Free Speech Rights

Trump vs. NFL

Right: "A moral or legal entitlement to have or do something."

-- Concise Oxford English Dictionary, p. 1238, "right. n.2"

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As you may have noticed, the latest target of the President of the United States, right up there with North Korea, appears to be the National Football League (NFL) organization, owners, coaches and players. The kerfuffle involves, in part, the players' "right" to express disagreement with the president by failing to stand or otherwise participate in national anthem ceremonies prior to football games. (The protest involves both his attacks on the NFL, and his less than firm rejection of systemic and overt racism, neo-Nazis, and unwarranted police shootings of African-Americans.) [Photo credit: The Tennessean. Detroit Lions players "taking a knee" during national anthem, Sept. 24, 2017.]

At least for today, I will leave to others the effectiveness of this mode of protest, the cultural role of the national anthem, the Pentagon's payments to the NFL (plus fly-overs and other efforts to militarize sports), colleges' treatment of athletes (especially women), football's concussions and other health hazards (especially for players under 18), and other issues.

My limited focus at the moment is the widespread use of the word "rights" in this dispute -- especially the express or implied suggestion that the players' "constitutional" or "First Amendment" rights are somehow involved.

What follows is not a "legal opinion." If you have a personal stake in these issues, talk to your lawyer. There are constitutionally acceptable limitations on First Amendment "rights" (e.g., you cannot lie in your stock prospectus, operate a sound truck through residential neighborhoods late at night, falsely shout "fire" in a crowded theater, advocate "imminent lawless action," or joke with the airports' TSA employees, among a great many other examples). Outcomes turn on the applicability of law to, and the specific facts of, individual cases.

Call me fussy if you must, but the relevant language of the First Amendment is, "Congress shall make no law . . . abridging the freedom of speech, or of the press . . .." Since its adoption, the word "Congress" has been interpreted to mean any form of "state action," whether by Congress, the executive branch, states, cities, or state universities.

Among the values, or consequences, of the First Amendment are (1) its role in meeting the needs of a self-governing citizenry to be informed, (2) its importance to the search for truth in a "marketplace of ideas," (3) its relationship to the "checking value" of the media, as it watches for, and reports, abuses by large institutions, (4) its bearing on "self-actualization," basic liberty, and individual freedom, and (5) the "safety valve" it provides, permitting dissidents the opportunity to express their dissatisfaction verbally, rather than through violence.

Variations on the values represented in that constitutional language, the reasons for its existence, may be equally applicable elsewhere by virtue of social norms or a moral entitlement referenced in the definition of "right," above.

Parents and teachers may reject the old adage, "children should be seen and not heard," believing that children (and adults!) will benefit when children are encouraged to speak. Employers may choose to reward, rather than punish, workers' desire to participate in management by criticizing present procedures and suggesting improvements. A university president may welcome, rather than resist, "shared governance" with the faculty.

But these applications of First Amendment values in other contexts do not constitute the bestowal of constitutional or legal rights on children or employees. The First Amendment does not say, and has not been interpreted to mean, that "no institution or individual shall abridge the freedom of speech of another." Other applications of First Amendment values are merely opportunities to speak, bestowed as a matter of grace, not as a matter of legal right.

Do NFL players have a First Amendment right to speak (by words or actions) from the football field, during a nationally televised game, on matters other than football? No; not unless their speech is being restrained by "state action." I'll leave to others whether the President's efforts to silence them could constitute that state action. Their right to speak could be granted by some other constitutional provision, federal or state law or administrative regulation, or a contract provision, just not by the First Amendment.

In what sense could someone have a "right" to violate an express prohibition of particular speech? In the case of government laws and regulations, the violation could be "civil disobedience" -- deliberate violation as "speech," protesting the law, knowing that there will be punishment for doing so, and with a willingness to accept that punishment (fine or imprisonment).

In the workplace setting, the employer is given wide discretion in setting the terms of employment with regard to employee behavior, dress, and some aspects of speech. Like civil disobedience, the overt flouting of contractual standards may be grounds for dismissal -- though it could be said that the employee has the "right" to violate them and accept the punishment for doing so. Of course, with "employment at will" contracts an employee can be fired for any reason at all, without either just cause or warning. [At-Will Employment, Wikipedia.org.]

Thus, when it comes to speech, citizens and employees are granted some rights to speak (without being punished) by the First Amendment (government); contracts and employee manuals (employment); forbidden some speech (for which they can be punished) by legislation or company policies; and left in limbo with regard to other speech (for which there are no standards).

As with most controls of human behavior, social norms rather than "the law" are the most common restraints.

However you may feel about the content of the players' "speech" (as distinguished from the time, place and manner of its expression), it's useful for them, the commentators, and the rest of us to remember that whatever "rights" the players may have, they do not come from the First Amendment of the U.S. Constitution.

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Not All Criticism is 'Defamation'

Note: To put this piece in context, it is a response to an article in the Iowa City Press-Citizen: Holly Hines, "School Officials' Emails Raise Free Speech Concerns; First Amendment Experts Say Legal Threats May Amount to Intimidation," Iowa City Press-Citizen, June 24, 2017, p. A1. The story reported and discussed, among other things, that citizens were concerned that they might be sued if they criticized the Iowa City Community School District superintendent. (And see also, Holly Hines, "External Reviewer Sought for School District; Culture Concerning Whistleblowers is Under Investigation," Iowa City Press-Citizen, September 1, 2016, p. A1.)

Without expressing a view regarding the justification for the criticism, I thought a brief statement of the law of defamation might be useful -- as set forth below. Following Holly Hines story, and my explanation of defamation, the Press-Citizen editorial board published the following editorial: "Alter Culture of Fear in School District," Iowa City Press-Citizen, July 1, 2017, p. 7A (the Press-Citizen only publishes an opinion page on Wednesdays and Saturdays.) Here is my brief explanation on June 28th:

Is Superintendent Criticism 'Defamation'?
Nicholas Johnson
Iowa City Press-Citizen, June 28, 2017, p. 7A
There’s a local issue regarding limits on citizens’ criticism of school superintendents. Can the critics be sued for defamation?

I won’t take sides on whether the criticism is warranted. Moreover, social norms may be more relevant than “the law.” In either case, one’s reputation is a thing of value. [Citizen Julie VanDyke speaking to ICCSD School Board members; photo credit: Sandhya Dirks/Iowa Public Radio]

Not all criticism is defamatory. There must be an unambiguous, clearly false, factual statement (not just opinion), that causes measurable harm to one’s reputation among a relevant group (such as potential employers or customers).

The false assertion that a superintendent stole $97,000 from the schools’ playground fund could be defamation. Saying, “I think he’s doing a lousy job” would not be.

Moreover, the Supreme Court has ruled that while citizens need only show falsity, public officials must prove “that the statement was made ... with knowledge that it was false or with reckless disregard of whether it was false or not.” Why? Because protection of political speech lies at the heart of First Amendment guarantees.

As Justice Brenan wrote in New York Times v. Sullivan, “[we have] a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

This is for newspaper readers only, not legal advice. If you’re involved in a defamation case, get a lawyer.

Nicholas Johnson
Iowa City
# # #

What Teens Can Teach Us

October 26, 2007, 6:45 a.m.

Out of the Mouths of High School Student Editors
On occasion, the very fact that two related stories pass like ships in the night, each with no reference to the other, is really bigger news than what each reports.

So it was this week.

On October 24 the Press-Citizen Editorial Board published its take on race relations, Editorial, "All Johnson County should read 'Blood Done Sign My Name,'" Iowa City Press-Citizen, October 24, 2007.

(Not incidentally, the author, Timothy Tyson, is speaking this evening (Friday, October 26) at 7 p.m. in Room C20 of the Pomerantz Center on the University of Iowa campus.)

And just how does the Editorial Board support its rather grand suggestion that everyone in the county should read a book? It says,

"events described in this book are not fictional and are not part of some distant past. The One Community-One Book committee chose Tyson's book for all Johnson County to read precisely because the retelling of this story raises so many still relevant questions about race and identity, about law enforcement and justice, about historical memory and willful amnesia.

And it goes on to quote Washington Post reviewer Jonathan Yardley who tells us that the author's "chief aim is to persuade us that Americans are blind to their own history -- or, even worse, determined to falsify it -- and that they cannot hope to resolve the deepest and most intractable of all the country's problems, race, until they are willing to look history directly in the eye."

Fortunately, this issue of the paper made it onto the newsstands and porch steps of Iowa City.

Because, as a news story in that very same issue of the paper reported, another community paper, with a history of national awards that would be the envy of any commercial publication, was not so lucky. Rob Daniel, "Survey Prompts Pulling of School Newspaper," Iowa City Press-Citizen, October 24, 2007.

You see, it turns out that the Iowa City City High Little Hawk newspaper Executive Editor, Adam Sullivan, and his staff decided that rather than just urge their readers to read a book about "the deepest and most intractable of all the country's problems" they would gather some actual data about that portion of the problem that exists within their own high school in an effort to promote some discussion and solutions.

Rather than praising these teenagers' commendable and constructive efforts -- going well beyond those of the county's well-meaning, book-reading adults, focused on problems far from Iowa City 30 years ago -- City High Principal Mark Hanson decided the better course of action would be to seize all the copies of that issue of the paper (without telling Sullivan or others on the staff) in an effort to prevent this recognition of the school's very real racial challenges.

Why? Well, you see, apparently in Hanson's view, the problem in the school was not the pre-existing tension and prejudice between the races at City High, the problem was writing about it. (The story, in fact, reported a survey of student option -- you know, "data gathering" -- that revealed to no one's surprise that 13% of the white students are responding with prejudice to their characterization of an entire race, in short, to a label rather than individual persons with unique personalities.)

Here are my reactions:

1. Principal Hanson's reaction to a newspaper story reminds me of Defense Secretary Rumsfeld's reaction to the photographs from Abu Ghraib.

As Secretary Rumsfeld characterized the problem in his testimony before the U.S. Senate, "It is the photographs, the people running around with digital cameras."

The problem, in short, was the public relations impact on American citizens (and possibly the president's re-election), and on Iraqis' "hearts and minds." The problem was not our pre-interrogation techniques, the problem was the pictures of those techniques. No cameras, no problem.

Did Principal Hanson really think it was the newspaper report that caused what this morning's Gazette on-the-one-hand-on-the-other-hand editorial characterized as "three separate verbal confrontations" -- Hanson's offered explanation for seizing the newspapers? Did he really, like Rumsfeld, think if only there was no newspaper there would be no problem? It sure looks that way.

Had he made any prior effort to gather this data on his own? If not, why not? Was he aware of a race relations problem in his school? Had he done anything proactive to address it, or even to promote discussion? We now know what he is against, but what is he for?

"Just because you can get away with it doesn't mean you should do it."
2. As a lawyer, it is with sadness that I note the extent to which the existence of legal standards can contribute to the absence of moral and ethical restraints -- as well as common sense.

Want a couple examples?

Because alcohol is "legal" and "drugs" are not, we send users of the latter to fill our prisons, and wink at the use and abuse of what is, by any measure, our nation's number one hard drug: alcohol (in terms of numbers of persons impacted, the seriousness of that impact, economic loss, relation to crime, and seriousness of medical consequences).

The UI's athletic program argues there's nothing wrong with its profiting from partnerships with organized gambling. Why? Because gambling casinos are legal in Iowa.

Did Hanson have the legal right to do what he did? Notwithstanding Iowa's legal protections for the free speech of high school journalists, he may have -- though I don't think it's as clear a case as has been represented.

The law says a principal can intervene in the case of a high school newspaper containing material that is obscene, defamatory, or that encourages students to engage in behavior that is unlawful or violative of school regulations.

Clearly, the survey and story violated none of these standards -- indeed, quite the contrary.

It is the final category on which Hanson relied: newspaper content that will cause the "material and substantial disruption of the orderly operation of the school."

There are three arguments one might make as to why he was wrong.

1. As a matter of fact finding, a common sense, colloquial interpretation of the standard would suggest that "three separate verbal confrontations" -- something that probably occurs on occasion among faculty, as well as among students in the hallways, and is sometimes but a prelude to constructive discussion and problem solving -- scarcely constitutes a "material and substantial disruption of the orderly operation of the school."

2. Legally, while I doubt one would win the argument (for a variety of reasons) I think there's a question as to whether this provision is constitutionally "void for vagueness." Under Hanson's interpretation a principal might very well conclude that criticism of the principal, or his or her unpopular policies, would cause "disruption of the orderly operation of the school."

3. Moreover, given the context of the other named standards, one could also argue that conventional principles of statutory interpretation should rule out the possibility this provision provides a carte blanche grant of justification for principals to act on their every whim, or otherwise render meaningless the statutory purpose of providing protection for student editors.

Even assuming what he did was legal, the far greater wisdom is to be found in what Rob Daniel quotes Adam Sullivan as saying: "Legally, he may have been able to do that, [but] just because you can get away with it doesn't mean you should do it."

The Press-Citizen is right. It would be good for all of us to read Blood Done Sign My Name. It might be even better if we were also to read that survey and story in the Little Hawk and reflect on racial prejudice in Iowa City in 2007 as well as in Mississippi in the 1970s.

Additional stories:

As always, see State29 -- on this topic: "Da Principal is Yo Pal," October 24, 2007.

Erin Jordan, "School paper editor defends survey; The Iowa City High student says he sought to stir discussion about racism - and ran into censorship," Des Moines Register, October 25, 2007.

Gregg Hennigan, "Confronting Discrimination; Despite Confiscation, City High Newspaper Pursues Race Issue," The Gazette, October 26, 2007, p. B1.

Editorial, "Censorship Not Always Black and White," The Gazette, October 26, 2007, p. A4.

# # #

Copyright, Fair Use, Blogging & Other Items

July 13, 2007, 6:00 a.m., 12:15 p.m.

Other Items & Updates, below

Copyright, Fair Use, and Blogging
We are about to lose a very creative and productive blogger from the blogosphere. It appears that his decision to close down the blog may have been prompted by what he may have viewed as an intimidating threat of legal action from an Iowa newspaper.

I don't know what the facts are beyond what the blogger has reported. I don't know the paper's side of the story, and I've never communicated with or even known who the anonymous blogger is anyway. So, as we used to say in Texas, "I don't have a dog in that fight," and I'm deliberately not identifying the parties.

The blogger reprints the email from the newspaper. Here are some excerpts:

"You may link to our site, but you cannot post more than 3-4 sentences of the story on your site.

As the copyright owner of that article, [the paper] has the exclusive right to its reproduction and distribution. We therefore ask that you immediately remove the posted article from your website and cease any and all further use of the material. Any continued posting or use will be considered willful copyright infringement.

Within 24 hours of your receipt of this email, you should . . . [confirm] that: . . . 2) you will not engage in any further unauthorized copying of [this newspaper's] materials.

If you do not take the steps outlined above, this matter will be turned over to our attorneys for further action."

I don't want to get into a lengthy legal analysis about this for a variety of reasons. (a) Even -- or perhaps especially -- from the perspective of the newspaper I think it's in no one's best interest to make a federal case out of this. The issues I find most interesting, and significant, are other than "legal" in the usual sense. (b) If it were to become a legal case the outcome would turn on an interpretation of the "Fair Use" doctrine -- which is notoriously ambiguous and difficult to predict and apply (though my instinct is that the blogger in question is well within its protections). (c) It doesn't make a lot of sense, as the old saying has it, "to get in a fight with someone who buys printer's ink by the barrel."

But a little legal background is necessary to understand the non-legal issues.

Copyright law, with its foundation in the Constitution, is expressed in terms of both an "end" and a "means."

The end, purpose, or goal is "to promote the progress of science and useful arts." Art. I, Sec. 8. One of the ways in which that progress is promoted is through the ability to use the prior work of others -- a work of history drawing upon prior historical accounts as well as research in original documents; using the story lines and themes from earlier novels or plays; improving upon a prior invention; parodies of songs; scientific research that begins with a survey of pre-existing literature -- and lots of commentary and reviews. So one of the purposes of copyright law, ironically, is to encourage what might appear to some to be a "copyright violation" -- namely, using all or portions of another's work without permission or payment. (To use the work of others without attribution would be plagiarism, but would not necessarily be a copyright violation.)

The "means" the Constitution's drafters chose was "by securing for limited times to authors . . . the exclusive right to their respective writings . . .." The "limited times" was a way to get creative works into "the public domain" where they could be freely used by anyone without obligation to the creator. "Exclusive right" meant that, for a time, the creator could charge for the use of his or her creative and copyrighted work.

The problem potentially arises when the "exclusive right" conflicts with the overall purpose to "promote progress," that is, when the copyright owner refuses to let others make any use at all of her work -- or sets the price for doing so at such high levels as to foreclose use.

Enter "Fair Use." Copyright Act Sec. 107 (embodying an earlier doctrine from the common law). The law mentions four factors to be considered. (It is this multiple-variable analysis that contributes to making predictions of outcome difficult.) The amount used, and whether it is a fictional or non-fictional work are mentioned. But the most important factors go to the economic impact of the use. Is it for "commercial" gain, or for noncommercial "criticism, comment" or "nonprofit educational purposes"? Finally, what is the effect of the use on the "potential market" for the work?

If someone were to sell memberships to a Web site on which they made available every article from every issue of a given newspaper, it would be very difficult for them to claim they were engaged in "Fair Use." The fact that it was news rather than creative fiction would cut in their favor under factor two. But aside from that, the other three factors would cut against them: they are copying the entire paper, they are profiting from selling access to it, and the hits on their Web site could well be from individuals who might otherwise have gone to the newspaper's site (in exchange for a membership fee, or being exposed to advertising providing revenue for the paper). Especially would this be the case if they were doing nothing but reproducing the newspaper -- without commentary or criticism.

Now consider the blogger in question.

I've already said virtually nothing is a "slam dunk" when it comes to Fair Use. But I really think he has the better of the argument here.

He is clearly involved in commentary, which is expressly mentioned by the law.

He is not in the business of selling newspapers -- or even individual stories from newspapers. In fact, he's not in any business -- and certainly not a "commercial" one that profits from the sale of the newspaper's copyrighted stories.

So far as I know, no one -- at least not I -- go to his site to find out what was in the paper that morning. Readers (and his blog notes there are 25,000 unique visitors every month) are primarily interested in what he calls his "insightfully vulgar" commentary -- commentary which most find entertaining and often very funny (sufficiently so that, if they are not thin skinned, they will even continue reading when he appears to be slaughtering their sacred cows).

The material he quotes (and he not only attributes his sources, but often includes a link to the papers' Web site), is a statistically insignificant portion of the morning paper. Seldom (if ever) does he reproduce an entire story.

The paper's threatening email to the blogger refers to a permitted "3-4 sentence" standard. I know of no such rule. (Sometimes a single phrase would not be protected by "Fair Use;" under other circumstances an entire work would be.)

Finally, the only conceivable economic impact of his blog's use of excerpts from the paper's stories, it seems to me, would be to increase the blog reader's (a) inclination to subscribe to the paper, (b) to go to, and see the advertising on, the paper's Web site, and (c) to advertise in the paper. In short, while I can see ways in which "the effect of the use on the potential market for . . . the copyrighted work" would be to enhance that market and increase the paper's profits, it is difficult to see how the paper's "potential market" cold be adversely affected by the blog's limited use of material from its stories. Now I don't think they ought to have to pay him for advertising their paper for them, and increasing their readership, but I certainly don't think they are in a position to argue they should have the legal right to close him down because he has harmed them economically.

I can only hope that the paper was not prompted to play its copyright card because of its being upset, not with the use of its stories, but with the legally appropriate (if "insightfully vulgar") commentary about those stories.

Because -- putting aside the fact that it seems to me a real stretch to try to make a case that the blogger is not well within "Fair Use" -- it strikes me as a little unseemly for a newspaper to be curtailing speech by using threats, perhaps intended to but in any event having the effect of, closing down one of America's most popular blogs. Whatever happened to, "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." (Justice Louis Brandeis, concurring in Whitney v. California, 274 U.S. 357, 377 (1927).)

Newspapers can be proud of their defense of First Amendment rights in this country. But bloggers are now the modern day equivalent of what mainstream newspapers' ancestors looked like 200 or more years ago. The exchange between the mainstream media and the blogosphere has been good for both -- and for America. While that relationship is still budding and both are trying to find their way is not the time for us to start threatening, suing and trying to silence each other.

Just some thoughts from the sidelines; my obituary for a blog that now leaves a hole in the blogosphere that does the kind of damage to our intellectual lives that holes in the ozone do to our physical lives. Too bad. And especially sorrowful that the murder was committed by a newspaper.

Other Items and Updates
. . . all subjects of prior blog entries

How Not to Buy a College: Wellmark Updates

Editorial, "Gift Offer Protocol Comes Unwound," The Gazette, July 13, 2007, p. A4

"No Other Resignations Over Wellmark Flap: UI," The Gazette, July 13, 2007, p. B3

Brian Morelli, "UI Donor: Rejected Funds Will be Hard to Replace," Iowa City Press-Citizen, July 13, 2007, p. A1

Jim Robb, "Wellmark Should be Honest About 'Gift,'" Iowa City Press-Citizen, July 13, 2007, p. A9

But in spite of it all . . .

Hieu Pham, "UIHC at Top of the List Again," Iowa City Press-Citizen, July 13, 2007, p. A1

Michael Moore's "Sicko" film's themes resonate with Iowans

Niles Ross, "What's the Cost to Us for Our Health Care?" The Gazette, July 13, 2007, p. A4

"A billion dollars from beer in the till/A billion dollars from beer"

Iowans consumed 4,864,000,000 ounces of beer during the last fiscal year. Had it been served in 12-ounce glasses for $3.00 a glass the retail value would have been $1,216,000,000. And you were wondering why the Iowa City City Council -- and the University of Iowa administration -- seem to consistently support the wishes of the local bar owners to continue taking the money of under-age college students.

"Beer Still No. 1 for Iowans; Liquor Gaining," The Gazette, July 13, 2007, p. B5

"Ask not whether our prisons are 'overcrowded,' ask what you can do to help move the mentally ill into cheaper, more humane and effective institutions."

Peggy Loveless, "Our Overcrowded Prisons," Iowa City Press-Citizen, July 13, 2007, p. A9

The Pay Gap Gets Wider for Universities' Coaches, Presidents -- and School Supeintendents

Gregg Hennigan, "Pay Gap Widens Between Teachers, Administrators; Disparity Mostly Marketi-Driven, Officials Say," The Gazette, July 13, 2007, p. A1

Media Barons Continue to Misrepresent the FCC's Old "Fairness Doctrine"

John Seigenthaler, "Revived 'Fairness Doctrine' Would be Anything But Fair," Iowa City Press-Citizen, July 13, 2007, p. A9

# # #

UI Held Hostage Day 465 - May Day, May Day

May 1, 2007, 10:00 a.m., 11:40 a.m., 3:20 p.m.

"The Regents are Coming, The Regents Are Coming; May Day! May Day!"; "Keeping Both Hands on the Road;" "Cream Pies in the Eye and a 'Hats Off;'" and "Iowa Boys Can't Jump"

The Regents are Coming, The Regents Are Coming; May Day! May Day!
The Regents are meeting in Iowa City today (May 1). This is May Day.

See, Brian Morelli, "Regents Hold Off on Security Discussion," Iowa City Press-Citizen, May 1, 2007, updated 10:08 a.m.; Brian Morelli, "UI Wants to Build New Hospital," Iowa City Press-Citizen, May 1, 2007, updated 10:32 a.m.; Diane Heldt, "Regents Want UI Future Plan," Gazette Online, May 1, 2007, 12:04 p.m. ("Members of the state Board of Regents want more details about the University of Iowa's long-term vision for expanding University Hospitals at sites other than its main campus"); Diane Heldt, "Regents OK UI Hospital Rate Hike," Gazette Online, May 1, 2007, 12:42 p.m. (6% hike in rates; $840 million annual budget, up from $805.2 million); Erin Jordan, "Regents Begin Campus Security Study," Des Moines Register, May1, 2007, 1:19 p.m.; Diane Heldt, "Regents select president pro tem," Gazette Online, May 1, 2007, 2:09 p.m. (David Miles; West Des Moines; CFO Countryside Renewable Energy, Inc.).

Meanwhile, the costs of UI Presidential Search I are still going up on this, Day 465 of the "UI Held Hostage." Erin Jordan, "Failed U of I hunt for new president cost $233,000," Des Moines Register, April 30, 2007

Keeping Both Hands on the Road
And speaking of the Regents, and an earlier concern of mine, the Press-Citizen has come out swinging on the issue of free speech for faculty. Editorial, "Don't Infringe Upon Freedom of Speech for UI," Iowa City Press-Citizen, May 1, 2007.

It involves some language before the Regents today, for possible inclusion as a Regents' policy. The language comes from a 1940 policy statement of the American Association of University professors, and provides that statements by faculty members in their independent capacity as citizens, "should at all times be accurate, exercise appropriate restraint, [and] show respect for the opinions of others."

As the Press-Citizen editorializes,

It's all well and good if a group like the American Association of University Professors offers a vaguely written policy for defining proper academic behavior. In fact, as a statement of general principles, the proposed policy provides a good model for academics to strive for. But there's a big difference between a professional group offering advice and the regents hard-wiring such advice into a policy that could be used punitively against faculty and staff.

That was essentially the conclusion I came to in Nicholas Johnson, "King Michael and Sedition" in "UI Held Hostage Day 459 - King Michael & Sedition," April 25, 2007.

(As an example of the kinds of self-censorship that can occur under such vague but intimidating standards, see, Diane Heldt, "Obama photo taken off UI Web site," The Gazette, May 1, 2007, p. 5B. ("The picture on the Communication Studies department Web site showed Obama, a U.S. senator from Illinois, during a recent campaign visit to the UI campus. He was holding the infant son of a graduate student in the department."))

The remainder of that AAUP sentence I have no trouble with: "make every effort to indicate that they are not speaking for the institution." In fact, every entry in this blog carries the notice:

Personal ViewThis blog is neither affiliated with the University of Iowa nor hosted by it. It is maintained by me in my individual capacity. Nothing posted here should be construed as anything other than the personal views of the author.

The only part of the Press-Citizen's editorial that gave me any pause at all was its analogy.

When you teach a child to drive, you often suggest that she keep both hands on the road. That's good advice, but no one would want such advice to be enforceable as law because then no one could change a radio station or even shift gears when necessary.

Actually, I once knew someone who occasionally had to keep one hand on the road.

I mentioned Kathleen Nolan in a blog entry recently in connection with the death of Jack Valenti and the power of celebrity in Washington. One of the shows she was in was a "Charlie's Angels" two-hour special filmed in Vail, Colorado. In addition to providing me a couple weeks of free ski instruction and skiing, and visits with the Angels, it was also an opportunity for visiting with one of Hollywood's only woman stunt coordinators who I'll call "Julie." Whenever I've been with stunt people I've never been able to resist asking them about their experiences, and "How do you do that?" Julie described a number of hair-raising (for me, apparently not for her) "gags" in which she'd participated. One involved being pushed out of a fast moving car onto the pavement. "What happens?" I asked. "You lose the skin on the palms of your hands," she replied.

"What do you do after that if they need to film another take?" I asked. "You get back in the car and do it all over again," she answered.

(It kind of reminded me of Gordon Liddy's explanation for how he could hold his hand in a candle flame. "What's the trick?" he was asked. "The trick," he replied, "is not to care.")

Anyhow, that's what I know about driving with one hand on the road.

I once had a car with the floor so rusted out that the mechanic refused to work on it any more, pointing out to me that I was risking another part of my anatomy being on the road.

But I've never driven with both hands on the road. And the one thing I can agree with the editorial about is that "no one would want such advice to be enforceable as law because then no one could change a radio station or even shift gears when necessary."

I would guess that, with both hands on the road, one would need to steer with both knees on the steering wheel.

You know, when I was a kid I wouldn't have wanted to even try to ride a tricycle with both hands on the road. Anyhow, I agree that I'm sure glad we don't have a law that requires us to drive with both hands on the road.

Economic Development: Cream Pies in the Eye, and a "Hats Off"
There seems to be no limit to the willingness of public officials -- federal, state and local -- to fund corporate welfare with taxpayers' money to for-profit ventures. Sadly, few journalists are given the time and support to track down the relationship of these gifts of our money and the "campaign contributions" the grateful welfare beneficiaries return to those officials. There's little space given to the follow-up stories: What did the taxpayers actually receive for their gift -- not what was promised, but what really happened? The dissenting voices of economists who report that much of this public money is either wasted or unnecessary (the development could and would have happened without it -- and, if not, probably didn't represent a good investment for public money) gets lost in the cacophony of the cheerleaders and boosters. At best, corporate welfare is a distortion of market forces and unfair to those businesses that must complete without taxpayer support.

Yesterday I wrote about Earthpark (or "Earthpork" as State29 calls it) in this context. (And see his highlighting, today, "The Best Lake Red Rock Earthpork Letter Yet," May 1, 2007.)

Here are a couple more examples from this morning's papers, along with a "hats off" to a project that demonstrates how it ought to be done.

The Iowa Department of Economic Development gave NGI $655,000 in direct state assistance and grants and $1.1 million in state community college job training assistance. Coralville pledged $800,000 in tax increment financing. State economic development funds also will help build the Bioventures Center.

* * *

In October, the Iowa City Council approved $1.2 million in tax increment financing for the project.

There's no mention of whether this operation will be paying property taxes (since it's on what may be UI land) and how much additional subsidy that provides, nor is it made clear why -- if the State wants to put money into such a private venture -- it needs to drag the UI into the operation as a landlord for future for-profit ventures in the building. Kathryn Fiegen, "Construction begins on $20M research facility," Iowa City Press-Citizen, May 1, 2007.

Meanwhile, after for-profit businesses get this kind of support, those that still need to pay something in property taxes bring their law firms and other resources to bear in beating down the taxes they owe. Dick Hogan, "Collins' tax bill cut by $488,474; Compromise reduces assessed valuation by $13.6 million," The Gazette, May 1, 2007, p. 1A.

Coralville's Coral Ridge Mall, which was generously treated by the City, is now playing the same game.

One county official said that while he has no problem with businesses appealing assessments, he finds this particular situation frustrating because, as he put it, "all that public money went into the mall."

Johnson County Supervisor Rod Sullivan said on Wednesday that General Growth has benefited from tax-increment financing and the creation of public roads so shoppers can access the complex.

"Everything has been provided for it … and it turns around, and it decides it's not going to pay the taxes it owes," Sullivan said.

He believes that the tax revenue could aid Coralville, saying in his weekly constituent e-mail that it could fund the annual salaries of nearly 20 police officers.

"A million dollars could do a lot," Sullivan said.

Colin Burke, "County, Coral Ridge in tax tiff," The Daily Iowan, April 26, 2007.

Now we're all out of cream pies, and it's time for our "hats off" -- to Kathie and the late David Belgum, the Johnson County Heritage Trust, and the "group of Johnson County residents [that] is raising money to renovate 40 acres of prairie land near Hills" -- the 40 acres known as "Belgum Grove." The plans include a restoration of the Grove's prairie grass, the development of a wetland habitat and savannah environment, trails, and an educational area -- an "outdoor classroom." Dirty Face Creek (which runs through the property), the apple orchard, oak, hickory, and white pine groves will also be enhanced.

Note the differences between the Earthpark and Belgum Grove projects.

* Doing Earthpark properly would require $200 million (plus an ongoing subsidy for operations). The Grove will cost $65,000.
* Earthpark was rejected by city after city in Iowa. The Grove already has significant local support.
* Earthpark has raised not one private dime beyond founder Ted Townsend's early pledge. The Grove already has $40,000 of the $65,000 it will need.
* Earthpark would offer an artificial re-creation of an alien environment: a tropical rain forest. The Grove will enhance a natural Iowa environment.
* Earthpark plans to barge the tropical trees up the Mississippi River. The Grove's trees and plants are already here.
* Earthpark would have to be cooled in summer and heated in winter. The Grove has contracted out climate control, at no charge, to the forces of nature.
* Visitors to Earthpark would be charged (at least) $15 each. Visitors to Belgum Grove can see it for free (I assume).

And that's why the project gets our "Iowa Attractions and Economic Development" hats off award of the day. Rob Daniel, "Trust hopes to renovate prairie; Refurbishing grove will cost $65,000," Iowa City Press-Citizen, May 1, 2007.

Iowa Boys Can't Jump
Unless I'm misreading it, the Iowa basketball team roster for 2006-07 listed only one non-senior player from Iowa of the 12 listed (red-shirted freshman guard Don Bohall). Lickliter's three new "letter of intent" recruits are from Maryland, Missouri and Indiana. Having apparently run out of potential players from the U.S., Lickliter is now going after one from Moscow, Russia. What's the matter? "Iowa Boys Can't Jump"?

It's one thing not to be able to find anyone from western Iowa to serve on the Board of Regents, but it's something else to confess that we can't we find anyone from anywhere in Iowa who can play basketball.

Why don't we just call them "the American Hawkeyes" -- soon to be "the Global Hawkeyes" if we can sign than Russian?

The phenomenon of fan passion and loyalty to such teams has always befuddled me -- especially for the pro teams. They shake down the local taxpayers to build a $100 million or more local stadium for some billionaire who owns a team of millionaires, often none of whom come from the city in question. The team's loyalty to the city only lasts until the billionaire gets a better deal -- someone who will buy and move the team, or some city willing to build an even grander stadium or arena. And yet the fans support the billionaire, and his millionaire players, with their money, passion, and loyalty. They pay outrageous prices for tickets, parking, hot dogs and beer. They go out to the airport to greet them on their return from distant fields and courts. They get drunk and riot in the streets when there are major victories or defeats. They will get in fist fights with the loyal fans of other corporate teams.

Loyalty to college teams is a little easier to understand -- especially if the fan is a student, or graduate, or employee of the school. After all, the players are students at the college -- even if only until they get an NBA bid.

Don't get me wrong. I'll be cheering for the American Hawkeyes myself. I just wish we could find an Iowa boy who could jump.

Pat Harty, "Lickliter looks to bolster roster," Iowa City Press-Citizen, May 1, 2007
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UICCU and "Optiva"
The UICCU-Optiva story is essentially behind us. There may be occasional additions "for the record," but for the most part the last major entry, with links to the prior material from October 2006 through March 2007, is "UICCU and 'Optiva'" in Nicholas Johnson, "UI Held Hostage Day 406 - March 3 - Optiva," March 3, 2007. Since then there have been two major additions: Nicholas Johnson, "Open Letter to UICCU Board" in "UI Held Hostage Day 423 - March 20 - UICCU," March 20, 2007, and "'Open Letter': Confirmation from World Council of Credit Unions" in "UI Held Hostage Day 424 - March 21 UICCU," March 21, 2007.

# # #
[Note: If you're new to this blog, and interested in the whole UI President Search story . . .

These blog entries begin with Nicholas Johnson, "UI President Search I," November 18, 2006.

Wondering where the "UI Held Hostage" came from? Click here. (As of January 25 the count has run from January 21, 2006, rather than last November.)

For any given entry, links to the prior 10 will be found in the left-most column. Going directly to FromDC2Iowa.Blogspot.com will take you to the latest. Each contains links to the full text of virtually all known media stories and commentary, including mine, since the last blog entry. Together they represent what The Chronicle of Higher Education has called "one of the most comprehensive analyses of the controversy." The last time there was an entry containing the summary of prior entries' commentary (with the heading "This Blog's Focus on Regents' Presidential Search") is Nicholas Johnson, "UI President Search XIII -- Last Week," December 11, 2006.

My early proposed solution to the conflict is provided in Nicholas Johnson, "UI President Search VII: The Answer," November 26, 2006.

Searching: the fullest collection of basic documents related to the search is contained in Nicholas Johnson, "UI President Search - Dec. 21-25," December 21, 2006 (and updated thereafter), at the bottom of that blog entry under "References." A Blog Index of entries on all subjects since June 2006 is also available. And note that if you know (or can guess at) a word to search on, the "Blogger" bar near the top of your browser has a blank, followed by "SEARCH THIS BLOG," that enables you to search all entries in this Blog since June 2006.]

# # #
Media Stories and Commentary
See above.
_______________
Technorati tags: football, athletics, academics, high school, college, University of Iowa, education, K-12, leadership, university president, Michael Gartner, Iowa Board of Regents, UI president search, Nicholas Johnson, FromDC2Iowa
_______________
Nicholas Johnson's Main Web Site http://www.nicholasjohnson.org/
Nicholas Johnson's Iowa Rain Forest ("Earthpark") Web Site
Nicholas Johnson's Blog, FromDC2Iowa
Nicholas Johnson's Blog Index
_______________

UI Held Hostage Day 459 - King Michael & Sedition

April 25, 2007, 11:00 a.m.

King Michael and Sedition
As President Reagan famously once said in another context, "There you go again."

In Nicholas Johnson, "An Open Letter to Regents on 'Governance," in "UI Held Hostage Day 451 - Open Letter to Regents," April 17, 2007, I discussed the advantages to the members of the Board of Regents -- not to mention their educational institutions -- of their focusing upon, and adopting, some written set of understandings regarding the governance model under which they operate. Yesterday, by way of illustration of the problem, I commented upon the recent statement from their president regarding the Regents' review of security procedures at the Iowa universities -- prompted by his navigating with the aid of a rear view mirror focused on the events at Virginia Tech. Nicholas Johnson, "Virginia Tech and Iowa Regents' Governance," in "UI Held Hostage Day 458 - Regents' Governance & VT," April 24, 2007.

I'm not going to repeat everything from those two blog entries, but if you've read and reflected upon them you will see the similarity in the analysis needed regarding the latest Regents' foray into the area of ill-considered, disrespectful, dangerous, disadvantageous and counter-productive micro-managing.

What I would like to focus on this time, however, is the substance.

To set the stage, consider these excerpts from Diane Heldt, "Proposal Concerns Professors; Policy Change Could Limit Their Ability to Speak as Citizens," The Gazette, April 25, 2007, p.3B:

A potential change to the state Board of Regents’ academic freedom policy for faculty of the state universities concerns some University of Iowa professors. Steve Collins, a UI engineering professor, said the regents will discuss the proposed change at a meeting Tuesday [May 1] in Iowa City. Collins and several other professors expressed concern during a Faculty Senate meeting Tuesday.

Collins takes issue with a sentence that says in part that faculty ‘‘should at all times be accurate, exercise appropriate restraint, show respect for the opinions of others’’ when they speak or write as private citizens.

Collins said he agrees with those sentiments, but it’s a problem when it becomes a regents mandate.

‘‘It seems to me this language would impose limitations on a faculty member’s ability to speak as a private citizen,’’ he said.

And see, Brian Morelli, "Faculty express concerns over academic policy; Proposed plan might 'stifle' public criticism," Iowa City Press-Citizen, April 25, 2007:

"I have no idea where this came from," Collins said of the impetus for the policy. "I would assume they want this in there, the board office or the board president."

Collins objected to what he said was language that deals in absolutes.

"I think it is the case that faculty members influence the opinions of others as a part of the university. But that doesn't call for a regential policy," Collins said. "It is important to the health of the university to feel free to speak on academic matters and as a private citizen."

Outgoing Faculty Senate President Sheldon Kurtz said he just found out about it, and that because of shared governance agreements and because it deals with faculty, faculty should have been involved in discussions about the policy.

"The concern is that in the hands of the wrong people this would be used to stifle public criticism," Kurtz said.

Like Steve Collins I, too, "have no idea where this came from." An examination of the Regents' Web site revealed nothing (as of 8:30 this morning) with regard to the agenda for the forthcoming meeting, an exchange of emails, or "news."

The Board, as a Board, should create and control its own agenda. If the proposed agenda item was the work of Gartner, it could be yet one more example of the Board's president acting as if he was the Board. Even if the president is totally unaware the item is to be on the agenda, it is unlikely anyone else would put an item on an agenda knowing of his strong opposition. And if the Board has turned over the preparation of their agenda to others, and all of them are unaware of their own agenda until it is presented to them, then we have yet another goverance issue of considerable significance.

It appears that the new Regents' "Academic Freedom" policy comes at least in part from the American Association of University Professors policies. (See, "1940 Statement of Principles on Academic Freedom and Tenure With 1970 Interpretive Comments," in AAUP Policy Documents and Reports, 9th ed., 2001, ("Academic Freedom," (c), p. 4. And see "1970 Interpretive Comments," 4, p. 6.)

I find that source irrelevant to my analysis.

(1) It is, in my view, a poorly conceived and drafted policy regardless of who wrote it.

(2) There's all the difference in the world between hortatory language from one's own professional group and a formal Regents' policy that presumably carries some significant sanctions -- the least of which, in the case of this policy, is the intimidation and self-censorship it is bound to produce.

Clearly, this is insulting and disrespectful of the faculty. It's like a kindergarten teacher saying, "Now you children play nicely with each other." Moreover, I suspect similar sentiments are already contained in various statements of ethics, policy, sexual harassment, respect for diversity, and so forth.

Beyond that, to say "that faculty 'should at all times be accurate, exercise appropriate restraint, show respect for the opinions of others' when they speak or write as private citizens" is so vague as to be meaningless.

But "meaningless" is not "weak" -- quite the opposite. What's the implied "or else"? Or else what? It's like the FCC threatening million-dollar fines if broadcasters engage in "indecency." It's a much more intimidating standard, one much more effective in producing self-censorship by citizens, than if the Board were to have said, for example, "When referring to the Governor or members of the Board of Regents of the State of Iowa university faculty members who do not on every occasion speak in terms of enthusiastic adulation and glowing praise are subject to being fired."

We once had such standards in this country. It was called the Alien and Sedition Act. We got it from the Brits. So why is the title on this blog entry, "King Michael and Sedition"?

Wikipedia's entry on "Seditious Libel," which is an adequate source for our purposes at the moment, has this to say:

Sedition is the offence of speaking seditious words . . .: if the statement is in writing . . . it is seditious libel. A statement is seditious if it "brings into hatred or contempt" the Queen or her heirs, or the government and constitution, or either House of Parliament, or the administration of justice, . . . or if it promotes discontent among or hostility between British subjects. A person is only guilty of the offence if they intend any of the above outcomes. Proving that the statement is true is not a defence. It is punishable with life imprisonment.

The crime of seditious libel was defined and established in England during the 1606 case "De Libellis Famosis" by the Star Chamber. The case defined seditious libel as criticism of public persons, the government, or King.

The phrase "seditious libel" and "blasphemous libel" were used interchangeably at that time, because of the strong connections between church and state. However, blasphemy is now a separate offence.

The [U.S.] Alien and Sedition Acts of 1798 broke with the common law precedent of the time, in that it allowed for truth as a defence, though Judges were not consistent in their rulings.

I do hope that this policy review, and draft, was not the work of Michael Gartner, and that he will not support it if it comes before the Board. It would indeed be a rather odd throwback to the 17th Century to come from a Regents' president once known for his ferocious defense of the First Amendment rights of the media and public.
_____________
UICCU and "Optiva"
The UICCU-Optiva story is essentially behind us. There may be occasional additions "for the record," but for the most part the last major entry, with links to the prior material from October 2006 through March 2007, is "UICCU and 'Optiva'" in Nicholas Johnson, "UI Held Hostage Day 406 - March 3 - Optiva," March 3, 2007.

# # #
[Note: If you're new to this blog, and interested in the whole UI President Search story . . .

These blog entries begin with Nicholas Johnson, "UI President Search I," November 18, 2006.

Wondering where the "UI Held Hostage" came from? Click here. (As of January 25 the count has run from January 21, 2006, rather than last November.)

For any given entry, links to the prior 10 will be found in the left-most column. Going directly to FromDC2Iowa.Blogspot.com will take you to the latest. Each contains links to the full text of virtually all known media stories and commentary, including mine, since the last blog entry. Together they represent what The Chronicle of Higher Education has called "one of the most comprehensive analyses of the controversy." The last time there was an entry containing the summary of prior entries' commentary (with the heading "This Blog's Focus on Regents' Presidential Search") is Nicholas Johnson, "UI President Search XIII -- Last Week," December 11, 2006.

My early proposed solution to the conflict is provided in Nicholas Johnson, "UI President Search VII: The Answer," November 26, 2006.

Searching: the fullest collection of basic documents related to the search is contained in Nicholas Johnson, "UI President Search - Dec. 21-25," December 21, 2006 (and updated thereafter), at the bottom of that blog entry under "References." A Blog Index of entries on all subjects since June 2006 is also available. And note that if you know (or can guess at) a word to search on, the "Blogger" bar near the top of your browser has a blank, followed by "SEARCH THIS BLOG," that enables you to search all entries in this Blog since June 2006.]

# # #
Media Stories and Commentary
See above.
_______________
Technorati tags: football, athletics, academics, high school, college, University of Iowa, education, K-12, leadership, university president, Michael Gartner, Iowa Board of Regents, UI president search, Nicholas Johnson, FromDC2Iowa
_______________
Nicholas Johnson's Main Web Site http://www.nicholasjohnson.org/
Nicholas Johnson's Iowa Rain Forest ("Earthpark") Web Site
Nicholas Johnson's Blog, FromDC2Iowa
Nicholas Johnson's Blog Index
_______________