Ward Churchill defending Constitution, Court of Appeals trashing it, says David Lane of CU case

Ward Churchill.

Controversial University of Colorado at Boulder professor Ward Churchill has lost his latest bid to get his old job back, with the Colorado Court of Appeals upholding Denver District Court judge Larry Naves's earlier ruling; read it in its entirety below. The decision angers Churchill's attorney, David Lane, who portrays the judges who made it as too timid to defend the Constitution if it means being seen as rewarding such a divisive figure.

"Did you see that Denver Post editorial?" Lane asks in reference to a weekend short take describing the pro-CU judgment as a reason for which Boulder should give thanks. "They said they hoped Churchill would take his 'petty complaints' out of the court system. And it's shocking to me that the Denver Post, which lives on the First Amendment, still has no understanding of the issues in this case.

David Lane.

"The issue is that the CU regents have been immunized from lawsuits," he continues. "A jury found that the regents had fired Ward Churchill in violation of the First Amendment" following an uproar over his post-9/11 essay comparing victims of the attack to "little Eichmanns." (The damages awarded to Churchill: one dollar.) "And the Court of Appeals said that was okay, which is stunning to me. I can't believe a group of judges charged with protecting the Constitution are so willing to see it trashed."

As Lane sees it, "this is a discretionary call by the courts, and they are coming down four-square against free speech, which is just horrible -- a horrible, horrible opinion. I only hope the Colorado Supreme Court will agree with me, although I have little faith in that."

Indeed, Lane concedes that "statistically, the odds of either the Colorado Supreme Court or the U.S. Supreme Court looking at the case are slim." If, however, he and Churchill beat the odds, he actually thinks the conservative-tilting U.S. Supreme Court might give them a fair -- or at least a more fair -- shake. "We used to talk about the O'Connor swing vote. Now we talk about the Kennedy swing vote. But they've actually done some expanding of the First Amendment. An example of that is Citizens United" -- the ruling that removed limits on corporate funding for political advertising. "So I think they might actually treat the First Amendment a little better than the Colorado Court of Appeals has treated it, even with its current makeup.

"I've often said that the Constitution of the United States is only as strong as those charged with enforcing it," he continues, "and when you have people like the judges on the Colorado Court of Appeals enforcing it, well, they're not very strong. But Ward Churchill views it as his job to defend it, and we will hopefully find judges who understand freedom better than the Court of Appeals does."

Page down to read the Court of Appeals' opinion: