v. Sylvester: The Plaintiffs Story
Doug Giebel *
a San Francisco reporter called on April 12th to tell me the 9th
Circuit Court of Appeals had just filed a most favorable opinion
in the First Amendment matter of Giebel v. Sylvester, I was ecstatic.
Since then I've been overwhelmed with unexpected attention and comments
about the ruling and the case. Prof. Julie Van Camp, Chair of the
Philosophy Department at California State University, Long Beach,
wrote to say it was a "fascinating and very important decision."
Law and Political Science Professor Jonathan Entin of Case Western
University told me he was using the decision "for both research
and teaching purposes. It's an important ruling with many possible
ramifications for other institutions." He noted how satisfying it
must be for me "in light of the events that led up to" my lawsuit.
I am delighted with the panel's ruling and Judge Reinhardt's ringing
defense of individual liberty. I'm especially satisfied because
I'm not an attorney. I've had no formal legal education or training.
For seven years, without benefit of legal counsel, I've taken two
complex and difficult cases through the courts. I didn't choose
to conduct pro se litigation.
When no legal
professional would take my cases, I felt I had no choice but to
pursue the matters on my own. I wasn't going to "take it" anymore.
My pursuit of First Amendment rights in Giebel v. Sylvester began
in 1994 when I blew the whistle on procedural malpractice during
my attempt to be rehired as Assistant Professor of Theatre and Speech
at Montana State University-Northern in Havre, Montana. Judge Reinhardt
has called the process "acrimonious," but living through it was
department chairman, Stephen Sylvester, repeatedly promised I'd
be rehired on tenure track, my job was unexpectedly opened to a
national search. I applied but was not rehired. Immediately after
the search, committee members came to me with hard evidence the
process had been grossly manipulated by Sylvester and others. Apparently
there was great fear among some both in and out of the committee
that if my name went forward I'd be retained.
including fraudulent secret ballots failed to keep my name from
the final list of candidates. The committee voted at least twice
to grant me the required-to-be-hired interview. Sylvester secretly
ordered that I not be informed of the impending interview, so I
missed the interview and lost my chance to regain my job.
I grieved the
corrupted hiring process and then took my allegations into the Montana
state court system. Retaliation was rampant; witnesses were threatened.
To deter my filing a court complaint, a defendant falsely accused
me of stalking. Then in March 1995, posters announcing a support
party to be given on my behalf were repeatedly torn from campus
bulletin boards, the same bulletin boards that figure so prominently
in Giebel v. Sylvester. But when I raised the First Amendment in
this earlier instance, the Montana district court judge ruled that
tearing down campus postings was at worst mere "vandalism." The
case didn't go to trial, so who tore down the earlier posters was
A year later,
in March 1996, although no longer on the faculty, I was invited
to be a speaker at Northern's Second Conference on Intellectual
Freedom. Notices were posted on campus bulletin boards to inform
the campus and the public of my talk. Again the postings were ripped
from the bulletin boards, and I soon learned that Stephen Sylvester,
my former supervisor, admitted tearing down the posters, rationalizing
his actions by stating, "Giebel has no rights!"
to having chaired and manipulated the search committee,
Professor Sylvester was, ironically, the co-initiator of the Intellectual
Freedom conferences, a professor of U.S. and Montana History, and
of Humanities and Social Sciences at Northern.
At the time
Sylvester tore down my Intellectual Freedom Conference posters,
litigation over the hiring process was still ongoing in the Montana
courts. I did not file a federal court complaint alleging retaliation
and a First Amendment violation until nearly two years after the
conference incident. I was too busy with my hiring case litigation,
too preoccupied with my economic survival and my mother's terminal
illness. I also didn't realize I had a strong case.
by chance, I read a major article in the Chronicle of Higher Education
about the University of Minnesota-Duluth case Burnham v. Ianni,
119 F.3d 668 (8th Cir. 1996). The facts from the Duluth campus were
similar to mine, except that what happened to me seemed more egregious.
In Burnham, a faculty member alleged to have been intimidated by
photos of people holding weapons that were on exhibit in a History
Department display case. She complained to the administration, and
campus police were sent to remove the offending, possibly "politically
In the Duluth
incident, the campus administrators at least had vague but possibly
legitimate reasons to believe the displayed material might cause
a person to feel threatened. In the situation at Northern, Sylvester
had no reason to tear down my posters other than the bizarre opinion
alleged in my complaint that "Giebel has no rights."
brief to the 9th Circuit Court of Appeals states, "Having had no
success at all in his many attempts to get back at Dr. Sylvester,
[Giebel] now tries to complain that he was denied the constitutional
right to speak about his alleged ill treatment by Dr. Sylvester
and Northern University." Sylvester's allegation is quite a stretch,
given that my handbills said I would speak about a "plan" being
promoted by the Montana Board of Regents. The speech was clearly
not to be aboutbout Sylvester or what I thought of him. (Judge Reinhardt
pointedly cites the complete handbill text in his ruling.)
I read all I
could about the Burnham case, studied First Amendment law, and filed
my complaint in Montana's U.S. District Court. I learned that one
could ask the court to order a pre-trial settlement conference,
and the conference was held with no result.
Attorney General's office, which defended the university was not
interested in shortening litigation. No offer was made to settle.
I'd discovered that a plaintiff without a lawyer is often regarded
as a "kook," so at the summary judgment hearing, I called Professor
John Snider to testify on my behalf, hoping a strong witness would
give me credibility. Snider also is on record alleging that Sylvester
retaliated against him for speaking on my behalf.
I argued in
court and prevailed at the summary judgment phase. Judge Donald
Molloy set a firm trial date, but two days before we were scheduled
to go to trial, the State of Montana appealed to the 9th Circuit
Court of Appeals in what seemed awfully much an effort to delay
final judgment. A Casper, Wyoming, newspaper editor, First Amendment
expert Charles Levandosky, called the state's defense "ridiculous."
of this year, I was invited to argue my case before a three judge
panel of the 9th Circuit sitting in Seattle. It was a supreme honor
for this non-lawyer to have come so far: one of those moments you
wish your parents had been alive to witness.
From the time
my posters were destroyed, I've felt that an individual's First
Amendment rights were at stake. Defendant Sylvester has publicly
stated the matter is "frivolous," but fortunately for me and for
the nation, the 9th Circuit strongly disagrees.
the State of Montana chose to defend its client by claiming a citizen
has no settled right to post informational notices on a state agency's
public bulletin boards. Or, if the right has in fact been settled,
that History Professor Sylvester would not have known enough about
First Amendment law to realize he shouldn't have ripped down my
handbills. The defense speaks volumes about Montana's official view
regarding the importance of the First Amendment. Maybe one should
ask the jury: "In Montana, how much is the First Amendment worth?"
We still have
the actual trial before us. A jury will indeed decide whether or
not my former supervisor took down my handbills. I pray Judge Reinhardt's
strong ruling will help me obtain legal counsel. While I might be
able to conduct a trial, this stand for individual rights will be
stronger if a real attorney argues the case.
The issue here
is narrow but vital to the health of free speech. As Judge Reinhardt
notes in his ruling and as I wrote in my briefs to the court: The
freedom to post informational notices goes to the heart of the meaning
of the First Amendment. Newspapers, after all, are primarily "informational"
in nature. Handbills, posters, printed notices are the poor person's
way of spreading the news. Contrary to Sylvester's pronouncements,
I do have rights. I want to make certain those rights are protected.
As an editorial in the Las Vegas Review-Journal (April 16, 2001)
stated, "[T]he 9th U.S. Circuit Court of Appeals affirmed the rights
of the lonely leafleteer who's being thwarted by a government functionary
carrying out a personal grudge." This "lonely leafleteer" welcomes
hearing from others, and hopes his story and perseverance will encourage
others whose rights are in jeopardy.
* Doug Giebel
is former Assistant Professor of Theatre and Speech at MSU-Northern,
Havre, Montana. He can be reached by E-mail: [email protected]
to Legal Archive 2001