The Lichfield Group

As Supreme Court Justice and Nuremberg prosecutor Robert Jackson lectured in Terminiello v. Chicago (1949), the Bill of Rights is not a suicide pact. To protect its reputation and educational mission, the University of Colorado would leave the First Amendment undisturbed if it discharged Professor Ward Churchill. His wild likening of the 9/11 victims to Adolph Eichmann’s complicity in genocide and moral defense of the terrorists wretches are reasonably likely to impair faculty harmony, alumni support, recruitment of students, community relations, and sacred scholastic standards that teach students to cherish reason and to repudiate propaganda reminiscent of arch-Nazi Joseph Goebbels. These prospective evils are sufficient to justify denying Professor Churchill the state university’s platform and prestige to amplify his ravings with public resources. Freedom of speech does not shoulder the state with an obligation to subsidize.

In Waters v. Churchill (1994), the Supreme Court declared that when the government acts as an employer, its employees may be discharged for speech reasonably likely to confound the government enterprise. Applying the Waters test, the United States Court of Appeals for the Second Circuit in Jeffries v. Harleston (1995) upheld the truncation of a professor’s chairmanship of the Black Studies department at the City College of New York because of an off-campus anti-Semitic polemic. The professor, Leonard Jeffries, asserted that Jews sported a history of oppressing blacks, that “rich Jews” had financed the slave trade, and that Jews and Mafia figures in Hollywood had conspired to “put together a system of destruction of black people” by negative film portrayals. The court of appeals reasoned that the jury correctly found that CUNY reasonably believed that Jeffries’ calumny of Jews would disrupt faculty relations, stigmatize the university, or dissuade benefactors from contributing. Accordingly, the professor’s academic demotion was untroubling to the First Amendment.

The University of Colorado’s corresponding case for dismissing Professor Churchill is much more compelling, even though the sanction would be more severe than in Jeffries. He has indicted the thousands who died on 9/11 at the World Trade Center as guilty of crimes akin to Eichmann’s transporting Jews to extermination camps and who deserved their gruesome deaths. He has condoned the 9/11 abominations as desperate acts of self-defense in a war initiated by the United States against Iraq with its no-fly zones in the north and south to protect millions of Kurds and Shiites from Saddam Hussein’s chemical weapons and brutalities. He has denied that the 9/11 terrorism was “evil,” a term he reserves for Madeline Albright and Norman Schwartzkopf, who helped to liberate millions from the yoke of Saddam and Slobodan Milosevic. According to Professor Churchill, “Had it not been for these evils, the counterattacks of September 11 would never have occurred.”

Based on these splenetic ravings, the University would be entitled to dismiss the Professor because his retention would threaten serious impairment of its mission. Students, faculty, and the community are likely to be outraged by Churchill’s equating civilians employed in trade and international finance with Nazis who aided and abetted the Holocaust and characterizing their murders as morally justified. Ditto for his absurd assertions or insinuations that the no-fly zones over Iraq in accord with international law were acts of war, that the 9/11 terrorists acted honorably, and, that if the United States had left Saddam, Taliban and Milosevic undisturbed, then Al Qaeda would have refrained from 9/11 despite the 1993 WTC bombing, the Khobar Towers terrorism, the bombings of the United States embassies in Kenya and Tanzania, and the USS Cole vileness. The University might reasonably fear ostracism if it honored Churchill with a professorship despite his sneering at 9/11’s victims, celebration of terrorists, and contempt for those who are risking that last full measure of devotion to advance freedom and civilization.

The University’s chief objective is the inculcation in students a reverence for reason over bigotry, a devotion to intellectual honesty over counterfactual propaganda. Professor Churchill, a role model for students, epitomizes the opposite. His transparent hatred towards the United States finds expression in lunatic analogies to Hitler’s Third Reich and Stalin’s mass purges and exterminations. He chronically distorts history for propaganda purposes, for instance, insinuating that the United States punished all Germans after World War II because they neglected to take up arms against Hitler.

Rational discourse and enlightened government would be blunted if the likes of Churchill dominated the faculty. The youth of America is too important for the University to tolerate the Professor as an example for students to emulate. Indeed, the purpose of free speech—to make the deliberative forces prevail over the arbitrary—would be advanced by returning Churchill to private pursuits funded with private resources. And freedom of speech would rejoice, not weep.

Bruce Fein was associate deputy attorney general under President Ronald Reagan and is a constitutional lawyer and international consultant at Bruce Fein & Associates and The Lichfield Group.