Q&A on the Syracuse Free Speech Case
December 17, 2010
by Adam Kissel
FIRE has learned that Syracuse University Chancellor Nancy Cantor and Syracuse University College of Law (SUCOL) Dean Hannah Arterian have been replying to the many messages they have received from supporters of free speech in the case of the wrongful investigation of law student Len Audaer (see FIRE's case page for details). Their replies essentially say that Syracuse is right and FIRE is wrong (they are long on complaint and short on evidence). Obviously, we disagree. FIRE does not get involved in a case unless we have clear and convincing documentation of a rights violation on campus. The bottom line is that the expression on the blog SUCOLitis is satire and parody and is protected by Syracuse's strong, binding, contractual promises of free speech as well as the First Amendment in the larger society. Therefore, there is nothing for Syracuse to investigate.
Here are some questions and answers to help readers understand the main issues in the case.
Q. Is Syracuse violating freedom of speech by investigating a student for allegedly hurtful comments on the satire blog SUCOLitis?
A. Yes. SUCOLitis is quite obviously a satirical blog, like The Onion, with fake news stories. It explicitly states that this is exactly what it is. No reasonable person would believe that a comment or news item on the blog is true. The entire contents of the blog, which many of us at FIRE have read, do not threaten, defame, or harass anyone. While satire and parody can be harsh and even offensive, they have long played an important role in our culture and are unquestionably protected speech. This is the key problem for Syracuse: the speech is clearly protected by any reasonable standard of free speech, including Syracuse's, so there is nothing to investigate.
In addition, SUCOL's code of conduct provides that "no student should be penalized for conduct without fair advance notice that it is prohibited." No notice was provided that parody and satire were forbidden at SUCOL, nor could such notice have been provided without conflicting with Syracuse's own promises of free speech.
Q. Does Syracuse have to respect free speech?
A. Yes. Syracuse, a private university, is not bound by the First Amendment. But Syracuse promises free speech in its student handbook and is morally and contractually bound by that promise. This contractual promise is particularly strong and enforceable due to New York State case law. Even speech that some people might find provocative, annoying, offensive, or hurtful is protected speech at Syracuse. Syracuse must not be allowed to engage in a bait-and-switch where it promises students freedom of speech and then breaks that promise when it becomes inconvenient. (For what it's worth, Syracuse also built a giant building with the First Amendment emblazoned on the side in 10-foot letters.)
Q. Isn't Syracuse obligated to investigate complaints by students against other students?
A. Only to a point. This investigation should not have gone past day one. Of course, when somebody files a complaint, the university needs to determine whether it is frivolous or has merit. However, once it is clear that the complaint is frivolous and concerns clearly protected speech, as in this case, the investigation must end immediately. This is also an obligation of fair procedure. Instead, Professor Gregory Germain, the chief faculty "prosecutor" in the case, has kept the investigation going for over two months while the student faces possible expulsion for his protected speech, without any opportunity to know what the particular expression at issue is or who has accused him. Certainly, nothing requires Professor Germain to be handling the case in such a dilatory way.
Also, when the U.S. Department of Education's Office for Civil Rights (OCR) sent a letter to virtually all private and public colleges in 2003 regarding harassment law and freedom of speech, OCR made clear that private colleges had no obligation to investigate or punish expression that would be protected speech in the larger society. Professor Germain and Syracuse are not being forced to keep this investigation going; they are choosing to do so.
Q. Even if the speech is protected, shouldn't Syracuse prohibit it in order to maintain an environment that is conducive to learning?
A. No. Freedom of speech is critical to an environment that is conducive to learning; this is why Syracuse and so many other private institutions make extensive promises of free speech to their students and faculty. Humor, parody, and satire are venerated parts of our culture and the learning process (consider Jonathan Swift's "A Modest Proposal," for example), and our society benefits from a wide range of social criticism. Law schools also frequently enjoy and promote satire as a way of letting off steam. Most top law schools have a law school musical, like the "Harvard Law Revue" at Harvard, which often mercilessly make fun of law school life.
Q. But can't Syracuse demand "professionalism" of its law students?
A. That's a misplaced question. Syracuse is teaching the next generation of lawyers that the right not to be offended trumps the rights of free speech and due process. Such erroneous lessons about fair procedure and free speech undermine some of the most important values in our democracy, and teaching false lessons can hardly be called "professional." Like anyone else, lawyers must be professional in the courtroom and in their jobs, but this hardly strips them of the right any American possesses to participate in a satirical blog on the Internet and on their own time. If the law school believes that any instance, any time, of satire, parody, or other forms of joking are utterly incompatible with the professionalism required of law students, that says more about the faculty—and administration—created atmosphere at SUCOL than it does about the blog's author or authors, and it flies in the face of Syracuse's moral and contractual promises.
Q. Is the law school really gagging anyone?
A. Yes. SUCOL Professor Gregory Germain is pressing the hearing panel at the law school to issue a "protective order" that severely hampers Mr. Audaer's efforts to draw attention to his plight.
First, it should be noted that we can find no provision for protective orders in the student handbook at Syracuse. Professor Germain is making up motions as he goes along.
Second, the proposed protective order is very extensive. It would prevent Mr. Audaer from talking about the case at all—revealing "any information obtained" at all, "without limitation"—unless he gets a written agreement from all parties who would receive the information. Thus, he would never be able to reveal the details of his case to anyone—he may not in any way "disclose" information about his case—unless he gets such a written agreement from them. This also means that he could never publish a case document on his own website.
The order also would require written permission from anyone whose name appears in the blog—including Vice President Biden and Ted Turner as well as perhaps two dozen people at SUCOL—prior to publishing a blog entry with the person's name in it. In addition, the order states that Audaer must get written agreement from anyone who wishes to post information from the documents that those documents "must be posted in [their] entirety." This would prevent most media sources from using the case documents at all, as they would never agree to post entire documents (rather than excerpts or quotations) simply because of space limitations. A print newspaper, for instance, would be totally unable to quote the entirety of a case document in a normal news article. It is very difficult to believe that this effort to silence the press is not, in fact, the very point of this particular provision.
Indeed, in Professor Germain's "notice of motion" regarding the gag order, Professor Germain states that the order
would prohibit the parties and their agents from directly or indirectly disclosing on the [I]nternet or otherwise the names of students, faculty, or staff who were named in the www.wordpress.sucolitis blog, have filed allegations against Audaer, who testify in the proceeding, or who are mentioned in the pleadings and other materials that are submitted in connection with this matter, and requiring that any redacted public disclosure be complete in order to avoid misrepresenting the proceedings. [Emphases added.]
In short, this is an order that would make it extraordinarily difficult if not impossible for Mr. Audaer to defend himself in the court of public opinion, and it is therefore a university-style gag order.
Here's the proposed order:
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. [Emphases added.]
Q. Is the law school following proper procedures for handling student complaints?
A. No. Syracuse's student handbook promises students not only "the right to express themselves freely on any subject" but also "the right to fundamental fairness." It is fundamentally unfair to threaten a student with expulsion for his protected speech for months while refusing to give him any of the evidence or name his accusers. It bears repeating: two months in, Len Audaer does not know who filed complaints against him, and he does not know which comments on the blog were supposed to be "hurtful." Yet, Professor Germain has threatened him with "harassment" charges and expulsion. This is an embarrassing and unfair way for a major law school to operate. And again, Professor Germain's attempt to put a gag order on Mr. Audaer has no basis in the student handbook.
Q. Is Professor Germain acting within his authority?
A. Maybe not. Professor Germain is the faculty prosecutor in this case and is in this role Syracuse's agent and a university administrator. Yet, Professor Germain stated in an e-mail that "I am an independent prosecutor, and am not directed by or answerable to the administration." Is this really how the law school works? That's a question worth asking Dean Arterian.
Q. But no charges have been filed.
A. This is part of the problem, not a virtue: Professor Germain is withholding the basic information that Len Audaer needs to defend himself. Professor Germain is hiding behind the idea that since the "investigation" is still ongoing, he doesn't have to reveal anything to Mr. Audaer. All that Professor Germain told him in October was that the complaint was about "harassment." It wasn't until this week that Professor Germain revealed even the number of student complaints. Professor Germain should reveal the basic information without any special gag order, and Professor Germain does not have to wait to file formal charges before revealing this information.