Peter Neil Kirstein“Campus to Courts: The Silencing of the Left in
Wartime”University of Texas at Austin
H.A.W. ConferenceFebruary 18, 2006
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 colonisation of Cuba, slaughter heroic Filipinos in their
1 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
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 healthy citizens to kill other people.
3 Henry Steele Commager, Milton Cantor, Vol. 2. Documents of American History to 1898, 10th ed. (Englewood Cliffs, New Jersey), 1988, 3-4.
2
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 (1798-1800). 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
4 Harold Pinter, Nobel Lecture, “Art, Truth and Politics,” December 7, 2005. http://nobelprize.org/literature/laureates/2005/pinter-lecture-e.html5 Howard Zinn, Declarations of Independence (New York: Harper Collins, 1991), 184.6 Howard Zinn, Disobedience and Democracy (New York: Vintage, 1968), 70.
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anticipating the corrupting influence of 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 damned soldiers (presumably allies) would get it.”8
7 Andrew J. Bacevich, The New American Militarism (New York: Oxford, 2005), 7.8 Maurice Possley, “Jailed for Their Words,” Chicago Tribune, December 28, 2005, 1, 18.
4
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); classical-music
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
falsely shouting fire in a theatre and causing a panic.”11 Taking this
obvious example of disallowing speech intended to inflict mass injury
9 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), 301-302.11 Schenck v. United States, 249 U.S. 47 (1919)
5
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 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
12 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.
6
be endured as long as men still fight.”13
Antiwar speech may protest actions that are more “clear-and-
present-dangers” 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 clear-and-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-and-present-
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 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 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.
7
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, mutiny and refusal of duty in the military and naval forces
of the United States.”18
15 “The War on Al Jazeera,” The Nation, December 19, 2005, 6-8.16 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/cgi-bin/getcase.pl?court=us&vol=249&invol=204.18 Thomas L. Tedford, Dale A, Herbeck, eds. 5th ed. Freedom of Speech in the United States (State College, Penna.: Strata Publishing, 2005), 51.
8
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
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 19 Frohwerk v. United States, 249 U.S. 204 (1919).
9
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 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
20 Tedford, Freedom of Speech, 51.21 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), 474.24 Zechariah Chafee, Free Speech in the United States (Cambridge: Harvard Univesity Press, 1967), 84n.25 Mary Jo Buhle, Paul Buhle eds., Encyclopedia of the American Left (New York: Garland, 1990), 187.
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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 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
26 Debs v. United States, 249 U.S. 211 (1919). http://www.yale.edu/lawweb/avalon/presiden/inaug/harding.htm27 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), 141.29 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.
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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
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
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.
12
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 support; death threats were rampant and Professor De
Genova required police protection while on campus. Bollinger nobly
refused to suspend or fire the non-tenured 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. 33 “Professor Reprimanded for Joke,” Houston Chronicle, December 10, 2001. online edition.34 Richard M. Berthold, “My Five Minutes of Infamy,” History News Network, November 25, 2002. 35 Remarks appeared on April 3, 2003. http://www.columbia.edu/cu/news/03/04/statement_genova.html
13
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 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
36 http://www.npr.org/programs/npc/2003/030402.lbollinger.html; http://www.columbia.edu/cu/news/03/04/press_club.html37 Ward Churchill, “‘Some People Push Back’: On the Justice of Roosting Chickens,” Pockets of Resistance, #11, September 2001.
14
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 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 inTo the F.B.I. Me, I romp and stomp… Without freedom of speech,
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=907340 Greg Lukianoff, “The Chill is Nothing New,” The Chronicle of Higher Education, September 9, 2005, B10.41 http://newmedia.colorado.edu/silverandgold/messages/4533.html
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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 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 42 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, 2003.44 “Academic Freedom and Tenure: University of South Florida Report,” Academe, May-June 2003, 59, 65.45 Foundation for Individual Rights in Education http://www.thefire.org/index.php/article/49.html
16
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
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
46 Tampa Tribune Online, TBO http://news.tbo.com/news/MGAV3LY9OCD.html47 Peter N. Kirstein, “Academic Freedom and the New McCarthyism,” Situation Analysis, Spring, 2004, 30.
48 “Academic Freedom,” Academe, 69.49 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/
17
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 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
50 Peter Whoriskey, “Ex-Professor Won His Court Case but Not His Freedom,” Washington Post, December 14, 2005, A02.51 British Broadcasting Corporation, December 6, 2005. http://news.bbc.co.uk/1/hi/world/americas/4505248.stm
18
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 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 e-mail 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
52 Cadet Robert Kurpiel to Peter N. Kirstein et al., e-mail, October 31, 2002.
19
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
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 53 Peter N. Kirstein to Cadet Robert Kurpiel, e-mail, October 31, 2002. I edited a punctuation mark and corrected the use of “reign.” 54 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; 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.
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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
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 56 Bryan Smith, “St. Xavier Professor Suspended for E-mail to Cadet,” Chicago Sun-Times, November 18, 2002, 22.57 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.”
21
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
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
60 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.
22
Daniels’s screed on his online 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 so-called 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, 62 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=544464 “Symposium: Bush’s Decision to Go to War. Was it Justified?” July 4, 2003. http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=874665 The New Yorker, September 24, 2001. http://www.newyorker.com/talk/content/?010924ta_talk_wtc66 Andrewsullivan.com, December 2002.
23
praised President Yanikoski for his “promise to initiate 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 67 “The Professor and the Cadet,” Wall Street Journal, November 12, 2002, A20.68 Ibid. Emphasis added.69 “Taking Academic Freedom Seriously,” Wall Street Journal, November 19, 2002.
24
Wall Street Journal was ideologically 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 the
parents of my students: “Whatever your college student may be
taught in Kirstein's class, it certainly won't be history.”74
70 “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/74 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.
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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 teaching as damaging to my students when he noted
ruefully, after the suspension, “he presumably will soon be back
molding young minds.”78
75 “Tenured Adolescents,” Notes and Comments, The New Criterion, December 2002. http://www.newcriterion.com/archive/21/dec02/notes.htm76 Ibid.77 Roger Kimball, “Academia vs. America,” The American Legion: The Magazine for a Strong America, April 2003, 36.78 Ibid. See my response: Peter N. Kirstein, “New McCarthyism,” American Legion, June 2003, 4-6.
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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
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
79 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.
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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-to-disclaim
charge was also invoked to justify, in part, the banishment of Dr. al-
Arian 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 “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 82 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, 4.85 “1940 Statement of Principles of Academic Freedom and Tenure,” AAUP Policy Documents and Reports, “Redbook” 9th ed. (Baltimore: Johns Hopkins University Press, 2001), 4.
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Kurpiel’s e-mail 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 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,
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.html88 “Statement Regarding Professor Peter N. Kirstein,” Richard A. Yanikoski, November 15, 2002.
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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 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.
89 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.91 Richard Yanikoski to Peter N. Kirstein, e-mail, December 30, 2005.
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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] 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
92 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.94 FAC, September 2003.
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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
95 “A Hard Rain’s A-Gonna Fall,” Michael Gray, Song & Dance Man III: The Art of Bob Dylan (London: Continuum, 2000), 123.
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