Quotable Quotes from Federal Court Judge in University of Wyoming Free Speech Lawsuit

By May 14, 2010

Recently, FIRE has been reporting on the violations of free speech by the University of Wyoming, which caved in to significant public pressure and acted to prevent a student from hosting William Ayers on campus. I wrote last month: 

Free speech is winning points against violent agitators in the wake of the University of Wyoming’s choice to ban from speaking on campus controversial education professor William Ayers, whose former organization Weather Underground once made a point of being violent agitators.

The testimony I gleaned from the Casper Star-Tribune made it seem inevitable that the university was going to lose in court–which it promptly did, in the form of a preliminary injunction ensuring that the student would be allowed to host Ayers.

The event was held and was entirely peaceful, by all reports, despite the presence of a small number of protesters. Meanwhile, even now, the university is defending itself in court, having filed an answer either denying or claiming ignorance about almost everything in the lawsuit.

The transcript of the session when the preliminary injunction was ordered includes a number of quotable quotes that provide some interesting perspectives on the state of respect for free speech in Wyoming. First, we have a ringing endorsement of the Bill of Rights from The Honorable William F. Downes, Chief United States District Judge, who is hearing the case:

The Bill of Rights is a document for all seasons. We don’t just display it when the weather is fair and put it away when the storm is tempest. To be a free people, we must have the courage to exercise our constitutional rights. To be a prudent people, we have to protect the rights of others, recognizing that that is the best guarantor of our own rights.

Judge Downes explained that his personal feelings about Ayers’ past rightly deserved to play no role in the First Amendment analysis:

There was, of course, no evidence received in this hearing on the detailed matters of Mr. Ayers’ past, but this Court is of an age to remember the group of which he was a founding member. When the Weather Underground was bombing the Capitol of the United States in 1971, I served in the uniform of my country. Like many of my fellow veterans of that era, even to this day, when I hear the name of that organization, I can scarcely swallow the bile of my contempt for it.

The fact remains Mr. Ayers is a citizen of the United States who wishes to speak. He need not offer any more justification than that. The controversy surrounding the past life of Professor Ayers and the widely held public perception of his past conduct cannot serve as a justification to defrock him of the guarantees of the First Amendment.

This mature objectivity appears scarce on the university’s side. Judge Downes rightly ridiculed the university’s attempts to find serious threats among the calls and e-mails received in opposition to Ayers’ planned appearances, such as in this e-mail:

Exhibit C: Another email from an individual who identified himself by name, and the University provided that exhibit and even has the gentleman’s email address; and it states, quote, Bill Ayers is a scumbag, and you are bigger assholes for inviting this terrorist to the UW facility. I laughed long and hard at his cancellation. The best thing that miserable SOB could do is drop dead. For those of you that invited this prick, I think you should eat a mouthful of buckshot, close quote.

Not a pretty statement. But then the author, however profane, goes on to recognize the First Amendment. He says, quote, unfortunately Americans, paren, which you’re not, close paren, have to tolerate your socialist speech based on your First Amendment rights. That is also what affords me to call out what ungrateful douchebags you are, close quote; ending, quote, all the worst to you. Mike, close quote.

Well, Mike was mightily exercised. And he leaves us in no doubt of his thoughts about Mr. Ayers. But to read that as a direct threat is patently ridiculous.

Judge Downes also compares the pitiful level of evidence presented by the university against significant evidence of likely violence during the civil rights movement in a case where the speech was allowed to take place anyway:

In contrast to the evidence of the undifferentiated, general and veiled threats at issue in this case stands a long line of cases presenting much more particularized threats of violence and violent confrontation and sometimes, sadly, even a recent history of actual violence. [...]

In March of 1965, Judge Frank Johnson of the United States District Court for the Middle District of Alabama was asked to enjoin the State of Alabama from interfering with the march of civil rights leaders from Selma to Montgomery, Alabama. Judge Johnson’s decision in the case of Williams versus Wallace, 240 F.Supp. 100, Middle District of Alabama 1965, was issued just 12 days after what’s now known in history as "Bloody Sunday." On Bloody Sunday, March 7, 1965, 600 or so civil rights marchers headed east out of Selma on U.S. Route 80. They got only as far as the notorious Edmond Pettus Bridge, six blocks away, where state and local lawmen, acting under the color of law, attacked them with billy clubs and tear gas and drove them back into Selma.

At a time when the American south was a virtual powder keg of racial hostility and social unrest, arguments were made to Judge Johnson that violence would likely be carried out against the marchers, a fact all too well known to Judge Johnson based on the events of March 7.

Nonetheless, Judge Johnson rejected the State of Alabama’s position that threats of violence from those who opposed the exercise of free speech can serve as a sufficient justification to cancel constitutional dictates. Judge Johnson wrote: The State’s contention that there is some hostility to this march will not justify its denial. Nor will the threat of violence constitute an excuse for its denial. Id. at page 109, citations omitted.

I hope Judge Downes’ history lesson teaches the citizens of Wyoming, as it has taught me, a thing or two about free speech.