About the Judiciary: An Avalanche of Lawyers, Laws, and Dubious Cases, Part II

THE OPEN MIND
Host: Richard D. Heffner
Guest: Kenneth Conboy
Title: “About the Judiciary: An Avalanche of Layers,
Laws, and Dubious Cases, Part II”
VTR: 1/28/94

I’m Richard Heffner, your host on The Open Mind. And when he was here the other week, I introduced my guest, Kenneth Conboy, just as I had over a dozen years ago, as a careful, scholarly, particularly judicious, and highly skilled lawyer with a meticulous concern not only for constitutional imperatives and the rights of the accused, but also for what overall must be an efficient, effective, and fair judicial system. Last time, we discussed a recent, quite troubling New York Times op-ed piece Kenneth Conboy had just written as he resigned from the federal bench. He had been the United States District Court judge in the highly regarded Southern District in New York, and he wrote about the “Avalanche of Lawyers, Laws, and Dubious Cases” now confronting the federal courts. We just managed to touch on what Judge Conboy had written of as “the national obsession that any private disappointment is an affront of constitutional dimensions.” And at the very end of our program, Judge Conboy made a fleeting comment on what he described as the efforts seen in cases filed around the country to circumvent or curtail speech with which one does not agree, especially in the academic freedom area.

Well, I’d particularly like Judge Conboy to follow up on that point, for as he wrote, “It’s the most interesting part of constitutional law development in the trial courts now. And I must say, as he said on the program,“I am very much more an absolutist in the area of the First Amendment than when I first took the bench.” Given two particularly tough and highly publicized cases that came before my guest, this has to loom before him as much more than an academic matter.

Is that a fair statement? Much more than an academic matter?

CONBOY: Well, Dick, it is, of course, an academic matter. But more significantly, it’s a matter of academic freedom. And I think very much of this discussion today about hate speech on campuses fails to take into consideration the larger values of academic freedom to America. We forget that it was the college professor, in large measure, who stood up and flailed against McCarthy, that it was the college professor who condemned the Vietnam War before the politicians. That even in the 19th Century it was the New England school teacher who talked about the peculiar institution and how it degraded us. And when we today see an aberrational spokesman or spokeswoman in the classroom, we sometimes lose our national wits and think that suppression or censorship is the answer. And with any sense of historical appreciation of what academic freedom has meant to this country, we have to resist that temptation at every turn. And although we do have very often wrong-headed professors in class, very often we have wrong-headed professors giving terrible example to their students, I think that we have to fundamentally remember that the young are not as simple as we old folks sometimes think. They can sort it out. And what the business of the federal courts is is to make certain that those students have the option to hear and determine and to reject where appropriate in this highly emotional and volatile period in our contemporary history where there are very strong forces to shut up and silence a university people.

HEFFNER: Is there no time when it is appropriate to shut up and silence someone?

CONBOY: Well, if a physics professor is disposed to wax eloquent on Shakespeare, well, yes I think the president may say, “You are not qualified.” But if he attacks Einstein, well, then it’s the job of the other professors, not the administrators. And I think one of the discouraging aspects of those two recent cases you referred to was that the professors in question, professors who were very much on opposite sides of a debate about racial elements in our history and particularly racial factors in terms of political correctness, those two professors spoke largely unchallenged by their colleagues at that university, on that university campus. And that’s the tragic thing. There may be abroad in America today a climate where professors themselves are unwilling to stand up and challenge, much as they were unafraid to do in the Vietnam period of the McCarthy period or the antebellum period.

HEFFNER: Now, since I am frequently on campus, I wonder, why is that true.

CONBOY: I don’t know, Dick. It’s, I suppose it has something to do with a very, very strong and powerful extra-academic focus that is trained on these professors in the media at large. And we certainly have had, over the last five to 10 years, a great preoccupation by the media on incidents and events all over our nation’s colleges and campuses that relate to hate speech, academic freedom, and asserted dubious theories in the classroom. And I do think this media focus tends to distort, and in some respect intimidate. It intimidates public figures, people in public office. Sometimes it intimidates judges. And indeed, I think it intimidates academics. They, one would hope, with their tenure and their insulation and their status as wise men and women, that they would be prepared to stand up and talk down the demagogues on a soapbox in the campus quad. But in the cases I had, there was no evidence of that, and it was quite unfortunate. Indeed, the students tended to be much more vocal about the lunatic theories of Professor X or the insufficient grounding in the academic views of Professor Y than were the fellow faculty people. It’s quite interesting, and in some respects unfortunate.

I suppose part of it is because the debate is cast in such white-heat political terms. I mean, no one wishes to be denounced as a race-baiter. No one wishes to be denounced as siding with uncivil conduct. And yet it’s so essential for the survival of academic freedom that professors who disagree stand up and say so.

HEFFNER: These problems arise essentially in the area of racism and sexism, I would presume.

CONBOY: Well, remember, we are in a very unique historical period in the United States. For the last 25 years it has been the national policy of the government to eliminate discrimination in all forms. This is, I would say, the singularly most impressive characteristic of United States legal policy in this period. The consequence of it, however, has led to, I think, an unfortunate collateral result which is derisively referred to as “thought policing.” On the one hand, there are Affirmative Action policies and there are legal entitlements that have been created to enforce rights against discrimination in specific ad hoc circumstances, as for example, the loss of a job, the failure to obtain a promotion, the inability to further one’s professional objectives because of sexist attitudes. All of which are inherent and natural to the ongoing development of freedom and equality that dates back to the beginning of the republic. What has happened on a collateral basis is that there has been an unfortunate disposition to punish for attitudes and thought. And, of course, the statutes don’t do that. The statutes and the national policy punish for conduct and impermissible conduct. And when I say they punish, what I mean, in large measure, is they provide civil remedies and damages for such behavior and conduct.

There is a confusion out there between conduct and behavior, on the one hand, and opinions, on the other.

HEFFNER: Yes, but when opinions become words, not necessarily discriminatory acts in terms of economic punishments – someone can’t be promoted or someone isn’t promoted or whatever – but the courts have said there is such a thing as “fighting words,” right?

CONBOY: Well, the famous example, of course, is out of the mouth of Oliver Wendell Holmes, that, to paraphrase it, you certainly have the right to speak your mind, but if the speaking of your mind is formulated in terms of shouting the words “Fire” in a crowded theater where no fire exists, well, then you have exceeded your warrant, and you are subject to whatever consequences ensue.

Now, the issue today, of course, on our campuses, is whether or not the environment for the civil discourse, which, as we mentioned last time, Woodrow Wilson, who was the president of Princeton, was so careful to protect, if the environment for the discourse is effectively deranged by fighting words, rudeness, provocative expressions, to such an extent that the dialogue can’t continue, well, then I think you have the difficult gray area. But of course, on the outer edges of this central, murky gray problem you have wrongheadedness on the one hand, but in the shape of an opinion, whether it be a student or a professor, and censorship on the other side. So what is needed is, I think, is a central resolution of this problem on an ad hoc basis by the university community. It is, in large measure, a mistake to bring these matters before federal judges to resolve. Ultimately, in a constitutional sense, the federal courts will resist censorship of any kind. They will resist gagging somebody on the basis of some perceived injury or danger that is expected to be dealt with by the students testing the language and ostracizing the speaker if that is the appropriate thing.. Or, or the other faculty members rising up and challenging it in the general context of the free debate of a college.
HEFFNER: Yes, but in both instances of the cases we’ve referred to – and I’ve followed them closely, and I’ve read carefully your concluding comments – in both instances you were the firm supporter of free speech. And that’s very impressive. But in both instances some steps, or certainly in one instance, some steps had been taken by a university in what it considered obviously at its highest levels appropriate procedure. You said there was really no procedure at all there. Where do you draw the line? You talk about a gray area.

CONBOY: Well, there are a number of different concerns that a university president has in such circumstances in the cases before us. Let me specifically refer to the Levin case because that case is now finished. The appeals are over, and the court’s order has largely been sustained. In that case, a professor of philosophy wrote a book review that appeared in an overseas journal, and secondly wrote a letter to the editor of The New York Times in response to an editorial of The Times. That is engaging in discourse, it seems to me, in the most conventional way. He had somewhat striking, and I think fairly characterized by some as aberrational views on race, the relation of the races in connection with the actual ability to succeed in an academic setting. The university’s response, triggered largely by external criticism of newspaper editorials and by a brouhaha in the alumni association, the response was to set up what we’ll refer to as “shadow sections,” to create an alternative for his students, and to write to his students and invite them to leave him. That action, which did result in him losing significant numbers of his students, was I think rightly, perceived as a kind of shot across the bow to get him to be quiet.

Now, in addition to that, they convened a faculty committee to inquire into the question of his tenure. He was not allowed to know what was being investigated. He asked to be heard, and he was refused. He asked to see who the witnesses were against him, and they said, “No, you cannot see them.”

Finally, the report was a kind of Orwellian document full of elliptical references to what might happen in the future if the unfortunate expressions were repeated. This is simply medieval. It’s incomprehensible that such a thing could happen in the liberal City of New York at one of the great bastions of free speech in this country, the City College. And yet there was a fair amount of support for what the university did in the broad media and in intelligent circles, persons who are observers of the scene with some acute sense of the values implicated.

So, what the court did was say very simply, what this professor said … And note, nothing he did had anything to do with his campus duties. He did not express any of this in the classroom. Although I certainly don’t mean to suggest that if he had that he would have had less constitutional protection, although it would obviously be a closer question.

In the other case, which I don’t really want to go into in detail because that appeal is pending, there were very much the same, similar issues about due process, about giving a person who is accused, after all, in the central character of his integrity and livelihood as a member of an academic community, giving very little in the way of a forum, very little in the way of notice, and very little in the way of accommodation in light of what those large academic freedom principles mean in America. Both of these men have tenure. They were given tenure. Tenure is a shelter. Yes, as a shelter it will be abused. But it is a shelter. And the idea is that if a university faculty takes a … you know, when you get tenure, the university is making a long bet on how you will perform over time. Normally tenure is given after a number of years of examination of a professor and an assessment of how he is conducting himself in his classroom. Once tenure is given, there is, in a sense, an invincibility to the professor, and in a sense, the idea is – it’s like federal judges and life tenure …

HEFFNER: (Laughter)

CONBOY: The idea is that this is a very precious body of persons in not just the community of learning but, in a larger sense, the national community. That these are wise men and women who will speak their minds. And in an advanced democracy like ours, it is simply a sad and dismaying scene to see university administrators scrambling because of editorials, to gag tenured professors.

HEFFNER: Well, as a tenured professor, I say God bless you, Judge Conboy. But there are other questions. You talk about a “shot across the bow” for Professor Levin. Well, that’s what we’re around for, to take the shots across the bow and to respond to them, not necessarily by running to the courts.

CONBOY: Take a shot across the bow in the lecture hall. Take a shot across the bow and fire your own shot back in the faculty lounge. Take the column in the faculty or the student newspaper and rise up and confront your accusers and vice versa, let them accuse you. But do not do what was done here, which was to seek to destroy the professor’s position with his students, seek to create a climate of innuendo in a free academic community about what the professor is thinking, or in the context of the student to expel a student on the ground of admittedly rude and perhaps wholly indefensible and arrogant and supercilious and offensive remarks. The university forum is a place for rough and indeed sometimes intolerably dense, stupid and idiotic thinking.

HEFFNER: Yes, but, Judge Conboy, at a time when we’re becoming more and more interdependent as one time individuals in a society who weren’t so interdependent, can we afford that rough speech? Can we afford what we once could afford much more easily? When you draw a line today you draw it in a society in which what I say impacts upon you immediately, what I complain about, what I am harsh about impacts upon you and you family and all others within range. Are you not sympathetic with that point?

CONBOY: Well, I think what you’re really saying is that there is a very great difference in the impact of discourse today than, for example, the impact of discourse in those town meetings in 19th Century America. And the reason for that, of course, is the magnification given it by the media. A rude remark in the quad at the University of Pennsylvania is suddenly magnified by the intensity of the coverage into a rude remark in every living room in the United States. This then is perceived as a dagger at the heart of the commonality and the reliance in the dense urban life we have today, and therefore it is the enemy and must be silenced. So that fellow who came into the quad having had a few too many beers at a fraternity party is suddenly seen as a devil of division, who must be punished.

HEFFNER: You put it so much better than I do. But you put it.

CONBOY: (Laughter) Now, is this, though, in an advanced, sophisticated, intelligent society, the appropriate consequence? It is, to me it is simply a betrayal of what we have always believed in this country: That error will be exposed by the truth in whatever is spoken. Now, it may well be that what is the center of controversy in that quad at the University of Pennsylvania which is the product of a few too many beers, that this isn’t in the nature of some kind of substantive intellectual discourse. It is simply an extension of the impermissible conduct that we agree that courts have the authority, and appropriately the authority, to punish, either as a result of a criminal statute, a disorderly conduct statute, or civilly with damages after a lawsuit is resolved.

HEFFNER: But look, you talk about “our advanced, sophisticated society.” Surely you are not serious. You make reference to what, of course, was John Milton’s “Whoever knew truth put to the worse in a free and open encounter?” We’re not talking about a sophisticated society, nor are we really talking about a free and open encounter where everything goes on the table.

CONBOY: You see, Dick, what we come back to is whether we have fundamental confidence in the common sense and the basic intelligence of Americans at large. It’s the same issue in the classroom. These college and university fathers don’t believe that the students can see the difference and reject this silliness and the ugliness, in many cases, of what is at work, so they must step in. It is a paternalistic attitude which is equally evident in national coverage and attitudes about John Q. and Mrs. Citizen sitting at home and watching this. I don’t believe it. I have seen many, many Americans in juries, I have seen many, many Americans in countless lawsuits over 30 years in the public service. Now, perhaps it’s because I am a New Yorker, and New Yorkers, in my view, are so particularly astute and shrewd and full of common sense, but I do think at large the media and the commentators and the critics give very short shrift to the good sense and the basic intelligence of the average American.

HEFFNER: You know, doggone it, I just got the signal, we have two minutes left. But just from what you’re saying now, I want, this fascinating article you wrote for the Fordham Urban Law Journal in the Spring of ’93, The Race Factor and Trial by Jury. And I was just fascinated by the comments you made about the charge that a judge needs to make to the jury. And it reflects your faith in these individual jurors when you say, “When he is convincingly told that the defendant of the dock has a constitutional right,” et cetera. “When a citizen is convincingly told that the integrity of the nation hangs upon his honorable service. These are the appeals that must be convincingly made. The juror must be convincingly told that he is obligated, he or she is obligated under the Constitution not to serve if there exists a shadow of a possibility that bias might enter.” But you talk about a situation that is probably appropriate to you and to a number of judges. But are you willing to say that that convincing takes place in most, if not all, jury situations?

CONBOY: I do. I think that citizens in juries are amazingly and impressively faithful to their responsibilities. They reflect the very best of our communities when ladies and gentlemen are called to serve, particularly in criminal cases, and also in civil cases where so much is at stake. I have had countless interactions with American citizens in the jury box. And I have been consistently impressed with their patient, painstaking and honorable attention to their duties.

HEFFNER: Yes, because you do your job convincingly. And the question that is raised – and of course, there’s no time to answer it because our time is up – is whether others do to. At which point I thank you for joining me today, Judge Conboy.

CONBOY: Thank you.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. And if you’d like to share your thoughts about our program today, please write: The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150. For transcripts send $2.00 in check or money order.

Meanwhile, as another old friend used to say, “Good night and good luck.”

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