Monday, October 22, 2001

ROY BAUER'S 1ST AMENDMENT BATTLES or "One Gadfly, One Gadfly Swatter"

For the upshot of these legal wranglings, see



--which is the result of the district's appeal of my "victory," described below. The appeal essentially left the ruling standing, reversing a minor point [relative to my fate] about the "facial" unconstitutionality of one of the policies wielded against me.


From Dissent 60, 10/22/01

[The following essay was part II of a much longer essay called “A Swine County Almanac.” Part I, which told the tale of the Board Majority circa 1997-8, was entitled “three disgruntled part-timers and a bailiff.” Part II seemed to be entirely about my own 1st Amendment battles.]

[See also ARCHIVES: January 1999, for Bauer's account of being called into Sampson's office and ordered to seek anger management counseling!]


One gadfly, one gadfly swatter

I, Chunk

During this early period [i.e., 1997], I, Chunk, produced and distributed several satirical newsletters at IVC. By early ’97, my chief publication was called the ‘Vine. By mid-1998, the ‘Vine was largely replaced by Dissent, distributed unevenly, district-wide.

By design, the newsletters, to which several writers contributed, emphasized one overriding district truth: that a gang of greedy and disgruntled faculty—Mathur, Mickey No-Neck, “Baño” Bob, et al.—had made a pact with four opportunistic little devils—the Board Four—and, together, this crew was razing everything worthwhile that had been built.

It was difficult keeping up with the Dark Side’s crimes, hijinks, and peccadillos, but we gave it the old college try. Some people thought we were makin’ things up, what with tales of pants-droppings, loogie assaults, neo-Nazi rallies, gay-bashing, secret bank accounts, and all the rest. In reality, we were tonin’ down the facts, worried no one would believe them in unmitigated form.

‘Vine/Dissent was a hit. Early on, readers sent me “thank you” notes, cash, writings, and suggestions.

Dark Siders really hated Dissent, and they really hated me. Whenever I visited Saddleback, Lee Walker would get under foot, pestering me à la Ratso Rizzo, only without Ratso’s polish and good looks. Ken Woodward, too, would noisily orbit and sneer, offering such jibes as, “I’ve got a Ph.D. in economics. Nnnyeh!”

Such episodes were mostly comical. Others were creepy. Whenever Walter confronted me, as he sometimes did, his quakage and sputterage looked like a heart attack. Once, as I dined at a restaurant, Patrick F appeared from out of nowhere, pointing at me, shouting, “Those who live by the sword, die by the sword!” He trembled. I do believe he soiled his trousers.

Making their own sauce

[Bauer’s] got some pipeline to the LA Times. I wish I knew what it was!

—Ken Woodward, on KPFK’s “Lawyers’ Guild,” 2/19/98

In ‘97, for PIO, the district hired Pam Zanelli, who functioned as a political consultant and flack for the Four, or so said the Three. Zanelli was the “professional” who, only months earlier, urged her then-clients, the union Old Guard, to use the “same-sex domestic partners” gambit to get Frogue, Williams, and Fortune elected and protect “life as we know it.”

She has a haystack on her head.

Naturally, what with the addition of a full-time Board Majority propagandist, some of us began talking to the press more often, givin’ ‘em the skinny. By early ’97, I (along with a few other rebels) had become adept at puttin’ local news hounds on the scent of stories that, invariably, embarrassed the Four, the union Old Guard, and Mr. Goo. Zanelli’s transparent spinnage was a weak force in this universe.

Mostly, all we had to do was point reporters in a certain direction. We didn’t have to add anything; they’d make their own sauce.

Our success with the press had nothing to do with bias. Hey, if, over time, you never lie or exaggerate or cry wolf, people start trusting you. That’s the secret, but it only works if you’re on the side of the angels. Rat Bastards need to hire Zanelli.

But Dark Siders naturally assume that everybody’s a lyin’, manipulatin’ piece o’ sh*t. Inevitably, to such people, if you get your side, your story, across to the public via the news media, you must be pullin’ a fast one somehow.

The “JFK forum” episode

“Oh, get out of here!…You couldn’t find ... more embarrassing conspiracists in America. Even among conspiracy theorists, these people represent the outer limits.”

—Chip Berlet of Political Research Associates, commenting on the “experts” invited for Frogue’s assassination forum (Times)

Some truths really ought to be revealed, especially when they concern the fate of hundred million dollar chunks of taxpayer cash. The Board Four’s breathtaking intellectual incompetence was such a truth.

On the morning of the August 18, 1997, board meeting, a colleague alerted me to board agenda item 13. It said

Several speakers have been invited to participate in [board president Frogue’s Fall] forum on the JFK Assassination. Expenses for travel, accommodation and/or honoraria are estimated below:
Sherman Skolnick: Not to exceed $1,500.00
Dave Emory: Not to exceed $1,000.00
John Judge: Not to exceed $1,000.00
Michael Collins Piper: Not to exceed $1,000.00


“Hmmm,” thought I. “Isn’t Piper the boy reporter for Spotlight?”

I made a heads up call to the ADL’s Joyce Greenspan, telling her what I knew about Piper, namely, that he worked for Spotlight, the nation’s #1 anti-Semitic newspaper, published by the nation’s #1 anti-Semite, Willis Carto. I advised her to look into Frogue’s other speakers too.

That night, Joyce addressed the board, informing them about Carto, Spotlight, and Piper. She explained that Skolnick, another Frogueian guest, was on Spotlight’s advisory board. Joyce urged the board not to approve item 13.

Frogue responded by explaining Piper’s theory—how the CIA and the Israelis conspired to kill JFK, etc. Piper’s theory, like dozens of similar yarns, is based on poor scholarship and dreadful reasoning. That is why it is not taken seriously by scholars. That is why Frogue’s “forum” was wrong for SOCCCD. Colleges should have standards.

The anti-intellectual Four understood none of this. They happily approved item 13, thereby demonstrating their utter incompetence.

The next morning, I phoned the Times’ Michael Granberry. Two days after that, the front page of the Times roared: “O.C. College Course Claims JFK Conspiracy.” Granberry’s article, which was picked up across the country, revealed that Frogue’s “experts” were pots so cracked that they even embarrassed world crackpottery. Thus it was that, for a day or two, our board and district became a national joke, an object of fun and frettage among Arianna Huffington, George Will, and the rest of American political blabbermouthery.

For the Featherbrained Four, it was an embarrassment of Biblical proportions. They had no one to blame but themselves.

The last straw?

While the “JFK” fiasco—and resultant recall effort—raged, our Brown Act lawsuits (Wendy Phillips, now “Gabriella,” was one of the attorneys) moved through the courts. Late in ’97, Superior Court Judge Macdonald ruled in my favor in “Bauer I,” as it was called. By late ’98, it became clear that Judge Seymour would do the same in “Bauer II.” Despite Zanelli’s endless haystack spinnage, the Four were getting slaughtered, PR-wise.

A coupla weeks after the trustee election of November 1998, I published a guest column in the Sunday OC Register, revealing anew the ugly truth about our swine and their union piglets. Despite its relatively high profile, the article probably did more to catch parakeet droppings than to win hearts and minds. Still, it must have infuriated the Four.

Maybe it was just coincidence, but, a few days after the column appeared, without a hint of warning (contra board policy), I received a letter from Chancellor Cedric Sampson informing me that, in his opinion, I had violated the district’s “workplace violence” and “discrimination/harassment” policies.

Evidently instigated by Mathur, the letter, which (contra the contract) was already in my personnel file, claimed that I had been (a) making life miserable for faculty of the “Christian religious experience,” (b) using a racist term to refer to Mathur, and (c) publishing violent and threatening things in my newsletters.

In a follow-up letter, I was ordered to seek counseling.

“Good grief,” I said.

Mr. Shit

“I feel discriminated.”

—Raghu Mathur, 10/9/89

By then, despite his staunch Republicanism, Raghu already had a history of playin’ the “race” and “threat” cards, when convenient. At various times, dating back to long before my entrance into district politics, Mathur claimed to receive threatening and racist email, voicemail, and snail mail. (It is worth noting, however, that, during a 1999 deposition, he acknowledged his inability to document any of these alleged “threats.” [See Register, 1/7/00]. What’s that tell you?)

The notion that I was tormenting Christians stemmed from Mathur and Co.’s amazing ignorance. When deposed, Mathur and Sampson acknowledged unfamiliarity with Pat Robertson’s right-wing political organization, named “Christian Coalition.” (Jerry Falwell’s recent remarks that blamed the Sept. 11 attacks on lesbians, et al., were made on Robertson’s TV show.) So, since I have never criticized Christians or Christianity, I can only surmise that the Ignorami Twins had mistaken Dissent’s one or two snide references to Robertson’s political organization for a criticism of Christianity and Christians.

My so-called racist term for Mathur was “Mr. Goo,” which, according to me, was an allusion to the cartoon character Mr. Magoo, but, according to Sampson, was a reference to the racist term “gook.”

Mathur hails from India where Hindi is spoken. It turns out that, in Hindi, “guh” means “excrement,” a fact that, months later, district lawyers gleefully seized upon. It was news to me.

In the lawyers’ view, I guess, if you call a guy “Mr. Shit,” you’re a racist. I don’t get it.

The six elements

“You’re just not couth!”

—Judy Holiday (Born Yesterday)

El Ced’s disciplinary action was based specifically on six newsletter elements, the most celebrated of which appeared in a piece about a 1998 trustee candidates’ debate:

[The debate] started with a reading of a prepared statement by [the absent Nancy] Padberg in which she offered the usual bland campaign promises … Padberg also spoke—er, wrote—of the need to bridge the “gap” between the warring sides in the district. Evidently, she believes that the sides can come together and be pals again—perhaps by means of a carefully planned Halloween party. I don’t think so. I, for one, have etched the name of Sherry “Realpolitik” Miller-White and others of her ilk on my permanent shit list, a two-ton slate of polished granite, which I hope someday to drop on Raghu Mathur’s head. (Dissent, 11/2/98)

Another element was some laughably lurid “crime fiction” artwork, depicting a hatchet murderer and sporting the words: “Crime: Tales of the Back Door Gooster”—i.e., tales of Mathur’s crimes. Another was the acronym MAIM (“Mathur-Milosevic Academic Integrity Matrix”), used by Dissent contributor Red Emma to liken Mathur to the Yugoslavian dictator. Yet another was a still from an old science-fiction movie concerning “downsizers.” This, said Ced, was evidence of my “obsession with weaponry.”

Lawyers, guns, and money

The Chancellor ordered me to meet with him in his office, where he informed me of my “violations.” (The letters were already in my file.)

After the meeting, my then-lawyer, Bill S., who had accompanied me, was stunned by El Ced’s stupidity and unreasonableness. Bill wasn’t sure what I should do. He looked at me and asked, “Would you be willing to go to the counselor?” I looked skeptical. He added: “Don’t be buyin’ a Ferrari or anything. Save your money.”

A few weeks later, I got Bill’s bill: $1,500.

* * * * *
So I got help from Carol Sobel, a Santa Monica-based First Amendment attorney. We immediately sued the Chancellor on First Amendment grounds. I alerted the media, initiating yet another PR nightmare for the Board Majority, which now comprised Frogue, Williams, Fortune, Wagner, and Padberg.

Probably, the Dark Side expected me just to soften Dissent. As it turns out, a week or so before I received the letter, I had told friends that I was abandoning the newsletter, not out of fear, but out of a sense of the unseemliness of assuming personal risks when my colleagues, judging by their persistent silence and inaction, were, with a few exceptions, unwilling to assume even the slightest risk in combating the Dark Side. I found a towel and threw it in.

But now I was a First Amendment poster boy. The Dissent continued.

Our strategy: to win a “summary judgment.” Essentially, you win a summary judgment when the judge thinks a trial is unnecessary cuz your opponents don’t have a leg to stand on.

Federal court preliminaries

The district’s lawyers—Rutan and Tucker—commenced shoring up the district’s weak legal position. Using declarations solicited from Raghu’s unsavory Old Guard and classified allies, the district concocted a case for my being the district bully, the cause of all recent districtular difficulties, including the Accrediting warning.

The flim-flam flopped. In March of ‘99, Federal Judge Nora Manella, calling the Chancellor’s action against me “Orwellian,” issued a preliminary injunction, declaring the six newsletter items to be “protected speech” and enjoining the district from wielding the two policies to restrict speech and from enforcing the counseling order.

Manella next set to work on her ruling regarding the summary judgment.

Victory, part I

“I believe that [the district’s antidiscrimination policy] was used for an improper purpose in this case and that is to stifle dissent.”

—U.S. Judge Gary Feess, 10/25/99

The case was then handed off to Federal Judge Gary Feess (of subsequent DNC and Ramparts fame), who, finally, in October of ‘99, granted the summary judgment in my favor, arguing that my speech was “protected” and that the counseling order was improper. In Feess’ view, both district policies were unconstitutional “as applied,” but the workplace violence policy was also unconstitutional on its face (i.e., it was intrinsically unconstitutional). We had not expected—and, frankly, did not need—the latter “facial” ruling.

In court, Feess ridiculed Ced’s “threat” malarkey. “No reasonable person,” declared Feess, “could have concluded that [Bauer’s] written words … constituted a serious expression of an intent to harm or assault.” He especially derided Ced and Goo’s granite slab worries.

According to Feess, it was “hard to understand what administration was thinking” when they took the action against me. He opined that Mathur’s direction to me (in an evaluation) to “make things nicer” seemed to him to be a possible violation of the First Amendment all by itself. “It’s a college campus.” If you can’t “speak your mind” there, he asked, then where?

Contrary to Larsen’s clients, said Feess, there was no evidence that I was responsible for the district’s problems.

In response, the district’s lawyer, David Larsen, insisted that some faculty (Sherry Miller-White, et al.) feared voicing their opinions, but Feess judged those fears to be “beyond reason.”

“But,” said Larsen, “this is an individual who has been involved in face-to-face threats”! He was referring to the hilarious and hysterical Old Guard declarations from Woody and his pals.

Feess wasn’t buying it. Said he, “That was never a basis which was given in 1998 and that is an after-the-fact attempt to shore up what was a plainly inadequate basis for the discipline.” He added:

I understand that a lot of people would like to do business behind closed doors, that they would like to make decisions that they don’t have to explain, that they would like to come to conclusions and judgments and issue policy without having anyone present to listen and hear and to understand and therefore to make rational, powerful, criticisms of them. That’s just too bad under our system…And if people are afraid of going to meetings and speaking up because … they’re going to be the subject of criticism in a publication, that’s…just life under the First Amendment… I just think this is a case where that concept, a legitimate concept [“workplace violence”], is being stretched for the purpose of taking a vigorous critic of the administration and the board of trustees and trying to keep [him] quiet.

Carol was awarded $127,00.

Next thing I knew, the Board filed an appeal, which meant, among other things, that Carol wouldn’t be getting paid any time soon—and the letters would remain in my file for the time being.

The appellate hearing

A year and a half passed. The appellate hearing—at the 4th Court of Appeals, in Pasadena, with Rymer, Hawkins, and Gould presiding—finally occurred in May of this year. The judges heard oral arguments; they then conferred and produced their opinion.

The hearing was frustrating. Larsen, evidently driven to desperation by the poverty of his case, distorted and invented facts.

The discussion largely focused on the constitutional status of the district’s workplace violence policy in particular, which, again, Feess judged to be unconstitutional, not only “as applied,” but facially. Right away, Judge Rymer objected to the vagueness and oddness of the policy insofar as it referred to “violence overtones.” On the other hand, she could not see, she said, how the policy was unconstitutional on its face: why not just delete the problematic phrase?

Larsen struggled to defend the relevance of the district’s highly convenient after-the-fact declarations. He argued that the six elements needed to be viewed “in context”—namely, my angry and violent conduct, as revealed in Woody and Glenn’s declarations and Larsen’s impromptu courtroom fabrications. I had caused district employees—Sherry—to be “very frightened,” said Larsen.

Carol, always at her best in such settings, noted that, to qualify as truly threatening, an instance of speech must be unequivocal and immediate, threatwise. My speech, she argued, did not come “within a mile” of that standard. Concerning the six elements, the judges seemed to agree. But, asked Rymer, hadn’t I actually gone to individuals and threatened them?

“What are you referring to?” responded Carol. Carol knew that Larsen was distorting and exaggerating what appeared in the briefs and declarations.

Rymer seemed willing to concede that my expressions had been satirical and not violent. But, she asked, how can the whole “workplace violence” policy be unconstitutional on its face? “I just don’t get it,” she said.

Judge Gould spoke; he seemed to have his doubts even about the policy’s unconstitutionality as applied. Maybe the “college” needs its day in court, he said.

Things seemed to be going badly, I thought, but then Judge Hawkins, who had said nothing, ended the hearing by asking Larsen a series of revealing questions:

Were any of these alleged threatening incidents cited in the original disciplinary actions?

No, admitted Larsen, but they were “the backdrop” of the action.

“Really?” asked Hawkins. No references to these incidents were made in the disciplinary letters?

No, admitted Larsen, but, he added, you’ve got to consider “context.”

Hawkins then asked if I had done anything physically to anyone.

Well, no.

Had I brought a weapon to school?

No.

Did I have any history of violence, of shoving, anything like that?

No.

Did I have any history of arrests or confrontations?

Nope.

Victory, part II

The judges issued their judgment in August. Hawkins, representing Rymer and himself (i.e., a majority), wrote the ruling.

Essentially, I prevailed: Judge Feess’ judgments were upheld, with one exception: though the district’s policies are both unconstitutional as applied, in the appellate court’s judgment, the district’s workplace violence policy is facially unconstitutional only in part. Wrote the court:

[Bauer’s] writings and illustrations were prepared during a traumatic time for IVC and the District…The Accrediting Commission attributed the turmoil partially to OC’s financial troubles and primarily to a four-to-three split on the District’s Board of Trustees… [Bauer] voiced his disapproval in a campus newspaper called “Dissent.”….

We agree with [Feess’] analysis that the policies were unconstitutionally applied to Bauer because “though at times adolescent, insulting, crude and uncivil, Bauer’s publication focuses directly on issues of public interest and importance.” We also agree with [Feess] that Bauer’s statements were not “true threats” and that the District’s rights as an employer were not impermissibly burdened by Bauer’s expression….

We agree with [Feess’] holding that although Bauer’s writings have some violent content, they “are hyperbole of the sort found in non-mainstream political invective and in context…are patently not true threats.” (Emphasis in original.)….

Within the larger context of the turbulent IVC campus community, the conduct alleged by Sampson does not transform Bauer’s expression into “true threats.” We agree with [Feess’] that there is simply no way a reasonable reader would have construed [Bauer’s] writings and illustrations to be “true threats,” even if that reader were aware of all of the other conduct alleged by Sampson [my emphasis]….

In light of the Accrediting Commission’s report…, it can hardly be said that Bauer was the source of the disharmony on IVC’s campus. IVC and the District were going through a contentious period—Bauer’s commentary on these troubles may have raised awareness, but the expression certainly did not cause them…[A]nyone who has spent time on college campuses knows that the vigorous exchange of ideas and resulting tension between an administration and its faculty is as much a part of college life as homecoming and final exams….

[Judge Feess] correctly ruled that [the district’s workplace violence policy] is unconstitutional on its face because it prohibits speech with violent ‘overtones’ that falls short of being threatening. However, the…court erred in holding that the entire workplace violence policy is facially unconstitutional…The…court correctly ruled that the Board’s policies on racial discrimination…and workplace violence are unconstitutional as applied to Bauer.


As things now stand, Carol will be awarded about $200,000 in fees, to be paid by the district. No doubt the district has already spent much more than that for Rutan and Tucker’s services.

The press took some interest in the victory:

The Times, August 16, 2001:
College District Loses Appeal in Discipline Case

A federal appeals court Wednesday upheld a lower court decision that the South Orange County Community College District chancellor acted unconstitutionally when he disciplined a professor for criticizing the administration in satirical newsletters.

“It’s a victory for free speech and for those willing to report honestly about the incompetence and misbehavior of people in positions of power,” said philosophy professor Roy Bauer. “I certainly hope the chancellor and the board learned a lesson, but judging on past behavior . . . they will continue to run the district into the ground.”

But the court ruled that U.S. District Judge Gary Fees went too far in ruling the community college district’s workplace violence policy unconstitutional. Bauer sued after Chancellor Cedric Sampson in December 1998 ordered him to seek anger management counseling and placed a disciplinary letter in his file. Sampson also said Bauer violated the district’s antidiscrimination policy.

Bauer sued, and Fees ruled in his favor in October 1999. He awarded Bauer’s attorney, Carol Sobel, $127,000 in fees and costs. With interest and the fees from the appeal, that figure has grown to around $200,000, Sobel said.

David Larsen, the district’s attorney, said the board of trustees will have to decide whether to appeal the case to the U.S. Supreme Court.


After nearly three years and an uninterrupted string of court victories, to date, Carol has not seen one dime in attorney fees. Further, Ced’s disciplinary letters remain in my personnel file.

So, now, again, we wait. If the Board decides to appeal to the Supreme Court—a request the High Court will almost surely deny—even more taxpayer money will be wasted.

In any case, dissent continues.

--FU

No comments:

Post a Comment

Trolls and flamers will be cursed by our team of black magicians