by Sam Le (Col '02, Law '05)
In 1989 Robert M. O'Neil set out to show that Americans respected the constitutional right to free speech as much as he did.
A preeminent First Amendment scholar and former president of U.Va., O'Neil had professional pollsters ask people, "Do you believe the government should be able to tell you what views you may or may not express?" Not surprisingly, more than 90 percent said that the government had no such right. But the rest of the survey gave him pause. A majority would ban music that favored drug use. One quarter didn't believe that artists deserved First Amendment protection.
Apparently, most Americans considered free speech to be a relative term. O'Neil concluded that a lot of people needed a lot of convincing otherwise.
Two centuries before, Thomas Jefferson faced a similar circumstance. He had to convince the Virginia General Assembly that citizens should be free to form their own opinions and principles. In 1786, the state legislature finally passed Jefferson's religious freedom bill — seven years after he drafted it. Several years later, Jefferson convinced his friend James Madison that freedom of speech wouldn't be protected unless the newly drafted U.S. Constitution included a Bill of Rights.
It's hard to say what Jefferson would have thought of pornographers, Klansmen, or bloggers — authors of personal Web logs — but O'Neil invokes his name as he tries to persuade courts and the doubtful public that all of them have a right under the Constitution to express their views. Since he resigned as president, O'Neil has directed the Thomas Jefferson Center for the Protection of Free Expression, which has the sole mission of guarding Americans' right to free speech.
The center opened in 1990 with the release of the First Amendment public opinion survey. Today, it's best known for educational projects such as the Jefferson Muzzles [see sidebar] and the community chalkboard coming soon to Charlottesville's Downtown Mall. The center also advocates relentlessly in the courts to protect free speech, often taking the same side as politically unpopular defendants.
The American Coalition of Life Activists (ACLA) is one such defendant. In 1995, this group targeted abortion providers by printing "Most Wanted" posters with doctors' names, addresses and mug shots. A Web site called the "Nuremberg Files" listed the doctors alongside names of politicians, judges and activists who favored abortion rights. The Web site horrified those who studied its legend: A name was grayed out if a person was injured and crossed out if the person had been killed. To many, the ACLA was advocating the murder of specific people who supported abortion rights.
Four doctors and Planned Parenthood sued the ACLA and won a $118 million verdict in a California federal court. The ACLA appealed. The Center for the Protection of Free Expression told the appeals court that the ACLA's posters "express a view related to a political issue — a view deeply abhorrent to most Americans, but nonetheless a view of the type that is protected by the First Amendment."
Some people mistakenly believed that the center supported the ACLA because of the organization's pro-life stance. "We were so isolated as the only non-anti-abortion organization on that side," O'Neil recalls. "They were so confident that we were one of them. They thought, 'Who else would be on that side of the case?'"
In the name of free expression, the center has stood by a host of defendants whom many people might find despicable. Imperial wizard Barry Elton Black burned a cross during a Ku Klux Klan rally in southwestern Virginia. Robert Thomas and his wife, Carleen, operated "the Nastiest Place on Earth," an Internet bulletin board where users could download pictures of people having sex with animals. The Paladin Press published a book detailing how to murder for profit. "When defending vulnerable and beleaguered people, we find ourselves in uncomfortable positions," O'Neil says.
Unlike a law firm, the Center for Free Expression doesn't represent clients. Instead, it identifies cases in federal courts that deal with important First Amendment questions, then acts as an independent "friend of the court." The center submits briefs, or written arguments, that urge judges to keep in mind the rights of free expression.
Some of the defendants — the ACLA, Paladin Press, the Thomases — eventually lost in court.
"We represent a principle," says the center's associate director, Josh Wheeler (Law '92), who returned to Charlottesville to work for O'Neil after briefly practicing corporate law in Los Angeles. "Even if we lose a case, we take satisfaction in that we fought a good fight on behalf of that principle."
The center, which has focused solely on free expression principles since its inception, was coaxed into being by Thomas E. Worrell Jr. (Col '66, GSBA '71), a member of the Board of Visitors and owner of media corporation Worrell Enterprises. In 1984, he approached University President Frank Hereford about endowing an institute devoted to free speech and press. When O'Neil left the presidency of the University of Wisconsin to replace Hereford, planning for the center was proceeding slowly. Then O'Neil made a decision few had anticipated.
In October 1989, O'Neil announced he would step down as president of the University. Coincidentally, the New York Times made a vital gift of $500,000 that allowed the center project to get off the ground. O'Neil, who had taught First Amendment law courses since 1962, appeared to be the perfect candidate to turn Worrell's idea into reality.
"Tom Worrell envisioned a fairly activist organization that would have credibility with the scholarly First Amendment community," O'Neil says "The center would be a participant — a doer. I was prepared to go back to full-time teaching, but somehow didn't really want to be simply a full-time academic figure. So I welcomed the prospect of doing something that was closely related."
An article in the Washington Post during this period, while noting that giving to U.Va. soared during his tenure, described O'Neil as "more of a professor than a president, more of a thinker than a doer, more smart than savvy." While the description is far from accurate — the center's litigation efforts demonstrate O'Neil's acumen as a practicing lawyer — it is true that O'Neil's reputation as a First Amendment scholar has benefited immensely from his increased focus. In the 14 years since leaving Madison Hall, O'Neil has published three books: The First Amendment and Civil Liability, Free Speech in the College Community, and The Rights of Public Employees. He travels the country at an astonishing pace to accept speaking invitations, and writes about free expression for academic journals and newspapers, including the Chronicle for Higher Education and USA Today. His current academic interests include how free expression legal principles translate to the Internet and to college campuses. Should you be punished by your employer for posting controversial comments on your blog? Should colleges designate particular "free-speech zones" as the only places on campus where students can hold political demonstrations, or even sell cupcakes? O'Neil, of course, wants to persuade you that the answer to both questions is no.
"Robert O'Neil has long been one of the most consistent, clear and courageous American champions of freedom of speech and freedom of the press," says Rodney A. Smolla, dean of the University of Richmond School of Law and a noted free speech advocate. "There are few Americans in modern times who have been so steadfast, intelligent and persuasive in making the case for why we should treat protection of freedom of expression as a transcendent value in our society."
O'Neil teaches two classes a semester at U.Va.'s Law School, where he is a professor. But the center is independent from the University. The University can't tell it what to do-an essential feature if the two entities ever wind up with opposite interests in a court case.
Every year, half a dozen law students work at the center, gaining practical legal skills that are harder to come by at U.Va. than at law schools in bigger cities. Several students also intern at the center over the summer.
Grant D. Penrod (Law '03) landed a summer internship at the center in 2001, during an unusually heavy period of litigation. A doctor had sued a Washington, D.C., television station for accusing him of sexually assaulting his patients and referring to him as the "Dirty Doc." Indiana University-Purdue University Fort Wayne was under fire in federal court for allowing a student production of "Corpus Christi," a play that some politicians believed attacked Christianity and promoted homosexuality. Barry Elton Black, the cross-burning Klansman, was nearing his date before the Virginia Supreme Court. Penrod got to work on all the cases.
"I started the job thinking, 'Please don't let me have to represent the Nazis.' And the first case they gave me was about the Klan," he says, appreciating the irony. After gaining an appreciation for free expression while working at the center, Penrod took a job after law school with the Reporters Committee for Freedom of the Press in Arlington, Va., where he spends all of his time focused on First Amendment rights. "I wouldn't have gotten the job I have now without working at the Jefferson Center," Penrod says.
Outside of litigation, the center's major objective is to educate the public about attacks on the right to free expression. It has organized and sponsored conferences that have brought together some unique pairs, such as Hustler magazine publisher Larry Flynt and the Rev. Jerry Falwell; the Tobacco Institute and the American Heart Association; Defense Department officials and Iraqi war reporters. Its best-known project, however, hasn't yet broken ground.
The Center for the Protection of Free Expression made international headlines in 2001 when the Charlottesville City Council voted to approve the center's proposal to erect a community chalkboard at the east end of the pedestrian Downtown Mall, right in front of City Hall. Anybody walking by could pick up some chalk and write whatever they wanted — for all the city to see. It would be a monument to the value of free speech. This struck a surprising number of people as an innovative and potentially dangerous idea. The Washington Post made the chalkboard proposal front-page news. Syndicated columnist Ellen Goodman wrote that the monument would demonstrate that free speech came at a price, but was worth the cost. Even the BBC picked up the story.
There's still no chalkboard, but not because of predictions that it would deteriorate into graffiti and material worthy only of a bathroom stall. Rather, the chalkboard has been delayed by Charlottesville's renovation plans for the east end of the mall, which will lengthen the street, expand the public amphitheatre, and add a bus transit station. If the center has its way — and raises enough capital — right in the middle of the overhauled east end will stand a double-sided, 50-foot-long slate board, accompanied by a speaker's podium. "I think the latest design is ideal because it puts the chalkboard in the center of what might become a sort of free speech plaza," Wheeler says.
And if someone leaves an obscenity or racial slur on the chalkboard? "Speech on the chalkboard will be just like speech generally," says Wheeler. "People might express themselves in ethnically or racially derogatory ways, but those incidents will be so outnumbered by the positive acts of expression that offensive speech will be viewed as an occasional annoyance. No one will learn that racism exists by virtue of seeing a racial epithet on the chalkboard, but it may surprise someone to see 20 responses in opposition to that epithet."
O'Neil considers the community chalkboard to be one more way to carry out the vision of the man who founded the university he once led. In the preamble to the Virginia Act for Establishing Religious Freedom, Jefferson wrote, "Truth is great and will prevail if left to herself." Upon being sworn in as third president of the United States, he said, "Error of opinion may be tolerated where reason is left free to combat it." For O'Neil, the First Amendment guarantees that every opinion — no matter how unpopular — has the right to be expressed. It just might take some convincing before everybody else feels the same way.
The author, Sam Le, was a research assistant at the center during the summer of 2003.
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