FIRE assesses the Butler – Duke match-up

Like virtually everyone else on and near campus, and many around the world, I’ve been incredibly impressed by all the men’s basketball team has accomplished. The players and coaching staff handled themselves remarkably well and their efforts have elevated all of us. They are, however, only a part of Butler University and there are other members of the university community who also deserve high praise for their accomplishments. One of the exciting side effects of the men’s basketball success is that attention beyond the “Butler bubble” has been brought to others deserving of it.

But not all of the attention focused on Butler is good, however. FIRE ( Foundation for Individual Rights in Education), one of the country’s organizations most strongly fighting for free speech on university campuses, offered a head-to-head matchup of Butler and Duke – looking at free speech issues rather than basketball skills. Their conclusions are not pretty!

Their article ran with an interesting headline: “Butler vs. Duke: Who Wins in the Arena of Free Speech?” As they say, given the widely reported problems Duke has had with the way it trampled on the rights of falsely accused players on its lacrosse team and a major embarrassment with its Women’s Center, the contest shouldn’t be close.

But Butler’s actions, coupled with the needless and vindictive aggressiveness of its president, changed the complexion of the contest. As FIRE states, “Butler may be the underdog du jour, but it's shown that it can play with the big boys at more than just basketball.”

After presenting a good summary of my case, mostly from the original Inside Higher Education article and from an essay on Finding Dulcinea, FIRE called the contest a draw:

"Zimmerman said of the saga, "I would have hoped that we could have the trial first and the verdict second, but that isn’t the way Butler has decided to operate." The same, of course, could be said about Duke's handling of the lacrosse scandal. Neither school, then, gets away clean when it comes to respecting student rights. Whether you root for Butler or Duke tonight, know that the Latin saying caveat emptor--let the buyer beware--applies equally to them both."


Butler’s president, then, did what Butler’s fabulous basketball team was unable to do: he played Duke University completely even.

He has some important lessons to learn from Butler’s basketball program. All members of the program handled themselves quite wonderfully, spoke well of their adversaries, took credit for their own actions and looked to learn from their experiences. Butler’s president, on the other hand, continuously claimed ignorance of all actions, charged that his lawyers acted without either his knowledge or approval, and seems to have learned nothing from his brutish activities. He’s not even been willing to offer a simple apology to the campus community (let alone to me) for his actions, despite more than a thousand people calling for him to do so.

Butler has much to be proud of this spring, but, as FIRE has so clearly shown, the actions of its president and its record on freedom of speech issues don’t fall into that category. Instead, they tarnish spectacular accomplishments.

Back, Again

I’m back! And the funny thing is, I didn’t plan to be away for this long. Immediately after my last final in December, I left the country to visit my brother in Peru. I had planned to post occasionally from there but while I was in some truly amazing places, from the Amazon rainforest to Macchu Picchu, I was mostly without reliable internet connections and thus I couldn’t write until I got back. I have a fair bit to say and, over the coming weeks, I’ll share a good deal with you.

For now, however, let me simply wish all of you a happy and healthy new year and let me close with a couple of interesting things I noted in the new passports issued by the United States government. Each of the visa pages has a quotation at the top. Two struck me in light of the events engaged in last year by the Butler administration.

The first, by John F. Kennedy, reads as follows: “Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty.”

The second, by Anna Julia Cooper, reads as follows: “The cause of freedom is not the cause of a race or a sect, a party or a class – it is the cause of humankind, the very birthright of humanity.”

Those in charge of Butler University have acted this past year in a fashion diametrically opposed to these simple but important statements. They seem to believe that the only thing that is worth protecting is their own self image. They sacrificed freedom of speech, the very cornerstone of liberty and freedom, when they heard sentiments they didn’t like. They acted as if freedom was a birthright only to those in power rather than “the very birthright of humanity.” As I’ve said before, and as so many others around the country have echoed, they should be ashamed of themselves.

There is another quotation in the new passports that I also like. Theodore Roosevelt is quoted as saying, “This is a new nation, based on a mighty continent, of boundless possibilities.” In the Butler context, and at the onset of a new year, I want very much to see this as a prophetic statement – one which praises the strengths and talents of the faculty and students of the university while looking to a time in the not-too-distant future when the “mighty” university is made “new” by having a different, more thoughtful and far more caring administration at the helm.

Again, I hope all of you had a wonderful holiday season.

Thoughts on Censorship

I’ve gotten a little worried that over the last two months readers of I am “John Doe” may have gotten caught up in the details of some of the ridiculous and untrue things Butler has said about me and lost sight of the bigger issue. The real issue is that in the original True BU blog I was expressing my opinions (and those of faculty in the School of Music who were too fearful of administrative retaliation to express them themselves) and the Butler administration didn’t like what I had to say. The threatened me for writing what I wrote. They intimidated me for what I wrote. And, ultimately, for about nine months at least, they silenced me. In simple terms, their threats and intimidation were acts of censorship.

So, I did an internet search to see what others had to say about censorship. Rather than comment on each quotation, I want to leave them with you as a package. Read them and think about what the Butler administration has done. Read them and think about the world the Butler administration has attempted to create. And, perhaps most importantly, read them and think about the world you will live in if you sit by and do nothing to stop actions of this sort, in the Butler case or in other cases where people in power attempt to silence those who disagree with them.

(I do want to add a small disclaimer. Although all of the following quotations were found on the internet, I can’t vouch for their authenticity. Regardless of whether every one was actually spoken or written by the person to which it was attributed, each provides important and interesting insight.)

Censorship reflects a society's lack of confidence in itself. It is a hallmark of an authoritarian regime. - Potter Stewart

Censorship is the height of vanity. - Martha Graham

I suppose that writers should, in a way, feel flattered by the censorship laws. They show a primitive fear and dread at the fearful magic of print. - John Mortimer

The only valid censorship of ideas is the right of people not to listen. - Tommy Smothers

The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship. – John Paul Stevens

We can never be sure that the opinion we are endeavoring to stifle is a false opinion; and if we were sure, stifling it would be an evil still. - John Stuart Mill

The peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error. - John Stuart Mill

If all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind. - John Stuart Mill

Books won't stay banned. They won't burn. Ideas won't go to jail. In the long run of history, the censor and the inquisitor have always lost. The only weapon against bad ideas is better ideas. - Alfred Whitney Griswold

What progress we are making. In the Middle Ages they would have burned me. Now they are content with burning my books. - Sigmund Freud

Every burned book enlightens the world. - Ralph Waldo Emerson

The paper burns, but the words fly away. - Akiba ben Joseph

We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people. - John F. Kennedy

You can cage the singer but not the song. - Harry Belafonte

I disapprove of what you say, but I will defend to the death your right to say it. - Voltaire

You see these dictators on their pedestals, surrounded by the bayonets of their soldiers and the truncheons of their police. Yet in their hearts there is unspoken - unspeakable! - fear. They are afraid of words and thoughts! Words spoken abroad, thoughts stirring at home, all the more powerful because they are forbidden. These terrify them. A little mouse - a little tiny mouse! -of thought appears in the room, and even the mightiest potentates are thrown into panic. – Winston Churchill

If we don't believe in freedom of expression for people we despise, we don't believe in it at all. – Noam Chomsky

Don't join the book burners. Don't think you are going to conceal thoughts by concealing evidence that they ever existed. – Dwight D. Eisenhower

If all printers were determined not to print anything till they were sure it would offend nobody, there would be very little printed. – Benjamin Franklin

And let me end with one that should be near and dear to the heart of Butler’s president, since he is an expert on Oscar Wilde: “An idea that is not dangerous is unworthy of being called an idea at all."

Administrative Moments

Butler University recently released a fund-raising video titled “Butler’s Proudest Moments of 2009.” Not surprisingly, given the quality of students and faculty at Butler, there were a large number of things to celebrate. I join with my friends and mentors in congratulating those at Butler who accomplished so much this last year.

In the spirit of this video, I offer my “Butler’s Less-Than Proudest Administrative Moments of 2009.” As with everything associated with The True BU situation, Butler has far deeper pockets than I do so I won’t be able to produce a flashy video like they did. Instead, I’m going to have to provide you with a written list of those moments that the Butler administration would likely hope you all forgot. So, please imagine some music as well as administrators and their attorneys ranting and raving, as you read the following.

January 2, 2009: The vice president for student affairs demands a meeting with me on a day the university is officially closed. He brings along a witness and when I say I want one as well, he refuses to allow me that courtesy. He says he is not asking me who was responsible for The True BU but I am later accused of lying to him about this issue.

January 4, 2009: The university attorney Emails the Soodo Nym account to threaten both a civil and a criminal case over The True BU. This threat frightened me into removing The True BU from the internet.

January 8, 2009: The university, over the signature of three attorney’s, files the country’s first ever lawsuit by a university against on-line speech. This occurred four days AFTER I was successfully intimidated into removing The True BU from the web.

January 9 – June 15, 2009: All quiet on the Butler front.

June 16, 2009: In response to a letter from my father asking for a retraction, a clarification or an apology from the provost about outrageously untrue statements she made about him, Butler informs me about the “John Doe” lawsuit and threatens to substitute “John Doe’s” name with my name unless both my father and I sign confidentiality agreements and unless I agree to submit to any punishment Butler deems appropriate for speaking my mind.

June 17 – September 26, 2009: Butler repeatedly threatens to substitute my name for “John Doe’s” name in the lawsuit and continues to demand that my father and I sign confidentiality agreements and that I submit to any punishment they deem appropriate for speaking my mind.

September 27, 2009: Butler stops threatening to replace my name for “John Doe’s” name in the lawsuit, instead promises to do so by the end of the week. They also say they will instigate internal disciplinary procedures immediately.

October 12, 2009: A local Indianapolis television station ran a news story reporting on Butler’s lawsuit against “John Doe.” Because the only people quoted were associated with the Butler administration, it appears obvious that the Butler administration leaked the story to the press.

October 13, 2009: The president tells the faculty senate about the lawsuit indicating that he was compelled to file suit because of the possibility of a Virginia Tech style event taking place. The president sends out a memo to the entire faculty about the lawsuit that was riddled with inaccuracies and that made absurd claims about The True BU.

October 19, 2009: The president sends out a second memo to the entire faculty about me and The True BU that was also riddled with inaccuracies and that made absurd claims about The True BU. Additionally, the president accuses me of bullying the administration and the campus by writing The True BU. The president says he never intended to sue a student and he would not sue a student.

October 20, 2009: At an open forum discussing free speech issues, the provost said that although she was frightened for her safety, Butler was compelled to file a lawsuit against “John Doe” rather than contacting the police for protection, claiming that the police could only be contacted if they could be told who was threatening her.

October 26, 2009: Butler withdraws its lawsuit against “John Doe,” a full seven days after the president said it would be dropped. The president’s wife writes to faculty about The True BU situation enclosing e-mail and documents personally addressed to the president’s office at Butler Univeristy.

October 27, 2009: The president sends out a third memo to the entire faculty about me and The True BU that was riddled with inaccuracies and that made absurd claims about The True BU. He again states that I am guilty of various transgressions and says that I will be punished through Butler’s internal disciplinary process. The president tells a student reporter that he had nothing to do with the promise made by Butler’s attorney on September 27th to replace “John Doe’s” name with my name.

October 29, 2009: The president refuses to act on a letter privately delivered to him by Father Charles Allen from more than 10 faculty members in the School of Music. These faculty members, fearful of administrative retaliation, opted to speak out only if they were guaranteed anonymity and confirmed that what was written in The True BU was the truth and that it accurately reflected the information they provided to Soodo Nym aka John Doe.

October 30, 2009: The chair of Butler’s Board of Trustees sends a statement to the media about The True BU case. In that statement, he opts to “reaffirm Butler’s pledge to provide for the safety and welfare of its students, administration, faculty and staff,” implying that campus safety was somehow at risk.

October – November: The president and his public relations staff regularly reply to concerns raised about my situation with a defamatory letter claiming that I threatened the campus community.

November 12, 2009: The chair of Butler’s Board of Trustees writes to acknowledge receiving a letter from my attorney discussing the internal disciplinary process. The chair ignores the issues of bias raised saying, instead, that he trusts the process and that the president was made aware of my concerns.

November 12, 2009 – the present: I’m sorry to say that I cannot, at this time, discuss this part of the ordeal. I hope to fill you in on it, as much as I can, soon.

There you have it: my list of “Butler’s Less-Than Proudest Administrative Moments of 2009.” The crazy thing is, all of these items involve only my case. I know, and I suspect that many of you know, many other administrative actions taken this past year that are just as reprehensible as these. It is a shame that no one is able or willing to hold Butler administrators accountable for their actions. I hope that my blog sheds some light where none has been and that it encourages others to speak out when they see injustices being committed.

A "Measly" Student Blog

Since I’ve been gone, a few more newspapers from around the country have picked up this troubling story. I’ve linked to them on the right. Two of these new pieces comes from Minnesota State’s Reporter, which ran both a news story about this situation and an editorial criticizing the Butler administration’s actions with respect to The True BU. In their news story, the Reporter quotes a professor who teaches Mass Communications Law. Here’s that part of the story.

“Ellen Mrja, an associate professor in the mass communications department at Minnesota State, does not agree with Butler's actions in the matter.

"’This was over-reaction on the part of the administrators that makes them look weak, not strong,’ Mrja said. Mrja teaches a class in Mass Communications Law. ‘You can not stop someone from speaking their truth.’"

Unfortunately, I feel that I must disagree with Professor Mrja just a drop. In fact, Butler did stop me “from speaking the truth,” at least for a while. After being threatened and intimidated by Butler’s attorneys I closed The True BU and removed it from the internet. But, from the bigger perspective, the professor is absolutely correct. Because of Butler’s heavy handed administrative actions, many, many more people have now read The True BU than had ever before and people all over the world are now upset about how Butler deals with free speech.

As Barry Lynn, Executive Director of Americans United for Separation of Church and State and host of the nationally syndicated talk show Culture Shocks, said on the air with me, “how many people outside of the Butler community even saw this blog? But for Butler University’s filing of a lawsuit, this would have been a footnote to history, the history of a university many people know nothing about.”

Let me go back to the editorial at Minnesota State University since it does such a good job of explaining why Butler’s actions are important – and dangerous. Here are parts of the long editorial:

“The lawsuit against Jess Zimmerman of Butler University could happen anywhere. Clearly an attempt to censor online speech, it could have also impact students' rights to speak freely everywhere.”

“The blog barely got any hits initially; it wasn't until Butler administrators spoke against it that more people were popping on the site to check out the controversy. So the school actually drew more attention to the criticism by attacking it.”

“They are trying to silence this blogger's voice and the message it sends seriously threatens free speech. Zimmerman could face major repercussions on-campus for speaking his mind, a problematic blow to the freedoms U.S. citizens have been granted.”

“The student was simply being critical of the ethics and morality of a situation. His opinion didn't defame the university; it called out university officials on alleged wrongdoing, a shining example of the importance and need for the First Amendment.”

“Butler's efforts to chill free speech online - the communication hub of the world - are the real problems facing their university.”

“It seems that while Butler attempted to contain its opposition using Zimmerman as an example, it tampered its image on a national level, much more damage than a measly student blog could create.”

Even though they characterize The True BU as “a measly student blog,” I couldn’t agree more.

I find it fascinating that students and faculty members from around the country have consistently come to a conclusion so much at odds with the extreme position the Butler administration has taken. You’d think that that should give Butler’s administration something to think about.

I'm Back

I apologize for taking such a long break. I just needed a little bit away from everything and, luckily, I got it over the last week. While I did spend my time off of campus playing golf and eating turkey, I certainly did not forget about what the Butler administration is trying to do. And I promise, especially to those of you who Emailed me over the last two weeks, that I will not forget and that I will continue to fight. Together, we can make a difference.

I hope that you, if you haven’t already, will sign the petition and continue to spread this story to your friends and colleagues. As I’ve said, and as organizations like Reporters Without Borders have said, what Butler’s administration is doing can set a dangerous and frightening precedent in higher education.

I hope my break didn’t alienate too many of you!

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).

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?