A Different President, a Different Precedent

Perhaps we can find a way to encourage President Barak Obama to pay a visit to the Butler campus so he can repeat some of the things he said in China on Monday. Unfortunately, I suspect he might be unwilling to come to Indianapolis thinking that his welcome from Butler’s leaders might well be far icier than the one he received from Chinese leaders in Shanghai.

The BBC, in a story with the two-tiered headline of “Obama presses China over rights: US President Barack Obama has told China that individual rights and freedoms should be available to all,” quoted Obama as saying, “certain freedoms were universal - and not just limited to Americans.”

The story went on to say, “’We do not seek to impose any system of government on any other nation, but we also don't believe that the principles we stand for are unique to our nation,’ he said.

"’These freedoms of expression and worship, of access to information and political participation - we believe are universal rights.’"

The article then noted that “Media outlets and the internet are heavily censored, and those who speak out against the government are often imprisoned.

“Mr Obama added: ‘They should be available to all people, including ethnic and religious minorities, whether they are in the United States, China or any nation.’

“After his main speech, he addressed the issue again in a question and answer session with Chinese students - many of whom spoke English.

“Mr Obama said freedom of information - including open access to the internet - was important.

"’That makes our democracy stronger because it forces me to hear opinions that I don't want to hear - it forces me to examine what I'm doing,’ he said.

“He said the internet was a powerful tool to mobilise people and had helped him win the presidency last year.”

So, President Obama is telling leaders that they shouldn’t be using the legal system to shut down internet speech that they don’t want to hear. In fact, he’s arguing that hearing such criticisms improves the democratic process and “forces me to examine what I’m doing.”

If only members of the Butler administration could hear, understand and appreciate what President Obama had to say. Obviously, Butler has chosen a completely different path, a path that many have found objectionable. It is very hard to feel comfortable with the company that Butler is deciding to keep on this issue.

Guest Blogger: Anti-SLAPP.org

Today, I bring you a guest blogger. Samantha Brown is the legislative director of the Federal Anti-SLAPP Project which is an organization based in Washington DC that works to end SLAPP lawsuits and promote free speech. Ms. Brown wrote a piece about this case for their blog a few weeks ago titled, "Butler University's Lawsuit Textbook CyberSLAPP." Here, she explains a little bit about SLAPP suits and the dangerous precedent that Butler's actions are setting. I encourage you to check out the links that she provides and to comment on what she has to say.

Teaching Moments from BU’s Suit Against Jess Zimmerman

by Samantha Brown

Federal Anti-SLAPP Project

Institutions of higher learning remain our country's bastions of cutting-edge thought and expression, and a student’s entry to college is marked by an expectation that they will, perhaps for the first time, think critically about the world around them, while taking steps toward intellectual and social independence. With some exceptions, even dissident student voices should be welcomed and encouraged, as a rite of passage, and as an important step in the path toward adulthood and responsible citizenship.

Butler University seems to have forgotten about this important role in the development of their students. When one of its own operated an anonymous blog featuring comments critical of some University faculty, the University opted not to engage with the blogger, respond to his concerns, or even take them in stride as participation in university life that should be encouraged.

Instead, Butler threatened the blogger with a lawsuit if the blog wasn’t taken down. The blogger, confronted with the vast resources of a university, complied, removing the blog and all posts.

Butler sued anyway.

Several months into the litigation, Butler learned the identity of the anonymous blogger – a 20-year-old sophomore named Jess Zimmerman. Butler offered Zimmerman the chance to drop the lawsuit if he would agree to an internal university sanctioning process. Zimmerman declined that offer, and Butler pressed ahead for several more months, despite calls from faculty to stop the lawsuit, and despite some scholarly and media opinion finding the lawsuit groundless and very unlikely to win.

Unfortunately, Zimmerman is not the first to face a groundless lawsuit because he spoke out about an issue important to his community. Such lawsuits are so common that they have earned a descriptive acronym: Strategic Lawsuits Against Public Participation, or SLAPPs. SLAPPs are meritless lawsuits brought against a person or organization for urging a government result or speaking out on an issue of public interest.

Butler's lawsuit against Zimmerman has characteristics of a CyberSLAPP, a particular type of SLAPP, wherein a defendant brings an often completely frivolous or groundless lawsuit against an anonymous speaker, in order to have the court force the speaker to reveal his or her identity. Once a SLAPPer learns the identity of an anonymous speaker, it can drop the meritless lawsuit and proceed with other methods of harassment or retaliation. Employers who suspect that employees may be leaking unfavorable information may use this tactic to discover the identity of an online poster, for example. And Butler seems to have used this model in seeking Zimmerman's identity.

The threat of a lawsuit alone often causes citizens to censor themselves, as when Zimmerman first took down his blog in the face of Butler’s litigation threat. And once someone is sued, even a mertiless lawsuit can take years and thousands of dollars to defend against. Judge J. Nicolas Colabella, of the New York Supreme Court, has said of SLAPPs that, “Short of a gun to the head, a greater threat to First Amendment freedoms can scarcely be imagined.”

But while Zimmerman is not alone in being sued for exercising his first amendment rights, his continued exercise of those rights may put him in the minority of SLAPP victims. Perhaps because his first attempt to avoid trouble by taking down the blog was unsuccessful, or perhaps because he is backed by well-known First Amendment advocates such as FIRE (The Foundation for Individual Rights in Education) and Reporters Without Borders, or perhaps on principle alone, Zimmerman has remained steadfast. He now operates this blog to chronicle the on-going dispute with the university.

State legislatures, judges, practitioners and academics have recognized and documented the disturbing use of SLAPPs as a scare tactic by those who wish to stifle participation in government or expression about matters of public interest. Twenty eight states have anti-SLAPP protections that vary widely in scope and level of protection, and the extent to which the state laws apply in federal courts is unclear. Existing federal doctrine and Rules of Civil Procedure provide only partial protection against SLAPPs in federal court. The current lack of uniformity in SLAPP protection encourages SLAPP plaintiffs to shop for a friendly court, and results in disparate first amendment protections depending on where the suit is filed.

To provide uniform, comprehensive protection for first amendment rights, the Federal Anti-SLAPP Project (FASP) has written and is working to secure federal anti-SLAPP legislation. The proposed Citizen Participation Act (CPA), which Rep. Steve Cohen (D-TN) plans to introduce this year, provides the tools to combat SLAPPs: a substantive right of immunity for petition activity, a uniform method of identifying, dismissing and remedying SLAPPs in federal courts, and a procedure to protect SLAPP defendants who are SLAPPed in state court. The CPA would further provide special protections for anonymous speech, by requiring those who seek an anonymous speaker’s identity in a CyberSLAPP to prove that their case has minimum merit before being allowed to do so.

Civics 101 teaches that free expression is the foundation of our democracy and is essential to public health, community well-being, and economic prosperity. Rather than stress the importance of civic engagement, however, Butler University opted in this instance to punish it, and sought to silence it with the egregious use of the courts as a gag.

For more information about the Federal Anti-SLAPP Project, please see our website or contact Samantha Brown at (sb)[at](anti-slapp[dot]org).

Lessons to be Learned

With so much of my attention focused on the actions the Butler administration keeps directing toward me, at times I almost forget the fact that I’m a student. Then I read something for a class that really helped me to remember what college is supposed to be about. I want to make it clear from the beginning that I'm not comparing myself to Dr. King nor am I comparing my situation to the struggle that characterized much of the 20th century: I simply aim to point out that many of his teachings are still very applicable, in a variety of places and situations, today.

Recently, I had the opportunity to read some of Martin Luther King, Jr.’s writings and they really moved me. Like so many great writers and impressive leaders, Dr. King was able to craft arguments that went far beyond the specific instance he was writing about. One of those pieces was his “Letter from Birmingham Jail,” written on April 16, 1963. He wrote this open letter after being arrested for participating in a protest against racial segregation in Birmingham, Alabama.

He said, in part, “I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial ‘outside agitator’ idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.”

He went on to say, “You may well ask: ‘Why direct action? Why sit ins, marches and so forth? Isn't negotiation a better path?’ You are quite right in calling for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored.”

And he said, “We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed.”

The racial justice he was fighting for, and for which so many are still fighting, is absolutely essential if we are to live in a fair and equitable society. His words are so incredibly powerful because they teach us about all sorts of injustice – and how to fight those injustices. Even more importantly, his words explain why we must fight against injustice when we see it.

President Bill Clinton quoted Dr. King on March 5, 2000 when he was in Selma, Alabama commemorating the 35th anniversary of the 1965 voting rights march. President Clinton chose to quote words Dr. King wrote in 1962, “It is history's wry paradox that when Negroes win their struggle to be free, those who have held them down will themselves be free for the first time."

Dr. Martin Luther King, Jr. has been gone for over 40 years but his words still have much to teach us about injustice and the remarkable benefits that occur for all when injustice is finally overcome.

I wish that many in our community, and beyond, could learn the lessons that Dr. King was preaching.

Wouldn't it be nice?

When Butler University became, according to The Foundation for Individual Rights in Education (FIRE), the first institution of higher education to file a lawsuit for online speech, it didn’t have to be that way. In fact, just up I-65, at Purdue, a professor wrote an unpopular blog that angered a large part of the campus. Instead of acting rashly, the administration at Purdue recognized that the words of this professor, though unpopular, constituted free speech. Like the ACLU has said, “The best way to counter obnoxious speech is with more speech. Persuasion, not coercion, is the solution.” Indeed, free speech may not always be popular speech, but it’s the free part, not the popularity part, that we need to defend.

Consider the difference between the press that Butler has been getting for its free speech stance and the press that Purdue has been receiving for its. I don’t think I need to point out again what people have been saying about Butler: Just look at my last few posts and any of the links on the right. As for Purdue, the Indianapolis Star wrote an editorial this past Friday titled, “A Messy Test of Free Speech” where the editorial board praises Purdue’s actions.

The Star writes:

“One of the beauties of the First Amendment is that it protects the right of any citizen to freely express an opinion, even an unpopular opinion. It also protects the right of critics to offer counter arguments. And so, in an often messy but crucial process, public debate about wide-ranging issues -- including politics, religion and sex -- advances.”

And later:

“Chapman's opinions might not fit within the often narrow range of viewpoints deemed acceptable on many college campuses, but so far all that he has done is present an argument. It may be an offensive argument to many, but the professor didn't come close to advocating violence against anyone or to resorting to slurs to demean his opponents in the Oct. 27 blog post that stirred the controversy.”

The editorial concludes:

“The university has taken the right stand on the matter, pointing to the First Amendment and its powerful protections. They're protections all Americans should embrace, even when the arguments get messy.”

Wouldn’t it be nice if these kinds of things could be written about the Butler administration?

A Chorus, Part Two

As I said yesterday, I want to share some more of the editorial comments that have appeared in college and university newspapers around the country. I’m very pleased that all of these places have recognized the importance of standing up for free speech whenever and wherever it is attacked. Butler happens to be the site of this attack, and I happen to be the recipient of that attack, but as so many editors from around the country recognize, it could happen elsewhere if people don’t protest.

Here’s a sampling of what’s been written:

From The Daily Texan at the University of Texas Austin (11/04/09): The piece, written by a member of the paper’s editorial board and entitled “Viewpoint: Gagging the Bloggers,” says “The school had no case to fall back on, no proof of libel or damage that Zimmerman’s comments may have caused. Instead, officials resorted to a questionable standard.” The column goes on to say, “Despite a win on the legal side, Zimmerman now has to face a much more questionable and judicially suspect form of trial — campus disciplinary proceedings.” The column concludes very powerfully by arguing:

While free speech and press are not guaranteed on private campuses, we applaud Zimmerman’s use of off-campus press to spread news of the administration’s tyrannical response to critical speech — likely curbing similar oppression of speech at other private institutions.

Officials at Butler are bullying students, which makes the school look terrible, but the truly frightening aspect of their actions is the message they are sending and the precedent they are setting for other private institutions around the country. If they punish Zimmerman, it will be out of childish anger and folly, not out of respect for the institution.

Butler University’s administration has already managed to embarrass the university and taint its professional image on a national level far beyond anything a mere blog could do.

We hope that Butler, and universities around the country, learn that in a nation of free thinkers and speakers, sometimes the best way to ensure a message is spread is to try to oppress it.

From the Indiana Daily Student at Indiana University (11/01/09): An editorial entitled “Bulldog bullies” takes Butler’s administration to task:

While the lawsuit has been dropped, possibly because of public backlash to the idea of a university suing one of its own students, campus disciplinary proceedings continue.

As students, we should be outraged. While it is repetitive to reiterate the merits and even the necessity of free speech, especially in a supposedly open and intellectually fostering environment such as a college campus, students should be supported by their university in all forms of “inquiry” and “interactive dialogue” – even the kind that is critical of the university administration.

Students should be able to speak out against their university without fear of legal action or the help of the ACLU, which agreed to take Zimmerman’s case to court.

Butler has become the first university in the United States to file a lawsuit against online speech. While the legal case has now been dropped, it nevertheless sets an alarming precedent – one that we, as students, have a duty to protest.

The editorial goes on to conclude:

Butler University’s mission statement, as found on its Web site, reads as follows:
“Butler’s mission is to provide the highest quality of liberal and professional education and to integrate the liberal arts with professional education, by creating and fostering a stimulating intellectual community built upon interactive dialogue and inquiry among students, faculty and staff.”

For our technology-based generation, “inquiry” and “interactive dialogue” have taken on new forms, such as blogs, but remain the essential foundation of a liberal education and rightfully belong in a university’s mission statement.

While Butler University has given lip service to the ideas, in practice they are attempting to silence those students at their own institution who practice “inquiry” and “dialogue” under the charges of libel, defamation and harassment.

Butler is wrong to use its scarce resources to attempt to intimidate one of its own students into silence. Zimmerman did not libel but rather expressed critical opinions. His blog was a valuable outlet for dissent, conversation and, most importantly, “interactive dialogue and inquiry among students, faculty and staff.”

From The State News at Michigan State University (10/28/09): The paper’s editorial entitled “Student blogger lawsuit sends dangerous message” Butler is harshly taken to task for its actions:

It seems obvious to us the administration’s goal simply was to silence the unidentified writer from crafting a bad image of Butler.

Zimmerman said the blog was a forum — a place for discussion. Like most blogs, these so-called libelous statements seemed to be opinions, not presented as factual statements. Therefore, they wouldn’t seem to fit the definition libel. It doesn’t help Butler’s case that a dean of a university most likely could be deemed a public figure in court, and thus open to greater scrutiny than a normal person.

What is most appalling is that a university is suppressing a student’s right to free speech. In no way is it OK for an administration to sue its own student for expressing a valid opinion. This lawsuit simply undercuts the public’s ability to have honest exchanges of viewpoints.

Will this lawsuit deter students from expressing any contrary opinion on a university’s campus? How is what Zimmerman did any different from a student blowing off some steam in a Facebook status except for the amount of people who viewed it? Many of us have criticized a professor or class utilizing Twitter as well.

Good thing MSU doesn’t file a complaint for every bad economics exam we discuss.

If Butler was afraid of bad public relations because of this blog, it really turned the tables on itself. This story now is on a national level, amplifying originally what it tried to contain.

Butler’s administration appears to have acted recklessly. It suppressed a student’s thoughts at the interest of a valued reputation. This probably isn’t the first case of criticism that has surfaced at a university. Butler should develop a thicker skin and realize universities across the country are criticized every day — through many different mediums. It shouldn’t sue a student based off his or her opinion.

The editorial concludes by noting “Sorry Butler, suing your students doesn’t shush harsh statements. If anything, it just makes them more deafening.”

Although I’m not going to quote from them, you might also want to check out the editorials in The Candor at Benedictine University (11/10/09) and The Stylus at the State University of New York at Brockport (11/11/09).

A Chorus, Part One

The number of editorials and columns appearing in college and university newspapers around the country supporting the rights of students to speak their minds, even if when doing so displeases administrators, continues to grow. I’m gratified that all of those who have written agree with what I’ve said from the outset: the issue Butler has made of my writing has implications that extend far beyond the Butler campus and far beyond what they are doing to me as an individual, as unsettling as the latter might be.

Because the list of such pieces, on the right, has gotten so large, to help people get a full sense of what is being said, I’m going to print excerpts from some of them as my main posts today and tomorrow. I hope you’ll feel as I do: the outcry is both large and growing – and the Butler administration is being increasingly isolated as acting in an extreme manner, out of the norm for colleges and universities around the country. The position that Butler has staked out for itself is certainly a unique one, and I don’t understand why its administrators want to continue in this fashion.

Here, then, is a sampling of opinions from around the country:

From The Daily Iowan at the University of Iowa (11/13/09): In an editorial entitled “Administrators’ stifling of student free speech rights troubling,” the paper wrote, part:

A blatantly censorial lawsuit filed against a Butler University junior is a threat to students’ freedom of speech everywhere.

As students-journalists who relish freedom of speech, we have an obligation to stand up for Zimmerman and push back against unconstitutional restrictions on college students.

Since 1964’s New York Times v. Sullivan Supreme Court case, libel charges from public officials require journalists’ knowledge that the information they reported was false and that the reporter had a “reckless disregard” for the truth. Zimmerman’s claims were simply statements of his opinion and, while damning, were completely legal.

Whether they like it, public administrators are subject to intense — and sometimes unsavory — scrutiny. That was certainly true in the Butler University case. But Zimmerman’s critiques did not cross the line from strident evisceration to libelous material. And attempting to limit his speech because of dissenting comments is unconstitutional.

The efforts of the Butler administration set a frightening precedent for college students. In an errant, unconstitutional effort to uphold their own reputations, the administrators concomitantly stymied Zimmerman’s First Amendment rights.

But it’s cases such as these which show just how fragile students’ freedom of expression rights can be — and underscore the need to tirelessly defend them.

The editorial in the Daily Iowan was run with the following cartoon:

From the News-Letter at Johns Hopkins University (11/12/09): The newspaper’s editor-in-chief called Butler’s actions into question in an opinion piece entitled “What’s in a Pseudonym?”:

The counts of "libel" and "defamation" that Butler University cites in its suit against "John Doe" are nothing more than harmless student opinion. Higher education, built for the expansion of young people's mind and boundaries, was meant for young adults to question and consider counts of authority.

Mark Twain, a.k.a. Samuel Clemens, made his satires of society under his world-famous pseudonym, the Bronte sisters published under male pseudonyms and the American constitutional debates used pseudonyms (Alexander Hamilton, John Madison and John Jay wrote under the famous "Publius"). Heck, numerous authors wrote under pseudonyms when calling colonial British operations into question before the Revolutionary War. Pen names have enabled some of the most important American events to transpire, and the hindrance of such a voice by Butler University threatens the freedom of speech in the future of college journalism.

What is in a pseudonym? What dictates the freedom of speech? Obviously, Oliver Wendell Holmes Jr.'s decision to shout fire in a crowded theater (Schenck v. United States) does not fall under the freedom of speech. However, Zimmerman's decision to criticize what he viewed as unjust University action is completely within his rights. Apparently he hurt administrative members' feelings and protests against their actions occurred. His singular voice of dissent could not single-handedly cause all the opinions and protests that occurred against the University administration. Butler University's decision to sue John Doe only propagates the statements made by Soodo Nym in his True BU blog. Zimmerman called the actions of Peter Alexander, dean of Butler University's College of Fine Arts, "abuses of power." Although Butler administrators claim these statements "libelous" the actions the University has taken to stifle student voice and silence public question is nothing less than that.

The future of free speech is unclear in today's day and age. Although America's past is rooted in free speech dictated under pseudonyms, clearly as opinions, they have not been libelous. Defamation could be viewed as causing ill opinion. However, Zimmerman's statements were only representative of his views as he called Butler policies into question.

Butler should invest more time into making a difference in its students' lives instead of covering up self-created messes that call its own integrity into question. This reputation band-aid and lawsuit only screams Nixonian ethics - after all, think of all the money that was spent on preserving the reputation of the President of the United States.

Butler University's course of action against Jess Zimmerman is misguided, unnecessary and poses a very terrifying problem for students and journalists everywhere: Will universities nationwide attempt to dictate free speech and muddy the growth of free thinking, following Butler University's course of action? It is up to us, as students and emerging individuals, to defend our right to write, protest and call into question what we view as wrong.

No court or university should keep us from doing just that.

From The Blue Banner at the University of North Carolina Ashville (11/11/09): An editorial entitled “Butler University foolishly stifles freedom of speech” comes out strongly in favor of freedom of speech and equally strongly opposed to the actions of the Butler administration. The editorial said, in part:

Blackballing or cracking down on critics creates a tension that never goes away and exacerbates an already bad situation.

Take UNC Asheville for instance. Here at The Blue Banner, we are sometimes critical of administrators, not because we have a personal vendetta to fulfill, but because we think they are not living up the expectations of this unique, diverse campus.

UNCA’s administration, to their credit, has not interfered in any way and continues to support an unfettered student press, unlike Butler.

Some administrators undoubtedly would say criticism of university leadership, whether at Butler or UNCA, harms the university. It is similar to the argument the Bush administration used to silence critics following 9/11. What those who raise such complaints fail to see is that it is possible to love an institution but disagree with its leadership.

If students like Zimmerman cannot challenge authority when they see something wrong on campus, then how can anything improve?

Butler administrators attempted to kill the messenger rather than solve the problems he pointed out, and it backfired on them.

Even though Butler dropped the lawsuit, the university is still pursuing other disciplinary action, according to an e-mail from Zimmerman.

The Blue Banner stands with Zimmerman and is proud he is actively taking on Butler.

Wishing for things to work out instead of working them out is irresponsible, and Zimmerman demonstrated courage by speaking out on what, undoubtedly, countless other Butler students and employees already knew.

Zimmerman’s case highlights the sad fact that, at universities across the country, the student press is often alone in publicly highlighting failures of school leadership.

As we have shown this semester, too many cases exist on this campus of faculty anonymously complaining about serious problems rather than publicly airing them so that creative and productive solutions can be found.

Sadly, some of the same faculty who encourage student expression and political involvement are themselves silent. But for those who truly cannot speak out for fear of losing their jobs, we will be your voice.

I’ll present some additional material tomorrow. In the meantime, let all of us know what you think of the support being offered around the country.