The Churchill report generally seems very thoughtful and scholarly, but it does have a small error (which commenter DelVerSiSogna also caught). The report states (p. 4):
To use an analogy, a motorist who is stopped and ticketed for speeding because the police officer was offended by the contents of her bumper sticker, and who otherwise would have been sent away with a warning, is still guilty of speeding, even if the officer’s motive for punishing the speeder was the offense taken to the speeder’s exercise of her right to free speech. No court would consider the improper motive of the police officer to constitute a defense to speeding, however protected by legal free speech guarantees the contents of the bumper sticker might be.
In fact, the First Amendment rule, as set forth in Wayte v. U.S., 470 U.S. 598 (1985), is:
"Selectivity in the enforcement of criminal laws is . . . subject to constitutional constraints." In particular, the decision to prosecute may not be "'deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification,'" including the exercise of protected statutory and constitutional rights [such as free speech].
Even prosecution of people who are guilty of a nonspeech crime might thus violate the First Amendment if the government deliberately selected them for prosecution because of their constitutionally protected expression (though I should note that this is a very tough claim to prove).
Nonetheless, whatever may be the rule for criminal prosecutions triggered by the policeman's own hostility to the target's speech, such a rule need not be applied here. This isn't a criminal prosecution, but the university's decision whether to keep someone on its faculty; it need not keep a dishonest scholar on board, even if the complaints about the scholar were motivated partly by the complainers' hostility to the scholar's viewpoints. And as best I can tell, there's little reason to think that the University wouldn't have investigated Churchill had he been accused of the same misconduct but had expressed diferrent views. These are serious charges, and my guess is that most universities would indeed look into alleged multiple falsification of evidence and plagiarism by their faculty members.
There was a connection between Churchill's politics and the investigation, but it seems to me much more attenuated than in the bumper sticker context. Churchill first attracted public notice because of his "little Eichmanns" comment. This led people to scrutinize his work, and past critics of his to repeat their criticisms. This in turn yielded the large body of accusations, large enough that the University had to take notice (in a way that it didn't seem to have done when at least one of the accusations had been separately brought to its notice some years before). So the better analogy is if someone had caused a lot of controversy by his bumper sticker; this caused a lot of people to notice him, and in the process to notice that he was speeding; they in turn complained to the police officer; and the police officer gave him a speeding ticket. There, I think there's no problem under Wayte; the government official (the police officer) wasn't making the enforcement decision based on the bumper sticker, though the people who complained to the officer -- private parties who have no viewpoint-neutrality obligation under the First Amendment -- were motivated by the bumper sticker.
As the report points out, "public figures who choose to speak out on controversial matters of public concern naturally attract more controversy and attention to their background and work than scholars quietly writing about more esoteric matters that are not the subject of political debate" (p. 4). That seems to me to be exactly what happened here. Unfortunately for Ward Churchill, it turns out that his scholarship couldn't bear the attention that his statements prompted.
Related Posts (on one page):
- Text of University of Colorado President's Letter About Ward Churchill:
- Dismissal Recommended for Ward Churchill
- The Punishment in the Ward Churchill Case:
- Real Misconduct, Uncovered By Politically Motivated Actions:
- Churchill and Sock-Puppetry:
- Ward Churchill:
To that extent, the committee's analogy seems to be on point. I guess the question then becomes whether the committee's proceeding was more like an investigation or more like a prosecution.
In fact, the committee may be right about the speeding motorist hypothetical, provided a prosecutor gets involved in the case.
The Supreme Court recently held in Hartman v. Moore (2006) that even if there is a political animus for prosecuting a defendant, he generally has no First Amendment claim if there was probable cause for prosecution. http://www.supremecourtus.gov/opinions/05pdf/04-1495.pdf
(This standard may not apply outside the context of criminal prosecution, such as in public-employee speech cases. For example, the standard used for equal protection challenges to prosecution, the Armstrong heightened-pleading standard, see U.S. v. Armstrong, 517 U.S. 456 (1996), is a tougher standard for a defendant to meet than the standard that civil plaintiffs have to show in equal protection claims).
The Churchill report's analogy is consistent with Hartman v. Moore.
What I would like to see, and am too lazy and stupid to find, is a subsequent case attacking an investigatory action under this theory -- perhaps someone arguing that they were stopped only because they were black, for instance.
Of course, as I said, all this is irrelevant if the committee's actions are more analogous to prosecution and not investigation.
I would be surprised if there was no such case in New Jersey given the racial profiling that took place on the Turnpike. Lots of suits over the initial stops, though I am not sure any were challenging subsequent investigations/prosecutions....
Many moons ago, when I was an undergraduate at UCLA, I met a pothead who claimed with a grin that he'd been stopped many times by the cops while driving his VW Beetle, but had never been searched ... because his rear bumper sported a "SUPPORT YOUR LOCAL POLICE" sticker.
The Ward Churchill case seems analogous to this. Churchill was only able to attain his university position precisely because of discrimination over his political opinions and his supposed ethnicity -- had he been white and Republican his record would have faced intense scrutiny before each promotion, and I strongly suspect he would never have been hired in the first place, due to transgressions real or imagined.
Why do we have a First Amendment? (Hint: "Congress shall make no law...") To limit the government's power!
What would be the purpose of applying such a standard here? To limit the power of individuals to disagree with a professor's views? It's risible.
We see a lot of this, because students aren't taught anything about the Constitution anymore. Someone says something offensive and gets fired from his private job, and people scream "First Amendment!" and "freedom of speech!" when neither is applicable. Your employer isn't Congress, and you don't get to limit HIS freedom to express his views by firing you.
And as was expressed by Mike G, the whole "targeted for left-wing views" complaint is laughable considering that if affirmative action standards were applied to political beliefs, most universities would have to double or triple the number of non-leftist faculty.
The point of this is that UC-Boulder, a public, state-run institution, will hand down the punishment. That makes the 1st Amendment very valid in the case.
People are free to criticize Churchill all they want, but they cannot use the government to punish Churchill for his political speech.
a study was done that purported to show that more African-Americans were speeding on a certain part of the turnpike. However, I don't know that there was any independent corroboration of it. In any event, even if you believed the statistics it demonstrated, it did not come close to explaining the disproportionate number of traffic stops of African-Americans on the road. That, together with some pretty overt expressions of policy by some state troopers, make it pretty hard to doubt the practice.
And, in a quick google search on the topic, it appears that a judge did dismiss some charges as a result of it.
Well sure, there are 1st Amendment issues in some regards, just not this one.
And in fact I agree that should the state investigate someone because of their views, that would be a violation, as you point out. But the University didn't investigate him, they had evidence of plagiarism handed to him by individuals.
That's what makes it risible. The policeman is working on behalf of the state. In this case, the people who actually brought this to light were, unless I'm mistaken, just ordinary people who didn't like his views.
Well, as a small business owner I guess I'd be surprised to learn I couldn't fire someone for saying the 9/11 victims were little Eichmanns, since employment here is at-will anyways, but I'll have to defer to your greater expertise; maybe it's a different right (property perhaps) with the same practical effect.
My main gripe is just that people often seem to think the First Amendment protects them from non-governmental consequences, because our schools don't teach people the Constitution.
Absolutely they can.
Say someone knew Churchill had robbed a bank. As it happens, this person doesn't like banks, and is inclined to let the crime slide. But one day he reads Churchill saying the 9/11 victims are little Eichmanns and is enraged by this political speech and wants to punish him, so he turns him in because of what he said. Has the person done something wrong? Is Churchill suddenly innocent of the crime because of why he was turned in? No. The person has successfully used the government to punish Churchill for his political speech.
Churchill got caught because he got famous. No doubt, in part specifically because he got infamous, in that some people were thereby motivated to check out his past statements and writings, but his record would have come out, certainly regardless of which side or ideology considered him infamous, and most likely even if he was purely famous.
(Similarly, it isn't the obscure novel whose plagiarism is documented, it is the novel by the Harvard student who got promotion puff-pieces on the network morning shows.)
We should strive to ensure that a controversial person isn't treated more harshly than a noncontroversial person who got similarly caught out, but we cannot change the fact that a person in the public eye is more likely to get caught out for all sorts of things, and for all sorts of reasons besides ideological opposition.
In the Churchill, as the Bellesiles case, it was no secret that there was some degree of misconduct, and as somebody upthread remarked, his views had actually been protecting him up till recently.
Invalid analogy. Churchill faces potential dismissal because of serial fraud and theft, not because of political speech.
Invalid analogy. Churchill faces potential dismissal because of serial fraud and theft, not because of political speech.
Which was exactly my point, and the point of the analogy.
Of course he can't be punished for his speech. But if a private citizen doesn't like his speech and decides to look around to see if Churchill has done anything that he can be punished for, there's no 1st Amendment protection from such actions.
I was just thinking that too. Very true (except of course Domenech was subject to no gov't action).
Now, at this point, someone is going to say, "well, you need Psycho Wards to develop critical thinking." NO, I DO NOT. I watched TV for 20 years -- I learned how to critical-think from Bugs Bunny and Bart Simpson. The faux-Indian is a rank amateur, compared to them.
Is there ever grounds for ignoring "real misconduct" because of the political motivations of those "prosecuting" the case? That seems to be DeLay's defense of his alleged misconduct. It was Clinton's defense. Do they have a point?
There certainly can be a deterrance argument -- if we want to discourage politically-motivated investigations/prosecutions, we should ignore any "real" results of the investigations/prosecutions. It's kind of like my friend, the mother of twins, who was being driven crazy by her sons' tattling on each other. She imposed a rule that there would be no punishment meted out to the wrongdoer being tattled on. Didn't take long for the tattling to stop. There was no longer anything in it for the tattler.
Is anyone concerned about the potential chilling effect on speech that might come from politically motivated academic investigations? In a Churchill-like case (since I said this shouldn't be about Churchill!), the message might be that it is awfully dangerous to voice unpopular opinions. The truth might be that the opinionated faculty member is an unscholarly hack -- but even good scholars might not want that kind of scrutiny of their work, and decide to keep quiet. Is it better to allow a few unscholarly hacks in the academy, or to root them all out and chill speech?
Perhaps the answer is more nuanced, depending on the kind and degree of the "real misconduct" discovered by a politically motivated investigation.
Excuse me, but this is just malarky. No amount of counter-factual excuse-making will change what Mr. Churchill is -- a deceiving, crude academic bumbler. This would be the case, if he were Bush family member -- this is NOT about politics.
As a classroom instructor, I deal with students every day who try to use excuses like the Great White Deceiver -- race, color, age, SES, the weather, etc. If the Matchbox Cover-Indian is allowed to avoid review -- why don't we just scrap the entire U.S. lifestyle and become an island of hypocrisy like North Korea?
But I think it is a bit disingenuous to claim that the Churchill case has nothing to do with politics. Yes, there were complaints about him before he made his politically-charged comments about 9/11. But you notice nothing was done about it THEN. Don't you think, then, that there may be a teeny-tiny relationship between the content of his politically-unpopular speech and the investigation into his scholarship?
Indeed, Eugene seems to concede so in his title to this post -- "Real Misconduct, Uncovered By Politically Motivated Actions."
And I love the North Korea analogy -- is that the new horrible -- and meaningless -- comparison that Hitler and Nazi Germany used to serve?!