If This Be Censorious Asshattery, Let Michael Farris Make The Most Of It

Irksome, Law, Politics & Current Events

I don't know that Dr. Michael Farris, Chancellor of Patrick Henry College, will act like a censorious tool today or tomorrow. But as Patrick Henry said, “I know of no way of judging of the future but by the past.” So I'm betting on yes.

Patrick Henry College is a small, private, devoutly Christian college in Virginia. It's honest about speech — by that I mean, unlike schools that promise to celebrate and respect freedom of expression whilst enacting indefensible speech codes, Patrick Henry College is very forthright about restricting the expressive activities of its students. I condemn public institutions that suppress speech, and private institutions that promise freedom of speech but deny it, but when it comes to institutions like Patrick Henry I share The FIRE's viewpoint, which I would paraphrase as "you knew the job was dangerous when you took it, Fred."

So: I wouldn't spend much time on Patrick Henry College banning students from advocating gay rights on campus. I might find it repugnant, but it's their patch. However, when Patrick Henry College — through Chancellor Farris — starts to threaten lawsuits based on criticism of the school from a gay rights perspective, I become perturbed.

The blog queerphc, or "Queer at Patrick Henry College," says up front that it is not part of or endorsed by the college, but is written by Patrick Henry students unified by "our desire to help and encourage other Patrick Henry College students, current and former, in any way that we can." The blog covers things like the ongoing dialogue about conflicts between sexuality and religious dogma at Patrick Henry and disputes over the very language of the discussion about sexuality.

This was apparently intolerable to Chancellor Farris, who should have listened to Patrick Henry: “For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth; to know the worst and to provide for it.” Chancellor Farris issued a foolish threat — not merely of academic consequences to the anonymous Patrick Henry bloggers, but of legal consequences. He wrote a threat on the blog's Facebook page:

This page is in violation of our copyright of the name Patrick Henry College. You are hereby notified that you must remove this page at once. On Monday we will began [sic] the legal steps to seek removal from Facebook and from the courts if necessary. In this process of this matter we can seek discovery from Facebook to learn your identity and seek damages from you as permitted by law. The best thing for all concerned is for you to simply remove this page.

Find another way to communicate your message without using the term ‘Patrick Henry College’ in any manner.

Had Patrick Henry College at last been brought to such a humiliating and debasing degradation, that we cannot be trusted to endure criticism on a blog? Apparently.

Then people started to take notice. Paul Alan Levy of Public Citizen called Chancellor Farris to inquire whether he is represented by counsel in the matter. If you are a reckless would-be censor, such an inquiry is about as ominous as a call from your doctor asking "how quickly can you get in to discuss the extremely alarming things our team has discovered on your rectal X-ray?" Within minutes, Farris publicly retreated:

After further consultation, I withdraw my note from yesterday. While we believe in the inappropriate nature of the use of our trademarked name, we believe that litigation is not appropriate.

Patrick Henry said that "the battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave.” Of course, the vigilant know which battles to pick in the first place, and don't make utterly reckless and legally specious threats. As Levy says, "Apart from displaying his ignorance about the difference between copyright and trademark, Farris showed his lack of familiarity with the rudiments of trademark law, which allows bloggers to use the name of the target of their criticism to identify the pages where the criticism appears."

Farris retreated ignominiously from the field, but it was too late to salvage his reputation as an attorney. Levy picked it up, as did New York Magazine. The lesson is a sharp one: foolish litigation threats may lead to public humiliation. They should. It is the solemn duty of everyone who cares about freedom of expression to contribute to that public lesson.

But it is not just censoriousness that has lost here. Some opponents of gay rights, and critics of increasing tolerance of gays, view homosexuality as a weakness. How appropriate, then, that their credibility and cultural sway continues to be undermined by their own human frailties — hubris, ignorance, and misguided wrath. They are losing. Good.

Last 5 posts by Ken White

22 Comments

22 Comments

  1. Kristin M  •  Dec 5, 2012 @8:55 am

    This is the problem with religious institutions attempting to use the law to enforce the beliefs students are expected to hold. And its not just colleges. I attended a religious high school and the student code included a provision that students could be expelled for "encouraging" abortion. "Encouraging" was further explained to be pretty much anything that could be construed as pro-choice. Saying, "I'm pro-choice" on school property was "encouraging" abortion and grounds for explusion. Fortunately, I never witnessed the provision be enforced.

    But seriously, lawsuits? For having an intellectual conversation? Shouldn't schools – whether high school or college – be THRILLED that the students are intelligent and engaged enough to think critically? Isn't that a sign that their institution has actually provided at least some of the education they claim to impart?

  2. Mike  •  Dec 5, 2012 @9:01 am

    Interesting. His page lists him as Chancellor of PHC and General Counsel of the Home School Legal Defense Fund.

    His Facebook post was ambiguous, but it sure could be read as him preparing to bring litigation on behalf of PHC against the group. If so, that could put him in some tension with Virginia Rule of Professional Conduct 4.1, with some wiggle room on the issue of knowingly making a false statement of law. (Although if you're at the point of taking legal steps to seek removal, you probably should have a duty to know copyright law.)

    That's all idle speculation, and broadly speaking I'm against invoking the RPC as cudgels, especially in a no-harm-no-foul situation like this — well, there was harm, but only well-deserved harm to the Chancellor's reputation. But it's a little food for thought anyway, and a threat of this kind might just make the good Chancellor a little slower to make legal threats in the future, or might make him be more clear about the capacity he makes them in.

  3. Waldo  •  Dec 5, 2012 @9:16 am

    I read his message as a thinly disguised threat to uncover the identity of the bloggers and then discipline them via the student honor code. He knew from the start that the litigation itself was meritless. Good on the students to seek good legal assistance, and praise to Public Assistance for stepping in. I will give Harris some credit however. Unlike Carrreon and the isanybodyup guy, he knew when he held a losing hand and immediately threw in the cards rather than doubling down.

  4. Gendou  •  Dec 5, 2012 @9:31 am

    Is this the same guy who used to work for the Homeschool Legal Defense Fund?

    EDIT: Apparently still does!

  5. Maggie McNeill  •  Dec 5, 2012 @9:42 am

    In other words, Farris decided that though he was offended, he'd have to overlook it?

  6. Tali McPike  •  Dec 5, 2012 @10:59 am

    And to think, once upon a time I wanted to go to that school. I ended up at Ave Maria University instead, which, despite its flaws (which every private religious institution has) has never done anything THAT stupid. The closest its come to something like that is reprimanding a student for creating a facebook page criticizing another student (who happened to be gay, which was not really the issue, but the student being criticized tried to make it that), that was criticizing the university by saying things like "I heard if you openly disagree with the administration, you can loose your scholarship" to a local news station. And the school would have probably left the creator of the facebook page alone if the local news hadn't picked it up on the story and ran with it

  7. naught_for_naught  •  Dec 5, 2012 @11:36 am

    Patrick Henry…Isn't that the guy who said, "This mutton is tough"?

  8. Jonathan  •  Dec 5, 2012 @11:36 am

    And good luck getting discovery from Facebook directly. See here, for instance: http://jolt.law.harvard.edu/articles/pdf/v24/24HarvJLTech563.pdf.

    Only a few ways to get Facebook information in litigation, and 3rd-party subpoena isn't one of them.

  9. AlphaCentauri  •  Dec 5, 2012 @11:45 am

    His webpage says he's written a textbook on constitutional law. That might be a hoot.

  10. Deadly Laigrek  •  Dec 5, 2012 @11:54 am

    And this is why I go to a public institution (go CSU Rams!). They can't punish me for saying whatever I damn well please.

  11. David  •  Dec 5, 2012 @12:07 pm

    So…when you hear that cry in the sky, you'll know it's Public Citizen!

  12. Josh C  •  Dec 5, 2012 @12:34 pm

    Err, the blog name is "Queer at Patrick Henry College". Appropriating a mark for an entire site seems a little outside of identifying pages where that mark is the subject matter. I'm pretty sure that if there were to have been a real area of confusion though, "God and Man at Yale" et al. would have thoroughly tested it, but it still seems a bit murkier than you describe.

    More seriously though: I could not disagree with you more. It should be easy, painless, and face-saving to withdraw a threat like that. We all benefit when it is. Having made an ill considered threat, if a bumpkin is unable to revoke/rewind/retract, he's much more likely to seek vindication, which hurts everyone.

    Everyone has bad days. Farris screwed up, yes. But he also backed off instead of doubling down. If you want to encourage that reaction, conduct yourself in a manner which encourages that reaction.

  13. Caleb  •  Dec 5, 2012 @3:29 pm

    @ Josh C

    Having made an ill considered threat, if a bumpkin is unable to revoke/rewind/retract, he's much more likely to seek vindication, which hurts everyone.

    You have to balance this consideration with deterring the making of the ill considered threat in the first place. If it is quick, easy, and cheap to revoke a meritless legal threat at the first sign of trouble, then certius paribus we well have more meritless legal threats.

  14. Colin  •  Dec 5, 2012 @3:50 pm

    Jesus H. Christ!

    This page is in violation of our copyright of the name Patrick Henry College.

    IT IS CALLED TRADEMARK YOU ILLITERATE DOUCHEBAG! YOU CAN'T COPYRIGHT A NAME!

    Geez. When will people learn. If you're going to send threatening cease-and-desist letters, please, at least get your damn legal terms correct.

  15. Ken  •  Dec 5, 2012 @4:12 pm

    @Josh C:

    I'd be inclined to agree — God knows I have stupid days — if the retraction were worded differently. But as worded, it suggests he still thinks he's legally right, and has just decided that litigation isn't the right vehicle. That's not right.

  16. NL7  •  Dec 5, 2012 @8:49 pm

    Copyright and trademark are not interchangeable. One protects expressive works and the other protects names. His casual switching suggests a big bluff. Their name would be a trademark, not a copyright.

  17. AlphaCentauri  •  Dec 5, 2012 @11:15 pm

    And IANAL, but my understanding is that the use of a trademark is protected only to the extent that it might be confusing. No one is confusing "Queer at Patrick Henry College" for an official branch of the institution, just as no one would mistake Patrick Henry College as actually having anything to do with the people whose ideas fomented the war of American independence.

  18. oldnumberseven  •  Dec 6, 2012 @4:17 am

    So, did Patrick Henry found this school, or did the school steal his name to spruce the place up? Henry should have trademarked his name, I suppose.

  19. FredWithABackwardsF  •  Dec 6, 2012 @6:52 am

    Nice to see someone else got the Super Chicken ref. Thanks for the nostalgia trip, Ken!

  20. Connie  •  Dec 6, 2012 @9:10 am

    @Ken – The last paragraph of this article is beautifully written and I may have to proudly quote it somewhere. Bravo, sir.

  21. Steve Florman  •  Dec 10, 2012 @1:52 pm

    He may be a censorious asshat a lot of the time (and something of a pompous windbag to boot), but the HSLDA has done some really good work in keeping state governments and their Education Departments from harassing homeschool families, Christian and secular alike.

  22. Audrey the Liberal  •  Dec 13, 2012 @3:17 pm

    "[B]ut the HSLDA has done some really good work in keeping state governments and their Education Departments from harassing homeschool families, Christian and secular alike." Why do I get the feeling that the HSLDA would rather metaphorically burn off their testicles then lift a finger to help an atheist.