Paul Campos--the Colorado law professor who went on the O'Reilly Factor to fan the flames for violating the academic freedom and First Amendment rights of a Colorado professor--is, not surprisingly, unhappy with my having called the profession's attention to his stunt. (He has contacted me.) It is particularly embarrassing for him, in light of the fact that various outspoken conservatives, including some lawyers, have stated clearly, and correctly, that Churchill's statements about 9/11 are protected by the First Amendment and academic freedom principles.
Perhaps recognizing that he has disgraced himself among his professional peers, Campos has now shifted gears in his newspaper columns (and in his latest stint on O'Reilly), focussing on the latecomer charges (whose merits are unknown at present) that Churchill is guilty of resume fraud and/or scholarly fraud. These charges are unrelated to Churchill's article on 9/11, which was the basis on which Campos originally called for his firing on the O'Reilly Factor.
And let's bear in mind that this is exactly what a law professor (at a major law school, no less) did. He told Bill O'Reilly that after reading Churchill's essay, he (Campos) wrote a column "decrying and denouncing the idea that the University of Colorado would have as a tenured member of its faculty somebody who could be spewing this kind of disgusting nonsense in the context of a supposedly academic environment." The implication of that is clear: Colorado shouldn't have a person with these views on the faculty, i.e., he should be fired for his views. (Campos was even more direct in print on these points--though he is positively restrained by comparison to some of the authoritarians writing columns for the same paper. Somehow the latter folks seem to get more First Amendment "air time.")
Then, when asked about the First Amendment, Campos made no mention of academic freedom, and said: "Well, yes, he does have a right to do it in the sense that the government does not have the right to stop him from publishing what he wants to publish. And in that sense, yes, he has a First Amendment right, like all other Americans do, to say what he wants to say. That does not mean that if he engages in conduct, including publishing things that bring into question his professional competence that the University of Colorado, his employer, cannot sanction him for behaving in that fashion."
But he didn't publish anything that brings in to question his professional competence. Having "morally depraved" views (as Eugene Volokh [Law, UCLA] noted) is protected by academic freedom and the First Amendment, and the university can not sanction him for it. Let us recall that the same was true in the case of Berkeley's John Yoo and his views about the legality of torture. (As I said then: "Contrary to the Boalt students [protesting Yoo's presence on the faculty], academic freedom does indeed protect Professor Yoo's right to be both morally wrong and wrong on the legal merits; if it did not, it wouldn't mean much." That case, of course, was a less egregious assault on academic freedom, since we didn't have the Governor of the State, or legislators, or other law professors calling for Yoo to be fired.)
Here's the simple fact of the matter: academic freedom, as a constitutional and contractual principle, can end up protecting nonsense. One reason that's a good thing is because one man's "nonsense" is another man's "brilliance;" another reason it's a good thing is because even if it's not the case, as Ibsen thought, that "the majority is always wrong," it often enough is, and so some of what defies conventional wisdom today and gets called "nonsensical" may turn out to be right. Most importantly, there is no reason to believe that administrators or government actors will wisely discriminate between nonsense and sense, and so we have adopted a clear rule: it's not your job to make those discriminations once someone has made it through the peer-review process of tenure. That a sanctimonious law professor--who appears to be even less qualified to analyze the causes of 9/11 and the moral issues it raises than Ward Churchill--thinks Churchill's views are "disgusting nonsense" has no bearing on whether or not Churchill has a right to express those views without fear of sanction by his employer or the state. (I think Paul Campos's book Jurismania is largely nonsense, but so what? That's my scholarly judgment, and academic freedom protects my judgment, as much as it protects Campos's right to have written what I think is a silly book.)
Having no interest in Ward Churchill, or the non-discipline of "Ethnic Studies", I have not devoted much time to a study of his ideas; I have read carefully the key "argument" of the original essay, and his more recent (somewhat revisionist) explanation of his essay. The essay is badly written and badly argued (of course, this hardly distinguishes it from much that appears in the top law reviews), and parts of it reflect a rather creepy Schadenfreude. Yet it is equally clear that Gerald Dworkin (Philosophy, UC Davis) was absolutely correct to say the following:
[T]he main theses [of the essay] represent moral, political, and empirical claims about the cause of the attack, and its moral character. No faculty member should be dismissed because of such claims.
It is easy enough to reconstruct something like the crux of Churchill's argument which shows it to bear out Professor Dworkin's characterization. Churchill is making three claims:
(1) The success and profitiability of American capitalism depends on U.S. imperialism, and, in particular, on U.S. actions that have brought death and misery to millions around the globe. (This is an empirical claim.)
(2) Those who (actively? intimately?) participate in the power centers of capitalism (and thus profit from it) are morally implicated in the aforementioned death and misery. (A moral claim about responsibility or, as Churchill says, "collective guilt".)
(3) These same people are, therefore, legitimate targets of retaliatory violence. (A moral claim about desert.)
This omits stuff, obviously--for example, the empirical claims Churchill apparently shares with the Pentagon about why the U.S. was targetted.
The empirical claim in (1) is plainly a topic of legitimate scholarly discussion. Academic freedom obviously protects one's right to affirm it or deny it outright, or to take some view anywhere inbetween.
The moral claim in (2) raises a whole host of important issues about the moral responsibility of institutional actors, issues which are also plainly legitimate topics of scholarly discussion. Churchill plainly has no systematic or even clear view about what level of involvement confers moral responsibility. Nonetheless, it would be extraordinary if academic freedom did not protect the right of a professor to make moral claims about how participation in an institution imports responsibility for the actions of the institution. ((2) is also the claim, I take it, that gives rise to the inflammatory Eichmann comparison: Eichmann was a functionary within a system that brought death and misery to millions, and thus bore moral responsibility for those wrongs. That there are disanaologies, obvious and otherwise, between Eichmann and, e.g., investment bankers [as actors within the "capitalist system"] that bear on moral culpability is the real reason for thinking the analogy inapt, and thus gratuitously insulting. Yet a bad analogy, in the course of making a claim about collective responsibility, can not possibly be grounds for termination in a society which protects academic freedom.)
The real candidate for a claim that is "morally depraved" is thesis (3), but it too is a moral claim, however shocking, that is related to the kinds of issues that are discussed all the time in connection with the moral legitimacy of war and the killing of civilians. When I have called the various academic war-mongers (none of whom have had their jobs threatened, to my knowledge) "morally depraved," it is for the same reason people are calling Churchill's (3) a "morally depraved" view. I think it is morally depraved to countenance the intentional or foreseeable killing of civilians, whether in the World Trade Center or in Iraq, and I do not see any plausible way of explicating claims (2) and (3) (about responsibility and desert) such that one's conclusion ought to be otherwise in these cases. (Some, including Churchill himself, have suggested that the point is not to endorse the justice of retaliatory violence against responsible institutional actors, but simply to make the ironic point that such a principle follows naturally from the standard U.S./Pentagon attitude towards civilian casualties in places like Iraq and Afghanistan. In fact, the essay as originally written does not, I think, support that interpretation: vide its last line, for example.)
Now I am rather confident that Ward Churchill isn't going to make a significant contribution to moral theorizing on the issue of the morality of killing civilians, or the issue of collective guilt, but that doesn't change the fact that it is well within the purview of his academic freedom and First Amendment rights to have a view, offensive or inoffensive, about these topics.
This is why, all the grandstanding aside, Professors Dworkin and Volokh (and others) are right about this case, and Professor Campos was spectacularly wrong.
An ironic addendum: Tim Wise bears quoting on this point, especially in light of Professor Campos's repeated appearances on the O'Reilly Factor:
Ward Churchill is under siege for an article he composed back in the immediate aftermath of 9/11; an essay in which Churchill sought to explain that a nation really ought not be surprised when its policies abroad--which have resulted in the slaughter of millions of innocent civilians--cause some in those nations to "push back" and seek to exact a similar collective death upon the people of that first country.
While Churchill's essay was indelicate in places, it was hardly more so than any of the bloodthirsty things said by representatives of the state or the denizens of talk radio around that same time--folks who were itching to level Afghanistan, turn the Arab world into a parking lot, or, as Bill O'Reilly put it, put a bullet to the heads of any Afghans who weren't sufficiently supportive of our ousting the Taliban for them.
Of course, Bill O'Reilly doesn't need academic freedom to protect his moral depravity and "disgusting nonsense" (to borrow a phrase from Professor Campos); he can count on the large market for moral depravity and disgusting nonsense in the United States to keep him lucratively employed.
UPDATE: This item (also via Professor Dworkin) from the history of philosophy in Australia is also pertinent.