ROSEN: This isn't a free speech issue

Published August 3, 2007 at midnight

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"Subject: You are f**king nazi's (sic)

"It is IMPOSSIBLE to speak politely, intelligibly, with reason to moral cretins masquarding (sic) as humans, cretins utterly devoid of intelligence, humanity, common sense, courage: YOU ARE ALL F**KING NAZI'S (sic). May you and all your progeny burn in hell for eternity. Perhaps there is a special place there for nazi's (sic)."

The above e-mail was sent to all nine of the CU regents July 25, the day after their decision to fire Ward Churchill. The sender was one Paulette Sage, a doctoral candidate in sociology at Case Western Reserve University. Sage's spelling deficiencies and her ignorance of the difference between the plural and possessive is embarrassing enough, but her equating the CU regents with Nazis is positively idiotic.

Sadly, Sage typifies hysterical academic leftists distraught at Churchill's demise and appalled that one of their own tenured philosopher-kings could be held accountable for his behavior by administrators, taxpayers, tuition-paying customers, the community or even a panel of fellow academics.

Where were these dogmatic free-speech defenders when Lawrence Summers was driven from the presidency of Harvard University for simply speculating, at an academic round-table, that fewer women than men might be interested in academic math and science careers? Apparently, only left-wing speech enjoys absolute protection. What hypocrites!

The party line of Churchill apologists is that he was really fired for expressing his beliefs and that the findings of CU faculty panels that investigated his serial academic fraud were merely a ruse. Nonsense. Churchill is a proven liar and cheat.

Since his academic misconduct is beyond dispute, the First Amendment gambit is the only thin reed he and his defenders have left. Arguing on behalf of Churchill, the ACLU asserts that the investigation of his fraudulent scholarship "cannot be separated" from the outrageous remarks that first brought attention to him.

Of course it can, which is precisely what the university was assiduously careful to do. His lawyer, David Lane, claims that all he has to prove in court is that Churchill's vile expressions "were a motivating factor" in the decision to terminate him.

Constitutional scholar Bruce Fein says Lane is greatly overstating his case. While Churchill's political views may not be legal cause for dismissal, professional misconduct can be. And that's what he was fired for. Churchill's defense is essentially that university officials are lying about why they fired him. Really? Read their minds and prove it in court.

And even if CU had fired Churchill for his political ravings, a First Amendment defense in this case would be a weak one.

As an employee, even of a government institution like CU, Churchill's free speech latitude is less than he enjoys as a civilian. He can say things as a common citizen on a soapbox in the park without fear of sanction that he can't necessarily say as a CU professor.

Academic freedom is not absolute. And there's case law to back that up. Just ask Leonard Jeffries, former head of the Black Studies Department at New York's City College. Jeffries regularly ranted anti-white and anti-Semitic views in his classroom and in public forums. In Jeffries v. Harleston (1995) the 2nd U.S. Circuit Court of Appeals upheld the punishment he received - dismissal as department head - for his words.

As Fein describes the ruling, "The court of appeals reasoned that the jury correctly found that CUNY reasonably believed that Jeffries' calumny about 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."

Given the leftist nature of politics at CU, Churchill's remarks might not have disrupted faculty relations, but they certainly stigmatized the university and discouraged contributions. Thank you, regents, and good riddance to bad rubbish.

Mike Rosen's radio show airs daily from 9 a.m. to noon on 850 KOA. He can be reached by e-mail at mikerosen@850koa.com.

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