Rogue Syracuse Prosecutor Reveals Gag Order and His Contempt for Free Speech
December 15, 2010
by Adam Kissel
Yesterday, in a message that we will reveal soon, Syracuse University College of Law (SUCOL) Professor Gregory Germain (self-described as "the 'Prosecutor'") revealed to a large group of e-mail recipients nationwide that he had filed a motion for a gag order on Len Audaer and his attorney Mark Blum in Audaer's free speech case. We reported the details of the case in a press release yesterday. In short, Audaer was told he was under investigation for "harassment" because of the content of an anonymous, satirical blog about life in law school, named SUCOLitis. The content of the blog, however, comes nowhere near Syracuse's definition of harassment (much less the state and federal definitions). Germain has held the charges over Audaer's head for two months, and yesterday he served notice of the proposed gag order, which would effectively prevent the media from reporting on the case by putting unreasonable conditions on the sharing and publication of key documents.
We didn't know Germain had filed or served any of these papers until Germain revealed it himself yesterday. When we had posted our press release, we quoted the part of the gag order that had previously been communicated to Audaer and Blum—the worst part of it, indeed—because it would have deeply affected FIRE's ability to publish key documents in the case. All we knew was that Germain had pressured Audaer and Blum to sign it voluntarily; if they wouldn't sign it, Germain would ask the hearing panel to make the gag order mandatory. I guess Germain thought we had the whole thing rather than just the excerpted part. But he encouraged the dozens of e-mail recipients to try to obtain "a complete copy of my motion."
I wonder if this slip-up violates the "Affirmation of Confidentiality" that Germain is required to affirm as "the Prosecutor."
There's a lot to ridicule in Germain's moving papers. Let's start by quoting the gag order itself:
PROPOSED PROTECTIVE ORDER
The parties to this proceeding (Leonard J. Audaer and Gregory Germain, the faculty prosecutor), and their agents, are hereby ordered not to post on the internet or otherwise disclose the content of the www.wordpress.sucolitis website or any information obtained in the course of this proceeding, including without limitation the complaint, the students' charging statements, the blog entries, and the testimony of witnesses, without assuring that all recipients of the information agree in writing as follows:
1. The names of the individuals identified in the information will not be disclosed in any article or posting on the internet in on any other public forum, without the prior written consent of the named individuals.
2. In order to prevent misleading selective posting of information, if any document is posted on the internet or is otherwise made available on a public forum, the document must be posted in its entirety, except that the names of non-consenting individuals will be redacted and removed before posting.
THE SYRACUSE UNIVERSITY COLLEGE OF LAW HEARING PANEL
Leslie Bender, Presiding Judge
Syracuse University College of Law Code of Student Conduct Hearing Panel
In FIRE's eleven years of experience, we have learned that students who keep the essential elements of their free speech cases a secret—whether by choice or, as intended here, by order—tend to fare far worse than those who take their cases to the public. We find that universities tend to stop violating someone's rights once those violations are exposed to public scrutiny. Public awareness of a free speech case helps prevent people such as Professor Germain from manipulating the process and further violating someone's rights.
Professor Germain has tried to prevent not merely people's names from being published, but much more. He not only is acting to prevent the publication of the names of Audaer's accusers, but he also is trying to prevent the publication of the name of any other person who was mentioned on the blog (among them U.S. Vice President and SUCOL alumnus Joe Biden, as well as Ted Turner and Ellen DeGeneres). He also is acting to prevent the publication of "the complaint, the students' charging statements, the blog entries, and the testimony of witnesses" unless they are published in their entirety and with names redacted—and not just by Audaer and his attorney, but by any media source that seeks access to the documents. Professor Germain surely knows that he is essentially demanding that the media not cover the case at all, for these documents are fundamental.
In the United States, responsible media organizations tend not to accept such demands, which are neither fair nor reasonable.
Also deserving some ridicule is Germain's argument to the hearing panel that "One of the students has expressed to the Prosecutor a concern for her physical safety." That's right; simply because somebody's name was mentioned in an obviously fake news item in an explicitly satirical blog, whatever the scenario and quotation were, this student apparently has invoked the specter of concern for her physical safety. That is a completely unreasonable concern, and Germain knows it.
But to defend this crazy argument, Germain added a footnote: "Audaer in his radio appearance expressed similar concern for his physical safety." We're talking apples and oranges. Audaer has been accused of harassment and faces possible expulsion; he clearly has enemies at SUCOL including Germain himself. This unnamed accuser—Audaer still has no idea who she is or even what expression is the subject of the complaints against him—faces no physical danger whatsoever as a result of this brouhaha. Better not go on the radio again, Len Audaer—who knows what else Germain will propose to shut you up.
Who does Gregory Germain think he is, Ken Starr?
As the Presiding Judge, Leslie Bender should take this opportunity to put an end to this case, which has been flawed from the start. At any public college, as soon as it becomes clear during an investigation that the speech in question is protected, the investigation must end—case closed. Here, Syracuse must do the same, since it is contractually bound to its promises of free speech. Before Gregory Germain spins this case further out of control, Bender should step in.
Stay tuned for much more.