FIRE's letter to President Gordon
October 23, 2001
October 23, 2001
President William C. Gordon
President of the University of New Mexico
Scholes Hall 160
Albuquerque, New Mexico 87131
Dear President Gordon:
As you can see from the list of our Directors and Board of Advisors, FIRE unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, freedom of religion, due process and-in the case of Professor Berthold-freedom of speech and academic freedom on America's college campuses. Our web page, www.thefire.org, will give you a greater sense of our identity and activities.
I wish to express our profound concern about the threat to free speech and academic freedom posed by your initiating disciplinary action against Professor Richard Berthold due to a comment that he made regarding the recent terrorist attack. In light of this national crisis, it is crucially important, now more than ever, that we affirm our cherished Constitution and ideals and not abandon them to suppress views that we find offensive or unpatriotic.
In a news release dated September 25, 2001 ("Statement Of UNM President William C. Gordon"), you promised to "vigorously pursue…[Richard Berthold] through [the University's] internal disciplinary procedures" for statements he made concerning the recent terrorist attacks. While acknowledging the First Amendment, you sought justifications for possibly disciplining Professor Berthold in both the University's own guidelines for professional conduct and academic freedom and the AAUP guidelines.
As you know full well, the University of New Mexico is a public university and therefore has an overarching legal obligation, in addition to its moral obligation, to ensure the First Amendment rights of its faculty. The University of New Mexico cannot and must not initiate any action, or even threaten any action, against a professor on the basis of his or her clearly protected political statements, regardless of the offense given to others. The First Amendment does not exist to protect only popular speech. Indeed, it exists precisely to protect unpopular speech. It is irrelevant to argue that such a process might exonerate Professor Berthold. The mere threat of action based on opinion, viewpoint, and political content would in and of itself promote self-censorship among faculty and students alike, chilling both protected speech and academic freedom.
Furthermore, arguments from AAUP or University guidelines incorrectly imply that guidelines could ever trump the First Amendment and be used by administrators to circumvent the protections of the First Amendment and the principles of academic freedom. It is also obvious that the AAUP guidelines, in fact, have not even been violated. The statement cites the AAUP recommendation that faculty should not "introduce into their teaching controversial matter which has no relation to their subject." This has no application here, of course, because Professor Berthold is a professor of history. Further, his comment, whatever its form, constituted core political speech. The argument that a modern international crisis or act of war has "no relation" to the study of history will not stand academic, moral, or legal scrutiny.
Your statement cites guidelines recommending that faculty "demonstrate an ability to interact with students in an encouraging and stimulating manner" and that they demonstrate "emotional stability or maturity." Professor Berthold has demonstrated his ability to interact with students through the popularity of his classes and the support that he has received from students. That is to his credit, of course, but it in no way affects his constitutional rights. As for his ability to be "stimulating," it would be frivolous to argue that he has failed in this regard. If nothing else, he certainly provoked relevant debate. As for "emotional stability and maturity," we know of no prior charges, independent of his political speech, that call these broad and vague qualities into question. Further, Professor Berthold has demonstrated his "stability and maturity" in recent statements. If any individuals lack maturity and emotional stability, it is those professors who cannot tolerate the expression of dissenting or unpopular opinions at an institution of higher learning.
Finally, it is dangerous and misplaced to chastise Professor Berthold for "interfering" with the functioning of the University. Any interference with the University's proper function came from the community's inability to cope with the expression of an unpopular idea. To establish a precedent that controversial ideas cannot be expressed if they are poorly received would put the power of censorship in the hands of anyone inclined to disrupt the expression of ideas and erode entirely the idea of free speech and the jurisprudence of the First Amendment.
Accordingly, FIRE requests that the University of New Mexico 1) affirm that Professor Berthold's opinion's are fully protected under the First Amendment to the United States Constitution and that no device or contrivance will be used to circumvent those rights; and 2) guarantee that Professor Berthold will receive no further retaliation for the expression of his constitutionally protected opinions on this or any other topic, past or present.
The University of New Mexico must understand that taking this action not only removes any meaningful protection of the rights of your existing students and faculty, but also will result in a chilling effect across education as a whole. A university in which students and faculty have any fear of reprisal for discussing controversial topics is one that is rendered impotent to address society's most crucial issues.
FIRE hopes we are able to resolve this dispute discreetly and amicably. However, FIRE will stay with this case with persistence and resolution. We are categorically committed to using all of our media and legal resources to support Professor Richard Berthold and to see this process to a just and moral conclusion. Please spare University of New Mexico the embarrassment of fighting against the Bill of Rights by which it is legally and morally bound. As we all have learned immeasurably in these recent times, a free society is a precious thing, not to be abandoned.
I look forward to hearing from you.
Director of Legal and Public Advocacy