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Giebel v. Sylvester: The Plaintiff’s Story

By Doug Giebel *

When 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.

Yes. 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 a nightmare.

Although my 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.

Various tactics 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 never determined

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!"

In addition 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 the Chair 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.

Then, quite 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 incorrect," photographs.

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."

Sylvester's 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.

The Montana 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."

In February 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.

It's curious 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]

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