Friday, September 07, 2007

Avery Doninger and Free Speech

U.S. District Judge Mark Kravitz ruled that Regional School District #10 could punish Avery Doninger for what the judge agreed was "vulgar and[or] lewd" speech (the use of the term douch-bag). It won't last long.

A similar, highly prominent case (or non-case) involved an attempted suit by an author who didn't like a blog book review criticizing his book, Lifecode. The book review called the author "a classic crackpot" and the book review was written by a university professor Myers.

Thanks in part to an open letters to the author by retired law professor Peter Irons, the suit was quietly dropped in deafening silence. Mr. Irons is a retired law professor whose specialty is First Amendment Law.

In part he wrote this in defense of the book review;
On a substantive level, the complaint will never survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, for “failure to state a claim upon which relief can be based.” You allege defamation by Professor Myers on the sole basis of his characterization of the revised edition of your Lifecode book as the work of “a classic crackpot.” This was in the context of a fairly lengthy review of your book (following an earlier review of your book’s first version) that was not included or even referenced in Mr. Little’s complaint.

As Mr. Little should have known, by due diligence, Professor Myers’ characterization was protected opinion, not a false statement of fact. As such, it is immune from defamation actions. Mr. Little cited, in paragraph 21 of the complaint, a single case to support your action: McFadden v. U.S. Fidelity & Guarantee Co. (766 So.2d 20). I have carefully read this opinion, which has no precedential value in any state or federal court. The claim in Mr. Little’s complaint that in this case “[t]term ‘crackpot’ was considered as actionable as slander per se” in simply not true. This case was remanded by the Mississippi Court of Appeals to the trial court; no trial was held on this question and no subsequent opinion was issued.

More to the point, and a case Mr. Little should have discovered by due diligence, is an opinion of the U.S. Court of Appeals for the Seventh Circuit in Dilworth v. Dudley et al., 75 F.3d 307 (7th Cir. 1996). For your edification, and that of Mr. Little as well, let me summarize and quote from this opinion, written by Chief Judge Richard Posner, one of the most highly respected federal appellate judges. The case involved a book by a mathematics professor at DePauw University, in which he characterized an article by an engineer and amateur mathematicians as the work of a “crank,” a term that is synonymous with “crackpot.” In upholding the district judge’s dismissal of this defamation case under Rule 12(b)(6), Judge Posner wrote that the term “crank” is an opinion and “is mere ‘rhetorical hyperbole.’ … To call a person a crank is basically just a colorful and insulting way of expressing disagreement with [the author’s] master idea, and it therefore belongs to the language of controversy rather than to the language of defamation.” In my opinion, Judge Scheindlin would be more impressed with Judge Posner’s opinion than in dictum from a Mississippi judge. Judge Posner, by the way, also wrote that terms like “scab,” “traitor,” “fake” and “phony” (far more pejorative than “crackpot”) “are incapable of defaming because they are mere hyperbole….” Judge Posner added, “By publishing your views you invite public criticism and rebuttal; you enter voluntarily in one of the submarkets of ideas and opinions and consent therefore to the rough competition of the marketplace.”
I am going to guess that the term douch-bag is also little more than hyperbole - protected speech.

And if the Doninger incident was not an opportunity to teach instead of an opportunity for reprisal then none exists. The idea that school administrators earning significant 6-digit incomes can't resolve a dispute about a concert is a clue to the region to take a harder look at what's going on in that school district.

As a citizen, former educator, and critical thinker, it appears that Avery Doninger was first abused by the school in significant, unconstitutional ways.

Connecticut's judicial branch of government needs a scrubbing. An independent citizen review needs to take a hard look at what is going on. Connecticut once one of this nation's finest courts and today the quality of rulings gives every impression that the courts have become a political whorehouse from the Supreme Court of the United States right down to the local levels.

The agenda of these new politically greased courts seems to be to deny students any right to speak out. This has little to do with freedom of speech or cyber-bullying or any such nonsense. This is about growing a docile citizenry that will not protest its own growing subjugation to forces that no American should ever genuflect to.

The same breath of God that informs our ears is the breath of God that children speak. The God that informed our Constitution called our rights inalienable.

What is the story of the money-changers in the Temple of the New Testament if not a child's eternal contribution to his culture. Who has the right to negate that today?

In James Hillman (THE DEPTH OF THE SOUL: JAMES HILLMAN’S VISION OF PSYCHOLOGY by Sanford L. Drob) we find out about growing souls and why a child's expression of oneself is sacred ground;
Soul, according to Hillman is most apt to emerge in those chaotic, "pathological", moments when we experience the disintegration of our beliefs, values, and security. For it is in such moments that that our imagery, emotions, desires and values are heightened and we have the fullest awareness of the psyche in its essential form. Here, Hillman provides us with a psychological application of the Kabbalistic act of Birur, the extrication of the inner divine self, the spark of divine light that lays hidden within the human personality. For Hillman, the very point of deconstructing our fixed ideas in psychology and elsewhere is to provide us with the conditions for the revelation of psyche itself.

Hillman says five more things about the nature of the soul: the soul (1) makes all meaning possible, (2) turns events into experiences, (3) involves a deepening of experience, (4) is communicated in love, and (5) has a special relation with death (Hillman, 1977, p. xvi, Hillman, 1976, pp. 44-47). For Hillman, as a result of these five characteristics, the soul is the "imaginative possibility of our nature", a possibility that is realized in reflective speculation, dream, image, and fantasy. Death is significant for soul because possibility (and hence imagination) derives from an existential recognition of one's finitude: what is finite can imagine possibilities, some of which will be realized, others of which (owing to death) will not (Hillman 1992, p. xvi, 1989, p. 21).

For Hillman, the ultimate psychological value, indeed the ultimate value in general, is a realization and deepening of the soul in its widest possible sense. Hillman's goal, which can be described as "mystical" amounts to a radical departure from not only the medical model of psychoanalysis but also from those humanistic models which, having rejected the metaphor of "cure," continue to entertain notions of self-improvement, self-actualization, well-being, understanding or enlightenment as goals for treatment or therapy (Moore, 1991). For Hillman the goal of psychology is the deepening of meaning and experience per se; any other goal, whether it be medical cure, humanistic self-actualization, or spiritual enlightenment, is bound to distract us from our primary human task as the bearers of meaning and significance. Hillman's views are almost quietistic, and they approach those strands within Jewish mysticism, particularly in Hasidism, where devekut, or cleaving to the God within, is the ultimate value. However, more generally, his view is one in which every arena of human endeavor is to be imbued with meaning and significance, and here is close to the Kabbalist's affirmation that all human acts provide an opportunity for the respiritualization and repair of the world.
If voices can be silenced then some will never speak before they die. Who has the right to deny that soul and who is to say who this world's chosen messengers can be? If the soul is a narrative then these are stories that must be realized in open speech.


Stacie said...

Hear hear! Nicely said.

The Caretaker said...

Thank you Stacy.

You will always be more than welcome to contribute a guest entry on my blog.

Your avatar picture is one of the most beautiful I've seen. Michaelangelo would be proud of your taste.