Peter Neil Kirstein
“Campus to Courts: The Silencing
of the Left in Wartime”
University of Texas at Austin
H.A.W. Conference
February 18, 2006
1
So much oppression,
Can’t keep track of it no more.
Say, there’s so much oppression,
Can’t keep track of it no more.1
-Bob Dylan
To justify American expansionism, presidential war messages frequently
contained nationalistic proclamations of American innocence and virtue.
President James Knox Polk in seeking war with Mexico on May 11, 1846 referred
to this defenseless nation as a “menace,” lied that it had invaded the United
States and affirmed that war was necessary to protect American democracy.
“[W]e are called upon by every consideration of duty and patriotism to vindicate
with decision the honor, the rights, and the interests of our country.”2
President William McKinley in asking Congress for a declaration of war
against Spain declared that only war, against a nation that was not a threat to the
United States, could save America: “If this measure attains a successful result,
then our aspirations as a Christian, peace-loving people will be realized.” In
seeking to establish a commercial empire that would extend from Cuba to the
Philippines, the president averred that, “The right to intervene may be justified
by the very serious injury to the commerce, trade and business of our people…”
While the United States would use this war to substitute American for Spanish
Bob Dylan, “Gonna Change My Way of Thinking,” Bob Dylan, Lyrics, 1962-2004 (New York: Simon &
Schuster, 2004), 408-09.
2
Henry Steele Commager, Milton Cantor, Vol. 1. Documents of American History to 1898, 10th ed.
(Englewood Cliffs, New Jersey), 1988, 311.
1
2
colonisation of Cuba, slaughter heroic Filipinos in their defense of the
Philippines, and annex various islands in the Pacific and Caribbean, American
innocence received presidential protection. “[T]he lives and liberty of our citizens
are in constant danger and their property destroyed and themselves ruined…”3
President Woodrow Wilson’s messianic assertion that entering the Great
War as an associated power would make “The World Safe for Democracy,” was
the apotheosis of this crusading spirit, whereby criminal military action was
justified to buttress American exceptionalism and the imposition of the failed
American democratic experiment upon other peoples.
The evolution of the divine presidency, as progenitor of war to insure
American progress and complete God’s mandate for its greatness, has unleashed
an aggressive nationalism suppressing opposition to America’s wars. While
liberal historiography is descriptive of the empire’s landmass, Oval Office
pronouncements, treaties and the role of elite national-security managers,
ignored is the collateral damage of empire: the militarization of the nation, the
diminution of democracy and the assault on civil liberties and academic freedom.
The passions of war demand conformity. The passions of war call for
dehumanization of the “enemy.” The passions of war define “supporting the
troops” as synonymous with supporting the government’s decision to send
3
Henry Steele Commager, Milton Cantor, Vol. 2. Documents of American History to 1898, 10th ed.
(Englewood Cliffs, New Jersey), 1988, 3-4.
3
healthy citizens to kill other people. The passions of war as symbolic
confirmation of American superiority has created a nation according to Nobel
Laureate Harold Pinter that is “[b]rutal, indifferent, scornful and ruthless…[on] a
permanent military footing and shows no sign of relaxing it.”4
The Sedition Act of 1798 was intended to suppress Democratic-Republican
support of France during an undeclared Franco-American naval conflict (17981800). It made it a crime punishable by a $2,000 fine and two years in prison:
[To] write, print, utter, or publish…any false, scandalous and malicious
writing against the government of the U.S., or either House of
Congress…or the president…with intent to defame…or to bring them, or
either of them, into contempt or disrepute; or to excite against them, into
contempt or disrepute; or to excite against them, or either or any of them,
the hatred of the good people of the U.S.5
In Concerning Dissent and Civil Disobedience, former Supreme Court Justice
Abe Fortas wrote antiwar speech has not always been protected in the United
States but, “It is the courts—the independent judiciary—which have, time and
again, rebuked the legislatures and executive authorities.”6 Yet history has
demonstrated that the Supreme Court is frequently supportive of restricting First
Amendment rights during war and has frequently used its power to silence and
transmogrify persons of conscience into prisoners of conscience.
James Madison was prescient in anticipating the corrupting influence of
Harold Pinter, Nobel Lecture, “Art, Truth and Politics,” December 7, 2005.
http://nobelprize.org/literature/laureates/2005/pinter-lecture-e.html
5
Howard Zinn, Declarations of Independence (New York: Harper Collins, 1991), 184.
6
Howard Zinn, Disobedience and Democracy (New York: Vintage, 1968), 70.
4
4
war that would so ruthlessly manifest itself during World War I. Madison
declared in 1795 that, “Of all the enemies of public liberty, war is perhaps the
most to be dreaded, because it comprises and develops the germ of every other.
War is the parent of armies…No nation could preserve its freedom in the midst
of continual warfare.”7
Wartime hysteria diminishes the freedom of ethnic groups from nations
which the U.S. are at war. More than seventy German-born residents were
subjected to the Montana Sedition Act, the harshest state-sedition act of the
twentieth century. Fred Rodewald served a two-year prison sentence for
commenting that Americans “would have hard times [unless the Kaiser] didn’t
get over here and rule this country.” Albert Brooks was arrested for demanding:
“[T]hose who own the country do the fighting! Put the wealthiest in the front
ranks; the middle class next; follow these with judges, lawyers, preachers and
politicians.” Frank McVey was tried and convicted for this opinion: “I do not see
why we should be fighting the Kaiser, and I don’t see why people should go
crazy over patriotism. The Kaiser and his government is better than the U.S.A.”
Janet Smith declared the Red Cross a “fake” and apparently said that Belgian
humanitarian relief might not go to the Belgians, “but the trouble was that the
7
Andrew J. Bacevich, The New American Militarism (New York: Oxford, 2005), 7.
5
damned soldiers (presumably allies) would get it.”8
Red Cross officials stated they were infiltrated by Germans who planted
glass particles in bandages bound for Europe; sauerkraut was renamed “liberty
cabbage” (after 9/11 French fries were renamed “freedom fries” on Capitol Hill
due to resentment of France’s opposition to the Bush invasion of Iraq); classicalmusic conductors such as Fritz Kreisler were blacklisted in symphony halls
throughout the United States.9 Bach, Mozart and Beethoven were removed from
subscription series. Nebraska forbade the teaching of German in public schools.
Libraries purged their collections of works by Kant, Goethe and Nietzsche. Even
dachshunds were harmed and injured in the streets.10
The clear-and-present-danger doctrine, that helped established the near
hagiographic status of Justice Oliver Wendell Holmes, restricted the parameters
of permissible speech and suppressed heroic and courageous antiwar dissent
during The Great War. In Schenck v. United States, 249 U.S. 47 (1919), perhaps the
best known and most frequently cited First Amendment case, liberal
constitutional scholars have eulogized its putative prudential restraints on free
speech: “The most stringent protection of free speech would not protect a man in
Maurice Possley, “Jailed for Their Words,” Chicago Tribune, December 28, 2005, 1, 18.
William E. Leuchtenburg, The Perils of Prosperity, 2nd ed. (Chicago: University of Chicago Press, 1993),
44.
10
John Milton Cooper, Jr., Pivotal Decades: The United States, 1900-1920 (New York: W.W. Norton,
1990), 301-302.
8
9
6
falsely shouting fire in a theatre and causing a panic.”11 Taking this obvious
example of disallowing speech intended to inflict mass injury or death to others,
Justice Holmes, writing for a unanimous court, declared Schenck’s anti-draft
resistance as unprotected speech, not covered by the Bill of Rights. Justice
Holmes wrote advocating draft resistance would contribute to “substantive
evil[s] that Congress has the right to prevent.”
Justice Holmes’s clear-and-present-danger restriction on free speech
vitiated the absolute freedom of speech that was contained in the Bill of Rights,
but was interpreted as less restrictive than the court’s prior “bad tendency
doctrine.” However, its introduction resulted in ruthless censorship. Charles
Schenck was general secretary of the Socialist party. He had distributed
thousands of leaflets that denounced the draft and the war. He was arrested for
violating the draconian Espionage Act of 1917 that proscribed “causing and
attempting to cause insubordination in the armed forces of the United States.”
Sentenced to six months in prison by a lower court, the Supreme Court affirmed
Schenck’s leaflets were not protected speech under the First Amendment because
they constituted a clear-and-present-danger.12 Justice Holmes’s decision
specifically ruled that First Amendment protection of free speech would be
11
Schenck v. United States, 249 U.S. 47 (1919)
John Arthur, The Unfinished Constitution: Philosophy and Constitutional Practice (Belmont, Cal.:
Strata Publishing), 1989, 67. Emphasis added. “Attempting” suggests bad tendency in that even if the act
failed to obstruct, it was prosecutable.
12
7
restricted during war: “When a nation is at war, many things that might be said
in times of peace are such a hindrance to its effort that their utterance will not be
endured as long as men still fight.”13
Antiwar speech may protest actions that are more “clear-and-presentdangers” than speech itself: Opposing a war that was a clear-and-present-danger
for the 116,000 servicepersons who would die; obstructing a war that was a clearand-present-danger to democracy as seen with its persecution of the antiwar left
with its Committee on Public Information under George Creel; its ruthless
annihilation of the Industrial Workers of the World and its postwar legacy of the
Red Scare and Gestapo-Palmer Raids.
It was during Wilson’s “war to end all wars,” with its militant idealism,
when a fifteen-year sentence was levied against Reverend Clarence Waldron for
distributing a pamphlet to five people that stated: “I do not say it is wrong for a
nation to go to war to protect its interests, but it is wrong to the Christian,
absolutely, unutterably wrong.”14 Demonstrating the illusion that the clear-andpresent-danger doctrine expanded free-speech under the “bad-tendency
doctrine,” (“nipped in the bud” speech that might create disorder), the court
continued to expand its assault on anti-war utterances in post-Schenck decisions.
It is not surprising that the pro-German press would be suppressed
13
Schenck v. United States, 249 U.S. 47 (1919). Latter quote from Geoffrey R. Stone, Perilous Times:
From the Sedition Act of 1798 to the War on Terrorism (New York: W. W. Norton, 2004), 193.
14
Zinn, Disobedience, 72.
8
during World War I. Wars usually attenuate freedom of the press such as the
ongoing violent-American assault against Al Jazeera. Americans bombed an Al
Jazeera station in Afghanistan in 2001; killed a reporter Tareq Ayoub in Baghdad
in 2003; attacked a hotel with only Al Jazeera correspondents as guests in Basra
in 2003; expelled its entire operations from American-occupied Iraq and possibly
planned to bomb its headquarters and kill its personnel in Qatar.15
This is the climate of oppression that was validated and, perhaps,
encouraged by the Supreme Court that rarely contravenes executive power or
advances civil liberties during wartime. Jacob Frohwerk was publisher of the
pro-German newspaper, Missouri Staats Zeitung, and was convicted under the
Espionage Act of 1917 for editorials condemning the draft and America’s
entrance into the war. There were two declarations of war: the initial one on
Good Friday, April 6, 1917 against Germany and the much ignored one against
Austria-Hungary on December 7, 1917.16
Frohwerk denounced the draft, the pro-British policy of the Wilson
administration and blamed the war on avaricious, profit seeking trusts and Wall
Street. In a terse statement, Frohwerk wrote, “We say therefore, cease firing.”17
Frohwerk was sentenced to ten years in prison for promoting, “disloyalty,
“The War on Al Jazeera,” The Nation, December 19, 2005, 6-8.
Peter N. Kirstein, “Wrong Dates,” Bulletin of the Atomic Scientists (July-August 1991), 45-46.
17
Frohwerk v. United States, 249 U.S. 204 (1919). http://caselaw.lp.findlaw.com/cgibin/getcase.pl?court=us&vol=249&invol=204.
15
16
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mutiny and refusal of duty in the military and naval forces of the United
States.”18
Justice Holmes again displayed contempt for free speech and used judicial
power to silence antiwar persons of conscience. The clear-and-present-danger
test that Justice Holmes established in Schenck was abandoned in an astonishing
reversal of stare decisis. Now speech, which could cause undesirable results--bad
tendency--could once again fall outside constitutional protection. Using the
trumped up charge of conspiracy, eerily anticipatory of the same vagueness that
led to the execution of Japanese government and military officials by the
International Military Tribunal for the Far East after World War II, Frohwerk’s
ten-year prison sentence was upheld. Justice Holmes wrote the unanimous 9-0
opinion of the court.
It may be that all this might be said or written even in time of war in
circumstances that would not make it a crime. We do not lose our right to
condemn either measures or men because the country is at war. It does
not appear that there was any special effort to reach men who were
subject to the draft…But a conspiracy to obstruct recruiting would be
criminal even if no means were agreed upon specifically by which to
accomplish the intent. It is enough if the parties agreed to set to work for
that common purpose.19
18
Thomas L. Tedford, Dale A, Herbeck, eds. 5 th ed. Freedom of Speech in the United States (State College,
Penna.: Strata Publishing, 2005), 51.
19
Frohwerk v. United States, 249 U.S. 204 (1919).
10
Eugene Victor Debs was also convicted under the 1917 Espionage Act for
opposing the draft during World War I. Debs’s opposition to the draft was
speech not direct action. It only “tended” to obstruct the conscription of the war
machine. Debs’s courageous remarks praised other war resisters and denounced
the draft: “You have your lives to lose…; you need to know that you are fit for
something better than slavery and cannon fodder.”20 He passionately rebuked
class stratification between elites and soldiers. “Wars throughout history have
been waged for conquest and plunder….And that is war in a nutshell. The
master class has always declared the wars; the subject class has always fought
the battles.”21
Oliver Wendell Holmes again suppressed patriotically-incorrect speech.
He abandoned in Frohwerk the clear-and-present-danger doctrine that was
enunciated in Schenck a mere seven days earlier. Holmes’s even more sweepingly
narrowed First Amendment free-speech protection by invoking a “reasonable
probable effect” standard to “obstruct the recruiting service.”22
Debs at age sixty-three began serving a ten-year prison sentence on April
13, 1919 at Atlanta Penitentiary. While in prison he received 919,799 votes as a
socialist candidate for president in 1920.23 However, his citizenship was never
20
Tedford, Freedom of Speech, 51.
Howard Zinn, The Twentieth Century (New York: Perennial, 2003), 87.
22
Tedford, Freedom of Speech, 51. Debs v. United States, 249 U.S. 211 (1919).
23
William Appleman Williams, Americans in a Changing World (New York: Harper and Row, 1978), 474.
21
11
restored.24 Debs was pardoned by a magnanimous President Warren Harding
and walked out of his Atlanta prison cell on Christmas Day, 1921.25 Harding’s
pardon seemed consistent with his call for peace and reconciliation in his
remarkable inaugural address of March 4, 1921:
[W]e seek no part in directing the destinies of the Old World. We do not
mean to be entangled…[and] can be a party to no permanent military
alliance…We wish to promote understanding. We want to do our part in
making offensive warfare so hateful that Governments and peoples who
resort to it must prove the righteousness of their cause or stand as outlaws
before the bar of civilization….We are ready to associate ourselves with
the nations of the world, great and small, for conference, for counsel; to
seek the expressed views of world opinion; to recommend a way to
approximate disarmament and relieve the crushing burdens of military
and naval establishments.”26
While liberal historiography dwells on Justices Holmes’s and Louis
Brandeis’s dissents in the draconian oppression of free-speech in Abrams v.
United States, 250 U.S. 616 (1919) and Gitlow v. New York, 268 U.S. 652 (1925),
historians have minimized the Supreme Court’s continued assault on antiwar
speech.27 In Abrams, five heroic Russian-émigré socialists dared criticise, through
antiwar leaflets, America’s effort to destabilise the Bolshevik Revolution such as
the interventions at Murmansk (1918) and Vladivostok (1918-1920).28 They were
24
Zechariah Chafee, Free Speech in the United States (Cambridge: Harvard Univesity Press, 1967), 84n.
Mary Jo Buhle, Paul Buhle eds., Encyclopedia of the American Left (New York: Garland, 1990), 187.
26
Debs v. United States, 249 U.S. 211 (1919).
http://www.yale.edu/lawweb/avalon/presiden/inaug/harding.htm
27
For Gitlow decision see: Paul R. Viotti, ed., American Foreign Policy and National Security (Upper
Saddle River, New Jersey: Pearson Prentice Hall, 2005), 105-106.
28
Stone, Perilous Times, 205; William Appleman Williams, Empire As a Way of Life (New York: Oxford,
1980), 141.
25
12
arrested and sentence from three to twenty years in prison for violating the
Sedition Act of 1918.29
Justice John H. Clarke wrote the 7-2 landmark majority opinion in Abrams.
Jacob Abrams and other defendants had been convicted of conspiring “to incite,
provoke or encourage resistance to the United States,” and to “cripple or hinder
the United States in the prosecution of the war.”30 The leaflets called for a
general strike to stop the war machine and should have been praised for their
content. Not since the Seattle five-day general strike of 1919 has such a resistance
been deployed by labour against capital.
The great constitutional-law scholar Zechariah Chafee influenced Justice
Holmes’s evolution from opponent to protector of First Amendment free speech.
Chafee wrote a classic defense of free speech in time of war.
Truth can be sifted out from falsehood only if the government is
vigorously and constantly cross-examined, so that the fundamental issues
of the struggle may be clearly defined, and the war may not be diverted to
improper ends, or conducted with an undue sacrifice of life and liberty…31
No, I ain't gonna work on Maggie's farm no more.
Well, I try my best
To be just like I am,
But everybody wants you
To be just like them.32
-Bob Dylan
29
Stone, Perilous Times, 205. Except for three words, the Sedition Act of 1918 was a copy of the Montana
law. Possley, “Jailed,” Chicago Tribune, 18.
30
Stone, Perilous Times., 206.
31
Chafee, Free Speech, 33.
32
Bob Dylan, “Maggie’s Farm,” Lyrics, 1962-1985 (New York: Alfred A. Knopf, 1995), 166.
13
During the “War on Terrorism” and the Iraq War there have been
numerous examples of repression against professors who “vigorously and
constantly cross-examined” American militarism and ruthlessness in its conduct
of external relations. After American Airlines Flight #77 flew into the Pentagon
on September 11, 2001, Richard Berthold, then professor of classical history at the
University of New Mexico, told a class of approximately 100 students in his
Western Civilization course, “Anybody who blows up the Pentagon gets my
vote.” Although this was an articulation of an opinion spoken by an instructor in
front of his students, Professor Berthold was reprimanded and prohibited from
teaching future sections of Western Civilization.33 Dispirited and frustrated, he
took early retirement at the end of the 2002 fall semester.34
Nicholas De Genova, an assistant professor of Anthropology and Latino
Studies at Columbia University, denounced American imperialism and
aggressive nationalism at an Iraq-war teach-in on March 27, 2003 and advocated
the defeat of American forces. “I personally would like to see a million
Mogadishus (in Iraq)…The only true heroes are those who find ways that help
defeat the U.S. military.” One hundred and four Republican members of the
House of Representatives demanded that Columbia University President Lee C.
Bollinger fire the professor. Alumni threatened to withhold their financial
33
34
“Professor Reprimanded for Joke,” Houston Chronicle, December 10, 2001. online edition.
Richard M. Berthold, “My Five Minutes of Infamy,” History News Network, November 25, 2002.
14
support; death threats were rampant and Professor De Genova required police
protection while on campus. Bollinger nobly refused to suspend or fire the nontenured professor but repeatedly denounced Professor De Genova’s remarks. On
Columbia’s website, he referred to his teach-in comments as “outrageous,”
“appall[ing]” and “especially disturbing.”35 Pandering to American militarism,
he apologised to military personnel and their families.
In an April 2, 2003 speech before the National Press Club, President
Bollinger said teach-ins are not normally assessed by university presidents in
order to “promote full discussion of public issues.” Yet due to public pressure
and the demands for patriotic correctness, he excoriated the non-tenured
professor by characterizing Professor De Genova’s impassioned rhetoric as
“shocking,” “horrific,” and “especially sickening.”36
Professor Ward Churchill was scheduled to speak in February 2005 at
Hamilton College in New York on a panel discussion ironically named, “The
Limits of Dissent.” The college newspaper, The Spectator, reported Professor
Churchill, in a three-year old article, referred to the World Trade Center
casualties of September 11, 2001 as “the little Eichmanns inhabiting the sterile
35
Remarks appeared on April 3, 2003. http://www.columbia.edu/cu/news/03/04/statement_genova.html
http://www.npr.org/programs/npc/2003/030402.lbollinger.html;
http://www.columbia.edu/cu/news/03/04/press_club.html
36
15
sanctuary of the twin towers…”37 The context of this highly-publicized phrase
was a general condemnation of American capitalism, and the author’s assertion
the World Trade Center represented the locus of unbridled-capitalist
accumulation. He also questioned the non-combatant immunity of the 2,801 New
York casualties due to their alleged links to exploitive-American capitalism.
Hamilton College President Joan Hinde Stewart reluctantly cancelled the
scheduled February 3rd event on February 1, 2005, due to death threats and,
while unstated, the usual chorus of condemnation from donors, alumni and
others demanding the silencing of controversial speech critical of America.38 A
person had threatened to bring a gun to the event as the armies of the night
claimed another casualty of academic freedom.39
Professor Churchill, who is a professor in the Department of Ethnic
Studies at the University of Colorado, was stripped of his chairpersonship and
subjected to a rather invasive scrutiny of his writings. According to the
Foundation of Individual Rights in Education (FIRE), that played a key role in
defending my rights, “The University of Colorado was absolutely correct,
however, when it concluded that speech like Churchill’s is fully protected.”40
Ward Churchill, “‘Some People Push Back’: On the Justice of Roosting Chickens,” Pockets of
Resistance, #11, September 2001.
38
http://www.hamilton.edu/news/more_news/display.cfm?ID=9020 President Stewart described this
action: “The cancellation of the event was, therefore, an educational loss.”
39
http://www.hamilton.edu/news/more_news/display.cfm?ID=9073
40
Greg Lukianoff, “The Chill is Nothing New,” The Chronicle of Higher Education, September 9, 2005,
B10.
37
16
Although investigative efforts have dismissed charges of Native-American
ethnicity fraud and copyright infringement, continued inquiries into alleged
“plagiarism and fabrication” continue.41 While such charges should be explored,
it is doubtful such alleged misconduct would have occurred absent public rage
concerning his antiwar writings.
He wants to turn me in
To the F.B.I.
Me, I romp and stomp…
Without freedom of speech,
I might be in the swamp.42
-Bob Dylan
Sami al-Arian, a Kuwaiti-born Palestinian, was fired from the University
of South Florida by President Judy Lynn Genshaft on February 26, 2003, a mere
six-days after a fifty-count indictment was handed down by a federal grand jury.
It contained charges of terrorism and using the university as a front for
materially supporting an alleged terrorist organization: Palestinian Islamic
Jihad.43 As early as December 19, 2001, Professor al-Arian had received a letter of
intent to dismiss him and in the interim was placed on a paid leave-of-absence.
This action was motivated by the professor’s comments on the Arab-Israeli
41
http://newmedia.colorado.edu/silverandgold/messages/4533.html
Bob Dylan, “Motorcycle Nightmare,” Dylan, Lyrics, 1962-2004, 122-23.
43
Scott Smallwood, “U. of South Florida Fires Professor Accused of Terrorism,” The Chronicle of Higher
Education, March 7, 2003.
42
17
conflict on the September 26, 2001, The O’Reilly Factor programme. In August
2002, the university attempted to get a declaratory judgment from a federal court
legitimating the university’s long-standing desire to fire the professor. The
university was not granted such a ruling.44
At various stages, culminating in Professor al-Arian’s dismissal, the
University of South Florida used extremely questionable arguments and tactics
to coerce a controversial and courageous tenured professor who has resided in
the United States since 1975. Al-Arian’s speech was labeled “disruptive.”45
President Genshaft accused al-Arian, with Orwellian doublespeak, of having
“repeatedly abused his position.”46 He was denounced for not issuing a
disclaimer that his remarks did not represent those of the university. Such a
charge is usually selective applied against speech an administration finds
objectionable or embarrassing.47 His prior de facto fourteen-month suspension—
cloaked in the name of a paid leave of absence--imposed by then President Betty
Castor, who later ran unsuccessfully as a Democrat for a senate seat, exceeded
any reasonable argumentation that resumption of his professional
responsibilities “posed any claimed threat of immediate harm.”48
“Academic Freedom and Tenure: University of South Florida Report,” Academe, May-June 2003, 59, 65.
Foundation for Individual Rights in Education http://www.thefire.org/index.php/article/49.html
46
Tampa Tribune Online, TBO http://news.tbo.com/news/MGAV3LY9OCD.html
47
Peter N. Kirstein, “Academic Freedom and the New McCarthyism,” Situation Analysis, Spring, 2004, 30.
44
45
48
“Academic Freedom,” Academe, 69.
18
The university’s violation of Professor al-Arian’s academic freedom, as is
frequently the case in highly-publicized cases, was influenced by a constant
media attack demanding the firing of al-Arian. The Tampa Tribune for seven years
viciously crusaded against the professor and basically accused him of terrorist
connections. A Clear Channel radio personality, Bubba the Love Sponge, made
highly incendiary remarks that inflamed the situation and probably induced
death threats against the professor. Bill O’Reilly had said on the aforementioned
programme that “I'd follow you wherever you went" implying that the computer
scientist was a terrorist.49
On December 6, 2005, al-Arian was found not guilty on eight of seventeen
counts “including conspiracy to maim or murder.” The courageous jurors could
not reach a verdict on nine other counts, but a majority was apparently in favour
of acquittal on each count.50 He remains in jail pending a decision by the Tampa
office of the United States Attorney to retry the case on the deadlocked counts.
Al-Arian has correctly maintained his innocence, has argued that his suspension,
firing and indictment were the result of his political beliefs that emphasized his
Eric Boehlert, “The Prime Time Smearing of Sami Al-Arian,” Salon.com January 19, 2002.
http://www.salon.com/tech/feature/2002/01/19/bubba/
50
Peter Whoriskey, “Ex-Professor Won His Court Case but Not His Freedom,” Washington Post,
December 14, 2005, A02.
49
19
impassioned support of Palestinian resistance and condemnation of the State of
Israel.51
Imagine a country indicting individuals who are allegedly supporters of
combatants in another country’s conflict. The State Department exhibited a lack
of impartiality in the Israeli-Arab conflict by naming the Palestinian Islamic
Jihad, and not the State of Israel, as a terrorist organisation or state. It is this
failure to discern any differences between Israeli and American national-security
interests that led to the Muslim al-Arian’s status as a political prisoner and is
symptomatic of America’s ruthless pursuit of conquest in its war against
civilisations and radical academicians.
University of South Florida Presidents Castor and Genshaft should be
condemned for abuse of power in suspending and firing respectively the former
professor for political beliefs that dared oppose the Israeli occupation and
murderous colonisation of Palestine. His indictment was cynically used as an
excuse to terminate his employment. This reckless abandonment of academic
freedom is symptomatic of wars’ deleterious impact upon civil liberties. I
recognise Genshaft was implementing a 12-1 vote in favour of dismissal by her
board of trustees, but she should have resigned in protest. While President
Genshaft was concerned about “disruptions,” universities should not engage in
51
British Broadcasting Corporation, December 6, 2005.
http://news.bbc.co.uk/1/hi/world/americas/4505248.stm
20
arbitrary violation of an individual’s human rights out of fear of disorder. If one
wants to live in a land without debate or contentious controversy, perhaps one
might wish to live in Guantánamo Bay or the Democratic People's Republic of
Korea (a nation that the U.S. should not harm) or some other closed society
where political protest is prohibited.
I received on October 31, 2002 from Cadet Robert Kurpiel, United States
Air Force Academy, an e-mail addressed to scores of professors requesting them
to recruit students to attend an on-campus “annual Academy Assembly.” The email was addressed, “Dear Sir or Ma’am.”52 My response to the cadet became one
of the most widely circulated e-mails in Internet history and certainly one of the
most controversial:
You are a disgrace to this country and I am furious you would even think
I would support you and your aggressive baby killing tactics of collateral
damage. Help you recruit? Who, top guns to rain death and destruction
upon nonwhite peoples throughout the world? Are you serious sir?
Resign your commission and serve your country with honour.
No war, no air force cowards who bomb countries without AAA, without
possibility of retaliation. You are worse than the snipers. You are
imperialists who are turning the whole damn world against us. September
11 can be blamed in part for what you and your cohorts have done to the
Palestinians, the VC, the Serbs, a retreating army at Basra. You are
unworthy of my support.”53
52
Cadet Robert Kurpiel to Peter N. Kirstein et al., e-mail, October 31, 2002.
Peter N. Kirstein to Cadet Robert Kurpiel, e-mail, October 31, 2002. I edited a punctuation mark and
corrected the use of “reign.”
53
21
Before this became a national story, the cadet and I had exchanged mutual
apologies in several amicable e-mail.54 Mine was for portions of the e-mail that
were too personal, and his was for the dissemination of a private e-mail which he
claimed other cadets initiated. Indeed, the conflict resolution I had achieved with
Cadet Kurpiel satisfied former-Saint Xavier University President Richard
Yanikoski. He e-mailed me, “It seems as though you have found a pen pal.”55 On
November 4 in his office, he stated the incident was over and, remarkably, given
future events, asked me to contact him only, “if someone were trying to damage
my career.” I responded by noting pressure to sanction me would not abate due
to my fervent antiwar position in the e-mail. “I can handle the pressure,” the
president remarked. Seven days later I was suspended and later reprimanded.
Dr Yanikoski’s conciliatory tone at the November 4 meeting had now
become confrontational, personal and intimidating. He was quoted in the Chicago
Sun-Times: “[Kirstein] will be a changed man. The various sanctions I imposed
will increase the odds that will happen.”56 President Yanikoski also questioned
my psychological state-of-mind in remarks to the Sun-Times that were also
distributed by the Associated Press: “He seemed quite literally to go off the deep
54
Peter N. Kirstein to Robert Kurpiel, e-mail, November 2, 2002; Robert Kurpiel to Peter N. Kirstein, email, November 2, 2002; Peter N. Kirstein to Robert Kurpiel, e-mail, November 2, 2002; Robert Kurpiel to
Peter N. Kirstein, e-mail, November 2, 2002; Peter N. Kirstein to Robert Kurpiel, e-mail, November 2,
2002.
55
Richard Yanikoski to Peter N. Kirstein, e-mail, November 2, 2002.
56
Bryan Smith, “St. Xavier Professor Suspended for E-mail to Cadet,” Chicago Sun-Times, November 18,
2002, 22.
22
end.”57 On December 9, President Yanikoski announced his resignation pending
the naming of a successor.
At a meeting with President Yanikoski on December 18, I was critical, as
had been several of my colleagues, with the “the deep end” quotation. He
responded with apparent contrition: “I can understand your feeling. It was
regrettable I said what I did.” Yet in another rapid about face, I received a
defensive e-mail the following day. President Yanikoski citied various definitions
from Webster’s New World Dictionary (3rd Edition) that did not contain
psychological meanings of the phrase. He stated “those who are adding
psychological overtones to the phrase will have to explain why they do so…[It] is
not the normative meaning of the term.”58 Another source defines it, “to do
something crazy,” and includes a synonym, to “lose one’s mind.”59
Captain Jim Borders, the faculty sponsor of the Academy Assembly event,
issued a press release that contained another apology from me and the second
one from the Air Force Academy: “Furthermore, I would like to offer my own
apology to Dr Kirstein for the way his original message, which was intended as
Ibid.; “University Suspends Professor Who Sent Insulting Message to Air Force Academy Cadet,”
Associated Press, November 18, 2002.
58
Richard Yanikoski to Peter N. Kirstein, e-mail, December 19, 2002.”
59
“English Daily.” http://www.englishdaily626.com/slang.php?055 Melissa, a stylist and owner of Hair By
Design in Palos Park, Illinois was asked on January 3, 2006, without prompting or innuendo as she was
cutting my hair, what she thought the phrase meant. She said, “Someone’s going crazy.”
57
23
private communication, was spread throughout the Air Force Academy and
beyond.”60
My struggle assumed international dimensions as the rapid cyberspace
circulation of my e-mail reached American military forces stationed throughout
the empire. From Okinawa and Italy, from Germany and Kosovo, from
Afghanistan and Saudi Arabia, from the Naval Academy, the Coast Guard
Academy and Air University at Maxwell Air Force Base in Alabama, from
colonels, captains, lieutenants and a drill sergeant at Fort Leonard Wood in
Missouri, to grunts along the DMZ in South Korea, from wives of military
personnel in Massachusetts to a woman-Marine officer in Bosnia, e-mail arrived
at my inbox.61 An equal number of e-mail was sent by veterans with the grand
total exceeding 10,000 messages.
Ideologically conservative web logs ran the October 31st e-mail and called
upon their supporters to e-mail demands to President Yanikoski that my
continuous tenure be terminated. Charlie Daniels, who leads the eponymous
Charlie Daniels Band, e-mailed me and posted my antiwar missive on his
website. David Horowitz printed the Daniels’s screed on his online
Captain Jim Borders, “An Open Letter from the Academy Assembly,” November 4, 2002; Peter N.
Kirstein to Captain Jim Borders, e-mail, November 4, 2002. Emphasis added.
61
Kirstein, “Academic Freedom,” 28.
60
24
FrontPageMagazine.com.62 Mr. Horowitz, to his credit, also reprinted a National
Review online article by Hoover Institution scholar Stanley Kurtz that condemned
both my angry anti-war utterances as well as my suspension: “Yet when he was
relieved of his teaching duties by St. Xavier, I protested, arguing that the best
remedy for speech that offends, is more speech.”63 I was also invited on July 4,
2003 to debate the Iraq War with Victor Davis Hanson and others for
Frontpagemag that helped avert a possible blacklist of my work.64
The influential blogger Andrew Sullivan sarcastically presented the socalled 2002 Sontag awards for “egregious anti-Americanism.” The late Susan
Sontag had written in The New Yorker a brief essay on the September 11 tragedies
that claimed the aeroplane-suicide hijackers were inspired by the oppressive
nature of American foreign policy. 65 Glenda Gilmore, a historian at Yale won the
“award;” John Pilger, the progressive journalist was runner-up, and I received,
not without considerable satisfaction, “honourable mention.”66
The national press joined the fray and contributed to the hysteria over an
e-mail flap that was mediated quickly by the principles. The Wall Street Journal, in
the first of two editorials, praised President Yanikoski for his “promise to initiate
Frontpagemag.com, November 11, 2002, January 8, 2003, March 28, 2003. From Kirstein, “Academic
Freedom,” 27.
63
Stanley Kurtz, “Daniel Pipes Blacklisted by the Academic Left,” National Review Online, January 8,
2003. http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=5444
64
“Symposium: Bush’s Decision to Go to War. Was it Justified?” July 4, 2003.
http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=8746
65
The New Yorker, September 24, 2001. http://www.newyorker.com/talk/content/?010924ta_talk_wtc
66
Andrewsullivan.com, December 2002.
62
25
disciplinary hearings.” I was attacked for being “flush with his own moral
afflatus,” and my imminent punishment was assessed as “a happy ending.”67
They pandered to the nationalistic fury by misrepresenting my comment of
“aggressive baby-killing tactics of collateral damage.” They stated carelessly that
I attacked “a man in uniform for ‘aggressive baby-killing.’”68
In a second editorial, under the ironic headline, “Taking Academic
Freedom Seriously,” the Wall Street Journal stated I “accused [the cadet] of
"aggressive baby-killing tactics,” but for the second time omitted the specific
application of the term “baby-killing” to “collateral damage.” Although I was
suspended on November 11, 2002, the official announcement was deferred until
November 15, three days after the November 12th editorial. With characteristic
hauteur, the Wall Street Journal now smugly noted, “Fittingly, the suspension
began on Veterans Day.” It also mimicked an American Association of
University Professors’ motto that I had displayed on my website, “Academic
Freedom is Never Free,” in averring I was not entitled to academic freedom
protection given the harsh rhetoric of my e-mail.69
The paper conceded its second editorial resulted from significant reader
criticism of their initial attack upon me. Several letters claimed my academic
freedom had been violated, and that the Wall Street Journal was ideologically
“The Professor and the Cadet,” Wall Street Journal, November 12, 2002, A20.
Ibid. Emphasis added.
69
“Taking Academic Freedom Seriously,” Wall Street Journal, November 19, 2002.
67
68
26
motivated.70 Stephen H. Balch, president of the conservative National
Association of Scholars, subsequently defended me in another letter to the
Journal.71
Jed Babbin, a deputy undersecretary of defense in President George H. W.
Bush’s administration, wrote in The Weekly Standard that I “hate” the military
even though I am a veteran of the United States Army Reserves and the son of an
army captain who served in combat. He charged I construe “a soldier's only
value is as an object of ridicule and scorn.” Even though he misquoted a portion
of my e-mail to the cadet, he belittled it as “barely literate” and accused me of
“libel.” Undersecretary Babbin ended his article by implying that if my “[post]tenure review” did not lead to dismissal, it would fail the test of being “serious”
and would be “merely nominal.”72 Mr Babbin also harshly assessed my approach
to pedagogy that is posted on my website and an unrelated admonition:
“Remember Hiroshima, Nagasaki, My Lai, Kent State, Jim Crow and Selma.”73
Mr Babbin felt qualified to evaluate my teaching and addressed this comment to
“Letters,” Wall Street Journal, November 18, 2002. One of the letters was from John K. Wilson whose
website contains numerous documents on my case. http://www.collegefreedom.org/kirstein.htm
71
Wall Street Journal, November 25, 2002.
72
Jed Babbin, “When Professors Attack They Make Fools of Themselves,” The Weekly Standard,
December 2, 2002.
73
Kirstein website URL: http://people.sxu.edu/~kirstein/
70
27
the parents of my students: “Whatever your college student may be taught in
Kirstein's class, it certainly won't be history.”74
Roger Kimball, an editor and publisher of The New Criterion, in a
caustically headlined article, “Tenured Adolescents,” hailed my suspension as
“good news,” as well as the “administrative reprimand that will be placed in his
file.” In a pejorative manner, Mr Kimball described me as “a comedian” for a
website assertion that effective teaching “move[s] beyond the ideological
confines of academe.” My teaching skill is once again ridiculed because I am
depicted as a “…a history professor who cannot distinguish between protest and
pedagogy.”75 Furthermore, Mr. Kimball objects to several of my course titles such
as “Recent U.S. History,” “The Nuclear Age” and “Vietnam,” and suggests they
are taught without nuance or impartiality: “Any bets as to the content of his
courses on those subjects?”76
Mr Kimball also contributed an article, “Academia vs. America,” for the
American Legion. He accused me and other scholars of disloyalty under a
subsection heading, “Academia’s Anti-Americanism.”77 He also excoriated my
Babbin, “Professors.” Unlike the Wall Street Journal, the only national publication that did not allow me
to respond, Bill Kristol gave me a full-page two-column rebuttal. “Kirstein Strikes Back,” The Weekly
Standard, January 20, 2003, 5.
75
“Tenured Adolescents,” Notes and Comments, The New Criterion, December 2002.
http://www.newcriterion.com/archive/21/dec02/notes.htm
76
Ibid.
77
Roger Kimball, “Academia vs. America,” The American Legion: The Magazine for a Strong America,
April 2003, 36.
74
28
teaching as damaging to my students when he noted ruefully, after the
suspension, “he presumably will soon be back molding young minds.”78
Laura Ingraham, the nationally syndicated talk-show host, also
condemned my teaching in her best-seller, Shut Up and Sing: How Elites from
Hollywood, Politics, and the UN Are Subverting America. Using scare quotation
marks around the word “teacher,” she described me as a “’teacher’ of American
history, God help us,” and while mistaken on the duration of my suspension,
noted with a touch of schadenfreude “…[he] was suspended for—get this, folks—
an entire semester.”79
The seminal document defining academic freedom in the United States is
the AAUP, “1940 Statement of Principles on Academic Freedom and Tenure.” It
prohibits sanctioning academicians because when they “speak or write as
citizens, they should be free from institutional censorship or discipline.”80
According to the “1940 Statement,” professors are expected to “make every effort
to indicate” their extramural utterances are not in behalf of their college or
university.81
Ibid. See my response: Peter N. Kirstein, “New McCarthyism,” American Legion, June 2003, 4-6.
Laura Ingraham, Shut Up and Sing: How Elites from Hollywood, Politics, and the UN Are Subverting
America (Washington DC: Regnery Publishing, 2003), 150-51. On the cover, I was honoured to appear
next to Attorney General Ramsey Clark on a list of names that served as a backdrop to the graphics.
80
American Association of University Professors, Three Statements from Policy Documents & Reports
(Washington, DC: AAUP, 2001), 2. The document has been endorsed by more than 190 professional
organisations and societies.
81
Three Statements, 2.
78
79
29
I was charged in a three-year reprimand, that was recently removed from
my personnel file on December 22, 2005, of “failing…to make every effort to
indicate that [I was] not speaking for the institution.”82 While I did not include a
disclaimer, academicians rarely include them with monographs, op-ed pieces,
lectures, articles, press interviews, e-mail, or conference papers! The failure-todisclaim charge was also invoked to justify, in part, the banishment of Dr. alArian by the University of South Florida. 83
It is only invoked by administrators when speech is controversial or
unpopular. One rarely, if ever, encounters a disclaimer requirement for speech
that is non-controversial in nature, or laudatory of United States foreign policy. I
signed my e-mail with my name, academic rank and discipline. It is beyond
incredulity for one to claim I was speaking for the university. Yes I was
communicating as a professor on the faculty but in my own name.84
The reprimand arrogantly alleged additional violations of AAUP
guidelines, as if they had not been egregiously violated by the university. Dr.
Yanikoski averred that I did not comply with the “1940 Statement” because I
Richard Yanikoski to Peter N. Kirstein, “Reprimand,” December 23, 2002. See my description of the
events surrounding its deposition and an assessment of its content.
http://english.sxu.edu/sites/kirstein/?p=182; http://english.sxu.edu/sites/kirstein/?p=183.
83
“Academic Freedom and Tenure: University of South Florida Report,” Academe, May-June 2003, 66.
84
On the politics of disclaimer see: “South Florida Report,” 66; Peter N. Kirstein, “Responses to September
11,” Academe, May-June 2002, 4.
82
30
“failed…to show respect for the opinions of others.”85 I have documented for
over three years in publications and campus lectures across the U.S. that I was
not responding to an opinion on any issue of foreign policy or military matters. I
was responding to de facto SPAM sent to scores of instructors. Cadet Kurpiel’s email merely dealt with an upcoming academy event and did not display any
personal opinion on any topic.
Suspension from teaching is a major sanction that must never result from
external-public pressure on an academic institution. AAUP guidelines were
ignored by President Yanikoski. Suspensions can only be meted out, “if
immediate harm to the faculty member or others is threatened.”86 That was never
cited in any document pertaining to my case. The AAUP Redbook reiterates in
numerous documents the extraordinary circumstance under which an
academician may be suspended in the United States. The documents are the
ninth “1970 Interpretive Comment” of the “1940 Statement of Principles of
Academic Freedom and Tenure,” the “1958 Statement on Procedural Standards
in Faculty Dismissal Proceedings” and the revised 1999 “Recommended
Institutional Regulations on Academic Freedom and Tenure.”87
“1940 Statement of Principles of Academic Freedom and Tenure,” AAUP Policy Documents and
Reports, “Redbook” 9th ed. (Baltimore: Johns Hopkins University Press, 2001), 4.
86
Ibid., 7, 12, 26.
87
Ibid.; Peter N. Kirstein, “Saint Xavier Professor Defends His Right of Free Speech,” Daily Southtown,
August 7, 2005. Appears online at Foundation for Individual Rights in Education (FIRE) website:
http://www.thefire.org/index.php/article/6212.html
85
31
I was informed my “suspension” would be called a “reassignment to
other duties.” The word “suspension” did not appear in the formal
announcement. Instead, the university president stated, “relieved of his teaching
responsibilities for the current semester and reassigned to other duties.”88 Dr
Yanikoski, who is currently president of the Association of Catholic Colleges and
Universities, sent me a sardonic e-mail on December 30, 2005, complaining about
recent comments I posted on my blog that were critical of my suspension and
reprimand. He maintained, even though I was banished from the classroom as
the university scurried to find replacement instructors, that I was “NOT
‘suspended’ in the sense the term is used in AAUP norms.”89
Whatever words are used to describe my removal from the classroom, the
“Recommended Institutional Regulations on Academic Freedom and Tenure”
clearly states that one can be “suspended, or assigned to other duties in lieu of
suspension, only if immediate harm to the faculty member or others is
threatened by continuance.”90 Dr Yanikoski also claimed, absent a formal AAUP
investigation of the merits of the suspension, “that AAUP found no wrongful act
in this regard…A disinterested historian would find less accuracy and honor in
“Statement Regarding Professor Peter N. Kirstein,” Richard A. Yanikoski, November 15, 2002.
Richard Yanikoski to Peter N. Kirstein, e-mail, December 30 , 2005. Emphasis in original. His last
sentence stated he “intended [it] as a private communication.” While not required, I reluctantly but I
believe in the interest of public knowledge, have quoted thirty-seven words from a 281-word e-mail.
90
“Recommended Institutional Regulations on Academic Freedom and Tenure,” Redbook, 26.
Emphasis added.
88
89
32
your position than you presently imagine.”91 AAUP frequently does not
investigate cases where academic freedom has been violated. One can only claim
an AAUP exoneration or approval of an action, if there were an investigation
resulting in a finding that accorded with one’s position. Non action does not
constitute an AAUP decision on a matter.
Furthermore, I was pressured with a three-to-four-day deadline, to sign a
waiver of grievance and an acceptance of the suspension. The Faculty Affairs
Committee (FAC), the St Xavier University faculty union in a signed document
wrote:
At no time, should a faculty member be required to rescind his or her
rights to file a grievance or engage in other efforts to protect their due
process rights. Faculty should have the right to consult counsel and to
have the benefit of some time to consider acceptance of administrative
action, particularly if that action is punitive in nature. Signing a statement
that waives one’s right to file a grievance negates the ability to appeal an
administrative decision, which is the cornerstone of due process rights.92
I was also subjected to an unannounced disciplinary hearing that was
misrepresented twice as “informational” in a telephone call on Saturday evening,
November 2, 2002, by former Academic Vice President Christopher Chalokwu.93
FAC determined I “was not informed of the content of the meeting, nor was [I]
91
Richard Yanikoski to Peter N. Kirstein, e-mail, December 30, 2005.
Faculty Affairs Committee, document, released September 2003.
93
As then president of the university AAUP chapter and member of a national AAUP committee, I would
not have attended a disciplinary hearing without consulting appropriate parties in advance.
92
33
allowed the presence of an advocate.” FAC concluded that “the meeting…in
which sanctions were discussed and imposed was not labeled a disciplinary
hearing.”94
Socialists, anarchists and progressive faculty who cross the line of
acceptable speech, have been severely punished for their antiwar views.
Certainly a free society includes the right to condemn, criticize and vigorously
denounce written or oral utterances. Much speech deserves condemnation; some
may merit approbation. None of it merits punishment and coercion unless an
imminent or immediate harm to others is likely to occur. Without free speech,
there cannot be protest. Without protest, there cannot be progress. Without
progress, there cannot be freedom and in the instances cited in this paper, a
challenge to militant nationalism which undermines international peace and
justice.
And I’ll tell it and speak it and think it and breathe it,
And reflect from the mountains so all souls can see it.95
-Bob Dylan
94
FAC, September 2003.
“A Hard Rain’s A-Gonna Fall,” Michael Gray, Song & Dance Man III: The Art of Bob Dylan (London:
Continuum, 2000), 123.
95