Butler University Case an Important Victory for Free Speech

Critics look at the Butler University v. Jess Zimmerman case and see calculated abuse of the legal system: File a sham defamation lawsuit against an anonymous blogger to compel disclosure of the blogger’s identity, then with the name in hand, drop the suit and take disciplinary action against the student in an on-campus proceeding.

Butler student Jess Zimmerman fought the university’s intimidation for a year, and ultimately won. He’ll graduate with a clean disciplinary record and attend law school next year. But critics are concerned that Zimmerman’s ordeal may have a chilling effect on other students who may be inclined to be critical of their administrators. Conversely, the negative attention brought to Butler caused other universities to think twice before taking similar action against students.

Butler University English professor Bill Watts echoes the sentiment of many in his view of the case. “A deep injustice has been done to Jess Zimmerman. Our mission as a University is to help our students to develop and thrive. Over the course of a very long year, University officials abused their power and the legal and other resources available to them to persecute a student. In doing so, they compromised our most cherished values.”

The Butler Underground Blog offers a collection of responses from the University, including a January 2009 e-mail from a university attorney to the e-mail address associated with TrueBU in which it asserted that “Butler has a duty to safeguard robust academic speech. However, the University also has a duty to protect all of its members from defamation, harassment, threats, and intimidation. This, too, is part of creating a campus climate where robust speech can flourish. The University makes no attempt to stifle criticism of its policies or actions.”

In 2009, Butler University filed a libel and defamation lawsuit against a student who criticized university administration in an anonymous blog called “TrueBU.” In a move questioned by free speech advocates, the court compelled the release of Jess Zimmerman’s name to the university. The university then dropped the suit against Zimmerman, and pursued internal disciplinary action based on the school’s code of conduct.

Dan Altman, Zimmerman’s lawyer, said that the university filed the lawsuit not because it believed that Zimmerman posted libelous information, but because it wanted to silence his criticism. He called the lawsuit an example of a strategic lawsuit against public participation (SLAPP), lawsuits that are designed to intimidate defendants that are critical of the plaintiff.

Many professors, students and Internet free speech advocates criticized the university’s actions. “The danger, they warn, is that the person making the request has no intention of actually suing for libel, but will retaliate in some other way once they learn the blogger's identity. … [T]here’s no reason for a litigant to follow through with a hopeless defamation lawsuit once he/she has obtained critics' names and can devise other ways of getting back at them,” Wendy Davis wrote for The Daily Online Examiner.

In an article about the disciplinary hearing, Butler University professor Bill Watts describes the charges brought against Zimmerman as “a vast array of violations drawn from the university’s rules of conduct, including theft, dishonesty, physical, mental or verbal abuse, reckless, lewd, indecent or obscene conduct. Curiously, Jess was not charged with libel or defamation, which formed the basis for the lawsuit.”

Zimmerman asked the court for a temporary restraining order to postpone the disciplinary process, charging that, among other things, “he was not given access to the evidence brought against him, that Dean Irene Stevens was to judge the case unilaterally, serving as both the ‘charging agent, the judge and the jury,’ and that she declared him guilty before the hearing even began.”

Butler University’s attorneys responded to Zimmerman’s request for a restraining order by demanding he post a $100,000 bond if his trial was to be delayed. Zimmerman refused to submit to the bond demand, and eventually, under pressure from the court, the university reached a settlement with Zimmerman under confidential terms.

The legal drama could have been avoided if the court never compelled the disclosure of Jess Zimmerman’s name. Many civil liberties and privacy organizations urge courts to protect anonymity—on a case-by-case basis—and maintain a Web site, CyberSLAPP, to chronicle online SLAPP lawsuits.

It advocates for “a legal standard for courts to follow in deciding whether to compel the identification of anonymous speakers, requiring notice, an opportunity to be heard, and the right to have claims of wrongdoing both specified and justified on the facts before identities are revealed.”

In February 2009, a Maryland court issued a “five-step process” for judges to follow in cases where a plaintiff sought to compel disclosure of an anonymous Internet blogger or commenter. Requirements include “specific evidence supporting each element of the defamation claim.” Some critics in the Zimmerman case argue that none of his writings constituted defamation.