Loretta Capeheart Oral Arguments Heard by the US Appeals Court for the Seventh Circuit

I attended the 7th circuit oral arguments for Northeastern Illinois University Professor Loretta Capeheart this morning, December 8, 2011, in the Federal courthouse here in the Loop. She is a tenured professor of justice studies at the Chicago university. The federal courthouse is near the Alexander Calder giant flamingo sculpture. Oral arguments lasted about forty minutes in an ornate and opulent room that reminded me more of a palatial setting than a people’s setting for justice.

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Judge Ilana Diamond Rovner was the chief judge of the three-judge panel. She reminded me of a Learned Hand, a Thurgood Marshall and an Earl Warren. She brilliantly parried Northeastern Illinois University’s cyncial use of Garcetti v Ceballos to silence antiwar, anti-CIA, anti-imperialism speech from a tenured faculty member–Loretta Capeheart. She was relentlessly attacking the defendant’s attorney who was arguing for Garcetti. She could not understand why the professor’s speech was not protected by the First Amendment. She kept asking counsel to demonstrate explicitly why Dr Capeheart was not engaging in protected speech; why her speech did not represent utterances of public concern that are inoculated from censorship. Judge Rovner pressed defence counsel to demonstrate why Professor Capeheart was merely carrying out her official duties and not exercising her right to comment on issues of public concern. Such as the Gestapo-type arrest of two NEIU students who protested the terrorist organisation, CIA, from recruiting more waterboarding torturers from NEIU. I am sure they still do it; they operate beyond the law and civilised norms of international humanitarian law.

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Judge Rovner is the first woman appointed to the US appeals court of the Seventh Circuit and was nominated by President George H. W. Bush in 1992.

I was stunned to see actual justice in our court system. I was simply not prepared to see a life-time sitting judge with tenure for good behaviour act as if she were Loretta’s attorney. We were stunned. The appellate panel also had significant issues on what the remedy would be. Whether this case will be sent back on remand to the district court or not for review I do not know. It reached the 7th circuit on a summary judgment ruling by the US District Court for Northern Illinois. I will let others parse the various options that can result from a majority decision of the panel.

I would have liked to have seen Dr Capeheart’s earnest and capable attorney more aggressively assert that Garcetti need not apply to academicians and that the entire case law on this issue is a sham and a fake. Justice David Souter’s dissent in the case expressed grave concern that this rape of the First Amendment free-speech provision could extent to public-university academicians. Justice Anthony Kennedy, a swing vote, who wrote the 5-4 majority opinion indicated that the case did not apply de facto to university professors and that such a decision could await further rulings:

“Second, Justice Souter suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value.  See post, at 12–13.  There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence.  We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”

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