Citing precedent-setting First Amendment cases as the backbone of his argument, Attorney Scott Johnson is asking the 8th U.S. Circuit Court of Appeals to overturn a decision that stated that two University of Minnesota-Duluth professors did not have their free-speech rights violated by then-Chancellor Lawrence Ianni.
Johnson wrote in a brief sent to the appeals court, “Consideration by the full court is necessary to secure and maintain uniformity of decisions of this court.”
A Court of Appeals panel returned a 2-1 decision on Oct. 16 that Ianni and UMD had the authority to remove two photos of Albert Burnham and Ronald Marchese from a history department display case.
The case stems from a 1992 incident when then-UMD history professors Burnham and Marchese posed for photographs designed to show their academic areas of specialization in humorous ways.
Burnham decided to pose with a .45 caliber pistol and a coonskin cap because of his interest in American military history. For Marchese’s photo, the professor wore a cardboard laurel wreath on his head and brandished a Roman short sword.
A few weeks after the exhibit appeared, some UMD administrators became concerned that the photos might promote violence, a serious issue to the campus in 1992. Earlier that year, two female professors involved in a diversity and equality program had received life-threatening letters signed by “The Deer Hunters,” or “The Prince of Darkness.”
Ianni decided to remove the photos because of concerns voiced by faculty members. Originally, he had asked the history department to remove the photos. When the department refused, Ianni instructed a UMD police officer to remove the photos.
A lower court found in favor of the professors; however, that decision was overturned by a 2-1 appeals court panel. The dissenting judge, C. Arlen Beam, agreed with the lower court’s decision that, “This content-based suppression was clearly not an act by the University chancellor that properly balanced free speech against workplace tranquility.” Beam, quoting the district court’s decision, called Ianni’s act “unvarnished censorship.”
Johnson said the panel decision is “inconsistent with the principle of students and teachers to maintain an atmosphere of free speech.”
Johnson, who has worked on numerous cases involving the First Amendment, said if the full 10-member court refuses to rehear the case, he would appeal it to the U.S. Supreme Court.