Butler vs. Duke: Who Wins in the Arena of Free Speech?

By on April 5, 2010

Well, Casey Mattox’s hypothetical "Sweet Sixteen of Liberty" did not play out as hoped this year. There will be no Tennessee-Baylor final; neither made it past the Elite Eight, although their respective women’s teams did meet in the Sweet Sixteen of the women’s tournament. Instead, this evening we’ll be tuning in to see whether Butler University can continue its improbable run and topple Duke University for its first national championship.

And then, Tuesday morning, after the dust has settled from the celebration and/or riots of the night before, the students of Butler and Duke will amble into their classrooms–albeit on too little sleep and too much Miller Lite–and resume their educational experiences. To carry Mattox’s question to its end, where would a student who prized his rights of free speech and open inquiry rather wake up tomorrow?

Duke, obviously, has had its share of troubles with student rights. Most recently, it denied a pro-life student group meeting space in its Women’s Center because some of the other female students who used the center were "traumatized" by the group’s pro-life activities. Duke quickly, to its credit, corrected the error, and assured the Duke community that the Women’s Center was indeed a place where all Duke students of varying persuasions could gather.

Then, of course, there has been the ongoing scandal of the Duke men’s lacrosse team, a topic on which much ink has been spilled here and elsewhere, and on which I’ll point readers to KC Johnson’s excellent book rather than reiterate the same in the space here. Suffice it to say, Duke’s students are keenly aware of the school’s dismal record protecting the rights of the forty-six members of the team, including the three who were declared innocent of any crime after being falsely charged with rape.

Obviously, then, I’m telling prospective Duke undergrads to run off instead to Butler University in Indianapolis, right? A search of our case page doesn’t turn up any instances where FIRE has had to intervene over a matter of free speech at the 4,500-student Indianapolis university, after all, so things there must be just ducky, right?

Not necessarily. Duke University, for all its "fouls," holds that "[f]reedom of inquiry and the free exchange of ideas are essential for the fulfillment of the university’s mission." As a yellow-light institution, it contains no policies that that both clearly and substantially restrict freedom of speech, but does maintain some policies that could ban or excessively regulate protected speech. That puts it in the significant minority of colleges we’ve rated in our Spotlight database of speech codes.

Butler, meanwhile, is not rated in FIRE’s Spotlight database, at least as of now. But just because no records of any serious trouble exist on our website doesn’t mean a school has a squeaky clean record in standing up for free speech. One only needs to read the coverage of Butler’s attempts to sue an anonymous student blogger to know that’s not true. Here’s what Inside Higher Ed wrote on this case when it made national headlines last fall:

Jess Zimmerman, a junior at Butler, created “TrueBU Blog” in October 2008 to chronicle happenings he deemed of import at the institution. Though he managed the blog anonymously under the tongue-in-cheek moniker “Soodo Nym,” he has recently come forward publicly. In addition to posts by Zimmerman, the blog also featured “reports” from other anonymous faculty and student “correspondents.”

In his first post on the blog, Zimmerman writes, “This is not a forum for attack. It is a forum for truth.” He also asks that all commenters and fellow posters “please refrain from making ad hominem attacks,” noting that “they will not be tolerated.” 

The blog did not attract much traffic until December 2008, when Zimmerman started chronicling what he viewed as the unfair dismissal of Andrea Gullickson, then chair of the Butler’s School of Music and Zimmerman’s stepmother. (Gullickson, who retained her faculty job, said that until recently, she did not realize the author was her stepson.) In multiple posts, Zimmerman cites various other anonymous sources and internal e-mails in presenting a case as to why he believes Peter Alexander, dean of Butler’s College of Fine Arts, and Jamie Comstock, Butler’s provost, acted “inappropriately and inexcusably” in their handling of Gullickson’s departure. During that month, Zimmerman said, the blog received more than 2,000 hits.

Just before the New Year, Zimmerman took down the blog after receiving an e-mail (to his anonymous account) from the university’s lawyer noting that it was pursuing charges against him.

[...]

In January, the university filed a libel and defamation suit against “Soodo Nym,” listing numerous statements from his blog that they argue “have harmed the honesty, integrity, and professional reputation of Butler University and two of its high-level administrators.” University officials insist that, at the time the suit was filed, they did not know that Zimmerman was the blog’s author, and they hoped the case would identify the author.

What libelous and defamatory statements did Zimmerman make on his blog? IHE has more:

Among the specific statements written by Zimmerman that the university deems libelous include the following description: “Peter Alexander, Dean of the [College of Fine Arts] is power-hungry and afraid of his own shadow. … He drives away talented administrators. He frustrates students within the departments. He hurts the ability of the school to recruit talented students and faculty members. He announces to the campus that the Butler Way, the ideals for which the school and everyone at it stands, mean nothing.” 

The university also takes umbrage at Zimmerman’s description of a meeting Alexander had with the School of Music, regarding the departure of Gullickson, a well-liked chair who received favorable reviews from her peers. Zimmerman writes that Alexander “lied” to faculty and left the meeting “embarrassed” for having done so. The university also challenges Zimmerman’s claim that Alexander and Comstock were, as the suit phrases it, “engaged in a conspiracy to misrepresent the circumstances of the departure” of Gullickson as chair.

The university noted in the suit that administrators “have received threatening/harassing emails in connection with the events reports on the TrueBU Blog.” One such e-mail was sent from Zimmerman on Dec. 25, wishing Alexander and Comstock a “very merry Christmas and a good new year,” but adding that “I haven’t forgotten the abuses of power and poor leadership you showed last semester.”

Seems a stretch that Butler would try to construe such statements as punishable in civil court, and maybe that was entirely the point. As James Sullivan wrote for Finding Dulcinea:

Many professors, students and Internet free speech advocates criticized the university’s actions. “The danger, they warn, is that the person making the request has no intention of actually suing for libel, but will retaliate in some other way once they learn the blogger’s identity. … [T]here’s no reason for a litigant to follow through with a hopeless defamation lawsuit once he/she has obtained critics’ names and can devise other ways of getting back at them,” Wendy Davis wrote for The Daily Online Examiner.

In an article about the disciplinary hearing, Butler University professor Bill Watts describes the charges brought against Zimmerman as “a vast array of violations drawn from the university’s rules of conduct, including theft, dishonesty, physical, mental or verbal abuse, reckless, lewd, indecent or obscene conduct. Curiously, Jess was not charged with libel or defamation, which formed the basis for the lawsuit.”

Indeed, after Butler dropped the suit against Zimmerman, it continued to prosecute him using the school’s student disciplinary procedures, having now thrust him out into the open, before Zimmerman and Butler finally reached a confidential settlement in February. Butler may be the underdog du jour, but it’s shown that it can play with the big boys at more than just basketball. (You can read more about Zimmerman’s case on his blog I Am "John Doe.")

Zimmerman said of the saga, "I would have hoped that we could have the trial first and the verdict second, but that isn’t the way Butler has decided to operate." The same, of course, could be said about Duke’s handling of the lacrosse scandal. Neither school, then, gets away clean when it comes to respecting student rights. Whether you root for Butler or Duke tonight, know that the Latin saying caveat emptor–let the buyer beware–applies equally to them both.