Author’s Note: This is the fifth column in a series. The first four installments, “This is Providence,” “Pharisees and Pharaohs,” “Prayers and Preparation,” and “Pride and Perjury” 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 on this link.
I first met David French back in 2004. He had just taken a job as president of the Foundation for Individual Rights in Education, or FIRE. I loved working informally with their organization and wanted to make sure our relationship remained intact under the new leadership. So I picked up the phone and called David – just to introduce myself and to wish him good luck. That phone call would drastically alter the course of my life.
In January 2006, David called to say he was leaving FIRE to work for the Alliance Defense Fund (ADF), which is now called the Alliance Defending Freedom. This meant that David would now be able to litigate free speech cases (as FIRE does not actually litigate). He knew I was doing a lot of speaking on college campuses for Patrick Coyle and the Young America’s Foundation, or YAF. David simply wanted me to be on the lookout for really bad speech policies and really good plaintiffs.
By the end of the spring semester, I would bring David three plaintiffs in three separate public university speech code cases. He would win two of those cases after filing suit in federal court. The university caved in the third case after merely catching wind of the fact that they were about to be sued. We were off to a good start working together.
Over the course of the summer I started to prepare my application for full professor. French knew I had won several teaching awards. He also knew that I had clearly exceeded the standard of scholarly research output at my medium-sized liberal arts college. We talked about the promotion on the phone. Both of us wondered whether the university would be foolish enough to retaliate against me for criticizing their policies – and, yes, for recruiting UNC students to successful sue my employer for violating the First Amendment. For the record, I plead guilty to being a community disorganizer. But I offer no apologies.
In mid-September of 2006 we got our answer. The promotion was denied citing deficiency in all three areas – teaching, research, and service. When French asked if I wanted to sue, I answered with a “giddy up.” I’m from Texas. Don’t judge.
But this was not going to turn out to be the Kentucky Derby. French would not deliver the closing argument in my case until March 20, 2014. But it was well worth the wait to watch him slowly and methodically tell my story in a federal courtroom.
In his first closing argument, French showed the comments faculty sent to Defendant Cook in response to my promotion application. Next, he showed how Cook had altered the comments before putting them in a summary document that she distributed at the meeting. For example:
- 1.The deletion of positive faculty remarks about my research record.
- 2.The inclusion of a long anonymous evaluation that contained objectively false statements about my publication record. (To date, no one knows the author’s identity. I only have my suspicions about who actually wrote it).
- 3.The use of ellipses to remove portions of sentences that altered their intended meaning (making them more negative than intended).
Among all of the summary evidence French discussed in his closing, Cook’s handling of the evidence was probably the most powerful. It was a Mark Fuhrman moment with one crucial difference: We actually had direct evidence of tampering.
After French spoke, the state gave its closing argument. Then, in accordance with federal rules, the plaintiff would offer a rebuttal closing argument before the jury would be charged. This time French would do something different. He would appeal directly to free speech principles and he would invoke history as well.
David would remind the jury that the Bill of Rights protects unpopular speech – and, yes, even speech we disagree with. (In fact, it even protects sentences that end with prepositions.) He also told them that although we are friends he does not applaud all of my columns. In fact, David boos some of my columns. And that’s true because we just don’t agree on everything. For example,
- -David loves Mitt Romney. I don’t.
- -David loves Star Wars. I like Romney more than Star Wars.
- -David is a Calvinist. I was predestined to be a non-Calvinist. And so on.
David French can pick and choose between the speech he likes and the speech he doesn’t like. But the government can’t do the same thing and use it as a basis for employment decisions. That’s what he told the jury while I sat watching intently.
By the time David started to talk about the need for a Bill of Rights and the insufficiency of our constitution without one, I saw her nodding. Seated on the front row, this one juror was nodding so vigorously that it seemed she might fall off her chair and land on the courtroom floor. She had Tea Party written all over her face.
Then I glanced to the right and saw the defendants. You could see it on their faces. They feared the case was slipping away. And, indeed, it was. We would learn later that it already had.
… To be continued.
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