FIRE’s letter to President Gordon

By October 23, 2001

October 23, 2001

President William C. Gordon
President of the University of New Mexico
Scholes Hall 160
Albuquerque, New Mexico 87131

Dear President Gordon:

As you can see from the list of our Directors and Board of Advisors,
FIRE unites leaders in the fields of civil rights and civil liberties,
scholars, journalists, and public intellectuals across the political
and ideological spectrum on behalf of liberty, legal equality, freedom
of religion, due process and-in the case of Professor Berthold-freedom
of speech and academic freedom on America’s college campuses. Our web
page, www.thefire.org, will give you a greater sense of our identity
and activities.

I wish to express our profound concern about the threat to free
speech and academic freedom posed by your initiating disciplinary
action against Professor Richard Berthold due to a comment that he made
regarding the recent terrorist attack. In light of this national
crisis, it is crucially important, now more than ever, that we affirm
our cherished Constitution and ideals and not abandon them to suppress
views that we find offensive or unpatriotic.

In a news release dated September 25, 2001 (“Statement Of UNM President
William C. Gordon”), you promised to “vigorously pursue…[Richard
Berthold] through [the University's] internal disciplinary procedures”
for statements he made concerning the recent terrorist attacks. While
acknowledging the First Amendment, you sought justifications for
possibly disciplining Professor Berthold in both the University’s own
guidelines for professional conduct and academic freedom and the AAUP
guidelines.

As you know full well, the University of New Mexico is a public
university and therefore has an overarching legal obligation, in
addition to its moral obligation, to ensure the First Amendment rights
of its faculty. The University of New Mexico cannot and must not
initiate any action, or even threaten any action, against a professor
on the basis of his or her clearly protected political statements,
regardless of the offense given to others. The First Amendment does not
exist to protect only popular speech. Indeed, it exists precisely to
protect unpopular speech. It is irrelevant to argue that such a process
might exonerate Professor Berthold. The mere threat of action based on
opinion, viewpoint, and political content would in and of itself
promote self-censorship among faculty and students alike, chilling both
protected speech and academic freedom.

Furthermore, arguments from AAUP or University guidelines incorrectly
imply that guidelines could ever trump the First Amendment and be used
by administrators to circumvent the protections of the First Amendment
and the principles of academic freedom. It is also obvious that the
AAUP guidelines, in fact, have not even been violated. The statement
cites the AAUP recommendation that faculty should not “introduce into
their teaching controversial matter which has no relation to their
subject.” This has no application here, of course, because Professor
Berthold is a professor of history. Further, his comment, whatever its
form, constituted core political speech. The argument that a modern
international crisis or act of war has “no relation” to the study of
history will not stand academic, moral, or legal scrutiny.

Your statement cites guidelines recommending that faculty “demonstrate
an ability to interact with students in an encouraging and stimulating
manner” and that they demonstrate “emotional stability or maturity.”
Professor Berthold has demonstrated his ability to interact with
students through the popularity of his classes and the support that he
has received from students. That is to his credit, of course, but it in
no way affects his constitutional rights. As for his ability to be
“stimulating,” it would be frivolous to argue that he has failed in
this regard. If nothing else, he certainly provoked relevant debate. As
for “emotional stability and maturity,” we know of no prior charges,
independent of his political speech, that call these broad and vague
qualities into question. Further, Professor Berthold has demonstrated
his “stability and maturity” in recent statements. If any individuals
lack maturity and emotional stability, it is those professors who
cannot tolerate the expression of dissenting or unpopular opinions at
an institution of higher learning.

Finally, it is dangerous and misplaced to chastise Professor
Berthold for “interfering” with the functioning of the University. Any
interference with the University’s proper function came from the
community’s inability to cope with the expression of an unpopular idea.
To establish a precedent that controversial ideas cannot be expressed
if they are poorly received would put the power of censorship in the
hands of anyone inclined to disrupt the expression of ideas and erode
entirely the idea of free speech and the jurisprudence of the First
Amendment.

Accordingly, FIRE requests that the University of New Mexico 1)
affirm that Professor Berthold’s opinion’s are fully protected under
the First Amendment to the United States Constitution and that no
device or contrivance will be used to circumvent those rights; and 2)
guarantee that Professor Berthold will receive no further retaliation
for the expression of his constitutionally protected opinions on this
or any other topic, past or present.

The University of New Mexico must understand that taking this
action not only removes any meaningful protection of the rights of your
existing students and faculty, but also will result in a chilling
effect across education as a whole. A university in which students and
faculty have any fear of reprisal for discussing controversial topics
is one that is rendered impotent to address society’s most crucial
issues.

FIRE hopes we are able to resolve this dispute discreetly and
amicably. However, FIRE will stay with this case with persistence and
resolution. We are categorically committed to using all of our media
and legal resources to support Professor Richard Berthold and to see
this process to a just and moral conclusion. Please spare University of
New Mexico the embarrassment of fighting against the Bill of Rights by
which it is legally and morally bound. As we all have learned
immeasurably in these recent times, a free society is a precious thing,
not to be abandoned.

I look forward to hearing from you.

Sincerely,

Greg Lukianoff
Director of Legal and Public Advocacy