Updated 12/1/2006 6:07 PM ET
AP
USA Today

WASHINGTON (AP) — The Supreme Court stepped into a dispute over free speech Friday involving a suspended high school student and his banner that proclaimed "Bong Hits 4 Jesus."

The justices agreed to hear the appeal by the Juneau, Alaska, school board and principal Deborah Morse of a lower court ruling that allowed the student's civil rights lawsuit to proceed. The school board hired former Whitewater prosecutor Kenneth Starr to argue its case to the high court.

Morse suspended Joseph Frederick after he displayed the banner, with its reference to marijuana use, when the Olympic torch passed through Juneau in 2002 on its way to the Winter Games in Salt Lake City.

Frederick, then a senior, was off school property when he hoisted the banner but was suspended for violating the school's policy of promoting illegal substances at a school-sanctioned event.

The Alaska case was one of three appeals the court accepted Friday.

It will also consider a request from the Bush administration to kill a lawsuit challenging the White House's promotion of federal financing for faith-based charities.

The program has been a staple of President Bush's political agenda since 2001, when he created the White House Office of Faith-Based and Community Initiatives.

The Freedom from Religion Foundation, based in Madison, Wis., claims that the administration is violating a constitutional ban on state-supported religions by singling out particular faith-based organizations as worthy of federal funding.

Over administration objections, a federal appeals court earlier said the foundation's members could mount a court challenge to a program funded by Congress.

The court also agreed to hear an appeal from federal Bureau of Land Management officials who are trying to stop a lawsuit by Wyoming ranch owner Harvey Frank Robbins. Robbins accuses the federal officials of persecuting him in an effort to get him to give the government access to roads that cut across his land.

In the banner case, the school board upheld the suspension, and a federal judge initially dismissed Frederick's lawsuit. The 9th Circuit U.S. Court of Appeals said the banner was vague and nonsensical and Frederick's civil rights had been violated.

At that point, the school board retained Starr, who investigated President Clinton's relationship with White House intern Monica Lewinsky. He took the case free of charge.

The appeals court said that even if the banner could be construed as a positive message about marijuana use, the school could not punish or censor a student's speech because it promotes a social message contrary to one the school favors.

Frederick said his motivation for unfurling the banner, at least 14 feet long, was simple: He wanted it seen on television since the torch relay event was being covered by local stations. When Morse saw it, she crossed the street from the school, grabbed the banner and crumpled it. She later suspended Frederick for 10 days.

The court is expected to hear arguments in the case in late February. In addition to the First Amendment issue, the court also will consider whether Morse can be held personally liable for monetary damages.

Morse, now the Juneau district's coordinator of facilities planning, said: "I think it's important for school administrators all across the country to have some guidance in how to enforce school rules at school activities without risking liability."

Frederick, who had been attending the University of Idaho, is teaching abroad this semester, said Michael Macleod-Ball of the ACLU of Alaska Foundation. An ACLU lawyer has been representing Frederick.

"I suppose we are a little surprised" that the court took the case," Macleod-Ball said. "The facts are so unique that I don't think they lend themselves well to crafting significant new law."

The cases are Juneau School Board v. Frederick, 06-278, Grace v. Freedom From Religion Foundation, 06-157, and Wilkie et al v. Robbins, 06-219.

    Court takes 'Bong Hits 4 Jesus' free speech case, UT, 1.12.2006, http://www.usatoday.com/news/washington/2006-12-01-court_x.htm

A Columbia Expert on Free Speech

Is Accused of Speaking Too Softly

October 22, 2006
The New York Times
By KAREN W. ARENSON and TAMAR LEWIN

Lee C. Bollinger, the president of Columbia University, is a natural in the classroom, guiding undergraduates through the intricacies of the First Amendment.

Here he is, pacing, jacketless, playing the role of a politician who wants to ban pornography: Would it be constitutional, he asks his students? How would he justify the limits on free speech? He presses on, as a politician might, proclaiming, “I really think we should eliminate certain viewpoints from society.” Some students start to laugh. “Why don’t we do that?” he asks.

There is probably no university chief in America more steeped in issues of free speech than Mr. Bollinger, 60, a First Amendment scholar.

And yet, in just the last month, his campus has been embroiled in four separate free-speech controversies: over the language in an ice hockey recruiting flier; a rescinded speaking invitation to the president of Iran; a Teachers College policy on “social justice” that some see as an ideological litmus test; and a brawl that broke out during a protest against a speech by the founder of the Minuteman Project, a group that has mounted border patrols to fight illegal immigration.

Critics including Mayor Michael R. Bloomberg and editorial writers at many newspapers across the country scolded the protesters at that speech and questioned why Mr. Bollinger, of all people, could not keep Columbia open to diverse voices.

“Bollinger definitely knows how to say the right things about free speech, but the question is whether he can walk the walk,” said Greg Lukianoff, president of the Foundation for Individual Rights in Education, a group that presses for free speech in academia.

Since he took over as president four years ago, Mr. Bollinger has unfailingly defended free speech at each new challenge. But some professors and others say his carefully wrought statements in favor of open discussion often come across as the work of a deliberative legal scholar more than a forceful leader.

“It would help foster a culture of free speech at Columbia and similar institutions if leading spokespersons could convey this point loudly and clearly,” said David C. Johnston, a professor of political philosophy at Columbia. “But that has not happened at Columbia recently.”

Others disagree.

William V. Campbell, the chairman of the university’s board, said Mr. Bollinger “has handled these things as firmly and directly as he possibly could.”

Eric R. Kandel, a professor and Nobel laureate in medicine, called Mr. Bollinger’s approach “simply superb.”

And an editorial in the student newspaper, The Columbia Daily Spectator, said that in the frenzy over the disruption of the speech by the Minuteman leader, Jim Gilchrist, “it appears that the administration is the only party that has reacted thoughtfully.”

To some extent, the skirmishes over free speech illustrate the challenges facing any university president — free-speech expert or not — trying to foster open discussion at a large institution with many constituencies. This year, protesters at the New School in New York City attracted attention when they jeered their commencement speaker, Senator John McCain, the Arizona Republican and presidential prospect.

In an interview, Mr. Bollinger said Columbia’s record of free speech incidents was just “the nature of controversy in the world, playing out on a great university campus, which happens to be one of the most covered by the media.”

Now one of the most selective colleges in the Ivy League, Columbia, under Mr. Bollinger’s leadership, has embarked on an ambitious campus expansion and a $4 billion capital campaign. This month it harvested two new Nobel prizes. It is almost a tradition for Columbia, with its New York City setting and its defining student protest of 1968, to attract both outspoken students and free-speech controversies.

In 2003, after a professor at an antiwar teach-in said he would like to see “a million Mogadishus,” referring to the lethal 1993 “Black Hawk Down” firefight in Somalia, Mr. Bollinger was swamped by calls to fire the professor. He said repeatedly that while he was appalled by the sentiment, professors had a right to express their opinions.

Then came a bruising battle over whether Jewish students faced harassment from pro-Palestinian faculty members, which led to a lengthy investigation of the charges and of the university’s handling of complaints.

These days, debate over what constitutes legitimate speech and legitimate protest rages anew. Students recently faced off at a debate sponsored by the Columbia chapter of the American Civil Liberties Union on whether demonstrators had the right to rush the stage at the Gilchrist speech.

“There’s general agreement that the physical altercation was unacceptable, but it’s one of these things where certain students feel it’s completely acceptable to walk on stage and others believe that it isn’t,” said Christopher Riano, one of the students who lead the University Senate’s student affairs committee. “President Bollinger has done a very good job of engaging students. The area of debate is where do we, as Columbia, feel the lines should be drawn, and that debate is going to continue.”

Others say that despite Mr. Bollinger’s statements on the importance of free speech, he and Columbia sometimes appear to be sending mixed messages.

The ice hockey club team, for example, was told on Sept. 24 that it would not be allowed to play this year and would be on probation for two years because of an unapproved flier that contained vulgar language.

Many students thought the punishment too harsh. A sophomore hockey hopeful, Matt Pruznick, called it “ridiculous”; Brendan Charney, who leads the Columbia A.C.L.U., said it “chilled free speech.”

After a week, the university backed down, saying that the team could play this year and that the probation would last one year, not two.

There was also the flip-flop over a dean’s invitation to Iran’s president, Mahmoud Ahmadinejad, and its withdrawal less than 24 hours later. Faced with protests about the invitation to the leader, who has called the Holocaust a “myth,” Mr. Bollinger defended it, saying, “We are not afraid of words from the likes of President Ahmadinejad.” But he also stood by as the dean canceled the appearance, citing security concerns.

Bruce W. Robbins, a professor in the English and Comparative Literature Department, said, “When the invitation to President Ahmadinejad was canceled on what looked very much like a technicality, it seemed to a lot of us that the speaker had been silenced and people’s right to hear him ignored.”

Then, too, Mr. Lukianoff’s Foundation for Individual Rights in Education wrote in September to Mr. Bollinger and the president of Teachers College, a graduate school that is run independently of Columbia, complaining about a Teachers College policy it termed an “ an ideological loyalty oath.”

The school’s “conceptual framework” says its teacher training emphasizes “our strong commitment to education for social justice” and adds that “all educators need to believe that schools can be sites for social transformation even though they may currently serve to maintain social inequities.”

Neither Columbia nor Teachers College answered the complaint until after the group took the matter public. Then, in a letter Oct. 11, the president of Teachers College, Susan H. Fuhrman, said that there was no ideology imposed on students. “We teach a concern for social justice, but do not legislate a vision of what social justice is,” she wrote.

Mr. Bollinger says he feels comfortable with the handling of each of these issues. Moreover, he said, he believes strongly that his scholarly temperament and his commitment to responding to issues in “all their complexity” serve him and Columbia well.

But Michael I. Sovern, a past president of Columbia who says he admires Mr. Bollinger’s leadership on the university’s expansion, sounds unsure when asked about Mr. Bollinger’s leadership on free-speech issues.

“The bully pulpit is the president’s most effective tool,” Mr. Sovern said.

And is Mr. Bollinger using it effectively?

“Boy, that’s hard to say,” Mr. Sovern said.

Mr. Bollinger, who became known nationally for his defense of affirmative action while president of the University of Michigan, does not depart willingly from scholarly discourse.

“You can’t represent an institution without being consistent with its fundamental character,” he said. “If you try to oversimplify, ultimately it will catch up with you.”

For all his ease in the classroom, Mr. Bollinger is more formal, more measured in an interview, answering questions slowly and thoughtfully — or, sometimes, saying nothing and simply waiting for another question.

Asked about his leadership, Mr. Bollinger said, “It’s really wrong to assume that there is an inconsistency between seeing complexity and taking a strong position.”

He stressed that he has stood up very visibly for affirmative action, for diversity — and for free speech, as recently as in the statement he sent out campus-wide responding to the Minuteman controversy.

“In a society committed to free speech, there will inevitably be times when speakers use words that anger, provoke, and even cause pain,” it said in part. “Then, more than ever, we are called on to maintain our courage to confront bad words with better words. That is the hallmark of a university and of our democratic society.” The university is investigating the event and has said it could bring disciplinary charges.

In the class that he teaches for undergraduates, “Freedom of Speech and Press,” Mr. Bollinger praised thoughtfulness.

When a student, asked whether a pornography ban would withstand legal scrutiny, responded, “It’s complicated,” the professor smiled.

“It is complicated,” he said. “It’s taken me two months to get you to say that.”

    A Columbia Expert on Free Speech Is Accused of Speaking Too Softly, NYT, 22.10.2006, http://www.nytimes.com/2006/10/22/nyregion/22columbia.html

Silencing of a Speech Causes a Furor

October 7, 2006
The New York Times
By KAREN W. ARENSON and DAMIEN CAVE

When protesters stormed a Columbia University stage on Wednesday evening, shutting down a speech by the head of a fiercely anti-immigration group, they not only stopped the program, but also hurtled the university back into the debate over free speech on campus.

The fracas, which came just weeks after the president of Iran was invited to speak at Columbia and then told not to come, was captured live by Columbia’s student-run television station, CTV, as well as by two commercial stations. It was shown repeatedly on television in New York yesterday and was widely available on the Internet.

Yesterday Mayor Michael R. Bloomberg chastised Columbia for the disruption. “I think it’s an outrage that somebody that was invited to speak didn’t get a chance to speak,” he said in response to a question on his weekly radio program.

“Bollinger’s just got to get his hands around this,” Mr. Bloomberg added, referring to Columbia’s president, Lee C. Bollinger. “There are too many incidents at the same school where people get censored,” he said, using Iranian President Mahmoud Ahmadinejad as an example.

This time the speaker, invited by a campus Republican group, was Jim Gilchrist, the head of the Minuteman Project, which assembled hundreds of volunteers last year, some armed, to patrol the Arizona-Mexico border for illegal immigrants.

Mr. Bollinger, a legal scholar whose specialty is free speech and the First Amendment, quickly condemned this week’s disruption.

“Students and faculty have rights to invite speakers to the campus,” he said yesterday in an interview. “Others have rights to hear them. Those who wish to protest have rights to do so. No one, however, shall have the right or the power to use the cover of protest to silence speakers.”

He added, “There is a vast difference between reasonable protest that allows a speaker to continue, and protest that makes it impossible for speech to continue.”

Monique Dols, a senior in history at Columbia’s School of General Studies, said she had mounted the stage in protest and unfurled a banner but that at such events in the past the speakers had kept going.

“We have always been escorted off the stage and the event continues,” she said, adding that this time the protesters were attacked.

“We were punched and kicked,” she said. “Unfortunately, the story being circulated is that we initiated the violence.”

While college campuses have long been battlegrounds for freedom of speech issues, Columbia seems to attract more attention than most when such problems arise, perhaps because of its location in New York and its history of political protest.

Mr. Bollinger, who has held high-level positions at the University of Michigan and Dartmouth, said he did not believe that Columbia was unusual in the number of disputes over free speech. Officials are studying whether disciplinary steps are warranted, he said.

On campus yesterday, many people condemned the silencing of Mr. Gilchrist.

“I think it was really wrong not to let him speak,” said Anusha Sriram, 18, a Columbia freshman studying political science and human rights, who moved to the United States from Mumbai five years ago. “He wasn’t being violent. He was giving his view peacefully.”

She said she was upset that by keeping Mr. Gilchrist from speaking, the protesters had unwittingly turned the tables of the discussion against themselves.

“That just undermined the entire protest,” she said. “Now everyone looks at the protest in a bad light instead of him in a bad light.”

She added, “They should invite him back and maybe set up a debate.”

The program was sponsored by the Columbia University College Republicans, a five-year-old group that says on its Web site that it has 600 members. Its president, Chris Kulawik, a junior, is described on the site as a “staunch conservative” who “endeavors to attain the cherished title of ‘Most Despised Person on Campus.’ ”

He said he was “very much surprised” by Wednesday night’s events.

“We always understood that this is a very left-wing campus,” he said. “But to see your peers resort to physical violence because they disagree with you is very frightening.”

He said he had been working to ensure there is more campus security next week when his group has three more potentially controversial speakers, including Walid Shoebat, a former P.L.O. member, and Hilmar von Campe, an author who fought for Germany during World War II.

When asked how he chooses speakers, and whether he tries to stir up controversy, he said he chooses people that his group’s members request.

Wei Wei Hsing, 20, is a junior at Columbia and general manager of the Columbia Political Union, which has frequently co-sponsored events with the College Republicans, including a lecture by John Ashcroft last year. She criticized both Mr. Gilchrist’s supporters and the protesters for yelling and shouting before the lecture started, setting a tone of intolerance. But she said the controversy simply reflected the political mood. “The polarization of the country in general is reflected in the microcosm of Columbia,” she said. “And because people here happen to read the news more, and talk about politics, it’s expressed more outwardly.”

The Minuteman Project, which calls itself a “citizens’ vigilance operation,” featured photos, video and news accounts of the Columbia events yesterday on its Web site and said they amounted “a riot.”

“At Columbia University free speech took quite the hit,” it said. “At an event hosted by the college Republicans at Columbia we were reminded that the left advocates free speech only for those who regurgitate the same tripe that they spew.”

Columbia officials said yesterday that while there had been pushing and shoving on stage, as protesters surrounded Mr. Gilchrist and others tried to defend him, there were no reports of injuries.

Mr. Bollinger said he believed that the importance of free speech must be reinforced repeatedly. He said he hoped to do “a number of things” over the next several weeks to accomplish that on campus.

Donna Lieberman, executive director of the New York Civil Liberties Union, said yesterday, “Academic freedom thrives when all ideas, including racist ideas, have the opportunity to be aired.”

Matthew Sweeney contributed reporting.

    Silencing of a Speech Causes a Furor, NYT, 7.10.2006, http://www.nytimes.com/2006/10/07/nyregion/07columbia.html

University of Colorado Chancellor Advises Firing Author of Sept. 11 Essay

June 27, 2006
The New York Times
By KIRK JOHNSON

DENVER, June 26 — The interim chancellor at the University of Colorado said on Monday that Prof. Ward L. Churchill, whose comments about the victims of Sept. 11 prompted a national debate about the limits of free speech, should be fired for academic misconduct.

Professor Churchill, 58, was immediately relieved of his academic and research duties as a result of the chancellor's recommendation, but will continue as a paid professor pending a decision by the Board of Regents.

The chancellor, Phil DiStefano, emphasized in a news conference at the university's Boulder campus that Professor Churchill's essay about Sept. 11, in which he compared some World Trade Center victims to the Nazi henchman Adolf Eichmann, had nothing to do with the recommendation to dismiss him.

Mr. DiStefano said two committees had found evidence of serious misconduct in the professor's record, including plagiarism, misrepresentation of facts and fabrication of scholarly work.

Professor Churchill's lawyer, David Lane, said that the professor's ultimate dismissal was now inevitable, and that retribution for politically unpopular speech was the real reason. A lawsuit against the university alleging violations of the professor's First Amendment rights is also inevitable, Mr. Lane said.

"It's window dressing," Mr. Lane said. "They want to make it look legitimate so then they can fire him and say, 'Look, it had nothing to do with free speech.' "

Professor Churchill, a tenured faculty member in the department of ethnic studies since 1991, did not respond to e-mail and phone messages.

He wrote in an essay shortly after the Sept. 11 attacks that many of those who had been killed were not innocent victims but were part of a machine of American foreign and economic policy that the world was rebelling against. But it was the essay's incendiary tone, especially the comparison of dead office workers in New York City to Eichmann, who helped carry out the Holocaust, that prompted the firestorm.

Mr. DiStefano said in a telephone interview that if Professor Churchill appealed Monday's recommendation to the Faculty Senate Committee on Privilege and Tenure, the committee had 90 days to agree or disagree, though it could ask for more time. The university's president, he said, would then present the matter to the Regents for final disposition.

Mr. Lane said that the appeal to the committee would be filed, but that the final word would happen only in a court of law.

"We'll let a real jury decide what is what," he said.

    University of Colorado Chancellor Advises Firing Author of Sept. 11 Essay, NYT, 27.6.2006, http://www.nytimes.com/2006/06/27/education/27churchill.html