FIRE Issues Analysis of Churchill Report

March 25, 2005

On March 24, 2005, the University of Colorado Board of Regents released its “Report on Conclusion of Preliminary Review in the Matter of Professor Ward Churchill.” This report states that no action should be taken against Professor Churchill on the basis of even his most controversial public statements. The report also states, however, that sufficient evidence exists of “plagiarism, misuse of others’ work, falsification and fabrication of authority” to refer such allegations to the University of Colorado at Boulder Standing Committee on Research Misconduct. Additionally, the report also refers to the Standing Committee the question of whether Churchill “committed research misconduct by misrepresenting himself to be American Indian to gain credibility, authority, and an audience by using an Indian voice for his scholarly writings and speeches.” The following represents FIRE’s analysis of this report and its implications for academic freedom.

First, it is important to note that the Board of Regents’ investigation was flawed from the outset. According to the Board of Regents, the original purpose of its investigation was to answer two questions: “(1) Does Professor Churchill’s conduct, including his speech, provide any grounds for dismissal for cause, as described in the Regents’ Laws? And (2) if so, is this conduct or speech protected by the First Amendment against University action?” At the time that the Board of Regents began its investigation, it was plain that none of Churchill’s controversial statements—including his “little Eichmanns” comment—was outside the bounds of protected speech. An “investigation” of protected speech is itself improper and has a chilling effect on the free exchange of ideas. It is also improper to use clearly protected—though controversial—expression as a pretext to begin scouring the public record in hopes of finding examples of public statements that do not enjoy full First Amendment protection.

Second, even though the report is flawed in its purpose, its conclusions are substantively correct. Churchill’s speech was protected by the First Amendment, and the committee appears to have referred its research misconduct concerns to the proper university authority. The Standing Committee must now conform to all university due process regulations, and it must consider the research misconduct questions without reference to Churchill’s controversial expression or his status as a controversial public figure.

The purpose of this analysis is not to determine the merits of Churchill as a scholar and professor or to opine on the health of the modern academy (FIRE’s opinion on that matter has been clear since its cofounders Alan Charles Kors and Harvey Silverglate published The Shadow University in 1998). Nor is this analysis a comprehensive legal brief. Instead, it provides a clear summary of the constitutional and academic freedom principles at stake in the Board of Regents’ Report.

The analysis follows a question and answer format.

Question: The Regents determined that even Churchill’s most controversial statements were constitutionally protected. Is that determination correct?

Answer: Almost certainly. Ward Churchill is a public employee with a constitutional right to speak on matters of public concern, even if his statements are deemed offensive. FIRE outlined these rights in its February 9, 2005, letter to Colorado. Addressing both the “offensiveness” of Churchill’s speech and his status as a public employee, the letter stated:

From a legal standpoint, there can be little doubt that even Churchill’s most controversial political statements are protected by the First Amendment. Supreme Court case law makes it quite clear that “[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.” Texas v. Johnson, 491 U.S. 397 (1989). The Supreme Court has been unwavering in this stance and has protected many highly offensive forms of expression. In Terminiello v. Chicago, 337 U.S. 1 (1949), the Court reversed a disturbing-the-peace conviction of a notorious racist and anti-Semite. Justice Douglas wrote in that case that speech is protected even when its purpose is to “induce a condition of unrest, create dissatisfaction with conditions as they are, or even stir people to anger.” In another important civil rights case, Gooding v. Wilson, 405 U.S. 518 (1972), the Court reversed the conviction of a citizen who called a police officer a “white son of a bitch” and added, “I’ll kill you.” In Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973), the Court ordered the reinstatement of a journalism student who had distributed a cartoon depicting policemen raping the Statue of Liberty and the Goddess of Justice. The Court held that “conventions of decency” did not dictate what speech was protected on a public college campus.
Some commentators have argued that the Supreme Court decision in Waters v. Churchill, 511 U.S. 661 (1993), gives the university the right to punish Churchill for the content of his expression. Waters is a case that limits the free speech rights of public employees when those employees are not addressing matters of “public concern.” Yet, as there are few issues of greater public concern than the September 11 attacks, the decision in Waters does not apply in this case and cannot be interpreted to allow a public university to punish the expression of viewpoints on matters of public concern by its professors. Professor Churchill’s speech is therefore protected.

Since FIRE wrote its initial letter, additional comments by Churchill have come to light, only one of which presents even the slightest constitutional problem. The text of this comment—contained in an exchange with an unidentified questioner—is as follows:

Unidentified Man: You mentioned a little bit ago, why did it take a bunch of Arabs to do what you all should have done a long time ago. That is my question. And as a white man standing here in your midst, from a fairly conservative, middle-of-the-road background. I tell people I’m so far left I’m coming up on the right. And I’d like you to respond to it—why shouldn’t we do something, and how can we move so that they don't see us coming?

Mr. WARD CHURCHILL (Colorado University): I’m going to repeat that, tell me if I got it right. Why shouldn’t you do something, and how do you move so they don’t see you coming? OK. As to the first part, not a reason in the world, as far as I can see. I can’t find a single reason why you shouldn’t, in a principal way. There may be some practical considerations. Such as: do you know how? Often, these things are processes, it’s not just an impulse. And certainly it’s not just an event. And the simple answer, although it should probably be more complicated, but I’m not being flip and giving the simple answer is—you carry the weapon. That’s how they don’t see it coming. You’re the one that’s going to be—you talk about color-blind, or blind to your color. You said it yourself. OK? You don’t send the black liberation army into Wall Street, to conduct an action. You don’t send the American Indian movement into downtown Seattle to conduct an action. Who do you send? You, with your beard shaved and your hair cut close, wearing a banker’s suit. There’s probably a whole lot more to it; you know that. But there’s where you start.

Divorced from the complete context of the conversation (FIRE does not have a transcript of the entire event), it appears that Churchill is not only telling a person that he should carry out a terrorist attack but also giving him specific instruction in how best to carry it out. However, since the individual did not actually carry out a terrorist attack, the speech is not likely to be considered unlawful incitement. According to the Supreme Court, for speech to be considered “incitement,” it must be “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio 395 U.S. 444 (1969) see also Hess v. Indiana 414 U.S. 105 (1973) (holding that a protestor who shouted, “We’ll take the fucking street later” was not guilty of incitement because his “threat” “amounted to nothing more than advocacy of illegal action at some indefinite future time.”)

FIRE recognizes the obvious: that the nation is locked in a battle against terrorism and has suffered horrific violence on its own soil. It is possible that a court may view Churchill’s statement as explicit enough and likely enough to provoke violence (though it apparently did not provoke any violence) to rule it outside the bounds of constitutionally protected expression. However, the Board of Regents correctly distinguished “advocacy of concrete or imminent violent action, as opposed to political hyperbole or advocacy and teaching of illegal violent action as an abstract principle” when it determined that Churchill’s speech was protected.

Question: The Report indicates that the university would have greater flexibility to remove Churchill from his position as chairman of a faculty department (had he not resigned). Is this true?

Answer: Probably. In its report, the Board of Regents points to the case of Jeffries v. Harleston, 52 F.3d 9 (2^nd Cir. 1995) as distinguishing between the administrative purpose of the chairmanship and the expressive purpose of teaching and scholarship. Thus, Colorado makes the same argument as made by UCLA law professor Eugene Volokh in an excellent early analysis of the Churchill case:

The chairmanship of a department is an administrative post; while a professor’s job is to publish his own work and his own views, the chair’s job is to advance the academic mission of the university. (Teaching is a separate and complicated matter, but as best I can tell none of Churchill's offensive statements were made in class.) See Jeffries v. Harleston (2nd Cir. 1995), which sensibly draws this distinction.

If the University concludes that keeping a person such as this as the administrative face of the department will cast the department and the university into disrepute, it can properly remove him as chair, while retaining his right to say whatever incendiary things he likes as professor. And of course I’d say the same as to department chairs who said things I liked: A university should have fairly broad authority to strip them of their chairmanship, though not of their posts.

While there is no reason to believe the Colorado federal courts would not follow the reasoning of the Jeffries case, it is important to note that Jeffries is a Second Circuit—not Supreme Court—decision and is not binding on the Colorado courts. Thus, FIRE cannot be certain of the outcome of such a case in Colorado. Since Churchill resigned his chairmanship, however, the question is moot.

Question: The Report refers all questions of research misconduct to a faculty committee. Could the Board of Regents have fired Churchill without referring him to a different committee?

Answer: Not without violating Churchill’s due process rights. Obviously, neither the First Amendment nor any traditional conception of academic freedom protects “plagiarism, misuse of others’ work, falsification and fabrication of authority.” However, it is critically important to note that such allegations cannot be used as a pretext for silencing controversial speech.

The due process protections for allegations of research misconduct are quite extensive, and so are the procedures governing any termination effort. Since both the research misconduct and termination processes are precisely outlined by governing policy documents, the Board of Regents never had the authority to terminate Professor Churchill during the course of this investigation. At most, the Regents could do exactly what they did: initiate a formal, procedurally proper investigation of credible claims of actionable misconduct.

As the relevant faculty committee conducts this new investigation, it should not recommend (if Churchill is found guilty of misconduct) any greater punishment than that suffered by other members of the Colorado faculty guilty of similar violations. Any greater level of punishment would raise an inference that Churchill’s controversial speech was an aggravating factor in the decision. To borrow an example from employment law, if a black employee is terminated for habitual lateness, but white employees have only been put on probation for the same offense, then an inference is created that the black employee’s race may have played an impermissible role in the adverse job action. Put simply, Churchill’s constitutionally protected speech must have no bearing on any termination proceedings.

FIRE cannot, however, agree with those who argue that Churchill should not be the subject of any adverse job action simply because the Board of Regents’ initial investigation was improper. The recent allegations of research misconduct have come from citizens doing their own, independent, inquiries into Churchill’s background. Ward Churchill has a right to speak, but—once he injects himself into the public square through his teachings, writings, and speeches—he cannot insulate himself from public scrutiny. If that scrutiny results in the release of information that harms his credibility or legitimately places his job in jeopardy, then that is simply the hazard of voluntarily participating in the marketplace of ideas.

Moreover, since the University of Colorado has formally stated that Churchill’s speech is protected, FIRE now calls upon the University to uphold the constitutional rights of all its students and faculty members, including conservative students who protest affirmative action and evangelical Christian professors.

In sum, the University of Colorado’s improper investigation has reached the substantively correct result. Churchill’s speech was constitutionally protected, and all other credible misconduct allegations should be referred to the appropriate governing body for review. This conclusion is so startlingly obvious that it is difficult to imagine that an “investigation” was needed to reach these determinations. Even in hindsight, this investigation appears to be little more than a constitutionally dangerous method of temporarily calming a public storm.

It is simply undeniable that Churchill’s speech has aroused deep anger across the country. Yet that anger—by itself—does not provide a basis for defying the First Amendment. FIRE’s February 9, 2005, letter made the correct observations and provided the correct counsel:

Thomas Jefferson once said, “Error of opinion may be tolerated where reason is left free to combat it.” Professor Churchill’s opinions regarding September 11 have been utterly rejected by the public at large, have caused public figures from across the political spectrum to unite in their outrage against him, and have led many of his own colleagues to condemn his statements. If he intended to generate sympathy for terrorists, the effect has been the opposite. We need not fear his words, and we must not allow our anger to cause us to betray our deepest moral and legal principles. Indeed, it is most important that at times like these we defend our fundamental liberties. Liberty faces a far greater threat from a rejection of the First Amendment than it does from the opinions of Ward Churchill.