The Franklin Case
To the Editor:
Although I was pleased to see Herbert L. Packer’s reference to my article in the New York Times Magazine about the Bruce Franklin tenure case at Stanford, I am afraid I find Mr. Packer’s article [“Academic Freedom and the Franklin Case,” April] to be little more than a post-mortem brief for the prosecution, and one that is seriously flawed in some important details.
Mr. Packer dismisses Franklin’s performance as a teacher with the words “incompetent” and “bizarre.” This is a judgment quite at odds with all other reports I have heard, including statements made to me both by students and by Franklin’s colleagues in the English department. If, indeed, Franklin was incompetent as a teacher, it was surely the best-kept secret of this protracted and vigorously argued case.
Furthermore, Mr. Packer’s eagerness to imply that Franklin was responsible for the “trashings,” the arson, the fire-bombings, and the shootings on the Stanford campus since 1967 ill becomes a professor of law. Stanford has certainly been plagued by serious acts of vandalism, and worse, and Bruce Franklin was certainly an obstreperous influence on campus, but it has not been demonstrated in a court of law, or anywhere else, that Franklin was directly or indirectly responsible for any of these criminal acts.
My objection to the action of the faculty board and whatever sympathy I have for Bruce Franklin grow out of two aspects of the case that Mr. Packer deftly manages to sidestep.
First, the charges which were sustained by the faculty board and for which Franklin was fired involved behavior that can reasonably be argued to fall under the protection of the First Amendment. Readers of Mr. Packer’s article should know that on March 9 the Board of Directors of the American Civil Liberties Union of Northern California voted unanimously to help Franklin contest the decision in the civil courts. The ACLU’s action was based on the argument that the speeches at issue were within the legitimate bounds of political advocacy.
As the organization’s newsletter reported, “The Board was convinced that Franklin was terminated only because Stanford felt that his speeches were effective; i.e., persons in the audience allegedly acted on the proposals he discussed. They noted that, contrary to news reports and rumor, Franklin was charged with no acts of violence against person or property. Although charged with having disrupted a speech by Henry Cabot Lodge, he was acquitted of any such act. What Franklin was discharged for were the opinions he expressed as to appropriate action by which the Stanford community could protest the U.S. invasion of Laos. . . .”
Finally, I am prepared to go further than the ACLU and say that it seems clear to me that Franklin was dismissed not so much for what he said in the course of the disputed speeches as simply for being the difficult and embarrassing person he was. Mr. Packer comes close to defending this point and this seriously disturbs me, for if this doctrine is to be accepted generally, here is surely a real and pressing threat to academic freedom everywhere.
To the Editor:
I have no direct knowledge of the Franklin case, but I find Herbert L. Packer’s argument internally unpersuasive. Mr. Packer quotes approvingly the Stanford Advisory Board’s statement that there is an “institutional decision that while those further toward the center of the political spectrum may practice what they preach, those at its extremes may preach but are limited in their practice.” This must be the case, the Board argues, because “any evenhanded balancing of rights,” however desirable in itself, would have an untenable cost in reducing the character of the university as “an institution in which independent initiative from many quarters can have the widest possible play.” In short, there are two partly incompatible values to be reconciled through judicious balancing: the openness of the university to the expression of diverse viewpoints, including radical and unpopular ones; and the protection of this very openness against radical members of the university who do not believe in it themselves, and use their freedom as an opportunity to undermine it.
If this is the standard to be applied in judging Stanford’s action in the Franklin case, as Mr. Packer seems to advocate, then certain facts on which he dwells—for example, that Franklin changed his course title to “Melville and Marx,” that he kept a gun, that he advocated disrupting the classes of the members of the Advisory Board—are irrelevant. The Advisory Board was presumably applying its own values and not Professor Franklin’s. The fact that Franklin does not believe in free speech for his enemies does not mean that they should not believe in free speech for him—“up to a certain point.”
What is that point? Here is where the wisdom of the Advisory Board was tested and where, it seems to me, judging from Mr. Packer’s account, it was wanting. Just how dangerous was Professor Franklin? Mr. Packer several times uses the word “charismatic,” as if to suggest that Professor Franklin’s “incitement” alone caused demonstrations and violence on the Stanford campus. Has Mr. Packer forgotten the Vietnam war, the Cambodian incursion, the invasion of Laos, the resulting nationwide anti-war movement which made itself felt on so many campuses? Without questioning the Board’s finding that Franklin incited certain specific crowd actions during two campus demonstrations, and without agreeing with Franklin’s reported views, one may certainly question whether the dismissal of this one radical professor was so essential to the freedom of speech of the liberal Stanford faculty majority that it justifies the loss of a challenging and heterodox voice. It would have been extraordinary if Franklin had really been so uniquely dangerous, and one would have expected Mr. Packer to make the point explicitly and with some persuasive evidence. Since he doesn’t, one is left wondering whether Mr. Packer is not too frightened by Franklin’s beliefs to consider calmly the relative costs and benefits of firing him.
Andrew J. Nathan
New York City
To the Editor:
Anyone concerned about civil liberties must look with suspicion upon an article that begins by asserting that a university’s decision to fire a tenured professor for his public speeches has actually “advanced” the causes of “free speech on campus, of academic freedom, and of civil liberties. . . .” This kind of exaggerated reverse logic is typical of an advocate’s brief, and that is precisely what Herbert L. Packer’s article on the Franklin case is. I was indeed surprised to see that COMMENTARY had failed to identify Mr. Packer more precisely than as a professor of law at Stanford: he was Vice Provost of the university during the early student disturbances; he has long been a close adviser to President Lyman (who instituted charges against Franklin); and he participated in the Franklin case itself by filing a brief urging the Advisory Board to disregard a brief amicus curiae filed by the American Civil Liberties Union. (At this point let me identify myself more precisely: I represented the ACLU in the Franklin case, and participated in drafting its brief; but then I have not written an article purporting to present a disinterested account of a case in which I had participated as an advocate.)
Mr. Packer’s bias creeps into his article on virtually every page. In discussing the counsel situation, he says:
The University was represented during the hearings by a young lawyer from Los Angeles who was a recent graduate of the Stanford Law School. Professor Franklin was represented before the hearing by a San Francisco law firm. He chose during the hearings to conduct his own defense. [Emphasis added.]
There is so much distortion in those three sentences that it is difficult to know where to begin: I) Stanford was represented by three outside lawyers from a leading Los Angeles firm (Tuttle & Taylor, which has approximately twenty lawyers) and its own university lawyer. Three of these lawyers devoted their full time to the case. Stanford’s legal fees—exclusive of the salary of its own lawyer—came to more than $50,000. 2) The so-called “San Francisco law firm” that Mr. Packer says represented Franklin consists of three young attorneys, one of whom was incapacitated with a serious back injury, another of whom was handling a case in Europe during the actual proceedings, and the third of whom had nothing to do with the Franklin case. But the most serious misstatement is Mr. Packer’s claim that Franklin “chose during the hearing to conduct his own defense.” The truth is that Franklin ran out of money before the hearing began; his pre-trial legal fees came to $3,000, and he requested the university to provide him with funds to retain counsel on the ground that he was “personally unable to pay the expenses of fees of counsel for this litigation”; but this request was refused. Franklin tried desperately to obtain counsel. (He did “choose” to play an active role in his own representation, but he did want a lawyer to represent him as well.) I know this for a fact because he pleaded with me to represent him (which I could not do because of the terms of my fellowship at the Center for Advanced Study). He asked at least one member of the Stanford Law School faculty to represent him. And a written request for legal assistance was placed in the box of every member of that faculty. In the end, Franklin was forced to represent himself not because he “chose” to, but because Stanford denied him the funds to retain counsel, and because no one in the Stanford community was willing to come forward to serve as counsel. Did this also “advance” the cause of civil liberties? (Franklin did have the uncompensated, part-time assistance of Joel Klein, a recent Harvard Law School graduate working with me at the Center. Klein—who is not yet admitted to any bar, had never participated in any case, and was employed full time in other pursuits—assisted only in the preparation and presentation of legal motions.)
Mr. Packer correctly describes Franklin as an “apologist for violence” and as one who “lent his prestige” to those who would engage in violence; he argues that Franklin’s speeches calling for students to “shut down” the computation center and to wage a “people’s war” had a “significant effect” in moving the crowd to illegal action. I agree that Franklin did all of these things (and that he should be condemned for doing them). But these are all a far cry from illegal incitement. Indeed, the Supreme Court in Brandenburg v. Ohio—the case that Mr. Packer says the Board followed—focused on language precisely parallel to Mr. Packer’s characterizations of Franklin’s speeches in striking down the statute at issue in that case: the unconstitutional Ohio statute would have punished those who “justify the commission of violent acts with intent to exemplify, spread, or advocate the propriety of [violence]. . .” (emphasis added). This is just what Mr. Packer says Franklin did, and it is indeed what he did do. But that is not incitement. Franklin advocated actions; he offered up ideas for acceptance or rejection. His ideas were obnoxious and dangerous; they certainly increased the likelihood of violence; but it is precisely these kinds of ideas that the First Amendment was designed to protect.
The Board of Directors of the American Civil Liberties Union of Northern California—an organization which, despite Joseph W. Bishop’s criticisms [“Politics & ACLU,” December 1971], is a neutral protector of free speech—analyzed each of Franklin’s speeches in detail and unanimously concluded that none of them constituted an unlawful incitement. (The ACLU has decided, therefore, to file suit against Stanford seeking Franklin’s reinstatement.) Franklin’s first speech advocated shutting down the computation center; it did not specify how it should be shut down (by lawful or unlawful means), nor when. In fact, Franklin’s speech was not followed by immediate unlawful action: it was followed by a vote. There was then another meeting by those who occupied the computation center at which it was decided what to do. Franklin did not even attend that meeting, nor did he participate in the actual occupation.
The second speech was a statement by Franklin protesting a police order to disperse from in front of the computation center and denying the legality of the order. The legality of the police order was, in fact, questionable, since the building had already been cleared and the demonstrators—who were concededly orderly—were separated from the building by a police barricade. Franklin’s actions may have contributed to the unlawful police behavior that followed. (“The police line charged, dispersing the crowd with arrests and minor injuries to some persons”—Board Report.) But that surely does not strip his actions of constitutional safeguard. It would be a sorry Constitution which failed to protect statements that increased the risk of violence to an audience by angering the police into unlawful conduct.
The third speech was a vague call by Franklin to engage in “the methods of people’s war.” He elaborated by “telling people that people’s war meant that they should go back to the dormitories, organize people into small groups, and talk with them, or play football, or whatever, as late into the night as possible” (Board Report). It must have been the “or whatever” that was found to be an unlawful incitement. This charge is absurd on its face, especially when it is realized that Franklin’s statement was made in the context of the general theme of his speeches that night that trashing and other “militant action in large groups would be suicidal, given the number of police on campus” (Board Report).
It could, of course, be argued—as Mr. Packer did argue in his brief—that a faculty member may be fired for making speeches that could not, under the Constitution, subject him to criminal penalties. Surely, such an argument would have plausibility in non-speech contexts: a professor should be subject to firing if he has engaged in plagiarism or other forms of cheating, even though these may not be crimes. But a double standard has no validity in the context of public speeches. It would be intolerable to permit less free speech on a university campus than on a public street. Yet this is the plain implication of the double standard suggested by Mr. Packer.
Mr. Packer’s discussion of me is just plain silly. He faults me for expressing the judgment that the Franklin decision will have “a chilling and deterrent effect on what professors think they can say to mass audiences in situations that may be inflammatory.” He argues that since I am “well known professionally for [my] skepticism . . . about predictions of anti-social behavior as, for example, in laws regarding preventive detention,” it is, therefore, incumbent on me to eschew “prediction about the consequences of the Franklin decision.” But surely Mr. Packer must understand that there is an enormous difference between locking up an individual on the basis of a prediction that he may commit a specific act, and criticizing a decision on the basis of a judgment that some professors in some universities may be deterred from making some constitutionally-protected speeches. The dangerous precedent embodied in the Franklin decision will lie about like a loaded weapon ready to be picked up and used by any university administration, board of regents, or state legislature wanting to rid itself of uncomfortable radicals. And there are many universities far less committed to the causes of academic freedom—or far less able to resist the pressures of alumni and legislatures—than Stanford.
Bruce Franklin’s political views are despicable to me. I firmly believe that he is a dangerous person. I sincerely hope that he fails in his goals, and I will do everything I can—consistent with the Constitution—to see that his ideas are rejected in the free marketplace of ideas. But his right to advocate his program—even one that rests on violence—must be protected. Stanford’s failure to protect this right did not “advance” the causes of free speech, academic freedom, and civil liberties. It retarded them; and in doing so, it contributed to the general contradiction of freedom that we have been experiencing in this country over the past few years.
Alan M. Dershowitz
Herbert L. Packer writes:
- Kenneth Lamott criticizes my article for several reasons. As I made clear, the charges did not raise the question of Franklin’s competence. If, as Mr. Lamott says, he didn’t hear from anyone that Franklin’s teaching had become incompetent, then his thoroughness as a reporter is quite suspect. Perhaps he believes that competence and having a following are synonymous. Mr. Lamott did not talk with the same students and English-department faculty members that I did. As for “bizarre,” which, as I stated in the article, was my own and only estimate of Franklin’s teaching, it surely is bizarre to call Edgar Snow the leading prose writer in English in this century. Does Mr. Lamott not think that this is bizarre?
- I am glad to be told by Mr. Lamott that the ACLU has decided to help Franklin contest his dismissal. As a former member of the Board of Directors of the ACLU’s Northern California Branch, I realize, as I realized when I resigned several years ago, that it was too much to hope that cooler heads on the Board might have backed off from their earlier uncritical endorsement of Alan M. Dershowitz’s views.
- Andrew Nathan charges that my argument is “internally unpersuasive.” Does that mean that it was externally persuasive?
- The charges and the Board’s decision (which Mr. Nathan really ought to read) make no mention of the facts on which my article did not “dwell.” No, I have not forgotten “the Vietnam war, the Cambodian incursion . . .,” etc. Indeed, Franklin was “not uniquely dangerous.” He and his sort exist on every campus. It is only when their speech amounts to incitement that they should be exposed to discipline.
- In response to Mr. Dershowitz, let me begin by saying that COMMENTARY has already told him that it was their responsibility not mine that the facts concerning my involvement with Stanford’s affairs were not printed with my article. I did not pretend disinterest. How could I have when the last fifteen years of my life have been devoted to that institution? But then I did not file a brief purporting to represent a disinterested opinion. In submitting his amicus brief, Mr. Dershowitz presumably did just that. The chairman of the Advisory Board asked him to disclose his interest if he had one. Mr. Dershowitz professed to be outraged by this request. In fact, well before he prepared his amicus brief, he had spent a couple of hours with Franklin. Only he and Franklin know what went on during that conference. In his letter, Mr. Dershowitz mentions the name of Joel Klein, his research assistant. Joel Klein’s salary was paid by Mr. Dershowitz. (That is of course a euphemism; it was the Harvard Law School that paid Mr. Klein to work for Mr. Dershowitz during his year at the think tank.) In addition, the two men are, I understand, close friends. These facts hardly support Mr. Dershowitz’s claim of being concerned in the case only as a disinterested amicus. One marvels at his holier-than-thou air.
- I apologize for having referred to a “young lawyer from Los Angeles.” That lawyer was the university’s principal counsel during the hearings. He is a former student of mine. I did not intend to low-rate him.
- Mr. Dershowitz has now settled on the issue of payment to counsel as an argument for discrediting the Advisory Board. This argument is just an afterthought: why didn’t he make it in his amicus brief? Mr. Dershowitz says that “a written request for legal assistance was placed in the box of every member” of the law-school faculty; in fact what was placed in my box was an unsigned mimeographed flier calling for an open meeting to “discuss” the problem of Franklin’s counsel. It is indeed true that one of my colleagues was asked by Franklin to represent him. Unfortunately, that colleague was too busy with such trivial outside commitments as directing the constitutional efforts to halt the death penalty to take Franklin’s case.
- When Mr. Dershowitz refers to Brandenburg, the Supreme Court’s last word on incitement, he quotes the Court’s paraphrase of the Ohio statute that was held unconstitutional and then claims that what Brandenburg said was not incitement and then he claims “this is exactly what Packer said Franklin did.” Wrong, of course. The Supreme Court said “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” That is precisely what the Advisory Board, quoted in my article, held that Franklin did. Another interesting distortion by Mr. Dershowitz.
- I appreciate the fervor of Mr. Dershowitz’s support for First Amendment rights. I share that support, as did the members of the Advisory Board. But even that old absolutist Hugo Black never claimed that all words were protected. We all know that inciters rarely put their hands on the rope.
- Mr. Dershowitz spends a good deal of his letter on the “facts” of the case. Since he had, before the presentation of the facts in the hearing, already committed himself to Franklin’s cause, he is a little late to be caring about the “facts.” I will say that in every material particular Mr. Dershowitz distorts the facts as found by the Advisory Board. For example, with respect to Franklin’s second speech in the Old Union Courtyard, one witness testified that “Professor Franklin called specifically for people’s war against the occupation army—i.e., the police.” The Board held that: “The targets of Professor Franklin’s animosity were quite explicit—the police and the university. He made an intensive effort in the two speeches to generate further hostility toward these targets. He provided justification for coercive and violent behavior toward them, without specifying precisely what the nature of such acts should be, leaving that to the judgment and the imagination of each individual or small group.” Contrast that with Mr. Dershowitz’s snippets of extracts from the Board’s decision. Ask yourself to what lengths one is entitled to go to save one’s own position.