This is a partial transcript from "The O'Reilly Factor," June 29, 2005, that has been edited for clarity.
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BILL O'REILLY, HOST: In the "Personal Story" segment tonight, as you may know radical college professor Ward Churchill, still being paid close to $100,000 by the University of Colorado (search), even after supporting the murders of some Americans on 9/11. Now Churchill may be supporting the murders of U.S. military officers, the murders, in Iraq.
“The Factor” has obtained this audio of Churchill speaking at an anti-military forum in Portland, Oregon.
(BEGIN AUDIO CLIP)
WARD CHURCHILL, PROFESSOR, UNIVERSITY OF COLORADO: For those of you who do, as a matter of principle, oppose war in any form, the idea of supporting a conscientious objector who's already been inducted and in his combat service in Iraq might have a certain appeal. But let me ask you this: would you render the same support to someone who hadn't conscientiously objected, but rather instead rolled a grenade under their line officer in order to neutralize the combat capacity of their unit? Conscientious objection removes a given piece of cannon fodder from the fray. Fragging an officer has a much more impactful effect.
(END VIDEO CLIP)
O'REILLY: "Fragging an officer" is murdering an officer. Unbelievable. Unbelievable that this guy is still employed by the University of Colorado.
Joins us now from Washington, First Amendment attorney David Oblon, and from Los Angeles, Eugene Volokh, the constitutional law professor at UCLA.
Professor Volokh, I'll begin with you. Your reaction to Professor Churchill.
EUGENE VOLOKH, PROFESSOR OF FIRST AMENDMENT LAW: I think it's utterly appalling. It's vile stuff. And actually, I thin it's good that we're hearing that this stuff is out there, because it gives us a better perspective on, unfortunately, the broad range of views out there.
At the same time, it is constitutionally protected. He certainly cannot be criminally punished for it, just as, for example, somebody who refers to abortion providers as the moral equivalent of, say, concentration guard camps and thus implicitly, or sometimes even explicitly, says that it's OK to kill them, just like that person wouldn't be punished either.
O'REILLY: All right. Now...
VOLOKH: Under the Supreme Court's precedence, even advocacy of illegal conduct, even of murder, is generally protected.
O'REILLY: If I conspire with my neighbor to kill the guy across the street, and we have discussions about, you know, if we remove this whatever and it's justifiable to do so, and a wiretap picks that up or an undercover agent is with us when we're talking about it, I can be prosecuted for conspiracy, can I not, sir?
VOLOKH: You know, it's not clear that just discussions about whether it's justifiable are enough. You probably need some more details of planning.
But in any event, as to public advocacy, as to public speeches, the Supreme Court has made things pretty clear over the last 40 years. And again, just look at the examples. There are a lot of situations where people do speak out, defending criminals, saying, "Oh, I understand why, for example..."
O'REILLY: No, this is more so. This is an advocacy position, to telling these pinheads in Portland, Oregon, that not only should they encourage conscientious objectors, but they should also encourage soldiers to kill their officers on the battlefield.
Now, to me, I think you could prosecute. You may not win. But Mr. Oblon, I want to get your opinion. I think you could prosecute here, could you not?
DAVID OBLON, FIRST AMENDMENT AND CONSTITUTIONAL LAW ATTORNEY: Well, going back to your analogy, in this case, you could not prosecute. But in your analogy, you could prosecute. In fact, people have been prosecuted and convicted for conspiring and talking over the phone, saying "I'm going to murder this person."
The constitutional test is whether there's a clear and present danger that the action is going to actually occur. And there has to be true incitement.
So in the instance of this professor — professor, I use quotes for this, he didn't call on people to go and murder the troops. It wasn't that straightforward.
O'REILLY: He called on them to yes — he called on them to support people who do that.
OBLON: Yes. He was engaging in what the Supreme Court calls hyperbole (search). We can look at this with a recent — not a recent case, a 1960's era Supreme Court case, where a guy was opposed to the draft. And he told the draft board, "If you give me a gun, I'd like to get the president in my sights."
And the Supreme Court said that speech was protected, because he wasn't really advocating going out and shooting the president. Instead, he have engaging in hyperbole and making a point. And that's exactly what this guy Ward Churchill seems to be doing.
O'REILLY: Well, I have to say that I agree with both of you, that you probably couldn't prosecute this man criminally.
But the reason that he still has a forum and a job at the University of Colorado, which to its ever lasting disgrace has not fired this man, because they could. There's enough on him, they could fire him. But they're afraid to do that, because the ACLU (search) would then sue on his behalf and they'd have to fight the lawsuit. And they think they might lose.
OBLON: They actually can't fire him, because he's a state employee. And as a state employee, if they fire him for exercising his First Amendment rights then...
O'REILLY: No, they don't have to fire him for exercising the First Amendment rights. They could fire him for a number of things, one of being he's bringing shame on the university. He's reflecting — he's reflecting an abhorrent opinion that is impacting the university negatively.
In every contract, an employer, whether it's a state or private, can fire you if you can show damages to whatever concern it is. Am I wrong on that?
OBLON: Yes. Because at the end of the day the court would determine whether your real reason for firing him was because of a speech or because of the other ancillary reasons that you were saying. And I think ultimately courts would come down on the side of the speech.
O'REILLY: No way. No way. You could show — you could show a drop in contributions...
OBLON: I wouldn't think a...
O'REILLY: You could show a drop in contributions to the University of Colorado easily. We know that's happened. You could show a drop in applications. We know that's happened. This guy has disgraced this university. What do you say, Mr. Volokh?
VOLOKH: Well, what I say is most universities are run by liberals in America, and if you give the universities more power to fire faculty members for a speech that offends some substantial chunk of the community, then what will happen is they'll fire a few extreme left wing professors, like Churchill, and then they will also fire a lot of moderate conservatives.
O'REILLY: You'd have to show cause. You'd have to show cause.
VOLOKH: Oh, well, sure.
O'REILLY: You'd have to show cause.
VOLOKH: So they bring out some donor who says, "I am outraged. I am outraged by this person's criticism of affirmative action. It undermines the university's commitment to diversity. I, therefore, have refused to give the $50,000 gift that I would otherwise have given."
You can always find people who would say that. And in fact, say it quite sincerely.
O'REILLY: So both of you...
VOLOKH: As a general matter, universities may not fire people, even for speech that alienates a lot of the public, precisely because if you start firing some people you're going to end up having a lot more...
O'REILLY: So both of you agree, then, that this guy — nothing should happen to him for encouraging soldiers in Iraq to murder their superior officers?
OBLON: I think something should happen to them. He should be shamed. Publicly shamed.
O'REILLY: Publicly shamed, OK.
OBLON: We should shun him. And in fact, we want to have people say these wacky things when they are, in fact, wacky people so that we can judge them and judge their other messages. The marketplace of ideas is a very powerful thing, Bill.
O'REILLY: We certainly are doing our part to shun him, because we think he's a despicable human being.
Gentlemen, thanks very much. We appreciate it.
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