Chancellor William B. Aycock ’37 (MA, ’48 JD) speaking to the Speaker Ban Law Study Commission
Sept. 8, 1965
My appearance is in the role of a member of the faculty of the University of North Carolina at Chapel Hill. I hope, however, you will permit me insofar as possible to remain accountable for decisions I made during the years I was privileged to serve the University in an administrative capacity.
Perhaps one born in Lucama and reared in Selma (the one in Eastern North Carolina) should not claim to be an R.F.D. teacher; but at most, Mr. Chairman, any distinction in my case is merely technical. I am aware that some of the proponents of the Speaker Ban Law do not look with favor on those persons, especially teachers, who express views in opposition to their own in respect to this law. So far as I know the decisions of Presidents, Governors, Congress or the Courts, both state and federal, have never been afforded the immunity from criticism which has been suggested for this law by those few persons who authored it and arranged for its passage. They freely extol the supposed benefits of this legislation but they object to having its harmful effects called to the attention of the citizens of North Carolina.
The most reassuring development to occur in this State since this law was passed on June 25, 1963 is the determination of this Commission to explore fully all aspects of the Speaker Ban Law. My purpose in appearing today is to discuss briefly three aspects of the law; namely, the question of need, the difficulty of its enforcement, and the extent to which it dilutes a fundamental principle of freedom. In order to deal concretely and specifically with these matters it will be necessary in several instances to use the names of certain persons.
You will recall that Mr. Robert Morgan, spokesman for the American Legion organization before this Commission, indicated that the Speaker Ban Law was passed by a General Assembly which was “weary” of waiting for the University to acknowledge that the problem complained of existed. Implicit in this assertion is that the General Assembly had made requests of University officials which had been ignored. This, of course, is not the case. Mr. Morgan was apparently referring to the charges which the American Legion requested the General Assembly to investigate. This is quite different from the General Assembly waiting for a response to inquiries which it never made. It might also be helpful to give a brief resume of the role of the American Legion in this matter of investigating the University.
On September 17, 1962 the Chapel Hill Post of the American Legion passed a resolution which I understand was written by Colonel Henry E. Royall who also appeared before this Commission. What did this resolution say? It called upon the General Assembly “to determine to what extent if any Marxism has permeated the University and to investigate for the purpose of remedial legislation, should the findings so warrant in order that freedom loving North Carolina may be saved from a possible academic Frankenstein of their own creation.” A few days after this resolution was made public, the Associated Press inquired about my reaction to it. I responded on October 9, 1962. This public statement ended by saying “our inquiries indicate that there are no grounds to warrant an investigation.” In short, I disagreed with the Chapel Hill Post of the American Legion on the need for a legislative investigation. The reason for disagreement is very simple. We knew the facts and we were willing to share them with anyone who desired them. The author of the resolution has known me for many years but he has never made any effort to discuss the subject of his resolution with me prior to or subsequent to its adoption. We had no intention that the freedom of the University would be destroyed by any person or group. We were constantly diligent and we made repeated inquiries on our own and our cooperation with the Federal Bureau of Investigation was full and continuous.
The next development in the matter of an investigation of the University occurred on June 22, 1963. On that date the state convention of the American Legion passed a resolution recommending that the General Assembly investigate the University along the lines previously suggested by the Chapel Hill Post in September, 1962. On the same date Legionnaire L.J. Phipps of Chapel Hill was elected State Commander. On June 25, 1963 the day the Speaker Ban Law was introduced and passed State Commander Phipps wrote to me:
I am enclosing a copy of a statement which I have just released to the newspaper relative to the resolution which was adopted by the American Legion In Charlotte.
Personally, I was hoping that this resolution would note (sic) get to the floor of the convention and I thought it had been killed by the convention committee on Friday night, but someone was able to get it out of committee and on the floor of the convention.
I want to pledge to you and to President Friday my support at any time you need me during the next twelve months.”
Commander Phipps’ views on investigating the University were more fully revealed in the statement attached to his letter. He said:
“Because of the militant stand which the American Legion has taken against Communism, I am informed by prior State Commanders of the American Legion that many suggestions will be made that certain persons or groups of persons are subversive and that the Federal Bureau of Investigation prefers to conduct its own investigation of such reports of rumors and as State Commander of the American Legion I will work closely with the Federal Bureau of Investigation in this field. Should any person on the campus of the University of North Carolina be involved, then I will also work closely with President Friday and Chancellor Aycock.”
Commander Phipps concluded his statement:
“It is my opinion that there is not time enough for the introduction and consideration of a resolution carrying out the suggestions made by the Legion Convention in the Present session of the State Legislature.”
Thus you have the record. Three days before the Speaker Ban Law was passed the State Commander of the American Legion, a long time resident of Chapel Hill, did not think it was necessary for the State Convention to consider on the floor the resolution submitted to it by the Chapel Hill Post. Further, on the same day the Speaker Ban Law was introduced and passed he thought the appropriate agency to investigate was the FBI. Finally, he did not think there was time enough for the General Assembly to consider whether or not it should undertake to investigate the University. On this matter of an investigation of the University suggested by the American Legion, it is clear that Commander Phipps and I were in agreement. Yet, Mr. Robert Morgan, spokesman for the Legion, now asserts that the General Assembly was “weary” of waiting for the University to acknowledge that the problem complained of existed.
My first knowledge of the Speaker Ban Law came to me over the telephone from my wife who happened to hear a report about it while listening to the radio. It was surprising to learn that a law affecting vitally the University would be passed without an opportunity for someone responsible for its administration to be heard. The surprising feature was not how quickly this law was passed but the lack of study of its provisions and the effects thereof on higher education.
I hasten to say, however, that it has always been my view that the University has a duty to obey all laws. Consequently, immediate steps were taken to comply with the Speaker Ban Law. Its proponents continue to assert that this law is a simple one to enforce. But to one charged with the responsibility of its enforcement it is extremely vague in almost every particular. It bristles with ambiguities. Several of these ambiguities are already known to you. I shall, therefore, not dwell on this feature. Only one or two points will be made. Representative Phillip P. Godwin stated that no penalties were intended. It is not at all clear that it is a law without criminal sanctions. The Supreme Court of North Carolina has applied the common law rule that where a statute commands an act to be done or proscribes the commission of an act, and no penalty is expressly provided for its breach, its violation may be punished as for a misdemeanor. (State v. Bishop, 228 N.C. Reports 37 1.) Further, Chapter 14 230 of the General Statutes of North Carolina provides:
“If any… official of any of the State institutions … shall willfully omit, neglect, or refuse to discharge any of the duties of his office, for default whereof it is not elsewhere provided that he shall be indicted, he shall be guilty of a misdemeanor.”
It does not disturb me that this law may have sanctions of a criminal nature even though such was not intended. Sanctions would enable those persons who assert violations to see that the alleged violator is brought to the bar of justice. Without sanctions an institution accused of a violation is helpless to defend itself against spurious charges.
Is this statute one in which persons of common intelligence know its meaning and agree as to its application or is it so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application? One test should suffice to illustrate what I have in mind. What is meant by the provision in the Speaker Ban Law “facilities of such college or university for speaking purposes?” Channel Four, WUNC TV, the television station of the University, is a facility. Is it a facility within the meaning of the Act? If so, is it legal to permit any of the proscribed speakers to say a single word on any subject on Channel Four? What about news programs? Would it make any difference if the speaker were in a studio on or off the campus or whether the program was live or taped? Would it be permissible to telecast words of the proscribed speakers over Channel Four so long as all sets on the campus were off? What about the Carolina Inn, a University owned hotel on the campus? Can a University owned television set in the lobby of the hotel show programs originating on a commercial station involving any speaker in the forbidden class? What is the answer? Who knows? Many such questions will arise as long as we have this law.
Obviously this law could be more precisely written in many ways but all the technical skill in draftsmanship which could be mustered cannot make wise a law which transgresses a fundamental principle of our great heritage. In discussing this fundamental principle I could quote such masters of freedom as John Stuart Mill, John Milton or Thomas Jefferson. Instead I have chosen to quote a well known North Carolinian who on August 4, 1964 discussed his views on the subject of freedom. He did so in connection with the renewal of the license of WRAL TV by the Federal Communications Commission after this agency for several months had investigated alleged violations of the so called “Fairness Doctrine” by the station. I refer to the telecast of Mr. Jesse Helms on his program “Viewpoint.” To avoid any misunderstanding of my purpose permit me to emphasize that I turn to Mr. Helms because I endorse his clear expressions on the subject of freedom.
I now quote from the August 4, 1964 telecast (Viewpoint No. 906) of Mr. Helms:
“Broadcasters throughout the nation have long complained that the Fairness Doctrine is vague beyond comprehension, that it imposes obligations and responsibilities, and even that the FCC exceeded its authority in the adoption of a document which, as some of our newspaper friends now note, ‘comes close to an attempt at censorship.’ “
Substitute “educators” for “broadcasters”-“Speaker Ban Law” for “Fairness Doctrine” and the “General Assembly for “FCC” and the result is an articulate statement of our viewpoint on the Speaker Ban Law.
I quote further from the August 4, 1964 telecast of Mr. Helms:
“But one thing is pointed up above all others-and that is the broad matter of governmental controls. In all candor, we see no more importance in protecting the freedom of broad casters, or a newspaper, than we do in preserving the freedom of, say, a doctor, or the operator of a restaurant or factory or any other business. WHEN ONE IS DENIED ANY PART OF HIS RIGHTFUL FREEDOM, THEN EVERY MAN’S FREEDOM HAS BEEN LESSENED. (Italics supplied.)
I agree with this statement. Further, I agree with it when applied to the University. The University does not need any more freedom than WRAL TV or the operator of a restaurant or a doctor or anyone else. So far as I am concerned the scope and extent of academic freedom is not anything special or different from those freedoms enjoyed by citizens in general. As a member of the faculty the freedom I need is exactly the same freedom of speech, freedom of the press, freedom of religion and other freedoms guaranteed to all citizens. There are, of course, limitations on the freedom of all citizens such as the laws of libel and slander. As a faculty member I do not need or desire exemption from those limitations on everyone’s freedom. The Smith Act and its North Carolina counterpart, the Act of 1941, limits the freedom of any person to advocate the overthrow of government by force or violence. I approve of these laws. They apply to all persons whether on or off the campus. But what about the Speaker Ban Law? It is quite different from other limitations on freedom. It is different in that it is a special limitation on the freedom of the campus. Speakers forbidden on the campus are free to speak anywhere else in North Carolina. They can speak in this State Legislative Building or they may be heard and seen over the facilities of WRAL TV. The Speaker Ban Law is a special dilution of campus freedom. And as Mr. Helm’s says-“When one is denied any part of his rightful freedom, then every man’s freedom has been lessened.” Why restrict the Speaker Ban Law to college and university campuses? The argument is made of course that these young people are at an impressionable age and need this protection. If so, why not protect them from hearing the forbidden speakers over all media including radio and television? Should those forbidden speakers on the campus be “dignified” by being allowed to use facilities licensed by an agency of the people of the United States? Another aspect of protecting our youth should not be overlooked. If college and university students need to be protected from the forbidden speakers, doesn’t it follow that it is even more imperative to offer the same protection to our thousands of “functional illiterates” who can hear even though they cannot read?
Mr. Helms had more to say on the fundamental principle of freedom:
“In any event, we do think that, as a matter of precedent, it is important to consider the possibility that an element of control over one medium of communication today might well tomorrow lead to attempts to impose such controls on all media.”
On October 22, 1963 The Faculty Council of the University of North Carolina expressed similar concern:
“Legislative censorship, once begun, carries an invidious threat of future proscriptions, and inevitably stirs fears in the minds of both faculty and students that expression of unpopular sentiments may produce reprisals against them.”
The University has been criticized for not imposing its own censorship on speakers. To do this requires a censor. Suppose you had the job as censor. Now, further, suppose the students invited a speaker to the campus, a person known by you as one who has asserted that the President of the United States “runs our socialist dictatorship with a mouthful of peace and a handful of war.” (Chub Sewall, People’s Forum News and Observer, July 25, 1965) Would you let him speak? Would you let him address “impressionable” college and university students? Would you suggest it would be a boost to the morale of the boys in Viet Nam for this person to tell them that already we have a socialistic dictatorship at home?
One other example. As campus censor you have in hand this statement:
“If the federal judiciary and the executive branch of our government take the law into their own hands, then they deserve no better than Charles the First and Archbishop Laud got; they had their heads cut off by a people who despised dictators.” (James P. Dees, President, North Carolina Defenders of States Rights. Letter September 16, 1962)
These statements were not made by the forbidden speakers but rather by well known conservative North Carolinians. Should these persons be permitted to speak on the campus to college and university students? I would let them speak and I would also let those banned by the 1963 Law speak. I cannot think of a better way for a college or university student to learn that a Communist is not truthful than for him to listen to him talk and question him on what he said. The same is true of any speaker who makes extreme statements. In short, which is better-a practical education in communist deceit and exaggerated assertions or just a theoretical one? Those of us who teach can testify that college and university students are quick to react to any effort to deceive them.
I am glad that the American Legion continues to be alert to subversion. So is the University. We agree on the danger. Our disagreement is solely over the method of combating the evil. Some members of the American Legion think the Speaker Ban Law is an appropriate and useful way of combating subversion whereas I do not think so. Mr. Dudley Robbins, a former State Commander of the Legion, called to the attention of this Commission a pamphlet Teaching About Communism (A publication of the joint committee of the National Education Association and the American Legion). The following statement on pages 4 and 5 of this pamphlet expresses my views quite well:
“The right to think as one wills, to speak as one thinks and the willingness to exercise these rights are requisite to the survival of free men in a free society. These rights are indispensable to the accomplishment of the purposes of education in the free society, wherein the only effective answer to evil counsel is the free exercise of good counsel. Unfortunately, however, there are those who would smother the free spirit of America under the guise of combating communism; they would stifle free discussion and the search for truth; they would deny dissent; they would impose patriotism by any means at their command; they would willingly use the means they most vociferously condemn when used by the communists.”
As previously emphasized I agree with the principles of freedom enunciated so well by Mr. Jesse Helms. We disagree on the application of these principles. He applies these principles to all-but with one notable exception-institutions of higher learning. He favors the Speaker Ban Law. I oppose it. I want his principles to be applied uniformly. I do not want an exception made for institutions of higher learning supported by public funds. I want the same freedom in my work that he wants in his work. Finally, Mr. Helms reminds us that “freedom of the press is a freedom that will not necessarily endure forever unless a fight is made to preserve it.” And so it is with all freedoms.
The time has come to appraise realistically some of the assertions made by the proponents of the Speaker Ban Law. First, they contend their objective is to protect college and university Students from subversive influences which might result from an appearance on the campus by the forbidden speakers. Yet, they hasten to say that the freedom of the institution has not really been taken away because the speakers can be heard anywhere but on the campuses. On the other hand, there are repeated assertions that the purpose of the law is to relieve the taxpayers of providing a public facility for the forbidden speakers. But this is of course true only in a very limited sense inasmuch as all public facilities are available to the forbidden speakers except those on the campuses of state supported institutions. If the purpose of the law is to fight communism and subversion, it is at most, a feeble gesture. Those who favor this law ought to insist that it be extended to apply throughout the state and to all media. In short, make the prohibition a general one throughout the state rather than a special one for institutions of higher learning. Otherwise, the proponents are really taking a strange position, i.e., freedom is adequate to combat the evil influences of the forbidden speakers everywhere but in the citadels of freedom. Of course, the same objections would apply to an expanded law as apply to the current one. But two purposes would be served-the proponents of this legislation would have a law which is broad enough to express their views in a meaningful way-and the voice of the people would become loud and clear in opposition to a law which so vitally infringes on the freedom of all North Carolinians.
Another alternative is to take seriously the advice of Mr. J. Edgar Hoover:
… we must be absolutely certain that our fight is waged with full regard for the historic 1iberties of this great nation. This is the fundamental premise of any attack against communism. (Hoover, Masters of Deceit, p. 312. Emphasis-the author’s).
We can fight subversion without sacrificing a fundamental principle of our freedom for what is, in reality, false security. North Carolina has come a long way short on cash but long on freedom. The Speaker Ban Law is a mistake. On previous occasions, I have said that this law was passed by friends, not enemies of the University. It was motivated by love in an endeavor to protect students in state institutions from communism. But this love is overly protective. It is a mighty blow against freedom. It will take much time and great effort to upgrade the economic status of our people, but little effort and no money will be required to restore to North Carolina its high place among those people in the world who believe in freedom. In keeping with the highest traditions of this State this law should be acknowledged to be a mistake. This mistake should be corrected by outright repeal as soon as possible.