Aubrey M. Daniel III, an alumnus of the University of Virginia and the University of Richmond law school, made his name as a young Judge Advocate General captain who successfully prosecuted the court-martial of Lt. William L. Calley Jr. for his role in the infamous My Lai Massacre. Daniel went on, after his military career, to become a top litigator with the Williams & Connolly LLP law firm. If you Google his name, you’ll find that he won widespread recognition (or notoriety) for a 1970 letter he penned to Richard M. Nixon, taking the president to task for comments he made about My Lai. Now Daniel, retired and living in Italy, has authored another letter, this one addressed to James E. Ryan, president of UVa, on the topic of profane political statements appended to room doors on the Lawn.
It is a lengthy missive, so, for the convenience of readers, I will summarize the key points. But I would urge you to read the full letter.
Ryan has stated that he is powerless to act because removing the infamous “Fuck UVa” sign would violate of freedom of speech protected by the First Amendment of the Constitution. Daniel outlines three distinct grounds for doing what Ryan seems to reluctant to do.
- The University of Virginia’s Lawn is a recognized world heritage site, accorded the same status as the Egyptian pyramids, the Taj Mahal, the Acropolis, and the Colosseum. It is a privilege to live in a room on the Lawn, and that privilege is conditioned upon students’ agreement to comply with the rules governing its use. The plastering of unsightly political posters violates the aesthetics of the world heritage site.
2. Ryan’s duty is to enforce the University’s standards for discourse found in “The University of Virginia Student Rights and Responsibilities, which obligate students to conduct themselves “in a manner that is civil and compatible with the University’s function as a educational institution.” The use of profanity violates the principle of civil discourse.
3. Underneath the “Fuck You” headliner, the student author wrote a series of descriptors under the sub-head of “UVA Operating Cost.” One was “KKKops.” This is the quintessential illustration of a defamatory statement, and defamation is not protected by the First Amendment.
Whether you agree with Daniel’s logic or not, this is an important letter, and it is being distributed widely among UVa alumni. Given Daniels’ stature, Ryan and the Board of Visitors have no choice but to respond.
Here follows the letter:
Dear President Ryan,
“Where would you be without Thomas Jefferson?” You wouldn’t be the President of The University of Virginia because it would not exist. The Presidency of The University is a great honor and carries with it great responsibilities including protecting a very important piece of public property.
My name is Aubrey M Daniel III.
This is not the first time I have written a letter to a President. Almost fifty years ago, I wrote a letter to then President of the United States, Richard M. Nixon. Like today, it was a turbulent time in our country. The country was divided over the War in Vietnam. At that time, I was 29 years old, a graduate of The University and T. C. Williams School of Law, and a JAGC Captain. I was the chief prosecutor in the court-martial of Lt. William L. Calley, Jr. for his role in the My Lai Massacre, the slaughter of old men, women, children, and babies. Those victims were “the enemy” in the eyes of some and “inhuman gooks” in the eyes of others. Though they were not white, the color of their skin made no difference to me under the law. I strongly believe ALL lives matter. The verdict caused the greatest national reaction of any case ever tried. It had been an enormous responsibility for me to reveal to the world the truth about what happened in My Lai. It was a painful experience both for me and for the country.
My letter to President Nixon dealt with issues that were important to our republic: respect for the laws; the enforcement of those laws to see that justice was done; the protection of the constitutional rights of individuals; and the responsibility of the chief executive to support the rule of law without political bias.
I never expected the letter to be published and praised by the New York Times and by almost every other major newspaper in the country. The country’s verdict on the verdict was one that I had not anticipated. It was difficult for me to have written that letter then, as it is difficult for me to write this letter today.
I wrote it because I was shocked and dismayed by what I was seeing and hearing in the country. Fifty years later, I am equally shocked and appalled at what I observe happening at The University, namely, the doors on The Lawn being defaced with profanity and defamatory language.
I live in Italy, far away from the cauldron of the public debate and chaos that is occurring in the United States. This distance has afforded me the time for reflection and analysis without the added pressure of being there. In writing this, I am proud to be an advocate for those who have been affected and offended by what has occurred. Why should I do this? Why should I say anything? I’m compelled by my conscience, my sense of right and wrong, my love for the Constitution, and my love for The University. My love for The University began when I was a young boy growing up in Orange. It has always been a great honor to say that I graduated from President Jefferson’s University.
I found your statement Addressing Free Speech in The University totally inadequate to justify the decision you have made to do nothing about the defacement of the door on The Lawn. I wish I could have been there when you met with the student who defaced the door by writing “Fuck UVA.” We agree that profanity on the sign is offensive, but I wonder if when you met her she showed any remorse for having written it? Did you tell her, at a minimum, she used very poor judgement? I hope you told her that the language she used was entirely inappropriate and violated the code of conduct set forth in the Student’s Rights and Responsibilities.
I am not sure you fully appreciate the intensity of the feelings that many of us alumni share. The Lawn is a place of honor to which she brought dishonor. The University historically has been a place of honor which she has dishonored.
You seem to take comfort from the fact your legal counsel stated there is no doubt that the speech on the sign is protected by the First Amendment. You likely were relieved to have this advice so that you could avoid having to take any action. It is rare to see any legal opinion that asserts “no doubt.” Predicting legal outcomes with such certainty can be risky and they often prove to be wrong.
I wonder whether your counsel and you, as a distinguished lawyer, fully analyzed the content of the sign. Freedom of speech is not without limitations. Freedom of speech is not a defense for the commission of a crime, i.e. Va Code section 18.2-138 “…damaging or defacing public buildings or property”, nor is it a defense for defamation by associating certain individuals with the KKK.
It seems you overlooked one of your fundamental duties to protect the public image of The University and the architectural genius of Thomas Jefferson’s creation. After all, The University of Virginia is a recognized UNESCO Heritage Site. This high honor of international recognition gives it the same status that has been accorded to the Pyramids of Egypt, the Taj Mahal in India, the Acropolis in Greece and the Colosseum in Italy. There are only 1007 such sites in the entire world and only 21 in the United States. The University of Virginia is the only university in the entire country to receive such an honor.
UNESCO has written that Jefferson’s “Monticello and Academical Village precinct are notable for the originality of their plans and designs and for the refinement of their proportions and décor.” Jefferson’s attention to detail and symmetry is evident. The doors are an important architectural element of the total design. They were not designed to be ugly billboards. It is a ridiculous proposition to suggest that the First Amendment of the United States Constitution prohibits The University from maintaining and protecting the architectural beauty and harmony of the buildings on the Lawn. Wholly apart from the words that are ugly and offensive, the entire appearance of these doors has been defaced. Would The University allow students to change the color of the doors to fit their taste?
According to The University’s regulations, “Lawn residents should respect their living space as a place of historic value and as the public face of The University.” It is a privilege to live in a room on The Lawn, and that privilege is conditioned on the students’ agreement to comply with the rules governing its use. That agreement has been breached by their conduct.
The University is so unique and famous that people pay for a tour. You should be embarrassed that a recent review was posted on a public forum stating, “The famous lawn lined with student housing, is a pretty walk (though UVA mistakenly allows students living there to plaster their doors with unsightly junk).” How could that be permitted to happen?
In addition to the fundamental duty to protect the aesthetics of The Lawn, it is also the fundamental duty to enforce The University’s standard for discourse. I have read and studied “The University of Virginia Student Rights and Responsibilities.” These have been translated into Chinese, Spanish and Korean reflecting the diversity of the student body. These standards state:
“Students can freely examine and exchange diverse ideas in an orderly manner inside and outside the classroom.”
When students have grievances, they have “…access to established procedures for respectfully presenting and addressing their concerns / complaints to The University.”
“Students have the right to expect prompt and courteous responses from The University.”
As for Student responsibilities, “The exercise and preservation of these freedoms and rights require a respect for the rights of all in the community.”
“Students enrolling in the University assume an obligation to conduct themselves in a manner that is civil and compatible with the University’s function as an educational institution.”
These standards make it clear that the free exchange of ideas must be civil, respectful, courteous, and orderly. These are not “high ideals” too difficult to achieve. They merely reflect common courtesy without profane name calling, obscenities, and defamatory accusations. Were not the messages posted on the Student’s doors in violation of these fundamental requirements?
What is the response to “Fuck UVA”? Is it “Don’t Fuck UVA.”? This is hardly the type of debate for intellectual discourse at a major university whose role is to educate and foster personal development and character. Isn’t the imperfect pursuit of high ideals made more difficult if the standards of conduct used to get there are not enforced?
Now I want to turn to the two legal limitations on free speech, defamation and the commission of a crime. Below the FUCK UVA headline, in bold letters, is written:
UVA OPERATING COST
The Restatement (Second) torts sec. 559 lists “membership in the Ku Klux Klan” as the quintessential illustration of a defamatory statement. When you met with the student, did you confront her with the fact that her statement was defamatory? What proof did she give you to support her claim that the police are members of the Ku Klux Klan? If she presented you with none, both hers and your decision not to have taken immediate action were reckless. The UVA Police and local police are entitled to protection against defamation. At a minimum, the sign should have been taken down immediately since defamation is not protected by the First Amendment.
I was provided with an account of an incident by Alumnus Bert Ellis who observed the sign then talked to the student and you. He reports that you said, “You were working on it.” He returned to find the sign still up and being protected by two “University Ambassadors.” Did you not consider this to be an insult to the feelings of the alumni and to the police by choosing to protect the sign over those who have been loyal to and protect The University?
And then, there was the television interview. Was this before or after you met with her? She explained that one of her motivations was to encourage the community to defund the police. Does the University support defunding the police? Is not that, a radical concept?
The First Amendment is not a defense to committing the crime of VA Code section 18.2-138 “…damaging or (emphasis added) defacing public buildings or property.” Defacing the doors on the Lawn violates this criminal statue. Would not enforcing that law deter further violations? With every new sign there is a new criminal violation. Have you forgotten that UVA property is the property of the people of the Commonwealth of Virginia? Is it permissible to have the public’s property defaced in this manner?
Many believe as I do that any student who has that level of disrespect for The University is not worthy of its degree. Should any university that wants to be “great and good” tolerate this kind of behavior from its students? The University, is indeed, “remarkable.” That is because Thomas Jefferson created a world renowned architectural environment for the education of its students. You said that we should acknowledge with “humility and gratitude the efforts of past administrations, faculty, students and devoted alumni.”
You should have included Thomas Jefferson in that list. What has happened here is more than a “slight stumble” along the way. It has made the journey much, much, more difficult by allowing students to drive us further apart with profane, abusive, disrespectful, and defamatory public statements.
How can any leader of an institution who has any self-respect and respect for the institution he leads tolerate this type of conduct? You should be embarrassed and ashamed by your lack of action and question whether you deserve the position of President. If you stand on the legal advice you were given, that advice failed to account for both the facts and the law. It certainly does not appear to be free from political influence. The public has a right to know whether or not there has been political pressure from any source to take no action. All documents, communications of any nature should be preserved so that they may be obtained under the Virginia Freedom of Information Act. Public hearings should be held on this issue to determine whether legislation is required. They should be held on both state and federal level. It is clear that The University and Monticello need more protection as a UNESCO Heritage Site than they have received. Therefore, I will be asking for federal legislation to protect this site, making defacing or damaging it a federal felony punishable by a minimum of one year in prison to a maximum of five years.
Your tenure as President of The University is finite, but Thomas Jefferson’s legacy is lasting.
I am thankful his legacy has enriched my life.
God Bless America, The Land I love.