HBO's Shouting Fire Is More Congratulatory Than Analytical on Free Speech Issues

For his part, Churchill makes a poor First Amendment hero. And the juxtaposition of Chase Harper and Ward Churchill illustrates how, despite so much rich material to work with after the past few years, Shouting Fire goes awry.

The case of Harper, the high school student who wore a homemade T-shirt declaring "homosexuality is shameful" is emblematic of the challenging nature of free speech issues in our increasingly pluralistic public space. Harper's shirt was undoubtedly offensive to at least some of his fellow students, especially gay students; it greatly offends me and many other adults as well.

Still, Harper wore the shirt amid other activities at the school intended to raise awareness about gay rights. If students do not check their First Amendment rights at the schoolhouse door, as everyone this side of Clarence Thomas seems to agree, then figuring out where to draw the lines is a treacherous business for the public schools. It's unfortunate that the somewhat trivialized students rights case of the "Bong Hits for Jesus" banner made it to the Supreme Court while a genuinely complex one like Harper's did not (the Supreme Court declared the case moot in 2007 because Harper had graduated from his high school).

Although more than three times his age, Ward Churchill, is a weak counterpoint to Harper. Agree or disagree with Harper, he is what he appears to be: a young man with intense beliefs about what the Bible teaches. Churchill, who landed on the national stage after writing that the 9/11 attacks represented chickens coming home to roost and calling workers in the towers "little Eichmanns" is harder to pin down. Depending on whose account you choose to believe, he's either a sloppy or dishonest scholar. Meanwhile, his claims of combat service in Vietnam, various radical activities, and even his Native American ancestry, which undergirds much of his work, have been seriously called into question.

Did the University of Colorado see the controversy over his remarks as an embarrassment and a reason to fire him? Probably. However, although a court recently overturned his dismissal, it's debatable whether he ever should have been teaching in a public university in the first place. In the film, a representative of the American Association of University Professors basically says that Churchill's situation was indefensible. That's no small thing in this context. But it's also the only serious yellow light in an account that largely presents Churchill as the noble victim of a free speech witch hunt.

Put another way, both Harper and Churchill are inconvenient protagonists, but Harper's case is the kind that genuinely tests our commitment to free speech; Churchill's the kind that merely tests our patience. Besides, Churchill was hardly the only public figure making essentially those arguments. Was there no more compelling example of a chilling effect on speech in the wake of 9/11 than this charlatan?

During a panel discussion following the Washington screening of the film last week, Adam Liptak of the New York Times asked whether from a rights perspective the audience should feel equally for all the free speech protagonists in the film. Interestingly, only Martin Garbus approached a direct answer to the question or an affirmative one. Perhaps that moment, better than Shouting Fire itself, illustrates why free speech remains such a hard issue more than 200 years after the enactment of the First Amendment and especially in times like these.

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