Author’s Note: This is the second column in a series. The last installment, “This is Providence,” can be accessed in my column archive. Some of the themes discussed in this series were also part of a speech I gave at an Alliance Defending Freedom (ADF) event in July. The full speech can be viewed by clicking this link.
Don’t let anyone tell you that our university officials are ignorant of the First Amendment. They are not. In fact, they know all about it. But they are actively trying to destroy it with one convoluted argument at a time. The most extreme example I ever saw occurred in Richmond, Virginia on January 26, 2011.
The scene was oral arguments before the 4th Circuit Court of Appeals in the case of Yours Truly v. the Board of Trustees of UNC-Wilmington. Then-Associate Attorney General Tom Ziko was arguing on behalf of the State of North Carolina. His argument was that college professors could lose all First Amendment protection for speeches and columns written as private citizens on matters of public concern if they ever mentioned them on an annual evaluation or promotion application.
While he stood there and made that incredible assault on free speech, two Marxist defendants sat right behind him - failing utterly to grasp the implications of the argument. That’s okay, because Ziko didn’t understand the implications of his argument, either. However, he was soon forced to understand when Judge Niemeyer asked him to imagine a three-part hypothetical situation.
In the first part, Niemeyer asked Ziko to imagine that a professor seeking a promotion listed on his promotion application the title, location, and date he gave a speech on the topic of abortion. In the second part, Niemeyer asked Ziko to imagine that the voting members of the promotion committee actually sought out and then read a copy of the abortion speech. Finally, Niemeyer asked Ziko to imagine the committee responding by saying, “Since he’s much opposed to abortion we couldn’t live with him. We’re not going to promote him.” Niemeyer concluded the hypothetical with one very simple question: Is that a position you are defending in your argument?