Lawyers deem profs’ free speech priceless

by Kamariea Forcier

When campus police removed photos of two University of Minnesota-Duluth professors from a history department display case, two Minneapolis lawyers stepped in and offered to defend their freedom of speech — free of charge.
Scott Johnson and John Hinderaker, attorneys for Faegre and Benson Law Firm, could have charged any fee to represent the two Duluth professors in 1994. But they think freedom of speech should be defended at any cost, even if that means no cost at all.
“The University has always been thought the freest space for ideas,” said Johnson. “The fact that people might be offended is no right to censor speech.”
He learned of professors Albert Burnham’s and Ronald Marchese’s case through a nonprofit organization called the Individual Rights Foundation.
The California-based foundation connects attorneys with potential clients who claim their First Amendment rights have been violated.
In Burnham and Marchese’s case, the two professors maintain that then-Duluth Chancellor Lawrence Ianni’s orders to remove two photographs from the history department display case was censorship.
The photographs depicted the professors holding artifacts from their areas of history specialization. Burnham posed with a .45 caliber pistol and a coonskin cap, representing his interest in American military history. Marchese was photographed holding a Roman shortsword and a laurel wreath because he specialized in ancient Greece and Rome.
Ianni justified removing the photographs because of ongoing threats of violence against two female professors. The two female professors also said they found the photographs offensive.
But Hinderaker disagrees with that defense.
“The government cannot send the cops in to tear down a sign because someone didn’t like it,” he said.
A U.S. District Court judge agreed with Johnson and Hinderaker. However, that decision was reversed in a 2-1 decision by the Eighth U.S. Circuit Court of Appeals released in October 1996. The judgment stated that Ianni, as chancellor, could remove the material if there was the slightest possibility that physical violence could stem from the photos.
Johnson requested an appeal to the 11-member panel of judges. It is unknown whether the court will hear the case again.
Hinderaker said that upholding the circuit court decision would set a dangerous precedent to free speech.
“It gives license to University administrators to censor or punish speech in the name of sensitivity or prevention of offense because it might hurt someone’s feelings,” he said.
Johnson worked on another University free speech case that had better results than the Duluth lawsuit, which has not yet been won.
He represented former University student Peter Swanson in 1993. Swanson, president of Students Against Fee Excess, had distributed fliers during a University orientation fair. The fliers depicted President Clinton answering a fictional reporter’s question about abortion with a remark Hughes considered a racial slur.
Swanson was approached by then-Vice President for Student Affairs Marvalene Hughes, who asked him to stop handing out fliers to students because some people might find the literature “racist, sexist and homophobic.”
Within 24 hours, Swanson wrote to the University President Nils Hasselmo to address the censorship. However, Hughes said Swanson’s case was “not a freedom of speech issue.”
Swanson, who was a law student at the time, contacted the Individual Rights Foundation about his case. With legal representation provided by the foundation, Swanson threatened to sue the University if administrators refused to send a copy of the literature to each new freshman.
With Johnson’s help, Swanson and the University reached an out-of-court settlement during the spring of 1994.
Because of the two free speech cases, both Johnson and Hinderaker call the University a “repeat offender” against the First Amendment. Both attorneys fear that “political correctness” is affecting the freedom of speech on campus.
“Students and teachers are censoring themselves for fear of saying something that might give rise to a charge of racism, sexism, homophobia or the like,” Hinderaker said.
Johnson said this “fear of litigation” is ruining intellectual variety on college campuses. “What’s left has become monolithic at the University. (The professors and students) are starved for diversity,” he said.