This isn’t a political blog; although the lawyers here at Suits by Suits certainly have political opinions (and often strong ones at that!), we’re more of a roll-up-your-sleeves-and-get-things-done bunch.  We want to help high-level employees and their employers be aware of the potential pitfalls that exist in the workplace and to rely on our experience as litigators when something does go wrong.

But sometimes those pitfalls are red or blue; sometimes employers (Chick-Fil-A, anyone?), or high-profile employees get into trouble precisely because they’ve made their political opinions public.

Eleven years ago today – and one day after the 9/11 attacks on the World Trade Center and the Pentagon – then-University of Colorado Professor Ward Churchill published an essay entitled “Some People Push Back:  On the Justice of Roosting Chickens.”

Through some strange circumstances (which we discuss below), that 9/12 essay sparked controversy nearly three and a half years later, after which, Prof. Churchill alleges, he was wrongfully terminated by the University of Colorado in retaliation for the opinions he expressed.  Although he won at trial, the jury verdict was set aside by the trial court judge on a motion for judgment as a matter of law; on Monday, that ruling was upheld by the Colorado Supreme Court.  Professor Churchill has vowed to appeal to the U.S. Supreme Court.  If and when he does – and if the Supreme Court grants certiorari – we’ll continue to cover this case.

Although Professor Churchill’s 9/12 article is unusual, we know that individuals – whether speaking for themselves or on behalf of their employer – are going to speak out on the issues that matter most to them, particularly in an election year, just as Professor Churchill did on the day after 9/11.  Is there anything we can learn from those 9/12ers?

As one might guess from the title – an allusion to Malcolm X’s famous remark in December of 1963 that the assassination of John F. Kennedy was “merely a case of chickens coming home to roost” – the thesis of Churchill’s article was that U.S. financial, military and cultural aggression provoked Iraqis (and others) to “push back” against the United States in the terrorist attacks of 9/11.  In particular, Churchill argued that (a) U.S. combat operations in Iraq in 1991 constituted a “Class I Crime Against Humanity” and “genocide”; and (b) that the 9/11 victims were not innocent civilians but were instead either “military targets” (those within the Pentagon) or part of the “technocratic corps at the very heart of America’s global financial empire … little Eichmanns.”

Professor Churchill was not alone in making these sorts of arguments; just a few weeks later, international relations scholar Chalmers Johnson wrote an article entitled “Blowback” in The Nation magazine in which he advanced essentially the same argument as Churchill; namely, that the 9/11 terrorists “did not ‘attack America’ … they attacked American foreign policy.”

Nor was Professor Churchill alone in using provocative imagery to make his point; just two days after the 9/11 attacks, conservative pundit Ann Coulter famously argued in the pages of the National Review that the U.S. should “invade their countries, kill their leaders and convert them to Christianity.”  Coulter’s column even used similar Nazi analogies, arguing that Muslims shouldn’t work for the U.S. airline industry.  (“This would be like having the Wehrmacht immigrate to America and work for our airlines during World War II.  Except the Wehrmacht was not so bloodthirsty.”)

Given this landscape, it is perhaps not surprising that Churchill’s essay received relatively little attention at the time it was published.  Nor was there any serious controversy when Professor Churchill expanded his “Some People Push Back” article into a full-length book, On The Justice of Roosting Chickens:  Reflections on the Consequences of U.S. Imperial Arrogance and Criminality, in 2003.  Indeed, Churchill’s book received an honorable mention from the now-defunct Gustavus Myers Center for the Study of Bigotry and Human Rights in 2004.

However, in January of 2005, when Professor Churchill was invited to speak at a panel at Hamilton College on the role of dissent in society, his remarks were noticed by Fox News Channel commentator Bill O’ Reilly, who spent several episodes of his television show, The O’Reilly Factor, publicizing and criticizing Churchill’s statements.

Almost immediately thereafter, public officials began to call for Churchill to be fired.  The University of Colorado Board of Regents adopted a resolution apologizing “to the American people” for Churchill’s article, and begun an investigation as to whether or not to fire Professor Churchill.

Ultimately, the university’s Standing Committee on Research Misconduct concluded that Professor Churchill’s remarks were protected by the university’s academic freedom policies[1], which promotes “diverse viewpoints” and “requires that members of the faculty must have complete freedom to study, to learn, to do research, and to communicate the results of these pursuits to others.”  However, as a result of its investigation, the Committee also uncovered what it claimed were instances of academic fraud and plagiarism in Churchill’s work.

Professor Churchill was terminated in July of 2007.  Immediately thereafter, Churchill sued the university under 42 U.S.C. § 1983, arguing that the university’s investigation was in retaliation the adverse publicity generated by his 9/12 article, and that both the investigation and his subsequent termination thereby violated his right to free speech.

Section 1983 claims exist to protect individuals who have been deprived of their Constitutional rights (such as freedom of speech) by government officials.  Accordingly, a plaintiff alleging a § 1983 claim must prove (1) that he or she has been deprived of a right protected by the Constitution or federal statute, and (2) that the conduct occurred "under color of state law."  Here, because Prof. Churchill's employer was a public university (the University of Colorado), he could assert a § 1983 claim.  Had he been employed by a private university or otherwise not subject to individuals acting "under color of state law," Prof. Churchill would not have been able to bring his lawsuit at all.[2]

Moreover, § 1983 claims frequently rise or fall depending on whether the defendants had some form of legal immunity for their actions.  Although § 1983 on its face applies to "every person" who violates the constitutional rights of another under color of law, the Supreme Court has long held that principles of common-law tort immunity apply to § 1983 claims as well.  Thus, for example, a plaintiff may not sue a legislator for enacting legislation that is ultimately determined to violate his or her rights; nor may a plaintiff sue a judge for upholding said law.  (Pierson v. Ray, 386 U.S. 547, 554-55 (1967)).  For judges in a judicial proceeding, this is called (sensibly enough) judicial immunity, and it serves to absolutely bar any suit against that official so long as he or she was acting in his judicial capacity.

Prof. Churchill's lawsuit thus hinged on whether the investigation and subsequent termination deprived him of his First Amendment rights.  Ultimately, after two years of litigation, Churchill won his lawsuit and was awarded $1 in nominal damages and reinstatement to his job by a Denver jury.  The jury thus found, as a matter of fact, that Churchill's First Amendment rights had been violated by the University (which, in turn, was plainly acting under 'color of state law' as a public institution).

However, the district judge set aside the jury verdict, ruling that the Committee was acting in a “quasi-judicial capacity” and was thus immune from suit.  The Court reasoned that, although the members of the Committee were not judges, they were acting sufficiently like judges in conducting a hearing that resembled a judicial hearing (in terms of evaluating evidence, allowing Prof. Churchill to be heard, providing notice, and so forth) enough so that common-law judicial immunity should shield their actions.

The Colorado Court of Appeals affirmed, and, on September 10th, the Colorado Supreme Court affirmed as well, although not without its caveats.  Ultimately, the Colorado Supreme Court conceded that the federal courts have not provided “clear guidance” as to whether an alleged bad faith employment investigation is actionable under § 1983.  (Id. at 46-47).  As a result of the uncertain status of the law, the Court concluded, the University would not have known at the time that it undertook the investigation – even if the investigation was in retaliation for protected speech – that it was unlawful, and thus, the University’s decision would be shielded as a quasi-judicial function.

It remains to be seen whether the Supreme Court will grant certiorari to resolve this uncertainty.  For now, we have to conclude that free speech on the academic campus can come at a high price