FIRE Letter to American University President Benjamin Ladner, June 11, 2002

June 11, 2002

President Benjamin Ladner

Office of the President

American University

4400 Massachusetts Avenue, NW

Washington, DC 20016

Re: Disciplinary Charges against Benjamin Wetmore

Dear President Ladner:

As you can see from the list of our Directors and Board of Advisors, the Foundation for Individual Rights in Education (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, academic freedom, and, in this case, fundamental fairness and freedom of speech and expression on America's college campuses. Our web page, www.thefire.org, will give you a greater sense of our identity and activities.

FIRE is gravely concerned by the threats to free speech, journalistic freedom, and fundamental fairness posed by the actions taken against Ben Wetmore, an American University undergraduate who is administrator of www.benladner.com. From the severity and arbitrariness of his treatment by the University and from statements by University officials, it seems unmistakable that AU is targeting Mr. Wetmore for the content of his journalistic activities and political speech. No university that cares about student rights would allow a student who wished simply to videotape a public figure at a public event on its campus to be manhandled by authorities, to be found guilty of theft of images and sounds (among other charges), to be denied an impartial panel, and to be placed on probation without any chance to appeal. The tragic events of the past year in America should have made it abundantly clear that our basic freedoms and rights are not only essential and precious, but also fragile. We must be vigilant against any and all means used to attack them.

This is our understanding of the facts, based on verbal and written information from Mr. Wetmore, the written statement of Karen Gerlach (AU's assistant director of student activities, who witnessed the incident), correspondence with Jon Katz (an attorney from FIRE's Legal Network), the confiscated video recording, various media sources (including AU's own The Eagle and the Christian Science Monitor), and official AU documents and correspondence, among other sources.

Mr. Wetmore is an undergraduate student, the administrator of www.benladner.com, and (up until this incident) the elected president of Anderson Residence Hall. Mr. Wetmore has been, as is his right at AU, an outspoken critic of University policy and expenditures, and his website frequently criticizes the University staff and administration. On April 8, 2002, he attended Tipper Gore's speech in Bender Arena, which was open to the public and to the University community. Having reviewed all the posted rules and regulations prior to the event, he was aware that, as AU administrators have confirmed, the only stated restriction was on flash photography. Critical of the high cost of Mrs. Gore's appearance, as is, of course, his right, he arrived with a camcorder to record the event, and he entered openly. After peacefully taping the event for over half an hour he was approached by a number of plainclothes campus police who told him to stop recording and leave the premises. He refused to comply until they identified themselves, a reasonable request that you would want all of your students to make, which they did not. According to Mr. Wetmore, he was told by one of the plain clothed men that he was with Tipper Gore's security detail, and that, on his word, the group merely wanted to speak with him outside the arena. On that guarantee, Mr. Wetmore left with an unidentified man who, it turned out, was a Public Safety officer. Immediately after leaving Bender Arena, campus police demanded his camcorder and tape. Mr. Wetmore hesitated, and, before witnesses, was manhandled, pinned to the ground, handcuffed, taken away, and had his tape confiscated.

At this time, Mr. Wetmore contacted FIRE. I personally sent a letter to you as an alumnus, believing that this was all some terrible error that AU would quickly fix. My letter was essentially ignored. Instead of apologizing to Mr. Wetmore, returning the tape stolen from him by the University, and investigating the campus police's use of excessive force, Mr. Wetmore was charged with seven campus infractions, including—astonishingly—theft, for videotaping a public event. The other charges included "conduct that threatens or endangers the health or safety of any person," trespass, failure to comply with the directive of a campus official, and disorderly conduct. Mr. Wetmore's "trial" was presided over by Director of Judicial Affairs Katsura Kurita, the very person who initiated the action against Mr. Wetmore. She served as grand jury, judge, and juror for the proceeding. The jury also included Kurita's law clerk, as well as Sarah Prattson, a political rival of Mr. Wetmore's from student government (indeed, during the proceedings, Mr. Wetmore objected to the inclusion of Ms. Prattson on his jury—an objection that was ignored). Ms. Kurita denied his requests for an informal resolution and forced him to testify against himself. Mr. Wetmore was found guilty of the charges, with no option for appeal. All of this, of course, violates the mission statement of the Office of Judicial Affairs, which explicitly promises to "provide an organized judicial system founded on the principle of equity, fairness and due process for the resolution of grievances in the American University community."

Ms. Kurita's written decision reprimanded him for not addressing his "responsibility for the incident" (rarely done when one is maintaining one's innocence), for using "confrontational tactics" in his defense, and for his failure to comply immediately with the plainclothes campus police (stating, "resistance is not appropriate in our academic or learning environment"). Mr. Wetmore was then stripped of his elected position, placed on disciplinary probation for a year, assigned 40 hours of community service, and, in addition to other punishments, warned that future infractions could result in expulsion. The efforts of attorney Jon Katz, whom FIRE had placed in contact with Mr. Wetmore, and who sought to reason with AU administrators, also went largely ignored.

The first issue of this nightmarish scenario is the charge of theft against Mr. Wetmore for videotaping Mrs. Gore's speech. The only response to my inquiry was from Thi Nguyen-Southern, dated May 16, 2002, which stated, "The University's contract with Mrs. Tipper Gore prohibits the recording of her speech because her presentation included a showing of her copyrighted photographs. To fulfill our contractual obligation, we regarded any attempts to record Mrs. Gore's presentation without her express permission a violation of Federal copyright law and University policy prohibiting copyright infringement and theft of intellectual property." [Emphasis added.] This response is a crude and dangerous misinterpretation of contract and intellectual property law, but it appears to be the University's official position. Even if such a contract existed (both Mr. Wetmore's and Mr. Katz's requests to see this contract were denied), it is irrelevant to any of the actions taken against Mr. Wetmore. It is fully established by all accounts, including those of the University, that there was no notice whatsoever that video taping would not be allowed. The University's failure to enforce the contract is a matter between it and Mrs. Gore, and it in no way affects Mr. Wetmore. If the University had promised to pay the speaker by charging admission, failed to notify attendees of that fact, and then arrested them all for "theft," your actions would be identical to this case.

The notion that Mr. Wetmore's videotaping constituted "theft" is in no way related to copyright law and, if it were considered legitimate, it would pose a lethal threat to journalistic freedom at AU. At most, Mr. Wetmore could be sued by Mrs. Gore if he attempted to sell the copyrighted portion of the speech. Mr. Wetmore was taping the event for noncommercial journalistic purposes, and American University had no copyright interest in that tape. Indeed, theft has taken place, but it is American University that is guilty of stealing Mr. Wetmore's property. Further, the University's refusal to return the tape is an outrage, especially as much of the tape includes Mr. Wetmore's private footage, completely unrelated to the spurious copyright claim. The tape also provides, as you know, the only hard evidence that substantiates Mr. Wetmore's claim of excessive force. AU's refusal to return his property to him so he can address this issue, which affects the entire campus, is simply unconscionable.

It is difficult to understand how AU could so grossly misinterpret copyright law, especially since Peter Jaszi, an esteemed American University law professor, testified by videotape that Mr. Wetmore had not violated any copyright law and that his actions could not constitute theft. Attorney Jon Katz was prevented from testifying on the issue of law. Beyond the legal arguments, of course, no moral university that claims to value openness and transparency could make the recording of images and sounds a serious actionable offense. This action chills, categorically, both individual rights and the rights of all students.

Also, the charges of disruption, disobeying officers, and disorderly conduct that Mr. Wetmore was found guilty of do not appear at all warranted from the record. If the University had an obligation to Mrs. Gore, it should have notified the attendees. When a university fails to notify its students that it is forbidding a normally acceptable act at a public function, and a student demands to know who are the people telling him he must stop and hand over his property, the student should not be treated as a criminal. Indeed, you should want your students to verify the claims of self-designated plain clothed officers. The punishment and mistreatment that Mr. Wetmore received was grossly disproportionate to anything he was accused of and completely fails to recognize that campus police and event planners made serious mistakes in planning and handling the event.

The harshness of the charges, the punishment for attempting a legitimate activity, the indefensible misinterpretation of copyright law, and the total lack of fair adjudication in Mr. Wetmore's case might seem inexplicable if it were not for his prominent role as a voice of dissent at AU. AU's reason for treating Mr. Wetmore so harshly was made quite clear by Vice President and University Counsel Mary Kennard's April 26, 2002 letter to Jon Katz, in which she accuses Mr. Wetmore of "harassment" for videotaping the president's mansion, which is University-owned housing that Mr. Wetmore believes is excessive and over-priced. In this letter, Ms. Kennard focused on www.benladner.com and accused Mr. Wetmore of "ignoring the university's admonitions" and continuing to "post derogatory materials about staff on his website." Unwittingly encapsulating the problem, Kennard writes, "the university is not interested in chilling legitimate and reasonable journalistic efforts," but later says "any further transgression will subject your client to disciplinary charges, which may result in suspension or dismissal from the university." While the evidence highly suggests it, Kennard's letter confirms that the terrible treatment of Mr. Wetmore is due to his political speech and journalistic activities in stark contradiction of the University's own Guidelines on Freedom of Expression. Even if the University somehow maintains that none of the sanctions and accusations against Mr. Wetmore had anything to do with his speech, it should still annul a punishment fatally compromised by prior, active, and ongoing hostility to Mr. Wetmore's legitimate role as a student critic. The University should have assured itself and Mr. Wetmore of an impartial panel; it did the opposite.

Finally, Mr. Wetmore's harsh treatment by the campus police deserves immediate investigation. No campus can be free or open where students live in fear of the individuals hired to protect them. As you know, this is not even the most egregious claim against the campus police in the past few months, let alone the last few years. FIRE is collecting testimonials from students about their mistreatment by the campus police. By blindly defending the campus police's action in this case you risk giving the appearance of official support for their apparent abuses.

FIRE urgently requests that AU overturn its rulings against Ben Wetmore, correct his record, and return the videotape that was stolen from him by the administration, and that it do so with all of the recordings intact. This videotape contains crucial evidence and must be returned to its owner. Remember, Mr. Wetmore's only crime was attempting to videotape a public figure giving a public speech, and he had every reason to believe this was within his rights. The mere consideration that these charges were worthy of a hearing has produced a chilling effect across the campus.

Furthermore, we request that AU affirm the full protection of Mr. Wetmore's right to robust dissent, and that no University policy or contrivance will be used to circumvent that right. We ask that the University judiciary process be examined, in light of the vast potential for, and apparent reality of, abuse. Finally, we ask that AU investigate the practices of its campus police, to ensure that the peaceful exercise of political conscience will no longer be met with violence.

AU has academic, contractual, and moral obligations to the rights of its students. As a result of this action, your students now live in insecure possession of what should be their common rights as members of a great University. Let me assure you that many individuals and organizations devoted to freedom and civil liberties are watching, with acute attention, the chilling of such freedom. FIRE is committed to using all of our media and legal resources to support Mr. Wetmore and, ultimately, to see this matter through to a just and moral conclusion. Please spare AU the embarrassment of fighting against journalistic freedom, fairness, and due process. We hope reason and decency will prevail.

I look forward to hearing from you.

Sincerely,

Greg Lukianoff

Director of Legal and Public Advocacy

cc:

Gail Short Hanson, Vice President of Campus Life

Mary Kennard, Vice President and University Counsel

Cornelius Kerwin, Provost

Faith C. Leonard, Dean of Students

Jon Katz, Attorney

Peter Jaszi, Professor of Law, Washington College of Law

George Whitehouse, President, The American University Alumni Association

Mark Goodman, Executive Director, Student Press Law Center

Megan E. Gray, Senior Counsel, The Electronic Privacy Information Center

Bret Zongker, Editor-in-Chief, The American University Eagle

Samar Farah, Staff Writer, The Christian Science Monitor

Encl.