Transcript of Judge Downes’ Ruling in Ayers Case
UPDATE: 4:30pm (MT), 4/30/10
Casper–“To be a free people, we must have the courage to exercise our constitutional rights,” Chief Wyoming US District Judge William F. Downes said at the conclusion of his oral ruling this week ordering the University of Wyoming to let former Weather Underground radical Bill Ayers speak on campus. “To be a prudent people, we have to protect the rights of others, recognizing that that is the best guarantor of our own rights.”
A former Marine captain who served during the Vietnam War, Downes said he could “scarcely swallow the bile of my contempt” for the Weather Underground and its actions.
But even this personal contempt was not enough to limit Ayers’ free speech.
“The fact remains Mr. Ayers is a citizen of the United States who wishes to speak. He need not offer any more justification than that,” Downes continued in his ruling, the full transcript of which was made available by the court on Friday. “The controversy surrounding the past life of Professor Ayers and the widely held public perception of his past conduct cannot serve as a justification to defrock him of the guarantees of the First Amendment.The Bill of Rights is a document for all seasons. We don’t just display it when the weather is fair and put it away when the storm is tempest. To be a free people, we must have the courage to exercise our constitutional rights. To be a prudent people, we have to protect the rights of others, recognizing that that is the best guarantor of our own rights.”
Reported 9:30pm (MT), 4/28/10
By Rone Tempest, Anne MacKinnon and Philip White
Laramie–More than 600 people braved an April snowstorm to hear former 1960’s radical Bill Ayers speak on the University of Wyoming campus Wednesday night after a federal judge ordered recalcitrant university officials to let the event take place.
(In its Thursday editions The Casper Star-Tribune reported the audience size at 1,100 people)
A dozen protesters carrying signs that included “Wyoming Is No Place for Terrorists” and “Millions of Vets Died For This?” stood peacefully outside the multi-purpose sports auditorium venue on the east side of the Laramie campus. There was no sign of tension or violence that university officials stated was the reason they canceled Ayers originally-scheduled April 5 appearance on campus.
Ayers, an aging, curly-haired founder of the Weather Underground group that took credit for bombings of US government buildings during the Vietnam war, was enthusiastically applauded by the audience as he spoke about free speech, academic freedom and education issues.
If it hadn’t been for the controversy, Ayers said, “I would have been talking to about 30 people in a circle.’’
Fewer than 20 university and Laramie city police officers provided light security for the event. The event concluded at 8:51 p.m.
The only challenging question from the audience was from a man who asked Ayers if he “believed stomping on the flag and bombing set a good example for education.”
Ayers responded: “Bad example.”
The Ayers speech came a day after Wyomng Chief U.S. District Judge William F. Downes on Tuesday ordered university officials to let former Weather Underground radical-turned-professor Ayers speak on the Laramie campus.
Judge Downes, who served as a Marine captain during the Vietnam War, said that as a veteran he was repulsed by the activities of the Weather Underground, which took credit for bombing several US government buildings in the late 1960s.
But, the judge said, “hatred of past conduct cannot be a pretext” for depriving Ayers of his First Amendment rights.
“Ayers is a citizen of the United States who wishes to speak,” said Downes, “ and he need not offer any more justification than that.”
Downes, who was appointed to the bench in 1994 by President Bill Clinton, also ordered the university to cooperate with organizers of appearance at UW, which took place at the UniWyo Sports Complex auditorium, and to provide adequate security for the event. The judge instructed the university that it could not impose unreasonable fees or contractual obligations on the organizers.
In a press release issued after the ruling, the University of Wyoming announced it would “fully comply with the court’s order and will provide appropriate security.”
“We will do everything in our power to provide a safe and secure environment for his visit,” UW President Tom Buchanan said.
In the release, Buchanan reiterated his opinion—rejected by the court—that the “heart of the issue” in the case was not Constitutionally guaranteed freedom of speech, but “whether as president of the university, I can cancel a speaking engagement if I believe there are overriding safety concerns for the university community.”
Buchanan also repeated, as the university had unsuccessfully argued on Monday, that the “administration did not bar Ayers from campus, but denied permission to rent space for a large event on university property because of serious security concerns.” In his opinion, Judge Downes specifically rejected this argument as “unpersuasive and pretextual.”
Bill Ayers was not surprised by Downes’ decision.
“It would have been astonishing had it gone any other way,” Ayers said. “The University put forward a pitiful and transparently dishonest case. They must have known they had no chance, but now they claim they were motivated only by protecting public safety as they wink at their donors.”
Downes said flatly that he agreed with Ayers’ and Lanker’s attorneys that the university restricted Ayers from speaking because of his identity and related concerns about the content of his speech. That gave the portion of the Wyoming public that was displeased by the prospect of his speech a “heckler’s veto” of his right to speak.
And the U.S. Supreme Court has made clear that a government institution simply bowing to a “heckler’s veto” is putting an inadmissible restriction on speech, Downes said.
Judge Downes on Tuesday read aloud in court a substantial opinion, complete with citations, a virtual tour of 50 years of controversies in which the First Amendment has been protecting unpopular speech in America. Dr. Martin Luther King’s 1965 march from Selma to Montgomery, a march of the Ku Klux Klan in Tennessee protesting the Martin Luther King holiday 25 years later, a march of American Nazis through a predominantly Jewish suburb of Chicago in the early 1970s: the causes, the fears, the violence and the quiet rulings of federal judges in a half-century of turbulent history, asserting the First Amendment protection for the marches and speeches of people despised by the majority, seemed to roll through the Casper courtroom.
“In our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression,” Downes said, quoting U.S. Supreme Court Justice Abe Fortas from a seminal 1969 opinion that struck down the decision of an Iowa school district to suspend junior high or high school students who wore black armbands to school protesting the Vietnam War.
Downes continued, quoting the high court opinion of 41 years ago at length:
“Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk; and our history says that it is this sort of hazardous freedom– this kind of openness– that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious society.”
Buchanan testified that in 30 years he had never seen anything like the “torrent” of angry emails and calls received at UW before Ayers’ originally scheduled visit, but their impact paled beside the 50 years of turbulent confrontation (including on-campus) contained in the cases Downes cited.Federal courts have consistently held that speech must be allowed, despite fears of violent reactions from protestors or audience, and the government’s duty is to maintain order while the right of free speech is exercised, Downes said.
Downes’ ruling was celebrated by free speech advocates in Laramie, including a handful of faculty supporters.
“I’m very pleased,” said UW sociology professor David Ashley, “but I don’t think the university should have ever got itself into this situation. I just wish we had had more involvement and protests from the faculty, instead of having to rely on a ruling from a federal judge. Most of the faculty were hiding under their desks.”
At a lengthy federal court hearing of the case Monday, UW President Tom Buchanan cited telephone and e-mail threats of violence against Ayers an as the main reasons university officials canceled an April 5 speaking engagement and denied a subsequent request by student Meg Lanker to host Ayers on campus Wednesday.
Lanker said Tuesday she was delighted with Downes’ ruling.
“Free speech and academic freedom live everywhere, including the University of Wyoming,” she said.
When news of the original April 5 speaking appearance seeped into internet blogs and websites, protests began to be heard, primarily from right-wing groups objecting to Ayers’ radical past as one of the founders of the Weather Underground, an offshoot of the Students for a Democratic Society.
After spending several years as a fugitive, Ayers had been arrested in 1974 but all charges against him were dropped.
Michael W. Dean, a Casper Libertarian activist and punk rock musician, claims he was the first to blog against the Ayers appearance on his website www.libertarianpunk.com:
“We got Bill Ayers un-invited to speak at the University of Wyoming. Yay!” he wrote in a March 30 blog.
But other groups, notable the Wyoming Patriot Alliance, a Tea Party movement ally, also organized phone and e-mail campaigns against Ayers’ speaking.
UW spokesman Milton Ontiveroz testified that the university received “around 70” menacing calls on March 29 including one, according to Ontiveroz, threatening to “take care of Mr. Ayers in the Cowboy way.”
Despite this testimony, however, Laramie Police Chief Dale Stalder testified Monday that university officials did not report any threat of violence to his department.
In an exchange with university attorney Thomas S. Rice at Monday’s hearing, Judge Downes made it clear that he did not buy the university’s argument of a security risk.
“If the First Amendment can’t find sanctuary on a college campus, where can it take refuge?” Downes asked.
Nor did the judge allow the revised position taken by the embattled Buchanan, who said he would consider allowing Ayers to speak on Prexy’s Pasture, an open area, instead of the sports complex.
At the Monday hearing, Buchanan also testified that he received objections to Ayers appearance from three members of the UW board of trustees—Betty Fear, Bread Mead and Taylor Haynes—as well as from several university donors, notably John Martin, a wealthy Casper oilman.
Martin is president of the Casper-based McMurry Energy Co., one of the main developers of the Jonah Field gas play in Sublette County. In 2005, Martin, his wife Mari Ann, his business partner Mick McMurry, and McMurry’s wife Susie, gave a record $5 million to the university for expansion of the football stadium and other improvements.
In exchange for the gift, the football stadium is now named “Jonah Field at War Memorial Stadium. ” Last year, the Martins added another $2-million gift to the UW Foundation for university athletics.
(MacKinnon reported from Casper; Tempest, from Lander;White, from Laramie)