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Real Misconduct, Uncovered By Politically Motivated Actions:

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.

Ex-Fed (mail) (www):
Isn't another distinction the one between investigation and prosecution? The selective prosecution rule is clear -- that deals with the decision to bring and pursue charges. But aren't investigative measures routinely upheld based on an objective analysis (that is, did probable cause support the officer's stop of the car) rather than subjective analysis? In other words, does Wayte really contradict the committee's legal proposition, which IIRC is correct?

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.
5.16.2006 6:02pm
Hans Bader (mail):
Professor Volokh states what the First Amendment rule logically ought to be (that police officers shouldn't be able to use traffic violations as a pretext for political harassment), but I'm not sure that's where the case law is.

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.
5.16.2006 6:28pm
Ex-Fed (mail) (www):
Maybe the difference is between Fourth Amendment analysis and Equal Protection analysis. In Whren -- the SCOTUS case saying that traffick stops are justified based on an objective analysis, not a subjective one -- Scalia seemed to leave the door open to application of equal protection analysis to investigation:

We think these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved. We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis.



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.
5.16.2006 6:39pm
Rational Actor (mail):

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

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....
5.16.2006 6:54pm
davod (mail):
I thought that the figures used to support the NJ profiling case were later proven false. Christie Tod Whitman enacted changes anyway.
5.16.2006 7:43pm
Mike G in Corvallis (mail):
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.


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.
5.16.2006 8:03pm
TallDave (mail) (www):
The whole concept is ridiculous.

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.
5.16.2006 8:16pm
Angus:
TallDave,

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.
5.16.2006 8:27pm
Eugene Volokh (www):
TallDave: I'm puzzled here. This is a public university, not a private job. No-one is talking about individuals' power to disagree with a professor's views; the question is whether the government may fire the professor. The right to fire people is generally not understood as an exercise of free speech; certainly the Constitution has never been understood this way. Sometimes, a private entity's (perhaps even a private university's) firing of an employee whose job it is to speak may qualify as an exercise of the entity's First Amendment rights, but the matter is much more complex than you suggest -- and it is not at all well-settled that government entities (here, the state, running the university) have free speech rights. So before criticizing various arguments as ridiculous or risible, perhaps you might explain a little more about the basis for your arguments.
5.16.2006 8:27pm
Rational Actor (mail):
Davod -
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.
5.16.2006 8:33pm
TallDave (mail) (www):
Eugene,

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.
5.16.2006 9:42pm
TallDave (mail) (www):
The right to fire people is generally not understood as an exercise of free speech

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.
5.16.2006 9:51pm
TallDave (mail) (www):
People are free to criticize Churchill all they want, but they cannot use the government to punish Churchill for his political speech.

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.
5.16.2006 10:06pm
dwpittelli (mail) (www):
People are free to criticize Churchill all they want, but they cannot use 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.
5.16.2006 10:17pm
Brett Bellmore (mail):
This is absurd; If people don't like Churchill, it's in large part because they think his positions are outrageous and wrong. It would be hard to imagine a more valid reason for examining a person's work for academic misconduct than a belief that they were persistantly publishing things that were incorrect.

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.
5.17.2006 7:38am
Federal Dog:
"The person has successfully used the government to punish Churchill for his political speech."


Invalid analogy. Churchill faces potential dismissal because of serial fraud and theft, not because of political speech.
5.17.2006 8:42am
Moneyrunner43 (www):
The defense of Churchill here seems to be that people who disagreed with him politically provided accusations of misconduct, making the political bias of the accusers the first issue. On that basis, any accusations made by Liberals against Conservatives or Democrats against Republicans should be considered illegitimate and should not be the basis for an investigation, based on the First Amendment.
5.17.2006 8:56am
Craig D.:
Isn't that WaPo conservative blogger, Domenech (sp?), an example of the same sort of issue from the other side?
5.17.2006 9:19am
Ron Olliff (mail):
What is being missed by all here is the complaints of Churchill's shoddy and fraudulant scholarship and ethnicity were made to the school years prior to his making the statements that created the furor. The University ignored them. This investigation should been done long ago. This is where they get into trouble, it is obvious that the investigation was done now because he was shining a bad light on him and the university and even now the committee is being soft on him. 4 out 5 say only suspend him- that is just a slap on the wrist for some very aggregious scholarly crimes.
5.17.2006 10:07am
TallDave (mail) (www):
"The person has successfully used the government to punish Churchill for his 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.
5.17.2006 12:05pm
TallDave (mail) (www):
Craig D,

I was just thinking that too. Very true (except of course Domenech was subject to no gov't action).
5.17.2006 12:11pm
Clayton E. Cramer (mail) (www):

What is being missed by all here is the complaints of Churchill's shoddy and fraudulant scholarship and ethnicity were made to the school years prior to his making the statements that created the furor. The University ignored them. This investigation should been done long ago.
The same was true for Bellesiles. Emory University had received detailed and specific evidence of fraud--and they didn't care. The Bancroft Prize committee had received detailed and specific evidence that they were about to honor a fraudulent book--and they went ahead and did it anyway. As long as the fraud serves the left's purposes, and no one important knows that it is a fraud, why spoil the party? This is part of why I don't respect the academy anymore.
5.17.2006 12:32pm
A.D. (mail):
About whether or not Mr. Churchill can be fired -- let me cut to the chase. He can howl at the moon for all I care. I just don't want to pay for his howling. As noted by Dr. Walter Williams about the high school teacher using the Bush-Hitler commentary -- just de-fund losers like Mental Ward. Create financial exigency, which allows for tenure to be eliminated.

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.
5.17.2006 6:37pm
mls (mail):
Taking Churchill out of it for a moment, Eugene's title to his post poses an interesting issue in the abstract: "Real Misconduct, Uncovered By Politically Motivated Actions."

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.
5.17.2006 11:53pm
A.D. (mail):
" .. Is anyone concerned about the potential chilling effect on speech that might come from politically motivated academic investigations?"

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?
5.18.2006 4:59pm
mls (mail):
AD, you seemed to have missed a crucial point about my post -- it wasn't about Churchill, so your assessment that my post is malarkey because of Churchill's shortcomings seems a bit of a non sequitur.

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?!
5.18.2006 10:43pm