Coloradans Debate Free Speech, Assembly
by Ari Armstrong, February 3, 2005
Ward Churchill's horrific essay sympathizes with Islamic terrorists and compares many of the victims of the September 11 terrorist attacks to Nazis. The essay has justifiably outraged many Coloradans. The silver lining surrounding the affair is that many Coloradans have engaged in a serious debate about the meaning of the First Amendment and the freedom of speech.
Some have claimed that firing Churchill, a professor at the University of Colorado at Boulder, would violate his First Amendment rights of free speech. That claim is complete nonsense. Churchill has every right to say whatever he wants, but he does not have a right to force the rest of us to fund his efforts.
When colleges accept subsidies from the state, they automatically place their policies in the political arena. People who are forced to subsidize the colleges may rightly complain when their money funds an academic pretender such as Churchill.
Just as Churchill has the right of free speech, every tax payer has the right of free speech. Part of the right of free speech means the right not to speak and not to support ideas one finds reprehensible.
Furthermore, the freedom of association implies the freedom not to associate. For instance, I have the right to refuse to invite Churchill into my home to give a talk. Similarly, organizations, including colleges, have a right not to hire Churchill.
Now, there is another matter of academic freedom and tenure. There is some merit to protecting extremely unpopular opinions in the universities. However, academic freedom (in the context of a paid university position) properly has limits. For instance, CU should not hire somebody who denies the Holocaust or argues the Sun revolves around the Earth. Churchill should be fired because his essay is pathetically stupid, not because it is controversial.
However, while the freedom of speech is properly universal and fundamental, academic freedom (including tenure) depends on a particular social institution and contractual framework. It is a grave mistake to confuse Churchill's First Amendment rights with his academic freedom to draw a salary from CU and benefit from an association with CU.
A related issue involves the Columbus Day parades in Denver. The issue is related conceptually, and some of the same people are involved. For instance, an editorial published by the Rocky Mountain News complains about Churchill's "annual Columbus Day attempts to deny other citizens their First Amendment rights."
It is indeed ironic that some of the same people who want to shut down the Columbus parades also think firing Churchill would violate his rights of free speech. Such people are wrong on both counts: they should not forcibly shut down the parades, and Churchill has no First Amendment right to work at CU.
The January 22 edition of the Rocky Mountain News, which also contains an editorial page for the Denver Post, contains a couple of especially pointed articles that criticize the attempt to shut down the parade. I was pleasantly surprised by the to-the-point commentary. However, the articles also contain some important errors and omissions.
Here's part of what Bob Ewegen wrote for the Post: "[Y]our rights under the First Amendment were defiled. The travesty occurred when a Denver jury, in a blatant act of jury nullification, decided that the U.S. Constitution doesn't apply to anyone whose views offend Glenn Morris. Morris was a leader of the protesters who illegally blocked the 2004 Columbus Day parade, thereby depriving parade participants... of the rights of free speech and freedom of assembly... Morris and seven of his fellow Thought Police responded by arguing in court that they had a right to block the Italian-Americans because a celebration of Columbus was 'hate speech'."
An editorial in the News argued, "[O]fficials... should be asking City Council to pass an ordinance making it an offense to 'knowingly interfere with a permitted parade.' There is no such offense on the books, meaning the city attorney's office had to prove protest leaders heard police orders that they refused to obey. But the defendants insisted they couldn't hear the orders above the din... Unfortunately, it appears jurors were also swayed by less creditable arguments -- arguments that if universally applied would effectively repeal the First Amendment. Defense attorneys argued that the parade was a form of ethnic intimidation because participants knew Columbus represents a fearful symbol of violence and oppression to Native-Americans... Since ethnic intimidation is illegal under Colorado law, protesters had a public duty, the argument goes, to stop the parade and prevent an illegal act."
The writers wondered whether the ethnic-intimidation law is Constitutional, but if it is, they argued, surely it was misapplied in this case.
I do not wish to get into the debate about whether Columbus was a great man or a moral monster. Generally I side against the multiculturalists, but that's irrelevant to this particular discussion about the First Amendment. Those who love Columbus or hate him should agree with my general position about intellectual liberty.
The position that supporters of Columbus have a right to hold a parade is complicated by the fact that the parade was held on tax-funded property. Before, I argued that tax payers have a right not to fund speech they find offensive. Indeed, that's the position of Governor Bill Owens. If the Columbus Day parade were held on private property, its organizers would have an unequivocal right to hold the parade.
What about parades held on tax-funded streets? There are some important differences between the parade and Churchill's paid position at the university. The tax subsidy for the parade is trivial, whereas the tax subsidy for Churchill is substantial. More significantly, parade permits should be granted without any ideological filter. So long as the city grants permits on equal footing to supporters of Columbus, haters of Columbus, the Ku Klux Klan, Focus on the Family, the Satanic Church, and any and every group, no matter how controversial, then a good argument can be made that people have a right to hold parades for certain limited times.
A good argument could also be made that no parade should be held on tax-funded property, because any parade is bound to offend at least one tax payer. At some level the argument is intractable, precisely because it is impossible to perfectly determine the just use of tax-funded property, which relies fundamentally on the use of physical force. However, I think it's reasonable to hold that, so long as the city does not discriminate in its issuance of permits, people have a right to hold a parade during the time specified by the permit.
Ewegen unfortunately uses his piece to grind his ax against jury nullification. However, the advocates of jury nullification do not have to hold, nor do they hold, that every instance of jury nullification is appropriate. Similarly, one need not hold that the right of free speech is always practiced correctly in order to support the right of free speech. The press abuses the right of free speech every day, yet that doesn't change the fact that the First Amendment is a cornerstone of our liberty.
In this case, the jury made the wrong decision. But does Ewegen really want to obliterate jury nullification per se? Let us contemplate the hypothetical case of a group that held a parade on its own property, and its members were arrested on the basis of some "ethnic intimidation" law. Would Ewegen want these people prosecuted, or would he want the jury to uphold their liberty? If I were on the jury, I would not convict under such circumstances.
I agree that, to the degree the jury in the real case accepted the argument about "ethnic intimidation," it was grossly irresponsible. However, I'm not prepared to be overly harsh on the jury. I think there's another reasonable argument for acquittal. There's quite a big difference between standing in front of a parade and, say, stealing a car or stabbing somebody. Had I been on the jury, I might have wondered if I wanted my tax dollars spent to house and feed the protesters. At some point, the parade organizers, and arguably the city's police, have a responsibility to provide adequate security. Why should tax payers have to pay extra for jail space?
The News discusses two laws -- one existing and one proposed -- that illustrate the same major problem with modern government, which is a legion of stupid laws. There should not be any sort of "ethnic intimidation" law on the books. Instead, the law should generally forbid harassment of anybody, by anybody. Intimidation -- meaning real intimidation, rather than just a speech or parade -- should be illegal across the board, and the fact that it may be "ethnic" in nature should be entirely irrelevant, from a legal standpoint.
The News's solution is the passage of yet another law (actually an ordinance in Denver). Yet this is totally unnecessary and contrary to sensible law. The principle is that people have a right to use their property as they choose. In this case, we are saying that tax-funded property is temporarily transferred to a particular group during a particular time and for a particular use (a parade). Therefore, people who block the parade are interfering with the legal use of property. That should be addressed by a general law, not a narrow ordinance that addresses a particular case. (I'm not even entirely convinced that cities should be allowed to pass ordinances.)
If the charge was failure to follow a lawful order by the police, then the assumption is that the order was indeed lawful, and not merely arbitrary. After all, we have no obligation to follow unlawful orders. But if the order was lawful, then that means the actions of the protesters were wrong for some more fundamental reason. The fact that prosecutors mishandled the case is hardly justification for a new law (or ordinance). In general, the trend is to pass a law to make every conceivable action illegal, so as to remove all discretion from the jury. But the whole point of the jury is to apply a general principle to a particular case. Thus, the laws should be simple, general, and few in number. If prosecutors can't do their jobs within that framework, then the solution is to find better prosecutors.
Fundamental to the case of both Ewegen and the News is the idea, enshrined in the First Amendment, that people have a right to assemble with others of their choice, so long as they don't violate the property rights of others (say, by assembling on somebody's yard without permission). Unfortunately, the right of free assembly is under assault when it comes to the marketplace. Yet there is no justification for recognizing the right of free assembly in some situations but not in others.
In a January 26 article in the Rocky Mountain News, Lynn Bartels describes a bill before the legislature "that would add sexual orientation and gender variance to the state's anti-discrimination employment laws."
I agree that employers should not discriminate on the basis of gender and sexual orientation. However, this is simply not an appropriate thing for legislators to regulate. A business owner has a right to hire and fire people for any reason whatsoever, rational or otherwise. (The exception is if an employer hires somebody with a specific contract that outlines conditions for continued employment, but that still falls within the free choice of an employer.)
If a Christian or Islamic fundamentalist hates gays, he or she has every right not to hire gay employees. Just as people who like Columbus have a right to parade and people who hate Columbus have a right to protest the parade (without blocking it or acting violently). Similarly, the rest of us have the right to morally condemn the bigoted business owner and boycott the business. Social action against bigotry is both legal and proper. However, legislative interference violates the right of free assembly.
What has been lost in modern politics is the distinction between legal rights and the morally right. It is morally wrong to eat too much fat or smoke or hate gay people or compare the victims of terrorism to Nazis. Yet people have a right to do all of these things, and the law properly recognizes the right to do all these things. Only some things that are immoral should be illegal. Specifically, people should not legally be allowed to act violently, threaten violence, damage property, or commit fraud.
All these issues are related, and it's important to understand the relationships. (One of my proofreaders wondered if I'm covering too many points in this essay. I responded that I've written a more focused article for Boulder Weekly, scheduled for publication February 10, while here I take up all the details and side-issues that were on my mind but that I did not have the space to address in the other piece.) Ward Churchill has a right to compare the victims of the terrorist attacks to Nazis, but he does not have a right to be subsidized by tax dollars or to work for any particular organization. (He does have some contractual rights relative to his position at CU, but the contract lays out conditions by which Churchill may be fired.)
Closely related to the right of free speech is the right of free assembly; both issues are covered by the First Amendment. The argument is complicated by speech and assembly that involves tax subsidies. The right of free assembly is no less important in the arena of commercial assembly. Clear, objective laws are necessary to protect the right of free speech and all rights. Juries also need to protect individual rights. The protection of individual rights is paramount, even in cases where the individual is doing something that's offensive. It is especially in the difficult cases that individual rights must be defended, if the legacy of the First Amendment is to survive and thrive.