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.

Getting Out

Today’s post is going to be about me – partly because lots of you have asked and partly because I’m just really pleased to be able to write what I’m going to say. In the coming days I’ll explain, as much as I’m able, how today’s news came to be. But for now, I’ll just present the news.

When I went off to college a few years back, one of my major goals was to graduate and to go on to law school. Over the past year, the Butler administration seemed to be attempting to do everything they could to keep me from realizing that goal. Because many law school applications ask about on-campus disciplinary actions, and because many law school admissions counselors made it clear that if an applicant indicated that such disciplinary actions had been taken against an applicant, admission was made very much more difficult, I was particularly upset about Butler’s desire to trump up charges against me. I was confident that I had done nothing wrong – and lots of national and international groups were confident that I had done nothing wrong. After all, all I had done was to express my opinions and to share the opinions that faculty in the School of Music quietly shared with me because they were too frightened of administrative retaliation to make their voices heard in public. But it became very clear at Butler that expressing a viewpoint that is unpopular with the Butler regime comes with very high costs.

If I were to have a good chance of being accepted to a law school that I wanted to attend, I had no choice but to fight the outrageous disciplinary charges that were leveled against me once Butler realized that their attempt to sue me was generating far too much negative publicity.

Well, just before leaving for Peru to visit my brother in December, Butler and I reached an agreement. While I can't tell you what that agreement is, I can say that I am very comfortable with my law school applications.

I can’t tell you how excited I am to say that just a week after my application was completed at one of my top choice schools, while I was in Cusco, Peru, I received an e-mail informing me that I had been admitted to their law school.

As I said, I’ll explain a bit about the legal struggle to get to this point soon, but for now, I simply want to thank all of you who have stood by me and who have consistently asked Butler administrators to take responsibility for their disgraceful actions. I’m confident that I would not be in this position without the amazing support so many around the country, indeed, around the world, have shown.

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."

When in Doubt, Sue

Inside Higher Ed recently ran an interview with Professor Amy Gajda, the author of The Trials of Academe: The New Era of Campus Litigation published in October by Harvard University Press. The book and the interview have much to teach us about Butler’s reaction to The True BU.

Take a look at how the interview opens and see if it sounds familiar: “When in doubt, sue. That philosophy has become an expected part of American society and (to the frustration of many in higher education) academe as well.”

Professor Gajda was asked to comment on the notion that “Many college administrators these days complain that lawyers for their institutions have too much power.” In response, she said, “University counsel have never been busier or more important, but there is a danger in letting lawyers call all the shots. The ‘safest’ course from a litigation standpoint may not be the best for innovation, research, or teaching….College administrators and faculty generally need to be alert to the legal risks, while remaining true to their academic judgment.”

Remember that Butler’s president is on record saying that the university lawyers were operating without his knowledge and not under his control. Actually, though, I don’t think that is what Professor Gajda meant when she said that “lawyers for their institution have too much power.” Frankly, I doubt that she would have ever imagined a situation of the kind Butler’s president wants you to believe. But I have no doubt that the lawyers were complicit in creating Butler’s strategy with respect to intimidating me into shutting down The True BU. And I have no doubt that they play too large a role in the Butler administrative ethos.

Professor Gajda was asked about ways to reduce litigation: “Can you summarize the steps you recommend to colleges to discourage litigation as a means of solving disputes?” Her advice makes good sense. “The most important thing is for colleges to find a way of defusing academic disputes before they harden into a legal complaint. If colleges and universities took greater care to promote communication and a sense of community on campus, there would be fewer lawsuits.”

It seems to me that Butler has a great deal of work to do on this front. What sort of a “sense of community” exists on Butler’s campus when faculty member after faculty member expresses great fear of the administration? How can the administration ignore the problem when music faculty feel they can only come forward anonymously under the protection of a priest to document that what I wrote in The True BU was what they shared with me and that it was accurate? There is one thing that is helping faculty come together and build a shared community: their sense of fear of the Butler administration. Similarly, the Butler administration is all about secrecy. They “classify” more documents than you can imagine. Their two-pronged strategy when dealing with conflict, as has been so well demonstrated throughout my experience, is to demand that the content of all meetings remain secret and to have meetings with as few people at a time as they can get away with so they can tell each group a different “secret.” Amid a climate of fear, this strategy ensures that no one knows what anyone else knows – and thus that administrators are never asked tough questions.

One of the main points of Professor Gajda’s book is that recourse to the court system, while being overused now, came about to correct abuses present on college campuses that occurred when colleges acted as if they were outside of the law. She paints an unsettling picture of how things were: “At one time, colleges were basically unaccountable in the courts. They ignored contracts, trampled speech rights, and dismissed students and faculty on whim or prejudice with basic impunity.” She concludes that thought with the only statements she’s made with which I disagree and which is demonstrably false, at least on one campus in central Indiana: “No one should want to go back to those days.” It is all too obvious that Butler administrators yearn for the good old days when they could act with impunity, when freedom of speech stopped when someone in power didn’t like what was being said.

Professor Gajda does a great service by documenting a very real threat to higher education and the actions of Butler University serve to prove her case definitively.

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?

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?