Secrecy and Discipline: The Butler Way – Part 2

In part 1 of this post I did a number of things. I broached the subject of the cloak of secrecy that Butler uses to cover all actions, thoughts and events it doesn’t like. I explained how I have been ordered by that administration to refrain from providing any details about Butler’s internal disciplinary process – even while university administrators felt comfortable proclaiming my guilt to anyone who would ask. And I presented a document filed with the Marion Superior/County Court in an attempt to correct much of the wrongdoing that those same administrators were perpetuating.

I also mentioned that the document that was filed on my behalf elicited a firestorm of response from Butler and its high priced lawyers. As I did in my last post, I’m going to be very careful about what I write because I know very well how Butler administrators and their attorneys will come after me if I poke even the smallest hole in their cloak of secrecy. It’s for that reason that I’m not going to say anything at all other than what’s already in public documents easily accessible to anyone who wishes to read them.

The document that my attorney’s filed was a request for a temporary restraining order. The purpose of a temporary restraining order is relatively simple. It’s used to stop one party from doing something that the other party feels is illegal or unfair until a hearing can be held to determine whether the action is actually illegal or unfair. A temporary restraining order has to be presented to a judge who then makes a determination about whether or not a hearing is warranted or whether the disputed action can continue. Because temporary restraining orders are often used in business disputes, and because when a business is kept from undertaking some business it could conceivably suffer a financial loss, the judge issuing the temporary restraining order has to determine how much of a bond the person asking for the order should post. In my case, my attorney requested that Butler not be permitted to have a disciplinary hearing on the date they selected because of the obvious unfairness they had already demonstrated. The judge agreed and determined that since no business interests were involved, no bond needed to be posted.

As you can read for yourself in the inflammatory document submitted by Butler and its attorneys (yes, all of Butler’s legal documents seem to have multiple attorneys signing off on them, perhaps simply to boost profits, perhaps in a misguided attempt to intimidate a student), none of this went over very well. Let me point out two of the most amazing points that Butler made. First, Butler University accused me of filing for the temporary restraining order at the last minute in an effort to subvert them. In reality, I waited that long because I simply didn't want to have to do it, but the continued unfairness of the internal disciplinary process left me with no choice. Second, and even more amazing, they demanded that the judge require me to post a $100,000 bond.

Let me say that again. Butler University demanded that a student post a bond of $100,000 simply for asking that an internal disciplinary proceeding be delayed until the court could determine that the process would be a fair one. Indeed, on the final page of their motion, Butler's attorney writes that the court should order me to "post a bond in the amount of One Hundred Thousand Dollars ($100,000) which represents the minimum damages Butler will incur if it is found that it was enjoined wrongfully."

Since my request for a temporary restraining order meant only that an internal disciplinary hearing would be delayed, Butler obviously was not going to suffer financial losses from any delay. No, the real reason for such an outrageous request was intimidation – a strategy that has been fully in keeping with every action the Butler administration has taken in this case. They hoped that all of those zeros would scare me into backing down. I’m pleased to say that, this time, Butler and its lawyers failed to intimidate me. My lawyer, on my behalf, filed a response that made it clear that we would fight for my rights.

I’d like to make two additional points. First, as is the case with every attorney/client relationship, I consulted regularly with my lawyer and no actions were taken or petitions filed without my approval. For it to be any other way would violate the basic ethics of the legal profession. I raise this point because Butler’s president likes to say that his lawyer consistently acted without his knowledge. Second, I never said that I was unwilling to participate in a campus disciplinary hearing. Indeed, the petition filed in court said that I was willing to participate if a fair process could be guaranteed. After all, I had absolutely nothing to fear from a fair process since I did not act inappropriately. On the other hand, however, I had everything to fear from a process that included the president and all of his minions declaring my guilt to all who would listen before the process began.

In part three of this post, I’ll share with you, to the extent that I can given Butler’s demand for secrecy, the outcome of all of this legal maneuvering and let you draw your own conclusions about the situation.

Let me end with an acknowledgment that I’ve made often over the past months: none of this could have been possible without your support. Thank you.

Lenin v. Roosevelt

Tonight, I want to compare the perspective of Vladimir Lenin to that of Franklin Delano Roosevelt. But first I need to set the stage.

For well over a month now, various Butler offices, from that of the president through those of various vice presidents to many in the public relations office, have been saying fairly incredible things about me and The True BU. Regularly, they say that the blog threatened the safety of the campus. They say that the blog intimidated senior administrators on campus. They have regularly talked negatively about an email they admit they have no evidence I wrote at the same time they talk of The True BU in an attempt to conflate the authorship of the two. They note that “Butler does not tolerate racial and sexual epithets in the name of free exchange of ideas,” while discussing The True BU, but never once have they pointed to any such slurs.

From what I’ve seen on campus, and frankly from what I’ve seen through many contacts off campus, most people have not actually read what I’ve written in The True BU. Many people, having heard or read the Butler message, say that what I’ve done was wrong. They say it isn’t right to threaten people or to intimidate people or to use racial and sexual slurs. Who could argue with that? Certainly not me. But I didn’t actually do any of those things – despite the message repeated loudly and often by Butler to the contrary.

Which brings me to Vladimir Lenin – or to a quotation that has regularly been attributed to him. (I have been unable to track down the actual source of the quotation so, despite the frequency with which the attribution has been made, I don’t actually know if he said it or not.) “A lie told often enough becomes the truth.”

The Butler administration seems to have wholeheartedly endorsed that sentiment. They present no evidence, but they keep repeating their statements. This is as cynical a way to influence public opinion as possible.

While I can’t stop their repetitions, I can embrace an alternative and far less cynical philosophy – one articulated by Franklin Delano Roosevelt in a radio address on October 26, 1939: “Repetition does not transform a lie into a truth.”

I know what the truth about The True BU is and no amount of repetition will change the truth into something else. I am also very pleased by the fact that when people actually have taken the time to read what I’ve written, they too have overwhelmingly come to the same conclusion as I have.

You’d think that those in charge of an institution of higher education would come down on Roosevelt’s side of the divide – or at least you’d hope that they would. After all, education is about knowledge, about reducing ignorance. Or, as Anatole France has said (in yet another quotation that I can’t verify beyond pointing to the fact that “everyone” says it’s real): “An education isn't how much you have committed to memory, or even how much you know. It's being able to differentiate between what you do know and what you don't.” Unfortunately, some at Butler seem to want you to confuse the two.

Reporters Without Borders

Reporters Without Borders (Reporters sans frontières) is an international organization dedicated to protecting the rights of reporters and promoting freedom of speech. In 2005, Reporters Without Borders won the prestigious Sakharov Prize for Freedom of Thought awarded annually by the European Parliament. The organization was founded based on the premise outlined in Article 19 of the 1948 Universal Declaration of Human Rights which asserts that people everywhere have "the right to freedom of opinion and expression.” When Reporters Without Borders sees an injustice, it investigates and, if warranted, sends letters of protest.

I’m honored to report to you that Reporters Without Borders has reviewed The True BU situation and has opted to put its considerable reputation behind me. A copy of the letter can be found in the documents section (on the right), but here’s the text of the letter of protest that they sent to Butler.

Dear President Fong,

Reporters Without Borders, an international organization defending freedom of the press and free speech worldwide, is concerned about the treatment of Butler University junior Jess Zimmerman. In January 2009, the Butler administration sued him after he published criticism and opinion pieces against your administration in an anonymous blog. It was the first time in the United States that a student was sued by his university for online content and our organization is quite worried regarding the consequences this decision may have on online free speech.

Reporters Without Borders thinks the right to speak freely includes the right to speak anonymously and defend it as long as long as no racial hatred,insult or call for violence is published. Moreover, back in 2004, in Polito v. AOL Time Warner, Inc., 78 Pa. D. & C.4th 328 (2004), the Supreme Court held the right to speak anonymously on the Internet was protected by the First Amendment, "but, if an anonymous Internet speaker engages in tortious or criminal conduct, the protection of the right to communicate anonymously must be balanced against the need to assure that those persons who choose to abuse the opportunities presented by this medium can be made to answer for such transgressions". We are not aware that Jess’ conduct was tortious or criminal and ask you to explain your action against him.

Reporters Without Borders is aware the University decided to dismiss the case and would continue with a formal disciplinay procedure against Jess Zimmerman. Instead, charging him with the same accusations it did in the lawsuit although his blog is no longer anonymous.

We are of course cognizant that a University such as Butler has to satisfy a high level of excellence. Criticisms have to be handled with care. However, our organization fears this decision is a way to intimidate and silence your student.

We urge you to take action on this issue, without harming the reputation of Butler University, the career of Jess Zimmerman or online free speech, by withdrawing the charges against him.

We trust you will live up to our expectations.

Clothilde Le Coz

Reporters Without Borders USA.

Butler’s abbreviated response came from the public relations department and, according to Clothilde Le Coz, said “The University never elected to take the legal steps to replace ‘John Doe’s’ name with Mr. Zimmerman in the complaint. No suit was ever brought against Mr. Zimmerman. In fact, Butler’s newspaper, The Butler Collegian, reported that ‘Zimmerman said he agrees that he technically was not sued, although he is the face behind ‘”John Doe."’”

In light of Butler’s refusal to address the “fear” raised by Reporters Without Borders that Butler’s “decision is a way to intimidate and silence your student,” and because Butler has neither dropped the charges against me nor explained why they have opted not to do so, Reporters Without Borders has encouraged me to publicize their letter in any way that I think will be helpful. My first step is to share it with all of you.

Increasingly, the administration of Butler University is becoming more and more isolated as this case drags on. Experts from around the world who have actually read the materials I wrote and who have actually read the incredible accusations Butler administrators and lawyers have made have all reached the same decision: there was nothing wrong with The True BU. Isn’t it time for Butler to recognize that the opinions of experts should count for something?

Reputations

Ok, I have a confession to make. My last post was several days ago and it was an abbreviated one because I was sick. Even though I was pretty sick, it shouldn’t have stopped me from posting for this long. I’ve been slow coming back to posting because I was simply getting exhausted by all of this. Although I knew that nothing was going to go away if I simply ignored the ridiculous situation that I find myself in, I thought maybe I’d give it a shot.

From one perspective, the rest felt pretty good, but nothing much has changed. The university public relations people keep churning out letters saying that the campus had to be protected from the threats made in The True BU. I keep hearing from people who have written to administrators at Butler asking for an apology for their actions. Instead of an apology, they’ve been receiving form letters from PR discussing the “defamation, threats, harassment, and intimidation” that was supposedly included in The True BU. Of course, they don’t point to a single sentence that I’ve written in support of their ridiculous claims. The irony of having Butler opt to endorse a policy of defamation against me, with statements that are clearly false, while attacking me for writing a blog that expressed opinions that were not only well documented but have now been publicly supported as accurate by a large portion of the faculty in the School of Music, is fairly incredible.

The other thing that hasn’t changed is that the national negative attention that Butler has brought on itself through actions of this sort seems to be continuing. College newspapers around the country have been regularly reporting on the issue and writing editorials critical of Butler’s administration. As I said from the outset, Butler’s actions, while directed at me, have huge implications for students, and others, around the world. If critical speech is attacked in one place, it is actually being attacked everywhere.

The latest student editorial, along with another editorial cartoon reproduced below, appeared in the SUNY Brockport newspaper, The Stylus. The headline makes it clear where the newspaper stands: “Fight for your right to speak: censorship.” As with so much of what is being written around the country, this editorial paints Butler administration in a terribly unflattering light:

"How can Butler say they support freedom of speech, while they do that to Zimmerman? Suppressing their student's ability to question those with power, for fear of repercussions. Even if students wanted to question the administration anonymously, Butler has proven they will seek out the student and try to crush them.

Besides, what kind of student is going to want to go to a university that will sue you if you speak out against them or publish something that is less than flattering? That's like dating someone so long as they do whatever you want, whenever you want. It isn't feasible and shows the low character quality of Butler. In the end, the lawsuit, whether it was dropped or not, and the subsequent internal discipline, will be more damaging than one person's blog."

While virtually every outlet that has covered this story seems to recognize that The True BU was an appropriate way to comment on the university scene, I don’t understand why the Butler administration is willing to stand alone in the face of such relentlessly negative publicity. As I’ve said so often, there are so many very good things about Butler, but the actions of our administrators are doing incredible damage to the school’s reputation. It really is crazy that they’re willing to defame and attack their own student in a misguided effort to mitigate the damage that they have done to that reputation by taking such extreme actions in the first place. In all honesty, since I take time to tell almost every reporter I talk to about all of the good things at Butler, it seems like I care more about Butler’s reputation than do those being paid large salaries supposedly to protect and enhance it.