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)


Additional Resources:

Full Transcript of Judge Downes Rulling (pdf)

UW News Release: Statement on Cancellation of Professor William Ayers’s Visit to UW (link)

Guest Column Response by Bill Ayers: UW’s Slippery Slope (link)

Official Order Granting Preliminary Injunction (pdf)

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13 Comments

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  1. Mr. Proffitt: How was Vietnam a volunteers’ war? Military conscription– the draft– did not end until 1973. Your resentment of American soldiers certainly was not universal in the antiwar movement.

    Mr. Steinhoff: WyoFile has now published a transcript of Judge Downes’ oral opinion, and you may want to read it. His discussion should set your fears to rest.

  2. Having lived through the Vietnam era myself, I can tell you many of us were drawn to the civil rights movement as our model in protesting the war – non-violence was extremely central to the cause. The soldiers that fought in that war were volunteers and as a result, many of us resented them deeply. I can understand the disgust the judge in this case had for the Weather Underground, but most of us held the soldiers who volunteered for such an immoral war in the same deep and disgusting disregard.

  3. Mr. Watt,

    I hope you did not misconstrue my meaning when I thanked you for your tone as it was sincere. I was simply pointing out that more often than not I have found these online forums turn into name calling sessions rather than places where people can talk through ideas. When that happens, I move on. From your comments made earlier I would guess you are a man who would encourage others to voice their opinion whatever the forum, even if they expected no civil response. I did not expect to find that here, but was pleased to do so.

    My confusion about the “public office” comment was that I have typically heard that term used to describe elected officials, as in “run for public office”. In that context I certainly agree that universities are designed to be, and should be as separate from politics as possible. I sensed that we were not on the same page, hence my request for clarification.

    We will have to agree to disagree on your campus sponsor point. I would argue that you are essentially saying that the combined campus community can censor through sponsorship. Admittedly, this is a much larger group than one man, President Buchanan, deciding, but it is in fact, still one group controlling who is allowed university space and who isn’t.

    Mr. Richardson,

    I am not, nor have I ever claimed to be a master of the English language. That being said, I do work continually to improve my proficiency in that area. I honestly appreciate you for correcting my improper use of the plural form of precedent.

    I also appreciate your responses to my questions. I had not posed the questions to harangue you, but so I could better understand your point of view. I was interested to hear opposing opinions. If you did not want to respond, you did not have to.

    I would hope that you do not think I am afraid of free speech. I hope my posts, and responses here are evidence of that. My question, which I still think is a legitimate one, is to what degree is the state not just required to protect citizens in their free speech, but also required to provide venues for that speech.

    I did not overlook that Mr. Ayers had originally been invited to campus. The reason I did not bring that up in my original post, was because I do not believe that his being invited has any bearing on his right to free speech. I do not believe one needs anothers approval to speak freely. Again, my question, the one I still struggle with, is in regards to what the state should be required to provide.

    To you both,

    I would prefer that this discussion were over a beer instead of the internet. I fear much is lost in translation here. I would even buy the first round.
    I thank you for your thoughts, and insights. I have left this exchange with a better grasp of the English language, a better understanding of your ideas, and food for thoughts as I continue to think through these issues for myself.

    Nat

  4. Mr. Steinhoff,

    In your argument you refer to:

    “If your answer to the above is yes, then shouldn’t that mean that EVERY public funded institution should have these same requirements?”

    “It is my fear that these sorts of cases open Pandoras box into forcing any publicly funded group to be REQUIRED to provide space for anyone who requests it to speak.”

    By public office I was referring to the “publicly funded” you refer to in your statement. You also refer to public health offices in regards pro-life demonstrators.

    When I stated “University and public office are and always have been two different entities”. I meant exactly that. The University setting is an entirely different beast than generally funded public office. I think I’ve stated my views on publicly funded Universities clearly. If you agree, I’m confused being you raise concerns over any and all publicly funded groups being required to allow public speakers access and resources. If they’re different entities why should we be concerned that they both be required to provide similar resources? I find that statement absurd and faulty reasoning used to censor those one doesn’t agree with.

    As for sponsorship being a means of censorship. That’s a weak and feeble stance. Is requiring someone to have an on campus contact so difficult or easily manipulated as to be construed as censorship?

    If you find online dialogue neither civil nor productive why did you start the dialogue in your opening statement?

    I’m of the opinion that all who find support within a University have the right to University resources. Period. I find comparing the University setting to a public health office absurd. I applaud Judge Downes decision and wish I had both the skill and knowledge of Richardson’s response.

  5. Judge Downes’ ruling in the Ayres free-speech case is by no means a groundbreaking decision, yet Mr. Steinhoff says he is frightened by it. In law, facts matter. One key fact in this case– which Mr. Steinhoff apparently overlooked and now discounts– is that Bill Ayers was invited to the public university by a member of that community– first by a professor and then, when that became inconvenient, by a student. Ayers did not thrust himself onto the community and demand accommodation for himself or his views.

    Considerable regulation of speech is Constitutionally permissible, as Mr. Steinhoff doubtless knows. Cities, for example, may require marchers to get parade permits and may also manage routes for peaceful demonstrations. Universities may demand sponsorship, prior notice, compliance with building fire codes or closing times. Such regulations are allowed so that free speaking does not become disruption.

    First Amendment speech freedom does not allow disruptive action, any more than First Amendment press freedom countenances libel. So the long list of abhorrent speaker-institution combinations that Mr. Steinhoff imagines might now ensue—anti-abortionists holding forth inside medical clinics, for example—are simply chimeras. It appears to me that Mr. Steinhoff raises these to make speech freedom look even more frightening than it is.

    I am deeply tired of being tutored in fear. American freedoms are not for the timid. And if I am going to be harangued by a fear-monger who has not mastered his facts, I would appreciate, at the very least, his using passable diction: “precedence” is incorrect.

  6. Mr Watt,

    I appreciate the tone of your message. I find, unfortunately, that not often is online dialogue productive or civil.

    If you would, I ask for clarification on your “University and public office are and always have been two different entities”. I agree, and do not see what you are trying to refute in my statement. Clarification would help.

    You say that if someone “can find a University sponsor” they should be entitled to university resources. By this, I assume that you mean University faculty, students, and student groups?
    Would you say that this also censors those who cannot find a sponsor?

  7. News like this, let’s each of us breathe more freely, opens the political windows and doorways one may have felt blocked or closed, sets precedent and denies coercion a seat at our table. Judge Downs gives hope for our courts and our judicial system, exemplifying and embracing the very core of democratic process. While health issues will keep this woman at home in Powell tonight, it will not be because of a lack of longing to hear Ayers live. I hope this program will be recorded and available to those of us unable to attend. Dvd’s are frequently the means our household uses for education, exploration and elucidation. I am grateful to those who choose to support education, though at a time when educator’s salaries are being cut, when RIFT’s occur, when workers hours are cut and family resources are diminishing for the working class I was stunned at the decision to spend millions on a football field. I cannot but wonder at such priorities, I was heart broken at the time and am still saddened. Yet, there is cause for celebration today and to those who will attend Ayer’s program tonight, to all of us who have written letters, signed petitions, made phone calls, to those valiant hearts who brought this battle to uphold our 1st Amendment rights through the court, salutations and congratulations with all respect and honor.

  8. Mr. Steinhoff I regret that as a past member of the faculty you have such views. I would hope that you would be more protective of the environment you still speak for. The University and public office are and always have been two different entities. The public University is held as an environment to vent, to listen and to speak. It is the singular moment in many lives where freedom is celebrated. It is a place where political ideals, personal identitites and social norms are accepted or cast aside. Yes, where the very views we grow to hate or love are born. The public office never has nor ever will be. All who can find a University sponsor have the right to University resources. If not, where do you draw the line? On your opinion? Or the individual next to you? What gives you the right? What gives them the right? A slippery slope indeed.

    It is not that either Ayers or Phelps are right or wrong. It is that they are voices w/ views. We are a nation of individuals blessed with the independence to say what is right or wrong for ourselves. We are one of the few places on earth where personal freedoms are so venerated. As such we, here, ALL have the right to speak – as well as the right to disagree. I for one am proud to have that right and applaud the Judge for protecting my right to speak as I see fit. I regret that I won’t be there to hear what Ayers has to say.

  9. Mr. Murphy, I find it interesting that without provocation you felt the need to sink to personal insults against Mr. Martin. It says something about you. It is even more telling/troubling that you decided to go even lower by insulting Mr. McMurry, who was not even a part of this story.

    If you must attack people’s character, at least have the academic honesty of accompanying your insults with facts to back them up. Why would UW be better without the ~9 MILLION dollars that Mr. Martin and Mr. McMurry have given? Why is their money tainted?

    I assume you are an adult, and as such, let’s have a civilized discussion on this issue.

    Moving on, I pose the following questions, for anyone who supports this decision:

    Certainly we all agree that anyone has the right to free speech in a public forum, such as the street, or a park, or Prexies Pasture. But, does this mean that any public institution is also required to support people speaking in their institution? In other words, is the University required to allow anyone, whatever their views, and whatever their history, to speak in campus facilities, using staff support, university police time, university power for electricity etc?

    Does this mean that the University should have no control over the material, and ideas that are expressed in its buildings? Should they be required by law to allow anyone to post any pamphlet on the boards in the union?

    Would you say that any hate mongering Nazi, or white supremacist, or Black panther, or gangbanger, should also be provided a class room on campus, and the use of campus resources?

    I found it interesting that in his case precedence (at least as listed in this article), that the judge mentioned all marches. Not one of the cases listed were about a person using the building, or classrooms of a school.

    If your answer to the above is yes, then shouldn’t that mean that EVERY public funded institution should have these same requirements?

    Should a public health office be required to allow pro-life demonstrators to speak in its office against abortion?

    Should a bigot such as Fred Phelps, who picketed at Mathew Shepard’s funeral, be allowed to rent space in the Wyoming Union across from the “Rainbow Resource Center” for Lesbian, Gay, Biseuxal, and Transgendered?

    I think the answer to those questions is no. In my opinion anyone should be able to speak their views in public forums. Bill Ayers would have been more than welcome to speak on Prexies Pasture, or on any of the sidewalks on campus. During my time at UW, I saw many such demonstrators, on all sorts of issues. Many of them were offensive to large numbers of students, and I was proud to watch UW students challenge those demonstrators.

    It is my fear that these sorts of cases open Pandoras box into forcing any publicly funded group to be REQUIRED to provide space for anyone who requests it to speak.
    As for whether or not the trustees, or Mr. Martin(I personally know none of them) should have been pressuring the University, I have no problem with it. I did not hear how the conversations went, but I imagine the expressed views similar to mine. “Fine, anyone can come speak on campus, but that doesn’t mean we have to support them with resources.” In the case of Mr. Martin, I would go a step further to say, that he gave as much as any other single contributor to our fine institution, and as such, I don’t have a problem with the administration taking his views into account. And for anyone who has attended UW, and has experienced its low tuition, high quality facilities, and respected staff and administrators, I would encourage you to pay a little more respect to our donors than Warren Murphy does.

    Go Pokes!

  10. I would NOT agree that the university is “better off without Casper oilman’s money” but the rest of the comments are quite correct. Honest debate without fear of violent reprisal is the essence of our country.

  11. What great news! Not only does free speech win, but Ayers will now be able to inspire the students of UW with his brilliant ideas, especially on education reform. Well done Judge Downs! I lost a few friends because of this debate on a certain social networking site….now especially, it is SO worth it!

  12. Free speech wins in Wyoming. When Casper oilmen start dictating the parameters of the 1st Amendment we are all in trouble.
    The University would be better off without the tainted McMurry money anyway. This was a real blow to UW’s integrity but the true Wyoming, in the presence of Judge Downs, shined forth.