Peter Neil Kirstein“Campus to Courts: The Silencing of the Left in

Wartime”University of Texas at Austin

H.A.W. ConferenceFebruary 18, 2006

So much oppression, Can’t keep track of it no more.

Say, there’s so much oppression, Can’t keep

track of it no more.1

-Bob Dylan

To justify American expansionism, presidential war messages

frequently contained nationalistic proclamations of American

innocence and virtue. President James Knox Polk in seeking war with

Mexico on May 11, 1846 referred to this defenseless nation as a

“menace,” lied that it had invaded the United States and affirmed that

war was necessary to protect American democracy. “[W]e are called

upon by every consideration of duty and patriotism to vindicate with

decision the honor, the rights, and the interests of our country.”2

President William McKinley in asking Congress for a declaration

of war against Spain declared that only war, against a nation that was

not a threat to the United States, could save America: “If this measure

attains a successful result, then our aspirations as a Christian, peace-

loving people will be realized.” In seeking to establish a commercial

empire that would extend from Cuba to the Philippines, the president

averred that, “The right to intervene may be justified by the very

serious injury to the commerce, trade and business of our people…”

While the United States would use this war to substitute American for

Spanish colonisation of Cuba, slaughter heroic Filipinos in their

1 Bob Dylan, “Gonna Change My Way of Thinking,” Bob Dylan, Lyrics, 1962-2004 (New York: Simon & Schuster, 2004), 408-09.2 Henry Steele Commager, Milton Cantor, Vol. 1. Documents of American History to 1898, 10th ed. (Englewood Cliffs, New Jersey), 1988, 311.

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defense of the Philippines, and annex various islands in the Pacific

and Caribbean, American innocence received presidential protection.

“[T]he lives and liberty of our citizens are in constant danger and their

property destroyed and themselves ruined…”3 President

Woodrow Wilson’s messianic assertion that entering the Great War as

an associated power would make “The World Safe for Democracy,”

was the apotheosis of this crusading spirit, whereby criminal military

action was justified to buttress American exceptionalism and the

imposition of the failed American democratic experiment upon other

peoples. The evolution of the divine

presidency, as progenitor of war to insure American progress and

complete God’s mandate for its greatness, has unleashed an

aggressive nationalism suppressing opposition to America’s wars.

While liberal historiography is descriptive of the empire’s landmass,

Oval Office pronouncements, treaties and the role of elite national-

security managers, ignored is the collateral damage of empire: the

militarization of the nation, the diminution of democracy and the

assault on civil liberties and academic freedom.

The passions of war demand conformity. The passions of war

call for dehumanization of the “enemy.” The passions of war define

“supporting the troops” as synonymous with supporting the

government’s decision to send healthy citizens to kill other people.

3 Henry Steele Commager, Milton Cantor, Vol. 2. Documents of American History to 1898, 10th ed. (Englewood Cliffs, New Jersey), 1988, 3-4.

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The passions of war as symbolic confirmation of American superiority

has created a nation according to Nobel Laureate Harold Pinter that

is “[b]rutal, indifferent, scornful and ruthless…[on] a permanent

military footing and shows no sign of relaxing it.”4

The Sedition Act of 1798 was intended to suppress Democratic-

Republican support of France during an undeclared Franco-American

naval conflict (1798-1800). It made it a crime punishable by a $2,000

fine and two years in prison:

[To] write, print, utter, or publish…any false, scandalous and malicious writing against the government of the U.S., or either House of Congress…or the president…with intent to defame…or to bring them, or either of them, into contempt or disrepute; or to excite against them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the U.S.5

In Concerning Dissent and Civil Disobedience, former Supreme

Court Justice Abe Fortas wrote antiwar speech has not always been

protected in the United States but, “It is the courts—the independent

judiciary—which have, time and again, rebuked the legislatures and

executive authorities.”6 Yet history has demonstrated that the

Supreme Court is frequently supportive of restricting First

Amendment rights during war and has frequently used its power to

silence and transmogrify persons of conscience into prisoners of

conscience. James Madison was prescient in

4 Harold Pinter, Nobel Lecture, “Art, Truth and Politics,” December 7, 2005. http://nobelprize.org/literature/laureates/2005/pinter-lecture-e.html5 Howard Zinn, Declarations of Independence (New York: Harper Collins, 1991), 184.6 Howard Zinn, Disobedience and Democracy (New York: Vintage, 1968), 70.

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anticipating the corrupting influence of war that would so ruthlessly

manifest itself during World War I. Madison declared in 1795 that, “Of

all the enemies of public liberty, war is perhaps the most to be

dreaded, because it comprises and develops the germ of every other.

War is the parent of armies…No nation could preserve its freedom in

the midst of continual warfare.”7

Wartime hysteria diminishes the freedom of ethnic groups

from nations which the U.S. are at war. More than seventy German-

born residents were subjected to the Montana Sedition Act, the

harshest state-sedition act of the twentieth century. Fred Rodewald

served a two-year prison sentence for commenting that Americans

“would have hard times [unless the Kaiser] didn’t get over here and

rule this country.” Albert Brooks was arrested for demanding:

“[T]hose who own the country do the fighting! Put the wealthiest in

the front ranks; the middle class next; follow these with judges,

lawyers, preachers and politicians.” Frank McVey was tried and

convicted for this opinion: “I do not see why we should be fighting the

Kaiser, and I don’t see why people should go crazy over patriotism.

The Kaiser and his government is better than the U.S.A.” Janet Smith

declared the Red Cross a “fake” and apparently said that Belgian

humanitarian relief might not go to the Belgians, “but the trouble was

that the damned soldiers (presumably allies) would get it.”8

7 Andrew J. Bacevich, The New American Militarism (New York: Oxford, 2005), 7.8 Maurice Possley, “Jailed for Their Words,” Chicago Tribune, December 28, 2005, 1, 18.

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Red Cross officials stated they were infiltrated

by Germans who planted glass particles in bandages bound for

Europe; sauerkraut was renamed “liberty cabbage” (after 9/11 French

fries were renamed “freedom fries” on Capitol Hill due to resentment

of France’s opposition to the Bush invasion of Iraq); classical-music

conductors such as Fritz Kreisler were blacklisted in symphony halls

throughout the United States.9 Bach, Mozart and Beethoven were

removed from subscription series. Nebraska forbade the teaching of

German in public schools. Libraries purged their collections of works

by Kant, Goethe and Nietzsche. Even dachshunds were harmed and

injured in the streets.10 The clear-

and-present-danger doctrine, that helped established the near

hagiographic status of Justice Oliver Wendell Holmes, restricted the

parameters of permissible speech and suppressed heroic and

courageous antiwar dissent during The Great War. In Schenck v.

United States, 249 U.S. 47 (1919), perhaps the best known and most

frequently cited First Amendment case, liberal constitutional scholars

have eulogized its putative prudential restraints on free speech: “The

most stringent protection of free speech would not protect a man in

falsely shouting fire in a theatre and causing a panic.”11 Taking this

obvious example of disallowing speech intended to inflict mass injury

9 William E. Leuchtenburg, The Perils of Prosperity, 2nd ed. (Chicago: University of Chicago Press, 1993), 44.10 John Milton Cooper, Jr., Pivotal Decades: The United States, 1900-1920 (New York: W.W. Norton, 1990), 301-302.11 Schenck v. United States, 249 U.S. 47 (1919)

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or death to others, Justice Holmes, writing for a unanimous court,

declared Schenck’s anti-draft resistance as unprotected speech, not

covered by the Bill of Rights. Justice Holmes wrote advocating draft

resistance would contribute to “substantive evil[s] that Congress has

the right to prevent.” Justice

Holmes’s clear-and-present-danger restriction on free speech vitiated

the absolute freedom of speech that was contained in the Bill of

Rights, but was interpreted as less restrictive than the court’s prior

“bad tendency doctrine.” However, its introduction resulted in

ruthless censorship. Charles Schenck was general secretary of the

Socialist party. He had distributed thousands of leaflets that

denounced the draft and the war. He was arrested for violating the

draconian Espionage Act of 1917 that proscribed “causing and

attempting to cause insubordination in the armed forces of the United

States.” Sentenced to six months in prison by a lower court, the

Supreme Court affirmed Schenck’s leaflets were not protected speech

under the First Amendment because they constituted a clear-and-

present-danger.12 Justice Holmes’s decision specifically ruled that

First Amendment protection of free speech would be restricted during

war: “When a nation is at war, many things that might be said in times

of peace are such a hindrance to its effort that their utterance will not

12 John Arthur, The Unfinished Constitution: Philosophy and Constitutional Practice (Belmont, Cal.: Strata Publishing), 1989, 67. Emphasis added. “Attempting” suggests bad tendency in that even if the act failed to obstruct, it was prosecutable.

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be endured as long as men still fight.”13

Antiwar speech may protest actions that are more “clear-and-

present-dangers” than speech itself: Opposing a war that was a clear-

and-present-danger for the 116,000 servicepersons who would die;

obstructing a war that was a clear-and-present-danger to democracy

as seen with its persecution of the antiwar left with its Committee on

Public Information under George Creel; its ruthless annihilation of the

Industrial Workers of the World and its postwar legacy of the Red

Scare and Gestapo-Palmer Raids.

It was during Wilson’s “war to end all wars,” with its militant

idealism, when a fifteen-year sentence was levied against Reverend

Clarence Waldron for distributing a pamphlet to five people that

stated: “I do not say it is wrong for a nation to go to war to protect its

interests, but it is wrong to the Christian, absolutely, unutterably

wrong.”14 Demonstrating the illusion that the clear-and-present-

danger doctrine expanded free-speech under the “bad-tendency

doctrine,” (“nipped in the bud” speech that might create disorder),

the court continued to expand its assault on anti-war utterances in

post-Schenck decisions. It is not surprising that the pro-

German press would be suppressed during World War I. Wars usually

attenuate freedom of the press such as the ongoing violent-American

assault against Al Jazeera. Americans bombed an Al Jazeera station in 13 Schenck v. United States, 249 U.S. 47 (1919). Latter quote from Geoffrey R. Stone, Perilous Times: From the Sedition Act of 1798 to the War on Terrorism (New York: W. W. Norton, 2004), 193.14 Zinn, Disobedience, 72.

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Afghanistan in 2001; killed a reporter Tareq Ayoub in Baghdad in

2003; attacked a hotel with only Al Jazeera correspondents as guests

in Basra in 2003; expelled its entire operations from American-

occupied Iraq and possibly planned to bomb its headquarters and kill

its personnel in Qatar.15 This is the climate of

oppression that was validated and, perhaps, encouraged by the

Supreme Court that rarely contravenes executive power or advances

civil liberties during wartime. Jacob Frohwerk was publisher of the

pro-German newspaper, Missouri Staats Zeitung, and was convicted

under the Espionage Act of 1917 for editorials condemning the draft

and America’s entrance into the war. There were two declarations of

war: the initial one on Good Friday, April 6, 1917 against Germany

and the much ignored one against Austria-Hungary on December 7,

1917.16 Frohwerk denounced

the draft, the pro-British policy of the Wilson administration and

blamed the war on avaricious, profit seeking trusts and Wall Street. In

a terse statement, Frohwerk wrote, “We say therefore, cease firing.”17

Frohwerk was sentenced to ten years in prison for promoting,

“disloyalty, mutiny and refusal of duty in the military and naval forces

of the United States.”18

15 “The War on Al Jazeera,” The Nation, December 19, 2005, 6-8.16 Peter N. Kirstein, “Wrong Dates,” Bulletin of the Atomic Scientists (July-August 1991), 45-46. 17 Frohwerk v. United States, 249 U.S. 204 (1919). http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=249&invol=204.18 Thomas L. Tedford, Dale A, Herbeck, eds. 5th ed. Freedom of Speech in the United States (State College, Penna.: Strata Publishing, 2005), 51.

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Justice Holmes again displayed contempt for free

speech and used judicial power to silence antiwar persons of

conscience. The clear-and-present-danger test that Justice Holmes

established in Schenck was abandoned in an astonishing reversal of

stare decisis. Now speech, which could cause undesirable results--bad

tendency--could once again fall outside constitutional protection.

Using the trumped up charge of conspiracy, eerily anticipatory of the

same vagueness that led to the execution of Japanese government and

military officials by the International Military Tribunal for the Far East

after World War II, Frohwerk’s ten-year prison sentence was upheld.

Justice Holmes wrote the unanimous 9-0 opinion of the court.

It may be that all this might be said or written even in time of war in circumstances that would not make it a crime. We do not lose our right to condemn either measures or men because the country is at war. It does not appear that there was any special effort to reach men who were subject to the draft…But a conspiracy to obstruct recruiting would be criminal even if no means were agreed upon specifically by which to accomplish the intent. It is enough if the parties agreed to set to work for that common purpose.19

Eugene Victor Debs was also convicted under the 1917

Espionage Act for opposing the draft during World War I. Debs’s

opposition to the draft was speech not direct action. It only “tended”

to obstruct the conscription of the war machine. Debs’s courageous

remarks praised other war resisters and denounced the draft: “You

have your lives to lose…; you need to know that you are fit for 19 Frohwerk v. United States, 249 U.S. 204 (1919).

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something better than slavery and cannon fodder.”20 He passionately

rebuked class stratification between elites and soldiers. “Wars

throughout history have been waged for conquest and plunder….And

that is war in a nutshell. The master class has always declared the

wars; the subject class has always fought the battles.”21

Oliver Wendell Holmes again suppressed patriotically-incorrect

speech. He abandoned in Frohwerk the clear-and-present-danger

doctrine that was enunciated in Schenck a mere seven days earlier.

Holmes’s even more sweepingly narrowed First Amendment free-

speech protection by invoking a “reasonable probable effect” standard

to “obstruct the recruiting service.”22

Debs at age sixty-three began serving a ten-year prison

sentence on April 13, 1919 at Atlanta Penitentiary. While in prison he

received 919,799 votes as a socialist candidate for president in

1920.23 However, his citizenship was never restored.24 Debs was

pardoned by a magnanimous President Warren Harding and walked

out of his Atlanta prison cell on Christmas Day, 1921.25 Harding’s

pardon seemed consistent with his call for peace and reconciliation in

his remarkable inaugural address of March 4, 1921:

[W]e seek no part in directing the destinies of the Old World. We do not mean to be entangled…[and] can be a party to no

20 Tedford, Freedom of Speech, 51.21 Howard Zinn, The Twentieth Century (New York: Perennial, 2003), 87.22 Tedford, Freedom of Speech, 51. Debs v. United States, 249 U.S. 211 (1919).23 William Appleman Williams, Americans in a Changing World (New York: Harper and Row, 1978), 474.24 Zechariah Chafee, Free Speech in the United States (Cambridge: Harvard Univesity Press, 1967), 84n.25 Mary Jo Buhle, Paul Buhle eds., Encyclopedia of the American Left (New York: Garland, 1990), 187.

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permanent military alliance…We wish to promote understanding. We want to do our part in making offensive warfare so hateful that Governments and peoples who resort to it must prove the righteousness of their cause or stand as outlaws before the bar of civilization….We are ready to associate ourselves with the nations of the world, great and small, for conference, for counsel; to seek the expressed views of world opinion; to recommend a way to approximate disarmament and relieve the crushing burdens of military and naval establishments.”26

While liberal historiography dwells on Justices Holmes’s and

Louis Brandeis’s dissents in the draconian oppression of free-speech

in Abrams v. United States, 250 U.S. 616 (1919) and Gitlow v. New

York, 268 U.S. 652 (1925), historians have minimized the Supreme

Court’s continued assault on antiwar speech.27 In Abrams, five heroic

Russian-émigré socialists dared criticise, through antiwar leaflets,

America’s effort to destabilise the Bolshevik Revolution such as the

interventions at Murmansk (1918) and Vladivostok (1918-1920).28

They were arrested and sentence from three to twenty years in prison

for violating the Sedition Act of 1918.29

Justice John H. Clarke wrote the 7-2 landmark majority opinion

in Abrams. Jacob Abrams and other defendants had been convicted of

conspiring “to incite, provoke or encourage resistance to the United

States,” and to “cripple or hinder the United States in the prosecution

26 Debs v. United States, 249 U.S. 211 (1919). http://www.yale.edu/lawweb/avalon/presiden/inaug/harding.htm27 For Gitlow decision see: Paul R. Viotti, ed., American Foreign Policy and National Security (Upper Saddle River, New Jersey: Pearson Prentice Hall, 2005), 105-106.28 Stone, Perilous Times, 205; William Appleman Williams, Empire As a Way of Life (New York: Oxford, 1980), 141.29 Stone, Perilous Times, 205. Except for three words, the Sedition Act of 1918 was a copy of the Montana law. Possley, “Jailed,” Chicago Tribune, 18.

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of the war.”30 The leaflets called for a general strike to stop the war

machine and should have been praised for their content. Not since the

Seattle five-day general strike of 1919 has such a resistance been

deployed by labour against capital.

The great constitutional-law scholar Zechariah Chafee

influenced Justice Holmes’s evolution from opponent to protector of

First Amendment free speech. Chafee wrote a classic defense of free

speech in time of war.

Truth can be sifted out from falsehood only if the government is vigorously and constantly cross-examined, so that the fundamental issues of the struggle may be clearly defined, and the war may not be diverted to improper ends, or conducted with an undue sacrifice of life and liberty…31

No, I ain't gonna work on Maggie's farm no more.

Well, I try my best To be just like I am, But everybody wants you To be just like them.32

-Bob Dylan

During the “War on Terrorism” and the Iraq War there have

been numerous examples of repression against professors who

“vigorously and constantly cross-examined” American militarism and

ruthlessness in its conduct of external relations. After American

Airlines Flight #77 flew into the Pentagon on September 11, 2001,

Richard Berthold, then professor of classical history at the University

of New Mexico, told a class of approximately 100 students in his

30 Stone, Perilous Times., 206.31 Chafee, Free Speech, 33.32 Bob Dylan, “Maggie’s Farm,” Lyrics, 1962-1985 (New York: Alfred A. Knopf, 1995), 166.

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Western Civilization course, “Anybody who blows up the Pentagon

gets my vote.” Although this was an articulation of an opinion spoken

by an instructor in front of his students, Professor Berthold was

reprimanded and prohibited from teaching future sections of Western

Civilization.33 Dispirited and frustrated, he took early retirement at

the end of the 2002 fall semester.34

Nicholas De Genova, an assistant professor of Anthropology and

Latino Studies at Columbia University, denounced American

imperialism and aggressive nationalism at an Iraq-war teach-in on

March 27, 2003 and advocated the defeat of American forces. “I

personally would like to see a million Mogadishus (in Iraq)…The only

true heroes are those who find ways that help defeat the U.S.

military.” One hundred and four Republican members of the House of

Representatives demanded that Columbia University President Lee C.

Bollinger fire the professor. Alumni threatened to withhold their

financial support; death threats were rampant and Professor De

Genova required police protection while on campus. Bollinger nobly

refused to suspend or fire the non-tenured professor but repeatedly

denounced Professor De Genova’s remarks. On Columbia’s website,

he referred to his teach-in comments as “outrageous,” “appall[ing]”

and “especially disturbing.”35 Pandering to American militarism, he

apologised to military personnel and their families. 33 “Professor Reprimanded for Joke,” Houston Chronicle, December 10, 2001. online edition.34 Richard M. Berthold, “My Five Minutes of Infamy,” History News Network, November 25, 2002. 35 Remarks appeared on April 3, 2003. http://www.columbia.edu/cu/news/03/04/statement_genova.html

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In an April 2, 2003 speech before the National Press Club,

President Bollinger said teach-ins are not normally assessed by

university presidents in order to “promote full discussion of public

issues.” Yet due to public pressure and the demands for patriotic

correctness, he excoriated the non-tenured professor by

characterizing Professor De Genova’s impassioned rhetoric as

“shocking,” “horrific,” and “especially sickening.”36

Professor Ward Churchill was scheduled to speak in February

2005 at Hamilton College in New York on a panel discussion ironically

named, “The Limits of Dissent.” The college newspaper, The

Spectator, reported Professor Churchill, in a three-year old article,

referred to the World Trade Center casualties of September 11, 2001

as “the little Eichmanns inhabiting the sterile sanctuary of the twin

towers…”37 The context of this highly-publicized phrase was a general

condemnation of American capitalism, and the author’s assertion the

World Trade Center represented the locus of unbridled-capitalist

accumulation. He also questioned the non-combatant immunity of the

2,801 New York casualties due to their alleged links to exploitive-

American capitalism.

Hamilton College President Joan Hinde Stewart reluctantly

cancelled the scheduled February 3rd event on February 1, 2005, due

36 http://www.npr.org/programs/npc/2003/030402.lbollinger.html; http://www.columbia.edu/cu/news/03/04/press_club.html37 Ward Churchill, “‘Some People Push Back’: On the Justice of Roosting Chickens,” Pockets of Resistance, #11, September 2001.

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to death threats and, while unstated, the usual chorus of

condemnation from donors, alumni and others demanding the

silencing of controversial speech critical of America.38 A person had

threatened to bring a gun to the event as the armies of the night

claimed another casualty of academic freedom.39

Professor Churchill, who is a professor in the Department of

Ethnic Studies at the University of Colorado, was stripped of his

chairpersonship and subjected to a rather invasive scrutiny of his

writings. According to the Foundation of Individual Rights in

Education (FIRE), that played a key role in defending my rights, “The

University of Colorado was absolutely correct, however, when it

concluded that speech like Churchill’s is fully protected.”40 Although

investigative efforts have dismissed charges of Native-American

ethnicity fraud and copyright infringement, continued inquiries into

alleged “plagiarism and fabrication” continue.41 While such charges

should be explored, it is doubtful such alleged misconduct would have

occurred absent public rage concerning his antiwar writings.

He wants to turn me inTo the F.B.I. Me, I romp and stomp… Without freedom of speech,

38 http://www.hamilton.edu/news/more_news/display.cfm?ID=9020 President Stewart described this action: “The cancellation of the event was, therefore, an educational loss.”39 http://www.hamilton.edu/news/more_news/display.cfm?ID=907340 Greg Lukianoff, “The Chill is Nothing New,” The Chronicle of Higher Education, September 9, 2005, B10.41 http://newmedia.colorado.edu/silverandgold/messages/4533.html

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I might be in the swamp.42 -Bob Dylan

Sami al-Arian, a Kuwaiti-born Palestinian, was fired from the

University of South Florida by President Judy Lynn Genshaft on

February 26, 2003, a mere six-days after a fifty-count indictment was

handed down by a federal grand jury. It contained charges of

terrorism and using the university as a front for materially supporting

an alleged terrorist organization: Palestinian Islamic Jihad.43 As early

as December 19, 2001, Professor al-Arian had received a letter of

intent to dismiss him and in the interim was placed on a paid leave-of-

absence. This action was motivated by the professor’s comments on

the Arab-Israeli conflict on the September 26, 2001, The O’Reilly

Factor programme. In August 2002, the university attempted to get a

declaratory judgment from a federal court legitimating the

university’s long-standing desire to fire the professor. The university

was not granted such a ruling.44

At various stages, culminating in Professor al-Arian’s dismissal,

the University of South Florida used extremely questionable

arguments and tactics to coerce a controversial and courageous

tenured professor who has resided in the United States since 1975.

Al-Arian’s speech was labeled “disruptive.”45 President Genshaft 42 Bob Dylan, “Motorcycle Nightmare,” Dylan, Lyrics, 1962-2004, 122-23.43 Scott Smallwood, “U. of South Florida Fires Professor Accused of Terrorism,” The Chronicle of Higher Education, March 7, 2003.44 “Academic Freedom and Tenure: University of South Florida Report,” Academe, May-June 2003, 59, 65.45 Foundation for Individual Rights in Education http://www.thefire.org/index.php/article/49.html

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accused al-Arian, with Orwellian doublespeak, of having “repeatedly

abused his position.”46 He was denounced for not issuing a disclaimer

that his remarks did not represent those of the university. Such a

charge is usually selective applied against speech an administration

finds objectionable or embarrassing.47 His prior de facto fourteen-

month suspension—cloaked in the name of a paid leave of absence--

imposed by then President Betty Castor, who later ran unsuccessfully

as a Democrat for a senate seat, exceeded any reasonable

argumentation that resumption of his professional responsibilities

“posed any claimed threat of immediate harm.”48

The university’s violation of Professor al-Arian’s academic

freedom, as is frequently the case in highly-publicized cases, was

influenced by a constant media attack demanding the firing of al-

Arian. The Tampa Tribune for seven years viciously crusaded against

the professor and basically accused him of terrorist connections. A

Clear Channel radio personality, Bubba the Love Sponge, made highly

incendiary remarks that inflamed the situation and probably induced

death threats against the professor. Bill O’Reilly had said on the

aforementioned programme that “I'd follow you wherever you went"

implying that the computer scientist was a terrorist.49

46 Tampa Tribune Online, TBO http://news.tbo.com/news/MGAV3LY9OCD.html47 Peter N. Kirstein, “Academic Freedom and the New McCarthyism,” Situation Analysis, Spring, 2004, 30.

48 “Academic Freedom,” Academe, 69.49 Eric Boehlert, “The Prime Time Smearing of Sami Al-Arian,” Salon.com January 19, 2002. http://www.salon.com/tech/feature/2002/01/19/bubba/

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On December 6, 2005, al-Arian was found not guilty on eight of

seventeen counts “including conspiracy to maim or murder.” The

courageous jurors could not reach a verdict on nine other counts, but

a majority was apparently in favour of acquittal on each count.50 He

remains in jail pending a decision by the Tampa office of the United

States Attorney to retry the case on the deadlocked counts. Al-Arian

has correctly maintained his innocence, has argued that his

suspension, firing and indictment were the result of his political

beliefs that emphasized his impassioned support of Palestinian

resistance and condemnation of the State of Israel.51

Imagine a country indicting individuals who are allegedly

supporters of combatants in another country’s conflict. The State

Department exhibited a lack of impartiality in the Israeli-Arab conflict

by naming the Palestinian Islamic Jihad, and not the State of Israel, as

a terrorist organisation or state. It is this failure to discern any

differences between Israeli and American national-security interests

that led to the Muslim al-Arian’s status as a political prisoner and is

symptomatic of America’s ruthless pursuit of conquest in its war

against civilisations and radical academicians.

University of South Florida Presidents Castor and Genshaft

should be condemned for abuse of power in suspending and firing

50 Peter Whoriskey, “Ex-Professor Won His Court Case but Not His Freedom,” Washington Post, December 14, 2005, A02.51 British Broadcasting Corporation, December 6, 2005. http://news.bbc.co.uk/1/hi/world/americas/4505248.stm

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respectively the former professor for political beliefs that dared

oppose the Israeli occupation and murderous colonisation of

Palestine. His indictment was cynically used as an excuse to terminate

his employment. This reckless abandonment of academic freedom is

symptomatic of wars’ deleterious impact upon civil liberties. I

recognise Genshaft was implementing a 12-1 vote in favour of

dismissal by her board of trustees, but she should have resigned in

protest. While President Genshaft was concerned about “disruptions,”

universities should not engage in arbitrary violation of an individual’s

human rights out of fear of disorder. If one wants to live in a land

without debate or contentious controversy, perhaps one might wish to

live in Guantánamo Bay or the Democratic People's Republic of Korea

(a nation that the U.S. should not harm) or some other closed society

where political protest is prohibited.

I received on October 31, 2002 from Cadet Robert Kurpiel,

United States Air Force Academy, an e-mail addressed to scores of

professors requesting them to recruit students to attend an on-

campus “annual Academy Assembly.” The e-mail was addressed,

“Dear Sir or Ma’am.”52 My response to the cadet became one of the

most widely circulated e-mails in Internet history and certainly one of

the most controversial:

You are a disgrace to this country and I am furious you would even think I would support you and your aggressive baby killing tactics of collateral damage. Help you recruit? Who, top guns to

52 Cadet Robert Kurpiel to Peter N. Kirstein et al., e-mail, October 31, 2002.

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rain death and destruction upon nonwhite peoples throughout the world? Are you serious sir? Resign your commission and serve your country with honour.

No war, no air force cowards who bomb countries without AAA, without possibility of retaliation. You are worse than the snipers. You are imperialists who are turning the whole damn world against us. September 11 can be blamed in part for what you and your cohorts have done to the Palestinians, the VC, the Serbs, a retreating army at Basra. You are unworthy of my support.”53

Before this became a national story, the cadet and I had

exchanged mutual apologies in several amicable e-mail.54 Mine was

for portions of the e-mail that were too personal, and his was for the

dissemination of a private e-mail which he claimed other cadets

initiated. Indeed, the conflict resolution I had achieved with Cadet

Kurpiel satisfied former-Saint Xavier University President Richard

Yanikoski. He e-mailed me, “It seems as though you have found a pen

pal.”55 On November 4 in his office, he stated the incident was over

and, remarkably, given future events, asked me to contact him only,

“if someone were trying to damage my career.” I responded by noting

pressure to sanction me would not abate due to my fervent antiwar

position in the e-mail. “I can handle the pressure,” the president

remarked. Seven days later I was suspended and later reprimanded.

Dr Yanikoski’s conciliatory tone at the November 4 meeting had

now become confrontational, personal and intimidating. He was 53 Peter N. Kirstein to Cadet Robert Kurpiel, e-mail, October 31, 2002. I edited a punctuation mark and corrected the use of “reign.” 54 Peter N. Kirstein to Robert Kurpiel, e-mail, November 2, 2002; Robert Kurpiel to Peter N. Kirstein, e- mail, November 2, 2002; Peter N. Kirstein to Robert Kurpiel, e-mail, November 2, 2002; Robert Kurpiel to Peter N. Kirstein, e-mail, November 2, 2002; Peter N. Kirstein to Robert Kurpiel, e-mail, November 2, 2002.55 Richard Yanikoski to Peter N. Kirstein, e-mail, November 2, 2002.

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quoted in the Chicago Sun-Times: “[Kirstein] will be a changed man.

The various sanctions I imposed will increase the odds that will

happen.”56 President Yanikoski also questioned my psychological

state-of-mind in remarks to the Sun-Times that were also distributed

by the Associated Press: “He seemed quite literally to go off the deep

end.”57 On December 9, President Yanikoski announced his

resignation pending the naming of a successor.

At a meeting with President Yanikoski on December 18, I was

critical, as had been several of my colleagues, with the “the deep end”

quotation. He responded with apparent contrition: “I can understand

your feeling. It was regrettable I said what I did.” Yet in another rapid

about face, I received a defensive e-mail the following day. President

Yanikoski citied various definitions from Webster’s New World

Dictionary (3rd Edition) that did not contain psychological meanings of

the phrase. He stated “those who are adding psychological overtones

to the phrase will have to explain why they do so…[It] is not the

normative meaning of the term.”58 Another source defines it, “to do

something crazy,” and includes a synonym, to “lose one’s mind.”59

Captain Jim Borders, the faculty sponsor of the Academy

Assembly event, issued a press release that contained another apology 56 Bryan Smith, “St. Xavier Professor Suspended for E-mail to Cadet,” Chicago Sun-Times, November 18, 2002, 22.57 Ibid.; “University Suspends Professor Who Sent Insulting Message to Air Force Academy Cadet,” Associated Press, November 18, 2002.58 Richard Yanikoski to Peter N. Kirstein, e-mail, December 19, 2002.” 59 “English Daily.” http://www.englishdaily626.com/slang.php?055 Melissa, a stylist and owner of Hair By Design in Palos Park, Illinois was asked on January 3, 2006, without prompting or innuendo as she was cutting my hair, what she thought the phrase meant. She said, “Someone’s going crazy.”

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from me and the second one from the Air Force Academy:

“Furthermore, I would like to offer my own apology to Dr Kirstein for

the way his original message, which was intended as

private communication, was spread throughout the Air Force

Academy and beyond.”60

My struggle assumed international dimensions as the rapid

cyberspace circulation of my e-mail reached American military forces

stationed throughout the empire. From Okinawa and Italy, from

Germany and Kosovo, from Afghanistan and Saudi Arabia, from the

Naval Academy, the Coast Guard Academy and Air University at

Maxwell Air Force Base in Alabama, from colonels, captains,

lieutenants and a drill sergeant at Fort Leonard Wood in Missouri, to

grunts along the DMZ in South Korea, from wives of military

personnel in Massachusetts to a woman-Marine officer in Bosnia, e-

mail arrived at my inbox.61 An equal number of e-mail was sent by

veterans with the grand total exceeding 10,000 messages.

Ideologically conservative web logs ran the October 31st e-mail

and called upon their supporters to e-mail demands to President

Yanikoski that my continuous tenure be terminated. Charlie Daniels,

who leads the eponymous Charlie Daniels Band, e-mailed me and

posted my antiwar missive on his website. David Horowitz printed the

60 Captain Jim Borders, “An Open Letter from the Academy Assembly,” November 4, 2002; Peter N. Kirstein to Captain Jim Borders, e-mail, November 4, 2002. Emphasis added.61 Kirstein, “Academic Freedom,” 28.

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Daniels’s screed on his online FrontPageMagazine.com.62 Mr.

Horowitz, to his credit, also reprinted a National Review online article

by Hoover Institution scholar Stanley Kurtz that condemned both my

angry anti-war utterances as well as my suspension: “Yet when he was

relieved of his teaching duties by St. Xavier, I protested, arguing that

the best remedy for speech that offends, is more speech.”63 I was also

invited on July 4, 2003 to debate the Iraq War with Victor Davis

Hanson and others for Frontpagemag that helped avert a possible

blacklist of my work.64

The influential blogger Andrew Sullivan sarcastically presented

the so-called 2002 Sontag awards for “egregious anti-Americanism.”

The late Susan Sontag had written in The New Yorker a brief essay on

the September 11 tragedies that claimed the aeroplane-suicide

hijackers were inspired by the oppressive nature of American foreign

policy. 65 Glenda Gilmore, a historian at Yale won the “award;” John

Pilger, the progressive journalist was runner-up, and I received, not

without considerable satisfaction, “honourable mention.”66

The national press joined the fray and contributed to the

hysteria over an e-mail flap that was mediated quickly by the

principles. The Wall Street Journal, in the first of two editorials, 62 Frontpagemag.com, November 11, 2002, January 8, 2003, March 28, 2003. From Kirstein, “Academic Freedom,” 27.63 Stanley Kurtz, “Daniel Pipes Blacklisted by the Academic Left,” National Review Online, January 8, 2003. http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=544464 “Symposium: Bush’s Decision to Go to War. Was it Justified?” July 4, 2003. http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=874665 The New Yorker, September 24, 2001. http://www.newyorker.com/talk/content/?010924ta_talk_wtc66 Andrewsullivan.com, December 2002.

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praised President Yanikoski for his “promise to initiate disciplinary

hearings.” I was attacked for being “flush with his own moral

afflatus,” and my imminent punishment was assessed as “a happy

ending.”67 They pandered to the nationalistic fury by misrepresenting

my comment of “aggressive baby-killing tactics of collateral damage.”

They stated carelessly that I attacked “a man in uniform for

‘aggressive baby-killing.’”68 In a second editorial,

under the ironic headline, “Taking Academic Freedom Seriously,” the

Wall Street Journal stated I “accused [the cadet] of "aggressive baby-

killing tactics,” but for the second time omitted the specific

application of the term “baby-killing” to “collateral damage.” Although

I was suspended on November 11, 2002, the official announcement

was deferred until November 15, three days after the November 12th

editorial. With characteristic hauteur, the Wall Street Journal now

smugly noted, “Fittingly, the suspension began on Veterans Day.” It

also mimicked an American Association of University Professors’

motto that I had displayed on my website, “Academic Freedom is

Never Free,” in averring I was not entitled to academic freedom

protection given the harsh rhetoric of my e-mail.69

The paper conceded its second editorial resulted from

significant reader criticism of their initial attack upon me. Several

letters claimed my academic freedom had been violated, and that the 67 “The Professor and the Cadet,” Wall Street Journal, November 12, 2002, A20.68 Ibid. Emphasis added.69 “Taking Academic Freedom Seriously,” Wall Street Journal, November 19, 2002.

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Wall Street Journal was ideologically motivated.70 Stephen H. Balch,

president of the conservative National Association of Scholars,

subsequently defended me in another letter to the Journal.71

Jed Babbin, a deputy undersecretary of defense in President

George H. W. Bush’s administration, wrote in The Weekly Standard

that I “hate” the military even though I am a veteran of the United

States Army Reserves and the son of an army captain who served in

combat. He charged I construe “a soldier's only value is as an object

of ridicule and scorn.” Even though he misquoted a portion of my e-

mail to the cadet, he belittled it as “barely literate” and accused me of

“libel.” Undersecretary Babbin ended his article by implying that if my

“[post]-tenure review” did not lead to dismissal, it would fail the test

of being “serious” and would be “merely nominal.”72 Mr Babbin also

harshly assessed my approach to pedagogy that is posted on my

website and an unrelated admonition: “Remember Hiroshima,

Nagasaki, My Lai, Kent State, Jim Crow and Selma.”73 Mr Babbin felt

qualified to evaluate my teaching and addressed this comment to the

parents of my students: “Whatever your college student may be

taught in Kirstein's class, it certainly won't be history.”74

70 “Letters,” Wall Street Journal, November 18, 2002. One of the letters was from John K. Wilson whose website contains numerous documents on my case. http://www.collegefreedom.org/kirstein.htm 71 Wall Street Journal, November 25, 2002.72 Jed Babbin, “When Professors Attack They Make Fools of Themselves,” The Weekly Standard, December 2, 2002. 73 Kirstein website URL: http://people.sxu.edu/~kirstein/74 Babbin, “Professors.” Unlike the Wall Street Journal, the only national publication that did not allow me to respond, Bill Kristol gave me a full-page two-column rebuttal. “Kirstein Strikes Back,” The Weekly Standard, January 20, 2003, 5.

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Roger Kimball, an editor and publisher of The New Criterion, in

a caustically headlined article, “Tenured Adolescents,” hailed my

suspension as “good news,” as well as the “administrative reprimand

that will be placed in his file.” In a pejorative manner, Mr Kimball

described me as “a comedian” for a website assertion that effective

teaching “move[s] beyond the ideological confines of academe.” My

teaching skill is once again ridiculed because I am depicted as a “…a

history professor who cannot distinguish between protest and

pedagogy.”75 Furthermore, Mr. Kimball objects to several of my

course titles such as “Recent U.S. History,” “The Nuclear Age” and

“Vietnam,” and suggests they are taught without nuance or

impartiality: “Any bets as to the content of his courses on those

subjects?”76 Mr Kimball

also contributed an article, “Academia vs. America,” for the American

Legion. He accused me and other scholars of disloyalty under a

subsection heading, “Academia’s Anti-Americanism.”77 He also

excoriated my teaching as damaging to my students when he noted

ruefully, after the suspension, “he presumably will soon be back

molding young minds.”78

75 “Tenured Adolescents,” Notes and Comments, The New Criterion, December 2002. http://www.newcriterion.com/archive/21/dec02/notes.htm76 Ibid.77 Roger Kimball, “Academia vs. America,” The American Legion: The Magazine for a Strong America, April 2003, 36.78 Ibid. See my response: Peter N. Kirstein, “New McCarthyism,” American Legion, June 2003, 4-6.

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Laura Ingraham, the nationally syndicated talk-show host, also

condemned my teaching in her best-seller, Shut Up and Sing: How

Elites from Hollywood, Politics, and the UN Are Subverting America.

Using scare quotation marks around the word “teacher,” she

described me as a “’teacher’ of American history, God help us,” and

while mistaken on the duration of my suspension, noted with a touch

of schadenfreude “…[he] was suspended for—get this, folks—an entire

semester.”79

The seminal document defining academic freedom in the United

States is the AAUP, “1940 Statement of Principles on Academic

Freedom and Tenure.” It prohibits sanctioning academicians because

when they “speak or write as citizens, they should be free from

institutional censorship or discipline.”80 According to the “1940

Statement,” professors are expected to “make every effort to indicate”

their extramural utterances are not in behalf of their college or

university.81

I was charged in a three-year reprimand, that was recently

removed from my personnel file on December 22, 2005, of “failing…to

make every effort to indicate that [I was] not speaking for the

79 Laura Ingraham, Shut Up and Sing: How Elites from Hollywood, Politics, and the UN Are Subverting America (Washington DC: Regnery Publishing, 2003), 150-51. On the cover, I was honoured to appear next to Attorney General Ramsey Clark on a list of names that served as a backdrop to the graphics.80 American Association of University Professors, Three Statements from Policy Documents & Reports (Washington, DC: AAUP, 2001), 2. The document has been endorsed by more than 190 professional organisations and societies.81 Three Statements, 2.

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institution.”82 While I did not include a disclaimer, academicians

rarely include them with monographs, op-ed pieces, lectures, articles,

press interviews, e-mail, or conference papers! The failure-to-disclaim

charge was also invoked to justify, in part, the banishment of Dr. al-

Arian by the University of South Florida. 83

It is only invoked by administrators when speech is

controversial or unpopular. One rarely, if ever, encounters a

disclaimer requirement for speech that is non-controversial in nature,

or laudatory of United States foreign policy. I signed my e-mail with

my name, academic rank and discipline. It is beyond incredulity for

one to claim I was speaking for the university. Yes I was

communicating as a professor on the faculty but in my own name.84

The reprimand arrogantly alleged additional violations of AAUP

guidelines, as if they had not been egregiously violated by the

university. Dr. Yanikoski averred that I did not comply with the “1940

Statement” because I “failed…to show respect for the opinions of

others.”85 I have documented for over three years in publications and

campus lectures across the U.S. that I was not responding to an

opinion on any issue of foreign policy or military matters. I was

responding to de facto SPAM sent to scores of instructors. Cadet 82 Richard Yanikoski to Peter N. Kirstein, “Reprimand,” December 23, 2002. See my description of the events surrounding its deposition and an assessment of its content. http://english.sxu.edu/sites/kirstein/?p=182; http://english.sxu.edu/sites/kirstein/?p=183. 83 “Academic Freedom and Tenure: University of South Florida Report,” Academe, May-June 2003, 66.84 On the politics of disclaimer see: “South Florida Report,” 66; Peter N. Kirstein, “Responses to September 11,” Academe, May-June 2002, 4.85 “1940 Statement of Principles of Academic Freedom and Tenure,” AAUP Policy Documents and Reports, “Redbook” 9th ed. (Baltimore: Johns Hopkins University Press, 2001), 4.

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Kurpiel’s e-mail merely dealt with an upcoming academy event and

did not display any personal opinion on any topic.

Suspension from teaching is a major sanction that must never

result from external-public pressure on an academic institution. AAUP

guidelines were ignored by President Yanikoski. Suspensions can only

be meted out, “if immediate harm to the faculty member or others is

threatened.”86 That was never cited in any document pertaining to my

case. The AAUP Redbook reiterates in numerous documents the

extraordinary circumstance under which an academician may be

suspended in the United States. The documents are the ninth “1970

Interpretive Comment” of the “1940 Statement of Principles of

Academic Freedom and Tenure,” the “1958 Statement on Procedural

Standards in Faculty Dismissal Proceedings” and the revised 1999

“Recommended Institutional Regulations on Academic Freedom and

Tenure.”87 I was informed my “suspension” would

be called a “reassignment to other duties.” The word “suspension” did

not appear in the formal announcement. Instead, the university

president stated, “relieved of his teaching responsibilities for the

current semester and reassigned to other duties.”88 Dr Yanikoski, who

is currently president of the Association of Catholic Colleges and

Universities, sent me a sardonic e-mail on December 30, 2005,

86 Ibid., 7, 12, 26.87 Ibid.; Peter N. Kirstein, “Saint Xavier Professor Defends His Right of Free Speech,” Daily Southtown, August 7, 2005. Appears online at Foundation for Individual Rights in Education (FIRE) website: http://www.thefire.org/index.php/article/6212.html88 “Statement Regarding Professor Peter N. Kirstein,” Richard A. Yanikoski, November 15, 2002.

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complaining about recent comments I posted on my blog that were

critical of my suspension and reprimand. He maintained, even though

I was banished from the classroom as the university scurried to find

replacement instructors, that I was “NOT ‘suspended’ in the sense the

term is used in AAUP norms.”89

Whatever words are used to describe my removal from the

classroom, the “Recommended Institutional Regulations on Academic

Freedom and Tenure” clearly states that one can be “suspended, or

assigned to other duties in lieu of suspension, only if immediate harm

to the faculty member or others is threatened by continuance.”90 Dr

Yanikoski also claimed, absent a formal AAUP investigation of the

merits of the suspension, “that AAUP found no wrongful act in this

regard…A disinterested historian would find less accuracy and honor

in your position than you presently imagine.”91 AAUP frequently does

not investigate cases where academic freedom has been violated. One

can only claim an AAUP exoneration or approval of an action, if there

were an investigation resulting in a finding that accorded with one’s

position. Non action does not constitute an AAUP decision on a

matter.

89 Richard Yanikoski to Peter N. Kirstein, e-mail, December 30 , 2005. Emphasis in original. His last sentence stated he “intended [it] as a private communication.” While not required, I reluctantly but I believe in the interest of public knowledge, have quoted thirty-seven words from a 281-word e-mail.90 “Recommended Institutional Regulations on Academic Freedom and Tenure,” Redbook, 26. Emphasis added.91 Richard Yanikoski to Peter N. Kirstein, e-mail, December 30, 2005.

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Furthermore, I was pressured with a three-to-four-day deadline,

to sign a waiver of grievance and an acceptance of the suspension.

The Faculty Affairs Committee (FAC), the St Xavier University faculty

union in a signed document wrote:

At no time, should a faculty member be required to rescind his or her rights to file a grievance or engage in other efforts to protect their due process rights. Faculty should have the right to consult counsel and to have the benefit of some time to consider acceptance of administrative action, particularly if that action is punitive in nature. Signing a statement that waives one’s right to file a grievance negates the ability to appeal an administrative decision, which is the cornerstone of due process rights.92

I was also subjected to an unannounced disciplinary hearing

that was misrepresented twice as “informational” in a telephone call

on Saturday evening, November 2, 2002, by former Academic Vice

President Christopher Chalokwu.93 FAC determined I “was not

informed of the content of the meeting, nor was [I] allowed the

presence of an advocate.” FAC concluded that “the meeting…in which

sanctions were discussed and imposed was not labeled a disciplinary

hearing.”94

Socialists, anarchists and progressive faculty who cross the line

of acceptable speech, have been severely punished for their antiwar

views. Certainly a free society includes the right to condemn, criticize

92 Faculty Affairs Committee, document, released September 2003.93 As then president of the university AAUP chapter and member of a national AAUP committee, I would not have attended a disciplinary hearing without consulting appropriate parties in advance.94 FAC, September 2003.

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and vigorously denounce written or oral utterances. Much speech

deserves condemnation; some may merit approbation. None of it

merits punishment and coercion unless an imminent or immediate

harm to others is likely to occur. Without free speech, there cannot be

protest. Without protest, there cannot be progress. Without progress,

there cannot be freedom and in the instances cited in this paper, a

challenge to militant nationalism which undermines international

peace and justice.

And I’ll tell it and speak it and think it and breathe it, And reflect from the mountains so all souls can see it.95

-Bob Dylan

95 “A Hard Rain’s A-Gonna Fall,” Michael Gray, Song & Dance Man III: The Art of Bob Dylan (London: Continuum, 2000), 123.

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