Reply to CPUC Judicial Committee
on jurisdiction and causes of action in Witherspoon & Katz complaints
William E. Hewitt
Class of 1974
Princeton University
Open Letter
Via Email
September 1, 2023
Professor Sylvia Lavin
Chair, Judicial Committee
Council of the Princeton University Community
Professor, School of Architecture
Princeton University
Ramona E. Romero, Esq.
Vice President and General Counsel
Princeton University
Re: My CPUC Complaints Concerning Witherspoon and Katz
Dear Professor and Judicial Committee Chair Lavin
and Vice President and General Counsel Romero:
Please allow me to begin with a personal acknowledgment to each of you for your efforts on behalf of Princeton. I have placed before the Judicial Committee two contentious matters of high prominence. Each of these raises issues of vital importance for freedom of speech at Princeton and its mission to pursue truth. If I were in your respective positions, I myself might succumb to the temptation to take any path to avoid the burdensome road ahead. But our respective senses of duty call us forward, and we engage in the arena as best we can.
I now respond to the letter to me from Professor Lavin of August 25, 2023 (“August 25th Letter” or “Letter”). The Letter notes that Professor Lavin had received from the CPUC Secretary, Christine Gage, my complaints filed in April regarding Witherspoon and in May regarding Katz. The Letter makes no reference, however, to my notice to Secretary Gage of August 17th that I intend to amend each of these complaints. I do not know whether either of you were aware of this communication with Secretary Gage. I now advise you directly that I intend to amend these complaints, and, further, expand their scope.
First, I have read with interest the August 25th Letter, including its statements that Professor Lavin – in her individual capacity as Judicial Committee Chair – consulted with the University’s Office of the General Counsel (“OGC”) and that “[W]e have determined that neither [the Witherspoon nor the Katz complaints] falls within our jurisdiction.” [Emphasis added.] This is manifestly incorrect. I explain why further below.
Second, however, I must next address certain extraordinary procedural miscarriages disclosed by the August 25th Letter in the handling of my complaints. As a threshold matter, the Judicial Committee Chair – whether individually or jointly with the Office of the General Counsel – simply has no authority to make a ruling in this matter. This is because the CPUC Charter allows the Chair no voting power to act alone. In Section 5.6, that Charter sets forth the powers of the Judicial Committee, including its composition of eight members (none of which includes the Office of the General Counsel) plus a Chair. Section 5.6.2 sets forth explicit and highly restricted decision-making authority for the Chair, “The Chair of the Judicial Committee shall be without vote, except in the case of a tie vote among the members present and voting.” As the actions by the Chair and OGC set forth this Letter were ultra vires, its purported determinations are null and void ab initio.
Third, as my complaints cannot have been dismissed by the August 25th Letter, this is an appropriate point to renew the calls to the University in my original Witherspoon and Katz complaints for the University Administration to take full measures, if it has not done so already, to preserve all records potentially relevant to the adjudication of these complaints.
Fourth, according to the August 25th Letter, the Chair and OGC took it upon themselves, sua sponte, to raise the question of whether the complaints state claims over which the Judicial Committee has jurisdiction. Then most astoundingly that Letter purports to render judgment on the issue without providing the parties supporting and opposing the complaints the opportunity to address these questions by briefs and/or oral argument. Similarly, the August 25th Letter holds out the Chair and OGC as jointly making disposition on all substantive claims raised in the complaints without briefing or argument. These acts and decisions purportedly on behalf of the Judicial Committee breach well-accepted judicial standards of due process and fundamental fairness. Had the Judicial Committee Chair committed these breaches with legal counsel who served Joshua Katz in his prior University disciplinary matters (instead of with the OGC), the University Administration would have been fully justified in demanding – as I do now – that the Judicial Committee nullify such actions and desist from similar acts.
Fifth are the additional procedural and ethical issues. The CPUC Charter explicitly authorizes legal counsel to the Committee on Rights and Rules (Section 5.2.2). The Charter gives no such authorization to the Judicial Committee in Section 5.6 or elsewhere. Frankly, I find the Charter’s disparate treatment of the Judicial Committee in respect to authorization to consult with legal counsel somewhat puzzling. This pointed omission suggests a strong orientation that the Judicial Committee is to be informed on legal issues presented in the adjudication of a complaint through adversarial briefings and oral argument by the contending parties rather than by a confidential briefing by a non-litigant attorney. The August 25th Letter failed to provide any justification for its divergent practices here. Additionally, receipt of public amicus curiae briefings by the Judicial Committee could apply a salutary benefit both to the Judicial Committee in its deliberations and in the education of the University community and the general public. At minimum, (1) any non-public legal advice the Judicial Committee receives on a disputed matter before it should come from counsel independent of the University and who have no actual or perceived conflicts of interest regarding the matter; (2) such counsel should represent to the Judicial Committee that they have no such conflicts; and (3) the Judicial Committee should promptly identify the attorney(s) and subject matter of such advice to the contesting parties.
Sixth, toward those ends of better informing the Judicial Committee, the University community and the general public, I call upon subject matter experts in the various issues raised by the Witherspoon and Katz complaints to submit public amicus curiae briefs to the Judicial Committee.
Seventh, the OGC’s involvement in the handling of the complaints as a co-judge (“we decided” and “our jurisdiction”) rather than as a legal advisor raises questions as to whether its actions as a co-judge with the Judicial Committee Chair on these two complaints has forfeited all potential claims to attorney-client privilege on all attendant communications.
Eighth, the OGC’s active participation in an openly ultra vires judicial proceeding so violative of due process and fundamental fairness raises professional ethics questions about its conduct in the handling of the two complaints. These include the propriety of OGC having engaged in the ex parte proceedings on these complaints.
Ninth is the likely prospect that the OGC was previously actively involved in advising and representing the University in one or both of the disciplinary actions the University undertook against Katz, the latter resulting in his being stripped of tenure and fired. This, if true, would place OGC in an irrevocably adverse position to Katz. This, then, would present blazing questions about the professional ethics of (a) the OGC purporting to give unbiased advice to the Judicial Committee regarding Katz necessary to guide that committee in the performance of its duties and, worse, (b) the OGC ever insinuating itself as an ostensibly impartial co-judge in the handling of the Katz complaint.
Tenth, the August 25th Letter states and attempts to invoke an unsubstantiated and wrongful “admonition that exceptions to RRR 1.1.3 must be narrowly construed.” To the contrary, RRR 1.1.3 “Statement on Freedom of Expression” emphasizes at the outset of its third paragraph:
The freedom to debate and discuss the merits of competing ideas does not, of course, mean that individuals may say whatever they wish, wherever they wish. . . .
The paragraph then identifies specific types of speech the University may restrict:
The University may restrict expression that violates the law, that falsely defames a specific individual, . . . or that is otherwise directly incompatible with the functioning of the University.
Later that same paragraph characterizes these identified types of speech as themselves being “narrow exceptions”. The Statement on Freedom of Expression simply does not state there or elsewhere that these identified exceptions should be further constricted.
Eleventh, as to the meaning of “falsely defames a specific individual”, the August 25th Letter takes it upon itself to change the meaning of those words to “legally defames . . .” instead of a common sense meaning (e.g., “the act of communicating false statements about a person that injure the reputation of that person”). Moreover, the category of legal defamation is already subsumed by the prior term “expression that violates the law”. Thus, the clear meaning of the operative text “falsely defames” is its broader, common sense meaning.
Twelfth, the August 25th Letter cites President Christopher Eisgruber’s March 31, 2022 letter to Professor Keith Whittington and the Academic Freedom Alliance (“AFA”) for the proposition that “[T]he allegation that the Presentation defames Dr. Katz has already been adjudicated by appropriate University authorities, who concluded that the Presentation was protected speech under University policy.” That letter by President Eisgruber simply supports no such assertion. Indeed, the term “defame” appears in it nowhere. Nor does the original March 27 letter from Professor Whittington to which President Eisgruber was responding use that term. The thrust of the Whittington letter, at least as President Eisgruber understood it, was the objection by the AFA to “systematic denunciation” of Katz by the “Known and Heard” Presentation. The AFA also appears to have sought removal of the entire section on Katz in the Presentation. (“We call on the university to refrain from using its administrative resources to target Professor Katz or other members of the faculty in its official activities and programming.”)
Thirteenth, my Katz complaint explicitly refrains from seeking to remove Katz from the Presentation. What it does seek is a ruling that the Presentation had defamed Katz with the doctored quote. Although the August 25th Letter does not mention it, the December 7, 2021 letter from Vice Provost Michele Minter to Professor Sergiu Klainerman responded to his complaint that the Presentation had violated certain University policies by “harassing and discrediting” Katz. But – as I pointed out in my Katz complaint – Vice Provost Minter explicitly stated, “[O]ur assessment . . . does not consider . . . defamation.”
Fourteenth, my Katz complaint specifically asserted violation of “Section 3.c of “Acceptable Use Policy For Princeton University Information Technology & Digital Resources.” (“From any location, University resources may not be used to transmit malicious, harassing, or defamatory content.”) Contrary to the unsupported “understanding” of the Chair and OGC stated in the Letter, these claims in my Katz complaint have not been previously adjudicated. Moreover, my Witherspoon and Katz complaints as presented do not challenge speech made on a self-established website or other venue independent of the University (e.g., Quillette). The complaints challenge speech transmitted on “University resources” in violation of the University’s “Acceptable Use Policy”.
Fifteenth, let us return to the Whittington reply by President Eisgruber. The August 25th Letter had cited it – incorrectly – as support for its mistaken understanding about prior adjudication. Instead, in that very same Whittington reply even President Eisgruber himself provides an additional and explicit basis for my Katz complaint:
To be sure, speech that comes from University offices is properly subject to more control from the central administration than is faculty and student speech. We insist, for example, that speech from University offices be factually accurate, [and] respectful of University values . . .
Sixteenth, the last paragraph in the August 25th Letter purports to limit the Judicial Committee jurisdiction to “a cognizable violation of the ‘recognized rights of members of the University community. . .’” I note for the record that Joshua Katz was Princeton’s Cotsen Professor in the Humanities at the time he was defamed by the “Known and heard” Presentation. More broadly, I assert that all members of the University community have a right not to be misled by statements so false as to be defamatory, particularly when made about other members of the University community – whether living or deceased, present or past. (RRR 1.1.1 & 1.1.2)
Seventeenth, I direct attention to the full sentence in RRR 1.9.1 (and CPUC Charter Section 5.6.1) from which that August 25th Letter excerpt above is taken. It provides a vastly more expansive scope of jurisdiction than set forth by that Letter’s crabbed and truncated rendering:
The Judicial Committee of the Council of the Princeton University Community hears and decides, either in the first instance or on referral from one of the other judicial bodies, cases that involve alleged violations of those established rules and regulations whose violation constitutes a serious infringement of the recognized rights of members of the University community, a serious offense against the University’s mission, a threat to the ability of the University to carry on its essential operations, or a substantial impairment of the common and legitimate interests of the University.
Eighteenth, the Witherspoon and Katz matters raise fundamentally important challenges for Princeton on how to prevent – and stop from continuing – defamatory speech outside the protections of free speech provided by RRR 1.1.3 and corrosive of the mission and needs of a thriving University community, as set forth by RRR 1.1.1 “Introduction” and RRR 1.1.2 “Academic Integrity”. These latter provisions respectively state, in part:
The central purposes of a university are the pursuit of truth, . . . and the transmission of knowledge and learning to society at large. . . .
and
. . . Observing basic honesty in one’s work, words, ideas, and actions is a principle to which all members of the community are required to subscribe. . . .
Nineteenth, toward these stated ends, it is vital that all members of the Judicial Committee recognize and abide by the Committee’s judicial role, and maintain their solemn commitment to “apply established rules and regulations impartially to the facts of individual cases.” I close with this excerpt from Section 5.6.3 of the CPUC Charter.
“5.6.3 Appointment to a position on the Judicial Committee shall be contingent on the appointee’s recognition of the Committee’s judicial role and a commitment on his or her part to apply established rules and regulations impartially to the facts of individual cases. Prior to acceptance of an appointment to the Judicial Committee, each appointee shall have examined such rules and regulations and shall have certified his or her willingness to apply them impartially. . . .”
Sincerely,
/s/ William E. Hewitt
Princeton University Class of 1974
CC: Christine Gage, Secretary of the CPUC
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Note to Readers: The original letter has been modified in its presentation above to include three additional embedded URLs for ease of reference. These embeddings are in paragraph two at “letter to me from Professor Lavin of August 25, 2023”, “Witherspoon”, and “Katz”.