The University of Colorado finally bit the bullet and fired Professor Ward Churchill. However, the university took great pains to make it clear that its action was not the result of Churchill’s controversial essay that referred to the 9/11 victims as “little Eichmanns” and praised the terrorists who killed them. Rather, the university’s Board of Regents decided that he had to go because of alleged academic fraud. In the words of University of Colorado President Hank Brown, there was “a pattern of serious, deliberate and repeated research misconduct that fell below minimum standards of professional integrity.”
Since the University of Colorado is a public university, it is subject to the First Amendment’s protection of the right of free speech against interference by the government. As an employee of this public institution, Churchill was entitled to the benefit of this constitutional protection.
Accordingly, Churchill has filed a lawsuit against the university, claiming that his dismissal violated his First Amendment rights because he was fired for simply expressing controversial views on matters of public concern. He will undoubtedly rely on a series of U.S. Supreme Court cases which have concluded that the threat of dismissal from public employment is a potent means of inhibiting speech, particularly in areas relating to discussion of government policy. The test that the Supreme Court has used in such cases is to balance the interests of the employee as a citizen, in commenting on matters of public concern, against the interest of the State as an employer, in promoting the efficiency of the public services it performs through its employees and preventing disruption of its normal operations.
The irony of Churchill’s case is that he is seeking the protection of the same First Amendment that the Islamic extremists, with whom he sympathizes, are sworn to destroy. But the great thing about the United States - the country Churchill despises and wants “off the planet” and “[O]ut of existence altogether” – is that Churchill will be given his day in court to assert his First Amendment claims.
For its part, the university is trying to avoid the whole First Amendment issue. The Board of Regents is banking on the fact that it has built a solid case for its action based on credible findings regarding Churchill’s alleged academic fraud. This independently valid reason for Churchill’s firing should render the First Amendment issue moot, according to the university. If the university has its way, Churchill’s case will turn on whether he was accorded due process during the proceedings leading up to the decision to fire him, the reliability of the findings against him and whether the university can contractually fire a tenured professor for the reasons stated.
However, the university’s defense, based on Churchill’s alleged academic dishonesty and incompetence, obscures the more fundamental issue at stake in this controversy. Even if Churchill can prove that the university’s real motivation for firing him was its concern over what Churchill said and that all the rest were just convenient excuses, the First Amendment does not provide Churchill with the protection that he is seeking in his particular circumstances.
In his essay entitled Some People Push Back: On the Justice of Roosting Chickens, Churchill compared certain civilian workers at the World Trade Center who were murdered on 9/11 to the notorious Nazi, Adolf Eichmann, and said that the ultimate “penalty” that they paid with their lives was the most effective punishment he knew of for their “participation” in enabling the sins of American imperialism:
“Well, really. Let's get a grip here, shall we? True enough, they were civilians of a sort. But innocent? Gimme a break. They formed a technocratic corps at the very heart of America's global financial empire – the "mighty engine of profit" to which the military dimension of U.S. policy has always been enslaved – and they did so both willingly and knowingly. Recourse to "ignorance" – a derivative, after all, of the word "ignore" – counts as less than an excuse among this relatively well-educated elite. To the extent that any of them were unaware of the costs and consequences to others of what they were involved in – and in many cases excelling at – it was because of their absolute refusal to see. More likely, it was because they were too busy braying, incessantly and self-importantly, into their cell phones, arranging power lunches and stock transactions, each of which translated, conveniently out of sight, mind and smelling distance, into the starved and rotting flesh of infants. If there was a better, more effective, or in fact any other way of visiting some penalty befitting their participation upon the little Eichmanns inhabiting the sterile sanctuary of the twin towers, I'd really be interested in hearing about it.” (Emphasis added)
Had Churchill simply engaged in strident verbal attacks on American foreign policy and its consequences, his words would be protected by the First Amendment - no matter how offensive and irresponsible such attacks may be. The essence of the First Amendment is to protect the vigorous exchange of ideas, particularly on public policy matters, irrespective of how crudely those ideas are expressed.
Had Churchill engaged in over-the-top political rhetoric aimed at public officials, who take the risk of being subject to vicious ad hominem attacks when they decide to enter the public arena, he also would have a very strong case for First Amendment protection. The Supreme Court, in its landmark case Times v. Sullivan, reaffirmed the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
But Churchill chose to defame private citizens going about their lawful business activities by falsely labeling these 9/11 victims as “little Eichmanns”. Though not naming any of the victims individually, he specifically targeted the readily identifiable subset of financial service workers who lost their lives that day. The damage to their surviving family members is incalculable. This pain is illustrated in the following excerpt from an open letter that a brother of a 9/11 victim addressed to Churchill, which was otherwise fairly sympathetic to Churchill’s perspectives:
“My brother Chris was a 1985 graduate of the University of Colorado, the father of three young children and a compassionate, respectful and generous man. He stood in defense of our environment, volunteered his time and money in support of human rights, and gave unselfishly to help disadvantaged, vulnerable members of our society. He spoke openly against unjust government policies, and followed a private ethic of compassion. Chris was also a U.S. government Treasury bond broker for Cantor Fitzgerald, and therefore by your definition was a ‘little Eichmann.’
At on Sept. 11, 2001, you claim that my beautiful brother Chris, a "technocrat" in your words, received his "befitting penalty." While Chris rarely used a cell phone in his work (much less self-importantly brayed into one), he did make one call that fateful day. At about that morning, Chris bantered back and forth with his 4-year-old daughter to get her to say that she loved him — she was the last of his family to talk with him.
Mr. Churchill, what I want you to see is the human face behind the rhetoric. Human beings are not symbols, and your essay's dehumanization of the victims of 9/11 reduces them to mere symbols — drones in a capitalist machine...
We would like you to use your right to speak and your privileged position to be clear on our brother's death so that we can better understand your message. Are you capable of rejecting the language of hate and engaging in real constructive dialog to explore realistic solutions to our real world problems, without pitting one group of victims against another?
Mr. Churchill, my family is not ensconced in an ivory tower. We do not have the luxury that you have of pontificating at arm's length on the causes behind the events of 9/11. The reality of that day has been cemented in my family's life forever.
Was our loss justified? Did it right any wrongs that have been committed in this world? We await your clarification.
We all are still waiting. Defamation of private individuals in the malicious manner practiced by Churchill is not protected by the First Amendment.
To add further insult to injury, Churchill told an interviewer in 2004 that “[O]ne of the things I’ve suggested is that it may be that more 9/11s are necessary.”
Churchill went even further than this with incendiary statements that could be considered public incitements to commit violence against our military.
On June 23, 2005 in Portland, Oregon Churchill was reported to have told a conscientious objection forum that a soldier who opposed the Iraq war would have “a much more impactful effect” by “fragging an officer” than conscientiously objecting to combat.
Fragging means to kill, wound, or assault a superior with a fragmentation grenade. To emphasize his point, Churchill asked his audience this rhetorical question: “Would you render the same level of support to someone who hadn't conscientiously objected, but rather instead rolled a grenade under their line officer in order to neutralize the combat capacity of their unit?”
When asked by a member of the audience about the officers' families, Churchill again used his Adolf Eichmann comparison by responding, "[h]ow do you feel about Adolf Eichmann's family?"
The taxpayers of Colorado contribute $200 million in taxes annually to the University of Colorado. Federal agencies provide about $640 million annually in research funding. Yet here we have the spectacle of a public employee of the university, paid nearly $100,000 a year from American taxpayer dollars, publicly exhorting an audience to consider supporting the killing or maiming of an American military officer with a grenade in order to neutralize the combat capacity of his unit.
Churchill will argue that no matter how offensive his speech, the First Amendment is designed expressly for the purpose of protecting his right to say it, and that faculty members especially must be able to speak and write unpopular views because their role is to stimulate free and open debate on cutting edge, controversial issues. He is right up to a point. Courts have granted more leeway to professors to say offensive things than they have accorded to administrators, on the theory that unrestrained exchange of ideas lies at the core of academic freedom.
However, there are outer limits. The University of Colorado should not have to tolerate speech which can reasonably be expected to cause serious disruptions of its normal operations. For example, there is an active ROTC program on campus. The university would have a legitimate concern that Churchill’s incitements to kill or maim military officers could threaten the peaceful functioning of this program and lead to further disruptions on campus.
Academic freedom must be accompanied by academic responsibility. Professor Churchill’s defamatory and incitement speech failed the test of First Amendment protection. He deserved to be fired on this basis alone. Of course, if the allegations against Churchill regarding plagiarism and other acts of misconduct turn out to be true, his firing is a no-brainer.