I don't know that Dr. Michael Farris, Chancellor of Patrick Henry College, will act like a censorious tool today or tomorrow. But as Patrick Henry said, “I know of no way of judging of the future but by the past.” So I'm betting on yes.
Patrick Henry College is a small, private, devoutly Christian college in Virginia. It's honest about speech — by that I mean, unlike schools that promise to celebrate and respect freedom of expression whilst enacting indefensible speech codes, Patrick Henry College is very forthright about restricting the expressive activities of its students. I condemn public institutions that suppress speech, and private institutions that promise freedom of speech but deny it, but when it comes to institutions like Patrick Henry I share The FIRE's viewpoint, which I would paraphrase as "you knew the job was dangerous when you took it, Fred."
So: I wouldn't spend much time on Patrick Henry College banning students from advocating gay rights on campus. I might find it repugnant, but it's their patch. However, when Patrick Henry College — through Chancellor Farris — starts to threaten lawsuits based on criticism of the school from a gay rights perspective, I become perturbed.
The blog queerphc, or "Queer at Patrick Henry College," says up front that it is not part of or endorsed by the college, but is written by Patrick Henry students unified by "our desire to help and encourage other Patrick Henry College students, current and former, in any way that we can." The blog covers things like the ongoing dialogue about conflicts between sexuality and religious dogma at Patrick Henry and disputes over the very language of the discussion about sexuality.
This was apparently intolerable to Chancellor Farris, who should have listened to Patrick Henry: “For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth; to know the worst and to provide for it.” Chancellor Farris issued a foolish threat — not merely of academic consequences to the anonymous Patrick Henry bloggers, but of legal consequences. He wrote a threat on the blog's Facebook page:
This page is in violation of our copyright of the name Patrick Henry College. You are hereby notified that you must remove this page at once. On Monday we will began [sic] the legal steps to seek removal from Facebook and from the courts if necessary. In this process of this matter we can seek discovery from Facebook to learn your identity and seek damages from you as permitted by law. The best thing for all concerned is for you to simply remove this page.
Find another way to communicate your message without using the term ‘Patrick Henry College’ in any manner.
Had Patrick Henry College at last been brought to such a humiliating and debasing degradation, that we cannot be trusted to endure criticism on a blog? Apparently.
Then people started to take notice. Paul Alan Levy of Public Citizen called Chancellor Farris to inquire whether he is represented by counsel in the matter. If you are a reckless would-be censor, such an inquiry is about as ominous as a call from your doctor asking "how quickly can you get in to discuss the extremely alarming things our team has discovered on your rectal X-ray?" Within minutes, Farris publicly retreated:
After further consultation, I withdraw my note from yesterday. While we believe in the inappropriate nature of the use of our trademarked name, we believe that litigation is not appropriate.
Patrick Henry said that "the battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave.” Of course, the vigilant know which battles to pick in the first place, and don't make utterly reckless and legally specious threats. As Levy says, "Apart from displaying his ignorance about the difference between copyright and trademark, Farris showed his lack of familiarity with the rudiments of trademark law, which allows bloggers to use the name of the target of their criticism to identify the pages where the criticism appears."
Farris retreated ignominiously from the field, but it was too late to salvage his reputation as an attorney. Levy picked it up, as did New York Magazine. The lesson is a sharp one: foolish litigation threats may lead to public humiliation. They should. It is the solemn duty of everyone who cares about freedom of expression to contribute to that public lesson.
But it is not just censoriousness that has lost here. Some opponents of gay rights, and critics of increasing tolerance of gays, view homosexuality as a weakness. How appropriate, then, that their credibility and cultural sway continues to be undermined by their own human frailties — hubris, ignorance, and misguided wrath. They are losing. Good.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016