Free speech, war, and academic freedom

by Peter Neil Kirstein

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 as a mandate of the nation’s “Manifest Destiny,” demonized it as a “menace,” lied that it had invaded the United States and argued 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.”[1] President William McKinley in asking Congress for a declaration of war to wrest Cuba from Spain declared that only through war against a nation that was not a threat to the United States, could it preserve a Christian 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…”

The United States launched the Spanish-American War in 1898 to impose American de facto colonization of Cuba culminating with the Platt Amendment (1901). As America slaughtered heroic Filipinos during its colonial invasion of the Philippines, it also colonized Guam, Puerto Rico and annexed Hawai’i and Wake Island. McKinley proclaimed America’s national security was in peril. “[T]he lives and liberty of our citizens are in constant danger and their property destroyed and themselves ruined…”[2]

Theodore Roosevelt, the iconic tough guy, nature-loving president who smote the great trusts, was a warmonger: “All the great masterful races have been fighting races…No triumph of peace is quite so great as the supreme triumph of war.”[3] Roosevelt’s alleged internationalist pusillanimous rival, President Woodrow Wilson, advocated a messianic mission of America to make “The World Safe for Democracy” during World War I. Wilson’s reputed internationalist call for “self-determination” excluded subaltern, non-white colonial peoples from India to Southeast Asia.[4]

The evolution of the divine presidency as world “Commander in Chief” to complete God’s mandate, unleashed an aggressive nationalism that demanded patriotic obedience during time of war. While liberal historiography is descriptive of the American empire’s landmass, Oval Office pronouncements, treaties and the role of elite national-security managers, ignored is the catastrophic damage of war in which millions perished, the militarization of the nation, the diminution of democracy and the assault on civil liberties and academic freedom.[5]

The passions of a new “Manifest Destiny” demand conformity. The passions for war entail dehumanization of the “enemy” as the “other.” The passions during war define “supporting the troops” as synonymous with supporting the government’s decision to send young healthy citizens to their deaths or to kill others in distant lands. War as symbolic confirmation of American superiority has created a hyperpower that Nobel Laureate Harold Pinter dismissed as “[b]rutal, indifferent, scornful and ruthless…[on] a permanent military footing and shows no sign of relaxing it.”[6]

The Sedition Act of 1798 was intended to suppress Democratic-Republican support of France during an undeclared Franco-American naval conflict (1798-1800). Most forms of antiwar protest were a crime punishable by a $2,000 fine and two years in prison:

If any person shall 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.[7]

Supreme Court Justice Abe Fortas in Concerning Dissent and Civil Disobedience conceded antiwar speech was not always protected in the United States but “It is the courts—the independent judiciary—which have, time and again, rebuked the legislatures and executive authorities.”[8] Yet American constitutional law is replete with Supreme Court decisions that frequently eviscerated First Amendment rights during war and silenced and transformed persons of conscience into prisoners of conscience.

James Madison was prescient in 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.”[9]

Wartime hysteria diminishes the freedom of ethnic groups from nations or non-state actors that are in conflict with the United States. During World War I, 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 noted that Belgian humanitarian relief might not go to civilians, “but the trouble was that the damned soldiers (presumably allies) would get it.”[10]

Red Cross officials prevaricated that 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 President George W. Bush’s invasion of Iraq); German classical-music conductors such as Fritz Kreisler were blacklisted in symphony halls throughout the United States.[11] 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.[12] “We are what we remember” and as the current nativism against the building of mosques near the 9/11 attack site and elsewhere suggests, war unleashes repression of targeted ethnic groups caught in the swirl of extreme nationalism.[13]

The clear-and-present-danger doctrine, that helped established the iconic 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 wartime free speech case, liberal constitutional scholars have praised its alleged proscription of egregiously threatening speech: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”[14] Few would argue a constitutionally protected right of speech encompasses the right to inflict mass injury or death. Justice Holmes, writing for a unanimous court, declared Schenck’s anti-draft resistance as a threat to national security that lay beyond the purview of the First Amendment. Justice Holmes’s judicial activism declared draft resistance through written statements were “substantive evil[s] that Congress has the right to prevent.”

While Justice Holmes’s clear and present danger doctrine was less censorious of speech than the court’s prior “bad tendency doctrine” (“nipped in the bud” speech that might create disorder), it 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 Espionage Act of 1917 that criminalized “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.[15] Justice Holmes’s activism virtually split the first article into speech during war and peace: “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 be endured as long as men still fight.”[16]

Antiwar speech construes war as a clear and present danger. Schenck’s pamphlet, “Assert Your Rights,” opposed a war that was a clear and present danger for the 116,000 servicepersons who would die.[17] Antiwar advocates sought to obstruct a war that threatened democracy with George Creel’s Committee on Public Information’s persecution of dissent, its ruthless annihilation of the Industrial Workers of the World and its postwar legacy of the Red Scare and 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 with the statement: “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.”[18]

It is not surprising that the pro-German press would be suppressed during World War I. America’s wars usually attenuate freedom of the press whether in this country or abroad. The violent American assault against Al Jazeera is an example. Americans bombed an Al Jazeera station in Afghanistan in 2001, killed its reporter Tareq Ayoub in Baghdad in 2003 and attacked a hotel with only Al Jazeera correspondents as guests in Basra in 2003. It expelled its entire operations from American-occupied Iraq and possibly planned to bomb its headquarters in Qatar.[19] This is the climate of oppression that was validated and, perhaps, encouraged by the Supreme Court that rarely challenges executive power and its assault on civil liberties during wartime. The judiciary needs to be more vigilant in the protection of the people’s rights not less when the consuming ethos of militant nationalism is unleashed by war.

In May 1918 Congress passed an amendment to the Espionage Act that is informally known as the Sedition Act that extended free-speech repression to utterances and published writings. Scott Nearing was an economist who taught at the University of Pennsylvania and the University of Toledo. He was fired for his socialist views and was prosecuted during World War I for an antiwar pamphlet, “The Great Madness.” While running for Congress in New York’s Fourteenth Congressional District against Fiorello La Guardia, who had taken leave of his incumbency to fight in Italy, Nearing was frequently red baited by the congressperson: “You know, one must be color blind to call an American Socialist a red. They’re not red; they’re yellow.”[20] The New York Times in a vicious editorial described La Guardia’s victory over the persecuted academician as a victory over the “eminent friend of academic freedom and of other kinds of freedom verging on sedition, Scott Nearing.”[21]

Jacob Frohwerk published Missouri Staats Zeitung, a German-language newspaper, and was convicted under the Espionage Act for editorials condemning the draft and America’s entrance into the war. There were two declarations of war: the first was on Good Friday, April 6, 1917 against Germany and the latter was against the dual monarchy of Austria-Hungary on December 7, 1917.[22] Frohwerk opposed conscription, the pro-British policy of the Wilson administration and blamed the war on avaricious, profit-seeking trusts and Wall Street scions. In a terse statement, Frohwerk wrote, “We say therefore, cease firing.”[23] Frohwerk was sentenced to ten years in prison for “disloyalty, mutiny and refusal of duty in the military and naval forces of the United States.”[24]

Justice Holmes again led the court’s suppression of free speech and freedom of the press. Speech that caused undesirable results–bad tendency–could once again remain beyond 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 that was even more injurious to First Amendment protection than the clear and present danger test.

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.[25]

A conspiracy to obstruct the draft now encompassed editorials. Even in the absence of actual planning, the mere expression of opinion in a newspaper editorial against the draft was prosecutable under the Espionage Act. Courts determine the scope and content of constitutional rights. While judicial review may be lauded as part of the separation of powers, when conjoined with other branches of government it comprehensively suppress antiwar dissent.[26]

Eugene Victor Debs, presidential candidate, union organizer and socialist leader, was incarcerated for opposing the persecution of draft resisters during World War I. The Supreme Court affirmed his conviction in Debs v. United States, 249 U.S. 211 (1919).[27] Debs was sentenced under the Espionage Act that continues in force and has been contemplated as a device to silence Julian Assange’s antiwar website, WikiLeaks.[28] In June 1918 Debs delivered a two-hour speech across the street from a jail where three socialists were imprisoned for draft resistance.[29] 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 something better than slavery and cannon fodder.”[30] He passionately denounced the lack of shared sacrifice in war. “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.”[31]

Oliver Wendell Holmes again silenced patriotically-incorrect speech. He moved beyond the clear and present danger doctrine as proclaimed in Schenck seven days earlier and issued a “reasonable probable effect” standard to “obstruct the recruiting service.”[32] No conspiracy as in Frohwerk; no clear and present danger test but a mere “reasonable probable effect” that may obstruct the draft could be punished.

At age sixty-three Debs began serving a ten-year prison sentence on April 13, 1919 at Atlanta Penitentiary. While still in prison, he received 919,799 votes as the Socialist-party candidate in the 1920 presidential election.[33] Debs was eventually pardoned by a magnanimous President Warren Harding and walked out of his Atlanta prison cell on December 25, 1921.[34] However, his citizenship was never restored.[35]  Harding’s pardon seemed consistent with his call for peace and reconciliation in a remarkable inaugural address on 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 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 recommend a way to approximate disarmament and relieve the crushing burdens of military and naval establishments.[36]

While liberal historiography emphasizes the putative expansion of free speech in Justices Holmes and Louis Brandeis’s dissents in Abrams v. United States, 250 U.S. 616 (1919) and Gitlow v. New York, 268 U.S. 652 (1925), historians have ignored the Supreme Court majority’s assault on speech.[37] In Abrams, five Russian-émigré socialists protested by distributing antiwar leaflets attacking American military intervention at Murmansk (1918) and Vladivostok (1918-1920) to destabilize the Bolshevik Revolution.[38] They were arrested and received prison sentences from three to twenty years for violating the Sedition Act of 1918.[39]

Jacob Abrams and other defendants were convicted of conspiring “to incite, provoke or encourage resistance to the United States,” and to “cripple or hinder the United States in the prosecution of the war.”[40]  Their leaflets called for a general strike to stop the rapidly developing American war machine. Not since the Seattle five-day general strike of 1919 has such an action appeared in working-class resistance.

Justice John H. Clarke wrote the 7-2 majority opinion in Abrams affirming their convictions. The great constitutional-law scholar Zechariah Chafee influenced Justice Holmes’s evolution from enemy to defender of 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…[41]

On the state level, Arizona and Montana used tactics of violence and intimidation to suppress both antiwar and union-organizing efforts of the Industrial Workers of the World (I.W.W.). Wobblies were ruthlessly denied free speech when challenging the war and American capitalism. Many were killed for their opposition. Other states were equally oppressive during World War I and its aftermath.[42] New York state created the Lusk Committee and prosecuted citizens seeking a “Dictatorship of the Proletariat.” Gratuitous raids were conducted on apolitical cultural events such as concerts with Russian musicians that were arrested and hauled off to jail with their musical instruments.[43]

Since the September 11, 2001 attacks on New York and the Pentagon in which 2,973 persons were killed by hijacked civilian aircraft there have been numerous examples of free speech and academic-freedom repression directed against professors who vigorously opposed American militarism in its conduct of external relations. Instead of interpreting the 9/11 attacks as unprovoked Islamic reaction to modernity and democracy, others interpreted it as resistance to preexisting American subjugation of various Muslim nationalities.[44]

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 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, Berthold was reprimanded and prohibited from teaching future sections of Western Civilization.[45] Dispirited and frustrated, he took early retirement at the end of the 2002 fall semester.[46]

Nicholas De Genova, then 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 De Genova required police protection while on campus. Bollinger nobly refused to suspend or fire the non-tenured professor but repeatedly denounced De Genova’s remarks. On Columbia’s website, he referred to his teach-in comments as “outrageous,” “appall[ing]” and “especially disturbing.”[47] Engaging in unseemly gratuitous patriotism, he apologized on behalf of military personnel and their families.[48]

In an April 2, 2003 speech before the National Press Club, Bollinger noted teach-ins are not normally critiqued by university presidents in order to “promote full discussion of public issues.” Due to public pressure and demands for patriotic correctness, he again excoriated De Genova’s rhetoric as “shocking,” “horrific,” and “especially sickening.”[49]

Professor Ward Churchill was scheduled to appear ironically in February 2005 at Hamilton College in New York on a panel devoted to explore “The Limits of Dissent.” The college newspaper, The Spectator, reported Churchill three-years earlier had referred to the World Trade Center casualties of September 11, 2001 as “the little Eichmanns inhabiting the sterile sanctuary of the twin towers…”[50] The context of this statement was a condemnation of American capitalism, and in particular he depicted the World Trade Center as the locus of unbridled capitalist accumulation. He even questioned the non-combatant immunity of the 2,801 New York casualties.

Hamilton College President Joan Hinde Stewart reluctantly cancelled the event two days beforehand on February 1, 2005, due to death threats, the fear of losing financial support from donors and alumni demanding the revocation of Churchill’s invitation.[51] A person had threatened to bring a gun to the event as the armies of the night claimed another victory over academic freedom.[52]

Churchill was a professor in the Department of Ethnic Studies at the University of Colorado and was removed as chair. The university gratuitously investigated the obvious: whether Churchill’s Eichmann comment was protected speech. They concluded it was. According to the Foundation of Individual Rights in Education (FIRE), “The University of Colorado was absolutely correct…when it concluded that speech like Churchill’s is fully protected.”[53]

He then underwent a prolonged review to determine if he had plagiarized or ghost written various articles.[54] The Board of Regents fired Churchill on July 25, 2007 and even after he won a wrongful termination lawsuit on April 2, 2009, Denver’s Chief District Judge Larry J. Naves ruled on July 7 that Churchill could not receive additional compensatory damages or reinstatement to his tenured position.[55]

Sami Al-Arian, a Kuwaiti-born Palestinian, was fired from the University of South Florida on February 26, 2003. His initial de facto fourteen-month suspension that began on December 19, 2001–cloaked in the name of a paid leave of absence–was imposed by President Betty Castor who later ran unsuccessfully for the Senate as a Democrat. This sanction did not result from credible evidence that his return to teaching “posed any claimed threat of immediate harm.”[56]

The professor’s comments on the Arab-Israeli conflict on FOX’s “The O’Reilly Factor” on September 26, 2001 precipitated his unseemly suspension. In August 2002, the university sought unsuccessfully a declaratory judgment from a federal court affirming the university’s long-standing desire to fire the professor.[57] Despite a presumption of innocence, his eventual dismissal came less than a week after a federal grand jury handed down a fifty-count indictment charging terrorism for allegedly supporting the Palestinian Islamic Jihad.[58]

At various stages leading to Al-Arian’s dismissal, the University of South Florida used extremely questionable tactics to silence a tenured professor who had resided in the United States since 1975. USF President Judy Lynn Genshaft attacked him for not issuing a disclaimer, which is rare in academia, that his extramural pro-Palestinian utterances were his own opinions. Such complaints are usually levied against controversial speech an administration finds objectionable.[59] The university’s violation of Al-Arian’s academic freedom was influenced by a constant media barrage demanding his termination. 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 his program that “I’d follow you wherever you went” implying that the computer scientist was a terrorist.[60]

On December 6, 2005, Al-Arian was found not guilty by a federal court jury in Tampa on eight of seventeen counts “including conspiracy to maim or murder.” The jurors deadlocked on nine other counts, but a majority was apparently in favor of acquittal on each count.[61] Al-Arian has argued that his suspension, firing and indictment were the result of his political beliefs and his impassioned support of Palestinian resistance to Israel’s colonization and occupation.[62] Al-Arian was finally released on bond on September 2, 2008 and is under house arrest.[63]

Norman Finkelstein, the son of holocaust survivors, was denied tenure at DePaul University in 2007. The Department of Political Science and the College of Liberal Arts and Sciences personnel committee had recommended him for tenure and promotion. His writings such as Image and Reality of the Israel-Palestine Conflict and The Holocaust Industry are critical of Israel’s treatment of the Palestinians. Alan Dershowitz, Felix Frankfurter Professor of Law at Harvard Law School, wrote The Case for Israel that Finkelstein comprehensively criticized for faulty scholarship and substandard research.[64] Dershowitz successfully led a nationwide campaign to pressure DePaul to deny the assistant professor of political science tenure. Normally tenure and promotion decisions in postsecondary education are autonomous and not subject to national lobbying campaigns emanating from the culture wars. DePaul claimed his style of writing violated the Vincentian values of the university’s charism and were too robust in its criticism of partisans of Israel. Many considered his denial of tenure to be a violation of academic freedom and it remains one of the most controversial tenure cases in American history.[65]

I received on October 31, 2002 from Cadet Robert Kurpiel, United States Air Force Academy, an e-mail addressed to scores of professors asking them to recruit students to an “annual Academy Assembly.” The e-mail was addressed broadly to, “Dear Sir or Ma’am.”[66] My response triggered an international academic freedom case leading to sanctions against me:

From: Peter Kirstein

Sent: October 31, 2002 1:46 PM

Subject: Re: Academic Assembly

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 reign {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, {Anti-Aircraft Artillery} 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.”

Peter N. Kirstein

Professor of History

Saint Xavier University[67]

The cadet and I exchanged mutual apologies in several amicable e-mail over that weekend.[68] Mine was for some personal attacks, and his was for the public airing of my response that he attributed to the cadet wing. Captain Jim Borders, the faculty sponsor of the Academy Assembly event, issued a press release: “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.”[69]

The conflict resolution between Cadet Kurpiel and myself appeared to satisfy Saint Xavier University President Richard Yanikoski. He e-mailed me, “It seems as though you have found a pen pal.”[70] On November 4 he told me in his office that the incident was over and asked me to contact him only, “if someone were trying to damage my career.”[71] I responded by assuring him that public pressure to sanction me would increase due to the culture wars and impending war with Iraq. “I can handle the pressure,” the president remarked. Seven days later I was suspended and ultimately reprimanded as external forces exceeded the president’s capacity to defend academic freedom that protects controversial extramural speech.

Yanikoski’s conciliatory tone at the November 4 meeting had become confrontational, personal and intimidating. He told the Chicago Sun-Times: “[Kirstein] will be a changed man. The various sanctions I imposed will increase the odds that will happen.”[72] Yanikoski also questioned my psychological fitness in remarks to the Sun-Times that were also distributed by the Associated Press: “He seemed quite literally to go off the deep end.”[73] He was obviously building a case that would challenge my fitness to resume my duties as a tenured full professor of history. Suddenly on December 9, 2002 Yanikoski announced his resignation following a presidential search.

We met on December 18. I expressed concerns, as had several of my colleagues, that his “off the deep end” might render me unemployable should I leave the university. He responded with apparent contrition: “I can understand your feeling. It was regrettable I said what I did.” Yet in another quick reversal of action, I received an e-mail the next day that included various supposedly exculpatory definitions of “off the deep end” from Webster’s New World Dictionary (3rd Edition). Yanikoski charged “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.”[74] The Free Dictionary defines “go off the deep end: 3. Fig. to act irrationally, following one’s emotions or fantasies.”[75]

Ideologically conservative blogs printed the October 31 e-mail and encouraged public pressure with e-mail to Yanikoski demanding my continuous tenure be terminated. Charlie Daniels e-mailed and posted my antiwar missive on his website. David Horowitz printed Daniels’s screed on his online[76] Horowitz, to his credit, also reprinted a National Review online article by Hoover Institution scholar Stanley Kurtz that condemned my response 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.”[77]

The national press joined the fray and contributed to the frenzied environment of this incident . The Wall Street Journal in its first editorial praised 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.”[78] They misrepresented my comment of “aggressive baby-killing tactics of collateral damage” as an attack upon  “a man in uniform for ‘aggressive baby-killing.’” The e-mail denounced more broadly the rules of engagement in which so many non-combatants including infants are killed.[79]

A second editorial on November 12, 2002 appeared under the provocative headline, “Taking Academic Freedom Seriously,” repeating the assertion I personally accused a student of “aggressive baby-killing tactics.” My Veterans Day suspension on Monday, November 11, 2002 was not announced until November 15. With unabashed schadenfreude, the Wall Street Journal declared that “Fittingly, the suspension began on Veterans Day.” It also mimicked an American Association of University Professors’ (AAUP) motto that appeared on my website: “Academic Freedom is Never Free,” in averring academic freedom protection did not encompass antiwar e-mail to a cadet. The paper confessed that its second editorial resulted from public criticism of the first.

Several readers’ letters claimed my academic freedom had been violated.[80] In a letter to the editor Stephen H. Balch, president of the conservative National Association of Scholars, excoriated my views and mode of expression but defended my rights of unfettered speech without sanction or censorship.[81] If academic freedom means anything, it is the right to express political and ideological opinions without fear “of loss of position or other reprisal.”[82]

Jed Babbin, deputy undersecretary of defense under President George H. W. Bush, wrote in The Weekly Standard that I “hate” the military even though I am a Army Reserves veteran and the son of an army captain who was in the Aleutian Islands during World War II. He added I construed “a soldier’s only value is as an object of ridicule and scorn.” He described the e-mail response as “barely literate” and stunningly suggested was “libel”.[83] Babbin, despite never having observed my teaching, warned the parents of my students: “Whatever your college student may be taught in Kirstein’s class, it certainly won’t be history.”[84] Horowitz’s The Professors: The 101 Most Dangerous Academics in America was at least accurate in its various citations of my work and the incident with the Air Force; yet it never mentioned the sanctions and free speech and academic freedom implications of punishing written speech.[85]

Lieutenant Colonel Robert “Buzz” Patterson was the courier of the Armageddon-triggering nuclear codes, the “football,” during the Clinton administration. Imitating with less skill the Horowitzian genre of academy bashing, he repeated the e-mail “baby-killer” mantra in War Crimes: The  Left’s Campaign to Destroy the Military and Lose the War on Terror.[86] Colonel Patterson demanded my dismissal five years after the controversy because I am “unworthy of my paycheck.” He claimed I am guilty of “elite enmity” yet condescendingly claims the Air Force Academy has “entry standards [that] are far superior” to other universities such as St. Xavier.[87]                                                                                      

Roger Kimball, 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, 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.”[88] Furthermore, 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?”[89]

Kimball’s article “Academia vs. America” appeared in the American Legion’s magazine. He accused me and other professors of disloyalty under a heading, “Academia’s Anti-Americanism.”[90]  He also excoriated my teaching as damaging my students when he noted ruefully, after my suspension, “he presumably will soon be back molding young minds.”[91]

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 ironic quotation marks, she described me as a “‘teacher’ of American history, God help us,” and carelessly expanded the three-week suspension: “…[he] was suspended for—get this, folks—an entire semester.”[92]

The key document defining academic freedom in the United States is AAUP, “1940 Statement of Principles on Academic Freedom and Tenure.” When professors “speak or write as citizens, they should be free from institutional censorship or discipline.” 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.[93]

I was charged in a three-year reprimand that was removed from my personnel file on December 22, 2005, of “failing…to make every effort to indicate that [I was] not speaking for the institution.”[94] 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! I signed my e-mail with my name, academic rank and discipline. It is beyond incredulity for one to assume I was speaking for the university. I was communicating as a professor in my own name.[95]

The reprimand arrogantly alleged additional violations of AAUP guidelines, as if they had not been egregiously violated by the university. Yanikoski averred that I did not comply with the “1940 Statement” because I “failed…to show respect for the opinions of others.”[96] I have documented for almost ten 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 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.”[97] 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 on Academic Freedom and Tenure,” the “1958 Statement on Procedural Standards in Faculty Dismissal Proceedings” and the revised 2009 “Recommended Institutional Regulations on Academic Freedom and Tenure.”[98]

The “suspension” was called a “reassignment to other duties.” The word “suspension” did not appear in the formal announcement that proclaimed “[he was] relieved of his teaching responsibilities for the current semester and reassigned to other duties.”[99] Dr. Yanikoski, when president of the Association of Catholic Colleges and Universities, sent me a sardonic e-mail on December 30, 2005 complaining about recent statements on my blog that challenged my suspension and reprimand. He maintained, even though I was banished from the classroom and replacement instructors took over my classes, that I was “NOT ‘suspended’ in the sense the term is used in AAUP norms.”[100]

The “Recommended Institutional Regulations on Academic Freedom and Tenure” clearly state 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.”[101] Dr. Yanikoski claimed in the absence of an AAUP investigation “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.”[102] One can claim an AAUP position on a sanction only if there were an investigatory action followed by an AAUP judgment.

Furthermore, I was given a three-to-four-day deadline to sign a waiver of grievance and to accept in writing 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.[103]

I was subjected to an unannounced disciplinary hearing that former Academic Vice President Christopher Chalokwu twice misrepresented as “informational” in a telephone call on Saturday evening, November 2, 2002. FAC determined I “was not informed of the content of the meeting, nor…allowed the presence of an advocate.” FAC concluded that “the meeting…in which sanctions were discussed and imposed was not labeled a disciplinary hearing.”[104]

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 and vigorously denounce written or oral utterances. Speech may deserve condemnation or approbation. Rarely does it merit punishment and coercion unless there is an imminent or immediate harm to others. 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 article, a challenge to militant nationalism which undermines international peace and justice.


This article is a revision of a paper given at the Historians Against the War Conference at the University of Texas, Austin, February,16, 2006.

[1] Henry Steele Commager, Milton Cantor, Vol. 1. Documents of American History to 1898, 10th ed. (Englewood Cliffs, New Jersey: Prentice Hall), 1988, 311.

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

[3]  Howard Zinn, The Twentieth Century: A People’s History (New York: Harper Perennial), 2003, 5.

[4] Erez Manela, “Imagining Woodrow Wilson in Asia: Dreams of East-West Harmony and the Revolt against Empire in 1919,” American Historical Review 3, no. 1 (December 2006): 1327-51.

[5] Bob Herbert, “We Owe the Troops an Exit,” New York Times, September 3, 2010.

[6] Harold Pinter, Nobel Lecture, “Art, Truth and Politics,” December 7, 2005.

[7] Thomas L. Tedford and Dale A. Herbeck, Freedom of Speech in the United States, 6th. ed. (State College, Pa: Strata Publishing, 2009), 312-13.

[8] Howard Zinn, Disobedience and Democracy (New York: Vintage, 1968), 70.

[9] Andrew J. Bacevich, The New American Militarism (New York: Oxford, 2005), 7.

[10] Maurice Possley, “Jailed for Their Words,” Chicago Tribune, December 28, 2005, 1, 18.

[11] William E. Leuchtenburg, The Perils of Prosperity, 2nd ed. (Chicago: University of Chicago Press, 1993), 44.

[12] John Milton Cooper, Jr., Pivotal Decades: The United States, 1900-1920 (New York: W.W. Norton, 1990), 301-302.

[13] Jerry Lembcke, The Spitting Image: Myth, Memory, and the Legacy of Vietnam (New York: New York University Press, 1998), 187; Borzou Daragahi, “New York Mosque Controversy Worries Muslims Overseas,” Los Angeles Times, August 23, 2010.

[14] Schenck v. United States, 249 U.S. 47 (1919)

[15]  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.

[16] 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.

[18] Zinn, Disobedience, 72.

[19] “The War on Al Jazeera,” The Nation, December 19, 2005, 6-8.

[20] Howard Zinn, LaGuardia in Congress (Ithaca, NY: Fall Creek Books [imprint of Cornell], 2010) 29-33.

[21] New York Times, November 7, 1918, 14. Accessed online ProQuest Historical Newspapers, November 10, 2010.

[22] Peter N. Kirstein, “Wrong Dates,” Bulletin of the Atomic Scientists (July-August 1991), 45-46.

[24] Tedford, Freedom of Speech, 47.

[25] Frohwerk v. United States, 249 U.S. 204 (1919).

[26] Louis Henken et al., Human Rights (New York: Foundation Press, 1999), 173.

[27] Peter N. Kirstein, “The People’s Historian and the FBI Zinn Files,” History News Network, George Mason University, August 9, 2010.

[28] Stephen M Kohn, “A Sad Day For The US if The Espionage Act Is Used Against WikiLeaks,” The Guardian, December 15, 2010.

[29] Howard Zinn, The People’s History Of The United States: 1492-Present (New York: HarperCollins, 2003), 367.

[30] Tedford, Freedom of Speech, 48.

[31] Howard Zinn, The Twentieth Century (New York: Perennial, 2003), 87.

[32] Tedford, Freedom of Speech, 48; Debs v. United States, 249 U.S. 211 (1919).

[33] William Appleman Williams, Americans in a Changing World (New York: Harper and Row, 1978), 474.

[34] Mary Jo Buhle, Paul Buhle eds., Encyclopedia of the American Left (New York: Garland, 1990), 187.

[35] Zechariah Chafee, Free Speech in the United States (Cambridge: Harvard Univesity Press, 1967), 84n.

[36] Yale Law School, Yale Avalon Project Accessed September 19, 2010.

[37] 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.

[38] Stone, Perilous Times, 205; William Appleman Williams, Empire As a Way of Life (New York: Oxford, 1980), 141.

[39] 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.

[40] Stone, Perilous Times., 206.

[41] Chafee, Free Speech, 33.

[42] Philip Dray, There is Power in a Union: The Epic Story of Labor in America (New York: Doubleday, 2010) 355-60.

[43] Philip Dray, There is Power in a Union: The Epic Story of Labor in America (New York: Doubleday, 2010) 373, 397.

[44] Beshara Doumani, ed., Academic Freedom after September 11 (Brooklyn: Zone Books, 2006) 22-37.

[45] “Professor Reprimanded for Joke,” Houston Chronicle, December 10, 2001. online edition.

[46] Richard M. Berthold, “My Five Minutes of Infamy,” History News Network, November 25, 2002.

[48] Peter N. Kirstein, “Challenges to Academic Freedom Since 9/11,” in The Impact of 9/11 and the New Legal Landscape, ed., Matthew J. Morgan (New York: Palgrave Macmillan, 2009), 59.

[50] Ward Churchill, “‘Some People Push Back’: On the Justice of Roosting Chickens,” Pockets of Resistance, #11, September 2001.

[51] President Stewart described this action: “The cancellation of the event was, therefore, an educational loss.”

[53] Greg Lukianoff, “The Chill is Nothing New,” The Chronicle of Higher Education, September 9, 2005, B10.

[55] Kirstein, “Challenges to Academic Freedom Since 9/11,” 65.

[56] “Academic Freedom,” Academe, 69.

[57] “Academic Freedom and Tenure: University of South Florida Report,” Academe, May-June 2003, 59, 65.

[58] Scott Smallwood, “U. of South Florida Fires Professor Accused of Terrorism,” The Chronicle of Higher Education, March 7, 2003.

[59] Peter N. Kirstein, “Academic Freedom and the New McCarthyism,” Situation Analysis, Spring, 2004, 30.

[60] Eric Boehlert, “The Prime Time Smearing of Sami Al-Arian,”  January 19, 2002.

[61] Peter Whoriskey, “Ex-Professor Won His Court Case but Not His Freedom,” Washington Post, December 14, 2005, A02;, December 6, 2010.

[62] British Broadcasting Corporation, December 6, 2005.

[63] Stephen Lendman, “New Hearing Set for Sami Al-Arian,” Baltimore Chronicle & Sentinel, October 16, 2010.

[64] Norman Finkelstein, Beyond Chutzpah: On the Misuse of Anti-Semitism and the Abuse of History, (Berkeley: University of California Press, 2005).

[65] Kirstein, “Challenges to Academic Freedom Since 9/11,” 60-2.

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

[67] Peter N. Kirstein to Cadet Robert Kurpiel, e-mail, October 31, 2002.

[68] 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.

[69] 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.

[70] Richard Yanikoski to Peter N. Kirstein, e-mail, November 2, 2002.

[71] Peter N. Kirstein to Cadet Robert Kurpiel, e-mail, October 31, 2002. I edited a punctuation mark and corrected the use of “reign.”

[72] Bryan Smith, “St. Xavier Professor Suspended for E-mail to Cadet,” Chicago Sun-Times, November 18, 2002, 22.

[73] Ibid.; “University Suspends Professor Who Sent Insulting Message to Air Force Academy Cadet,” Associated Press, November 18, 2002.

[74] Richard Yanikoski to Peter N. Kirstein, e-mail, December 19, 2002.”

[75]  The Free Dictionary Accessed, September 21, 2010.

[76], November 11, 2002, January 8, 2003, March 28, 2003. From Kirstein, “Academic Freedom,” 27.

[77] Stanley Kurtz, “Daniel Pipes Blacklisted by the Academic Left,” National Review Online, January 8, 2003.

[78] “The Professor and the Cadet,” Wall Street Journal, November 12, 2002, A20.

[79] Ibid. Emphasis added.

[80] “Letters,” Wall Street Journal, November 18, 2002.

[81] Wall Street Journal, November 25, 2002.

[82] Bryan A. Garner, ed., Black’s Law Dictionary, 9th ed. (St. Paul, MN: West, 2009), 12.

[83] Jed Babbin, “When Professors Attack They Make Fools of Themselves,” The Weekly Standard, December 2, 2002.

[84] Babbin, “Professors.” Unlike the Wall Street Journal, the only national publication that did not allow me to respond, Bill Kristol provided me a full-page two-column rebuttal. “Kirstein Strikes Back,” The Weekly Standard, January 20, 2003, 5.

[85] David Horowitz, The Professors: The 101 Most Dangerous Academics in America (Washington, D.C.: Regnery, 2006), 245-49.

[86] Robert “Buzz” Patterson, War Crimes: The  Left’s Campaign to Destroy the Military and Lose the War on Terror (New York: Three Rivers Press, 2007), 69.

[87] Patterson, War Crimes, 70.

[88] “Tenured Adolescents,” Notes and Comments, The New Criterion, December 2002.

[89] Ibid.

[90] Roger Kimball, “Academia vs. America,” The American Legion: The Magazine for a Strong America, April 2003, 36.

[91] Ibid. See my response: Peter N. Kirstein, “New McCarthyism,” American Legion, June 2003, 4-6.

[92] 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 honored to appear next to Attorney General Ramsey Clark on a list of names that served as a backdrop to the graphics.

[93] AAUP Policy Documents and Reports, 10th ed. (Baltimore: Johns Hopkins Press, 2006), 3-4. The document has been endorsed by more than 200 professional organizations and societies.

[94] 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.;

[95] On the politics of disclaimer see Peter N. Kirstein, “Responses to September 11,” Academe, May-June 2002, 4.

[96] AAUP Policy Documents and Reports, 10th ed. (Baltimore: Johns Hopkins Press, 2006), 4.

[97] Ibid., 7, 12, 26.

[98] 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:

[99] “Statement Regarding Professor Peter N. Kirstein,” Richard A. Yanikoski, November 15, 2002.

[100] Richard Yanikoski to Peter N. Kirstein, e-mail, December 30 , 2005. Emphasis in original.

[101]  “Recommended Institutional Regulations on Academic Freedom and Tenure,” Redbook, 26. Emphasis added.

[102] Richard Yanikoski to Peter N. Kirstein, e-mail, December 30, 2005.

[103] Faculty Affairs Committee, document, released September 2003.

[104] FAC, September 2003.

[Thank you Peter for sending this]

The writer is professor of history, St. Xavier University, and vice president Illinois American Association of University Professors.