There are some
matters that only the court of history can decide: What happened in
the past, why and how?
Although
lawyers and judges are frequently called upon to derive
constitutional and other legal lessons from bygone ages, they are
generally ill-equipped to sift through the nuances of the historical
record.
But as any
student of the past will testify, in order for the court of history
to function properly, it is essential that all those who engage in
historical learning have unmitigated and uncensored access to the
full range of ideas, facts and materials that the past in all of its
variety and messiness offers up to us.
A
lawsuit we have recently filed involving rival interpretations of
the fate of the Armenian communities of the
Ottoman Empire during World War I seeks to
reaffirm this basic principle, one that is central to historical
scholarship and American public law alike.
Late in the
evening on Sept. 22, only hours before the first academic conference
on Turkish soil regarding the disappearance of the Armenian
population of eastern
Anatolia
between 1915 and 1917 was set to commence, a Turkish administrative
court enjoined
Bogazici
University
in
Istanbul
from
hosting the assembly of historians. (The conference had already been
suspended once before, this past spring, after nationalist critics
labeled the event "treason" and a "dagger in the back of the Turkish
nation.")
Prime Minister
Recep Tayyip Erdogan and Foreign Minister Abdullah Gul, attempting
to assure European Union officials and the world that the
last-minute judicial effort to halt the conference did not reflect
Turkey
's
official position, sharply criticized the court's decision.
A
day-and-a-half after the injunction, roughly 300 Turkish scholars
met in a private university across town, not subject to the court's
censorial jurisdiction, to discuss "Ottoman Armenians of an Empire
in Decline." The marketplace of free thought so long and deeply
embedded in American law and culture but so often hard-won, case by
case, elsewhere in the world triumphed in a nation where dissident
views on whether the events of 1915-1917 constitute a genocide exemplify the proverbial "fighting
words."
After the first
cancellation of the conference in May 2005, James Sheehan, the
president of the American Historical Association, wrote a letter to
Prime Minister Erdogan on behalf of the AHA.
Although the
AHA "does not have a position on the fate of the Armenians," Sheehan
wrote, "it is deeply committed to free and open inquiry about
historical issues, and especially about those issues that have been
charged with political and ideological animosities."
He concluded
that "[i]n the long run, everyone's interests are best served by
allowing uninhibited and open inquiry and debate."
The Turkish
government, to its credit, agreed.
Few if any
political and historical topics are more provocative and volatile in
contemporary Turkey
and
Armenia
than the debate
over what happened (and why) to the Ottoman Armenian communities
during the World War I.
Prime Minister
Erdogan's open support for the conference and his call for a Turkey in which "liberties are practiced to
the full" mark a watershed moment for a country determined to break
through the nationalist taboos of its past.
It is all the
more disconcerting, then, that right here in the
Commonwealth of
Massachusetts
,
the state Department of Education has censored one side of this
contentious historical debate.
We have
recently filed a lawsuit in U.S. District Court in
Boston
seeking
to implement a longstanding but, in the current heated and bitter
atmosphere of our nation's "culture wars," sometimes overlooked
Supreme Court doctrine that seems ripe for reinvigoration. It is a
doctrine mandating true tolerance and a real diversity of opinion on
even the most emotional and fiercely contested issues separating our
citizens (as well as many nations of the world) today.
This doctrine
flows from the First Amendment's requirement that the government not
establish ideological, cultural, religious, philosophical or
historical orthodoxies and then punish, censor or otherwise
disadvantage those who deviate from officially promulgated views.
In the area of
public education, in particular, that doctrine prohibits the
government from censoring politically disfavored points of view by
limiting student and teacher access to materials otherwise deemed
educationally suitable.
Genocide vs. contra-genocide theses
The crux of our
lawsuit lies at the intersection of the First Amendment and the
ongoing debate over whether the governing authorities of the
Ottoman Empire committed genocide against the Armenian population of
eastern
Anatolia just before,
during and after World War I.
The lawsuit is
a response to the Massachusetts Department of Education's 1999
deletion from its state curricular guide, after political pressure
from Armenian-American lobbyists and politicians, of all resources
supportive of the view that the atrocities at issue did not attain
"genocide" status within the
internationally accepted definition of the term: that is to say, the
intentional destruction (whether attempted or actual) of a
particular racial, ethnic or religious community.
Filed on behalf
of public school teachers, a student and his father, and an umbrella
organization of Turkish-American groups, our lawsuit seeks a court
order declaring that state educational authorities violated state
and federal constitutional guarantees of freedom of speech and
belief when they ordered the elimination, from state-recommended
curricular materials, of the competing point of view on events in
the late-Ottoman Empire nearly a century ago.
Like the
American Historical Association, our lawsuit does not take a
position on the legal and historical characterization of the fate of
the Ottoman Armenians during World War I.
There is no
question that, through a combination of killings, relocations,
disease and hunger, a very large proportion of the Armenian
population of eastern
Anatolia
disappeared as the
Ottoman Empire
was collapsing during and immediately after the war.
While the
historical accounts are not evenly split as to the "how" and "why"
of this disappearance or as to the numbers of deaths involved
they do reflect a range of positions between two poles.
On the one
hand, some accounts posit that the deaths and deportations of
Armenians were the result of a civil war between Turkish and
Armenian forces, with suffering (including many Turkish civilian
deaths) and violence on the part of both sides, rather than a
deliberate genocidal campaign by the Ottoman authorities against the
Armenian minority. This is the "wartime conflict" or "contra-genocide" thesis.
The other pole
maintains that the actions of the Ottoman military forces reflected
nothing less than an intentional and largely successful program to
kill and/or remove the entire Armenian population of eastern
Anatolia. This is the "genocide" thesis.
Although this
historical dispute is complex, the facts that give rise to the
lawsuit are fairly simple. Pursuant to legislative mandate (Chapter
276 of the Sessions Laws of 1998), the state commissioner of
education created a guide to choosing curricular materials on genocide and human rights.
A preliminary
draft of the guide, which contained resources supporting only
the genocide thesis, prompted
Turkish-American advocates to suggest that contra-genocide materials be added to the guide in
order to acquaint students with both sides of the controversy.
After a public
meeting, followed by the board's determination that they were
educationally suitable, the contra-genocide materials were indeed added, and a
version of the guide that included both genocide and contra-genocide resources was submitted to the
state Legislature.
Yet, after
proponents of the genocide thesis
harshly protested the board's inclusion of contra-genocide materials in the guide and a state
senator insisted on their deletion, the commissioner circulated a
new draft of the guide that censored out all contra-genocide materials.
A series of
letters, between and among the board and the advocates for the
competing positions on the historical question, culminated in a
statement by the commissioner that, because the original statute
used the phrase "Armenian genocide,"
no contra-genocide materials would be
included in the guide. The statute provides:
"The board of
education shall formulate recommendations on curricular materials on
genocide and human rights issues, and
guidelines for the teaching of such material. Said material and
guidelines may include, but shall not be limited to, the period of
the transatlantic slave trade and the middle passage, the great
hunger period in Ireland, the Armenian genocide, the holocaust and the
Mussolini fascist regime and other recognized human rights
violations and genocides." [emphasis
added]
In the
commissioner's view, the Legislature's mere use of the phrase
"Armenian genocide" as an example of
the kinds of historical events to be included in the curricular
guide was to be taken as a command that the guide include
only materials expressing the position that the events did
indeed constitute, legally and historically, a genocide.
To this day,
the guide does not contain any references to contra-genocide viewpoints or resources. The guide
thus attempts to convey the impression that the genocide thesis is the only possible and
intellectually respectable view, as if this characterization has
been universally accepted by historians.
As AHA
President Sheehan has noted in a recent column in the AHA newsletter
Perspectives (September 2005), however, even among the majority of
historians who accept the underlying facts of the genocide thesis, there is uncertainty as to
whether the specific term genocide is appropriate.
Neither the
plaintiffs nor the attorneys in this lawsuit are historians of the
late
Ottoman Empire . They have not
spent years laboring to master difficult foreign languages or dig
tirelessly in remote, politically sensitive archives. But they do
believe it is imperative that the state not silence meaningful
discussion on this complicated and contentious topic, or on any
other topic with respect to which reasonable people in a free
society can and do differ, often quite heatedly.
Assessing
whether the intention of the Ottoman authorities was to destroy the
Armenian people and culture or instead to put down a political
uprising during a period when the administration of the
Ottoman Empire was dissolving, historians,
partisans and partisan-historians have taken up their own arms,
ranging from vituperative denunciations to pleas for public
discussion and debate.
A genocide resource book published by
Brookline-based Facing History and Ourselves refers to dissidents
from the genocide thesis as "deniers
and revisionists," approvingly citing one scholar who "believes that
denial of the Genocide is tantamount
to hate speech." ("Crimes Against Humanity and Civilization: The
Genocide of the Armenians,"
Readings
8 and
9 (2004)).
But the
plaintiffs in this case do not seek to obtain the state's imprimatur
for any particular thesis. Nor do they seek to halt the debate by
insisting that one side's point of view is the only legitimate one.
They ask only that the state allow teachers and students to think
for themselves after all intellectually and academically appropriate
points of view have been placed on the table in the tradition of
America's free marketplace of ideas and inclusion in the
curricular guide surely is essential to accomplish this.
Other
examples
The dispute
over the fate of the Ottoman Armenians is only one of many hotly
contested political, religious and cultural contexts in which
censorship and ad hominem invective seek to squeeze out free inquiry
and mutual understanding in contemporary America .
Consider, for
example, the raging controversy between Darwinian evolutionists and
adherents of Intelligent Design theory (ID), which sometimes sounds
like a struggle between the forces of godless materialism and those
of narrow-minded fundamentalism.
Or the battle
between advocates on both sides of the abortion debate, where
nuances get lost in the struggle between those who claim to revere
life versus those who respect a woman's autonomy.
In an enormous
assortment of issues in American political and cultural life today,
lines have been drawn in the sand on issues where, in fact, mutual
respect and toleration might be achieved if the goal were not the
power of each side to push the other out of the intellectual
marketplace altogether.
It is human
nature for each of us to believe he or she is correct on any number
of deeply held views. Even something as important as the need to
live together in a diverse society does not, and should not, require
any of us to give up our beliefs.
But our system
of constitutional democracy also contemplates a certain civic
tolerance that has lately been in increasingly short supply at both
ends of the various spectra governing American life: conservative
versus liberal, religious versus secular, etc.
The Supreme
Court's opinions regarding one of the foundational rights in the
Constitution the right to an unencumbered conscience and an
unrestrained mind, free of official censorship, coercion and
state-mandated orthodoxies have repeatedly defined and
demonstrated the significance of a liberated mind and of its
essential twin, tolerance for those with whom we vehemently
disagree.
The notion that
government should facilitate discourse and not force citizens to
accept a singular point of view is not new. One recalls the famous
1929 dissenting opinion by Justice Oliver Wendell Holmes in
United States v. Schwimmer, 299 US 644 (1929): "The principle
of free thought not free thought for those who agree with us, but
freedom for the thought that we hate," Holmes wrote, is arguably the
most imperative principle in the Constitution.
Much more
recently, the constitutional scholar Laurence Tribe observed in the
1988 edition of his acclaimed treatise American Constitutional Law
(p. 838, n. 17) that "[i]f the Constitution forces government to
allow people to march, speak and write in favor of peace,
brotherhood, and justice, then it must also require government to
allow them to advocate hatred, racism, and even genocide."
Censorship of
materials deemed offensive, provocative or otherwise politically
unacceptable from an academic collection calls to mind a famous 1982
legal tussle involving the
Island
Trees
Union
Free
School
District
in
New
York
.
There, the Board of Education, under pressure from what the Supreme
Court dubbed "a politically conservative organization of parents,"
removed nine books from the school library, characterizing them as
"anti-American, anti-Christian, anti-Semitic, and just plain
filthy."
As Justice
William Brennan wrote, the court saw fit to order the books
reinstated "because we are concerned in this case with the
suppression of ideas." Board of Education v. Pico, 457
U.S.
853, 871-2.
Perhaps the
most forceful example of the Supreme Court's defense of the
importance of a free mind dates back to World War II.
In 1943, the
court took the highly unusual step of reversing an opinion it had
crafted only a few years earlier. In a 1940 case, Minersville
School District v. Gobitis (310 U.S.
586), the high court upheld a state's mandatory flag-salute
requirement, concluding that government had the power to compel such
a civic ritual in the name of maintaining national cohesion. The
court's 1943 reversal of this decision, in West Virginia Board of
Education v. Barnette, (319
US
624), shared a similar cast of characters and central plot device.
In both,
Jehovah Witnesses challenged, on freedom of religion grounds, the
requirement that their children be forced to salute the flag each
day in what was to them an act of idolatry, given the book of
Exodus' prohibition against making obeisance to "graven images."
Justice Jackson
was able to attain a clear majority for his magisterial opinion in
Barnette. While Jackson and his fellow justices had no
problem with West
Virginia's requirement that certain courses
be taught, nor with attempts to inspire patriotism by exposing
students to national history and traditions, they did have a problem
with the West Virginia Board's mandatory flag-salute.
That
requirement,
Jackson
wrote, compelled a student
"to declare a belief [and]
to utter what is not in his mind." The
strength of
America
consisted in
"individual freedom of mind" rather than in "officially disciplined
uniformity for which history indicates a disappointing and
disastrous end." Enforced conformity, far from teaching the value of
liberty, would "strangle the free mind at its source and teach youth
to discount important principles of our government as mere
platitudes."
Paragraph by
paragraph,
Jackson
's powerful prose explained
why even men and women of good intentions should not possess the
awesome power to compel belief.
Jackson
appealed to practicality
and to history. Throughout time, he noted, both the good and the
evil had attempted "to coerce uniformity of sentiment in support of
some end thought essential." Such goals had been variously racial,
territorial, and religious. Yet each such effort raised the bitter
and profoundly divisive question of "whose unity it shall be."
In short,
Jackson
wrote for the majority,
"compulsory unification of opinion achieves only the unanimity of
the graveyard." The "freedom to differ is not limited to things that
do not matter much," the court discerned. "That would be a mere
shadow of freedom. The test of its substance is the right to differ
as to things that touch the heart of the existing order."
Jackson concluded his
Barnette opinion with one of the most eloquent passages in
American constitutional history and, indeed, in all of American
literature.
"If there is
any fixed star in our constitutional constellation, it is that no
official, high or petty, can prescribe what shall be orthodox in
politics, nationalism, religion, or other matters of opinion or
force citizens to confess by word or act their faith" in it.
"The purpose of
the First Amendment to our Constitution," he emphasized, was
precisely to protect "from all official control" the domain that was
"the sphere of intellect and spirit."
So it was that
Barnette, not Gobitis, became the landmark opinion,
defining the constitutional and moral norms of our free society,
challenging us never to be so sure of our own rectitude that we
force others to agree with us.
Running afoul of
'Barnette' warnings
Today's
attempts to establish official orthodoxies, whether by mandating
declarations of belief or censoring politically disfavored
viewpoints by limiting student and teacher access to educationally
suitable materials, run seriously afoul of Justice Jackson's
warnings in Barnette.
It is one thing
for private citizens to be so certain they are right that
they vilify or even seek to silence disagreement. It is quite
another thing for government to act as a proxy for private
certainties by writing them into the law of the land, whether
through statute or administrative action.
This brings us
back to the lawsuit at hand. If the highest principles of our
Constitution require protection even for those who advocate
genocide, then surely it protects
those engaged in a legitimate debate over whether a
particular historical event did or did not constitute genocide within the accepted international
legal definition.
As recent
events in Turkey
have
demonstrated, facing history sometimes requires societies to
confront viewpoints and truths that clash with strongly held
nationalist sentiments.
Facing the
First Amendment is not all that dissimilar: It can sometimes create
deep discomfort and anxiety, even great pain, on the part of those
who disagree to the core of their being with a particular form of
protected expression. That is part of the price of living in a free
society. But it is consistent with greater historical understanding
of the underlying events that give rise in the
United States
to the endless and
enervating culture wars and, in some places in the world, to actual
armed conflict.
The First
Amendment, in its wisdom, gives us a way to avoid such outcomes, if
only we choose to follow and honor it.
*Harvey A.
Silverglate, a criminal defense and civil liberties lawyer, is of
counsel to the Boston firm of Good & Cormier, co-author (with
Alan Charles Kors) of "The Shadow University: The Betrayal of
Liberty on Americas Campuses" (HarperPerennial, 1999), and vice
chairman of The Foundation for Individual Rights in Education.
Norman S. Zalkind is a partner in the Boston firm of Zalkind,
Rodriguez, Lunt & Duncan. Philip G. Cormier is a partner in the
Boston
firm of Good & Cormier.
Malick W. Ghachem is an associate in the Boston firm of Zalkind,
Rodriguez, Lunt & Duncan. The authors acknowledge with gratitude
the research assistance of Dustin A.
Lewis.