A Break For Jess

Earlier this evening, on his blog, Jess Zimmerman announced that the University will not substitute his name in place of "John Doe" in the current lawsuit. This was made clear in a memo send by President Fong to the faculty. Jess has made the memo public on his blog and you can find the contents of the memo below. Please see Jess's entry for his insightful commentary on the situation which is far from clarified.

To the Butler University Faculty
From Bobby Fong, President
Monday, 19 October 2009

Subsequent to my communication to the faculty with regard to the “John Doe” complaint, student Jess Zimmerman publicly admitted to being Soodo Nym, the originator of messages that prompted the University to seek court orders to protect members of the Butler community from defamation and harassment and to discover the identity of the sender.

In my earlier remarks to you, I refrained from identifying the status (faculty, staff, or student) or gender of “John Doe,” respecting the individual’s right to confidentiality. Jess Zimmerman has chosen to waive that right by publicly identifying himself as the anonymous blogger. This frees me to clarify further two points on behalf of the University.

The University did not, has not, and will not sue Jess Zimmerman. His public claim that the university has done so is false. The University filed the lawsuit against “John Doe,” the anonymous blogger, because it did not know who Soodo Nym was.

Mr. Zimmerman met with Vice President for Student Affairs Levester Johnson on 2 January 2009. In an email dated that same day to confirm what was discussed at their meeting, Mr. Zimmerman wrote Johnson:

. . . I did not write or know about the note that was sent to Provost Comstock and Dean Alexander on Christmas day. Further, I condemned the note as being in poor taste and promised you that I would make sure to express my desire for civil discourse to everyone I know. I will make certain that the group that controls the blog knows that I, both in my capacity as a student leader on campus and as a concerned student, feel that this type of communication is unwarranted and should stop. In addition to the Email sent to the Provost and JCFA dean, you shared with me an Email sent from another address to you that said that “threatening students has gone too far.” This meeting was the first time I have seen or heard about that Email account and I agreed to let people know that Emails like that have no place in higher education.

Dr. Johnson replied in an email on that same day:

• I acknowledged your statement that you do not claim responsibility for the messages sent to me and those sent to Dean Alexander and Provost Comstock.
• I acknowledged the right for Blog sites to exist and that it has become a common means of communication as are other means on the web, and from my perspective, will need to be embraced and understood moving forward. I also strongly stated my opposition to “anonymous” Blogs such as TrueBU which are damaging to the civil discourse expected within a university environment, especially if they do not allow for opposing opinions to be posted. . . .
• Jess, most importantly, I appreciated your pledge to communicate with any individuals who may be affiliated with the TrueBU Blog site and therefore the inappropriate messages sent to Dean Alexander, Provost Comstock and myself. . . .
Mr. Zimmerman denied being Soodo Nym. Mr. Zimmerman’s father met with me on two occasions, 31 December 2008 and 7 January 2009. I have notes of those meetings indicating that I told him, “Jess has denied to LJ that he is Soodo Nym but acknowledges knowing the identity of Soodo Nym.”

On 4 January 2009, the University attorney wrote to Soodo Nym’s e-mail address:

Be advised that your communication to Dean Alexander and Provost Comstock is in violation of Indiana criminal laws prohibiting harassment and intimidation. Your e-mail and previous postings on the truebu blog also constitute actionable libel as you have defamed the University and several individuals, including those referenced above. . . .

The University has been advised by one of its students that a number of individuals have posted to this blog as “Soodo Nym” . . . The legal action to be filed by the University will result in the disclosure of this information by the internet service providers involved in this matter.

The blog’s author claimed to be a student or students, but the blog contained information to which students would not usually have access. When Mr. Zimmerman denied that he was the author, there was no way of ascertaining with certainty who the blogger was, faculty member, student, or outsider, without seeking the name of the owner of the blog account from an internet provider. To do this, we needed to seek a subpoena directing the internet provider serving “Soodo Nym’s” account to divulge the account owner’s identity. In Indiana, the only way the subpoena could be obtained is to file a “John Doe” lawsuit against the account owner. The decision to do this was not made lightly.

Butler has a duty to safeguard robust academic speech. However, the University also has a duty to protect all of its members from defamation, harassment, threats, and intimidation. This, too, is part of creating a campus climate where robust speech can flourish. The University makes no attempt to stifle criticism of its policies or actions. However, “Soodo Nym’s” blogs and e-mail crossed the line from robust criticism of policy to character assassination and intimidation. Read as a whole, its intent was to undermine the effectiveness of the provost and dean by maligning their reputations and making their jobs unbearable by ongoing harassment. The blog was defamatory by legal definition because it contained falsehoods that harmed the professional reputations of individuals.

The University complaint against “John Doe” was filed on 8 January 2009. The suit was filed against the anonymous blogger. As a result of subpoenas ordered by the court in response to the complaint, the University obtained evidence that Mr. Zimmerman was Soodo Nym on 9 June 2009. This was the first proof we had that the blogger was a student. The University has not taken the legal steps needed to sue Jess Zimmerman by replacing “John Doe’s” name with his and serving him with a complaint. It has no intention of doing so. Mr. Zimmerman has not been sued.

But had Mr. Zimmerman been honest with Dr. Johnson, no suit of any sort would have been filed.

The University will deal with Jess Zimmerman through the internal disciplinary process.

Through the summer, the University engaged in discussions with the attorney for Mr. Zimmerman with regard to his going through internal disciplinary processes of the University. Contrary to Mr. Zimmerman’s public assertions, the University specifically offered in writing to exclude “academic suspension or termination of his enrollment at Butler” from a list of possible sanctions because the hope was this would be a “teachable moment” for Mr. Zimmerman. Discussions continued until 26 September 2009, when attempts to reach an agreement broke down because Mr. Zimmerman maintained that no sanctions were warranted. The University is initiating the internal disciplinary process.

Mr. Zimmerman has now publicly acknowledged that he was “Soodo Nym” and that he sent the 25 December 2008 email. He denies, however, that he knows about the 2 January 2009 email from “butlerbrigades” sent to Vice President Johnson and Provost Comstock. I’ve been asked if the University pursued the identification of that email’s sender. Yes, we did.

Attorneys for the University sent a subpoena to Microsoft (Hotmail) that was served on 9 January 2009. Microsoft responded on 21 January 2009, outlining its document disclosure process, which involved providing the user with notice as well as an opportunity to object.

On February 9, 2009, Microsoft disclosed records of butlerbrigades@hotmail.com to us, which revealed that the email account had not been active or logged into since the harassing email was sent back on 2 January 2009. Because Microsoft did not require any identifiers to open an account, this was a dead end.

No activity has occurred on the “John Doe” complaint since June, when discussions commenced with Mr. Zimmerman. Mr. Zimmerman’s name has not replaced that of “John Doe” on the complaint. There is no lawsuit against him. There never was. The University filed a complaint against “John Doe”, NOT a student. We do not intend to sue Mr. Zimmerman.

I want to reiterate some items from my earlier remarks. The free exchange of ideas is fundamental to academic life. Teaching, learning, and advances in research proceed by way of intellectual disputation. But central to civil discourse is debating the merits of an issue and not engaging in ad hominem arguments. Academic freedom does not provide protection for defamation and harassment. Indeed, the free exchange of ideas demands that faculty, students, and staff be protected from defamation, harassment, threats, and intimidation because these are the means by which bullies intimidate others into silence. There is a point where people subjected to disparagement pass over from anger and frustration at misrepresentations to fear of what might happen to them and their families. That point was reached in this instance."

It seems that given the vocal student objections and national media attention, the President has put his tail between his legs and skulked away. Nevertheless, as is clear in this memo, Fong will continue to justify his actions by misconstruing the mission of a liberal arts university. His unapologetic message and continued bickering is shameful.

In the memo he wages still more accusations against Jess, suggesting that his false statement to Levester Johnson about not being Soodo Nym made this whole mess necessary. Jess has owned up to this lie in his blog and intends to justify it.

Furthermore, Bobby Fong continues to accuse Jess of harassing and defaming Jaime Comstock, Peter Alexander and Levester Johnson without proof or a court decision to back him up. Indeed, Fong seems ignore sentiments from both inside and outside the university which overwhelmingly agree that Jess's comments could not possibly be construed as libel or defamation.

Fong also asserts that the overall tone of The True BU was problematic due to its tone, its goals and the anonymity of the author.

Finally, Fong claims that the university never intended on suing Jess Zimmerman or any other student, but only used the lawsuit to gain subpoena power and determine the true identity of Soodo Nym from Google.

Let's get a few things strait. Bobby Fong and his administration lost. They could not have continued with the lawsuit because of the staunch opposition from students and faculty, as well as the national attention. Further, had they gone ahead with the lawsuit they would have lost because nothing Jess published in the blog was so devastating as to be construed as defamatory.

Finally, Fong and his lawyers lost because the voices and messages of Jess and students were too overwhelming. Any other justification or excuse for this action is purely pandering.

But, Fong did not seem apologetic in his memo. Indeed, as Jess pointed out in his blog, there are too many inconsistencies and contentious points made to consider this matter closed. Most worrying to me is the line that Jess will now be subject to internal disciplinary processes. Despite backing down on a lawsuit that would not have won in court, the University feels a justification to punish Jess anyway. (For statements that were not libelous, defamatory or otherwise, and for statements he has continually denied making.) And they plan to do this, once again, behind closed doors to deny students and the community their opinion.

In the petition that, last I checked, over 300 people had signed, we demanded an apology. Until that apology is given by Dr. Fong to all members of the Butler community (students, faculty, staff, trustees and alumni) this issue is not over. As Fong claims to work as a steward of the liberal arts, it seems he is misconstruing his own mission. Justification for this lawsuit cannot be found in the mission statement of Butler University or the College of the Liberal Arts and Sciences. The lawsuit, and handling thereof, has worked against promoting a climate of free speech, respectful debate and dissent. Until an apology is given, the precedent remains and students will continue to live in fear of legal recourse. That is unacceptable.

Jess surely has a weight off his shoulders now that Big Bad Butler has finally stopped threatening to sue him. But a weight remains on him and over the entirety of the student body and university community. The climate of fear remains, that a university will unapologetically threaten a lawsuit against its own students and work to cover-up that fact. This is not over, but our collective voice has gotten us this far and can take us the end, winning an apology from Dr. Fong.


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