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Oct. 11, 2023 - Where There's Woke - Thomas Smith
56:59
WTW14: thefire.org Is an Absolute Joke

In this penultimate part, we go through why thefire.org is a fucking joke. Sorry, why they are a joke in relation only to THIS case. There are about a billion other reasons they're a joke but we'll have to cover those at a later date. Then from there, we go through the legal stuff. Kilborn SWORE he'd defeat the fascistic tyrants of UIC in court. How did that prediction hold up? Please pretty please consider becoming a patron at patreon.com/wherethereswoke!

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Time Text
What's so scary about the woke mob?
How often you just don't see them coming.
Anywhere you see diversity, equity, and inclusion, you see Marxism and you see woke principles being pushed.
Wokeness is a virus more dangerous than any pandemic hands down.
The woke monster is here and it's coming for everything.
Instead of go-go boots, the seductress green M&M will now wear sneakers.
He's got some predictions, hun, and I'm going to be able to evaluate some of them.
Oh yeah, like Barbie's gonna bomb its second weekend in the box office?
Patrons know what's up.
Yeah, well, Normie's heard half of it.
Yeah.
That was a good episode.
So hun, why don't you tell us a little bit about thefire.org and I will then, after that, tell you a little bit about why they fucking suck.
Okay.
I also have a little bit about why they fucking suck.
Oh good.
We're on the same page.
Okay.
We're a team.
Yeah, I know.
In so many more ways than one.
All right.
So FIRE.
Founded in 1999, FIRE originally stood for the Foundation for Individual Rights in Education.
Oh, I forgot it was an acronym.
Yeah.
And then they rebranded in 2022 to Foundation for Individual Rights and Expression because they wanted to broaden their mission and their impact.
They were really focused on college campuses to begin with, but they're really kind of trying to stand up and be seen as an ACLU competitor.
Competitor?
Wow.
Yeah, just kind of like, who can run those cases?
We're over to run those assholes out of business.
Yeah.
It was founded by these two men, Alan Charles Coors and a man named... An Anheuser-Busch or what?
No, I'm just kidding.
Yeah.
A man named Harvey Silverglate.
I don't think I've heard either of those names before.
That's weird.
Well, you're going to know Harvey Silverglate.
Okay.
Because he represents John freaking Eastman.
Oh my God.
Yeah.
I'm going to read you some quotes.
There's some good stuff.
All right.
This is an article on FIRE's website, by the way, and it's titled Harvey Silverglate for the Defense of John Eastman.
It was dot, dot, dot of John Eastman.
When is this?
Is he defending?
Right now.
Let me clarify.
There's a lot of times you could be defending Jon Eastman.
OK, right now.
He's literally defending him right now.
As we speak.
Yep.
And further question.
I thought you were going to say, like, they were the founders, but, you know, they fucked off or something like that.
You're saying they found it.
They're still involved.
This guy's still involved.
Board, like board members, right?
Yeah.
No, they're board members.
And so they might not be involved in the day to day per se, but this is being covered on their website like positively.
A hundred percent positively.
OK, here's some great quotes.
The press has a thing about everything Trump and everything is slanted and I'm appalled.
You know, I was a journalist before I was a lawyer and I still write columns for newspapers, including major national papers and local papers.
And I am appalled at the quality of reporting and everything related to Trump.
Ten years from now, the news media is going to do a gigantic mea culpa.
And mind you, I am no Trump supporter.
I wouldn't vote for Trump if I was being tortured.
I am no Trump supporter.
Oh, I bet.
And then he talks about the Justice Department's prosecution.
I'm appalled that the Department of Justice, under a Democratic administration, appalled that they have done this to the leading Republican candidate for the presidency prior to the Republican National Convention.
There is a statute of limitations that is quite lengthy, and they could have waited Obviously, I'm adding insinuations.
Oh my god, I would love to use that.
I murder someone and then the police arrest me.
You could have waited.
There's no statute of limitations.
You could wait forever.
Why didn't you wait until I was almost dead, guys?
Come on, guys!
Could have waited.
This is amazing!
Your crime is, by the way, ruining our democracy.
Oh, should we wait to charge him with that until before or after he does it a fucking again?
Like, should we, you know?
Yeah, yeah.
I consider that what the Department of Justice is doing here to be candidate suppression.
That's not their job.
Wow.
So the timing is appallingly bad judgment, and I believe done in bad faith, to keep him from being the Republican nominee for president.
They realize Biden is a very weak candidate.
If Biden had any common sense, he would have just said he was not running for a second term.
That would have opened up the field to some excellent Democratic, younger Democratic candidates.
So on top of everything else.
Broken clock.
This is an attempt to kind of fix the election for Biden.
It is appalling in every single way.
So when I read that sentence, I was like, OK, it's like Jon Eastman 2.0, like it's what Jon Eastman's been saying, right?
They've been like trying to create this narrative.
The election's fixed.
It's been stolen, yada, yada, yada.
And then like, how are we going to accomplish our ends, I guess?
But the language here, I can't believe that I guess I can believe that this is being covered favorably on fire.
Insane.
It's insane.
Yeah.
And then he says that the California bar's disciplinary actions against John Eastman are both legally unwarranted and constitutionally unjustifiable.
Does the Constitution govern the bar?
These people just love to apply the Constitution.
Everything's the First Amendment.
Yeah, you're waiting in line in Starbucks and they like give the drink to the guy behind you instead of yours first and they're like, First Amendment due process.
It's like not everything is the fucking Constitution, man.
Just give it a rest.
He characterizes the disciplinary action against John Eastman as nuanced.
A guy who, by the way, participated actively in subverting our democracy.
He was like the guy.
Yes, one of the main guys coming up with bullshit justifications for this.
And it's beyond the pale for the bar of California to say, hey, I don't think you should be a fucking lawyer, man.
Yeah.
Are you kidding?
What would get you kicked out of being a lawyer?
Actually, I shouldn't even I shouldn't go down that road because there is no bottom, actually.
Yeah.
So.
Yeah, that's one of the founders who continues to be involved with the organization.
That's nuts.
Yeah, and the current president and CEO is Greg Lukianoff.
That name I know, yeah.
Again, it's like all coming back to freedom of speech, right?
It's the First Amendment believers.
Well, their idiot idea of freedom of speech.
Yeah, yeah, yeah.
I had mentioned earlier some of the folks that are involved with FIRE.
Some members of their advisory council include John McWhorter and Nicholas Christakis.
Oh my gosh.
We're going to do Christakis.
Do you remember who that is, or did you look it up?
I knew a little bit, just because Fire, you know, they talk about the Christakises.
He's the Yale guy!
Can't wait.
The Christakisai.
Yeah.
We're going to do that one.
There are several that I covered at the time, and I can't wait to do those and look back at them, because that's a significant one.
And there's a current case, actually, against California community colleges.
And so we have a friend, you know, who works for the chancellor's office for California Community Colleges.
And when I saw this pop up that FIRE is representing a network of professors who don't want to sign DEI statements, I sent it over to him and he said, yeah, this is what you're wasting your time and money on.
I know.
It's just so it's pathetic, man.
Yep.
Absolutely pathetic.
So that's your little fast takeaway, yeah, about what FIRE is and what to expect.
Yeah, and this is not meant to be comprehensive.
Mine isn't meant to be comprehensive.
We need to do probably a full series on FIRE.
But now I'm going to cover why they suck just purely relating to this case, this one case.
I just want to emphasize, this is not meant to be a comprehensive breakdown of the FIRE.org.
This is merely just related to this case.
It's incredible.
Here's what the number one thing that blows my mind about this.
Now you heard me read when like the lawyer was like, and that's why you were rated as like one of the top 10 worst colleges for speech.
Like that's some sort of threat of anything.
That's just like, and that's why you were rated in my diary as one of the worst people that I don't like.
And it's like, that's nothing, man.
Sorry.
They did that rating.
They put them on that.
Apparently they do that annually and it's, you know, surprise, surprise, just complete fucking bullshit.
Whatever they are mad at at the time.
Now let's remember our timeline.
I'll help you because I know it's hard.
It's a lot for even me with all the stuff in front of me.
They ranked them in that top 10 February 17th.
I'll note that almost nothing was resolved by then.
The investigation wasn't resolved.
Nothing was resolved.
And so you might ask yourself, well, maybe there's other stuff, you know, like there's other, maybe they're like, oh, this is just one of a bunch of reasons why this is the worst university in terms of free speech.
No.
It's just that one thing.
Let me read you.
They put UIC on their stupid list of top 10 worst colleges for free speech.
Wow.
February 17th, merely two months into that debacle.
There was another article, by the way, slightly before that, January 19th.
Here's one of the letters that FIRE wrote.
Again, who asked you, FIRE?
This has nothing to do with anything, but whatever.
I want to read some critical paragraphs here.
Yeah, okay.
Like, honestly, there could be a debate about that.
Like, if he insisted, like, yes, I'm going to do this, and if he insisted, yes, this is definitely pedagogically necessary, they would have to have a battle about that.
It would be, you know, it'd be whatever.
That's not what's happening.
Again, that's not what's happening.
He agreed to not use it.
But here's what they write.
This is January 19th.
They know fucking nothing at this point.
This has been, you know, a couple weeks after the main events.
An investigation into Kilbourne's exam question violates his pedagogical autonomy, protected by the basic tenets of academic freedom to determine what material to test and how it should be tested.
These rights are protected by the First Amendment, the law school's published commitments to academic freedom, and the conditions of the University of Illinois at Chicago's accreditation.
In one of the other letters that they've written, which, by the way, I love it.
Again, he keeps saying like, oh, they haven't responded.
It's like, yeah, it's nothing.
They don't care.
All the letters.
It's another Karen letter.
Thekaren.org writes a letter.
So that was January 19th, that letter, by the way.
The school responds February 11th.
That's not a high priority because these fucking Karens, man.
They're like, whatever.
Here's some of the highlights of their response.
And again, this is just a letter back and forth from FIRE.
Obviously, they know it's going to be publicized by thefire.org, but this is just that correspondence.
Once again, Hun, I'm just going to remind you to evaluate whether or not you think not only Killborn, but the fire.org people are being honest.
in their misunderstanding about what the real issue is here.
Because this is literally the first letter they got back, February 11th.
The first paragraph has some stuff about, yeah, we value academic freedom, free speech, blah, blah, blah.
They cite like their policies, that kind of thing.
Then they say, the university necessarily balances principles of academic freedom against other very strong commitments that are central to its mission.
One commitment is to ensure a non-discriminatory, non-harassing work and learning environment for the entire campus community.
Another is to protect the privacy and safety of the entire campus community.
To protect and harmonize these and many other interests, while still upholding the rights of faculty to present pedagogically relevant content, the University maintains policies and procedures for investigation where concerns are raised.
Facts are disputed or interests collide.
All three circumstances are present here.
Listen up.
Concerns relating to Professor Kilbourne have been raised that go well beyond the one incident referred to in FIRE's January 19th letter.
Among other things, a different incident was reported raising safety concerns, and Professor Kilbourne was placed on paid administrative leave, which has now ended with his return to active service.
The other concerns that have been brought forth relating to Professor Kilbourne are currently being investigated.
This investigative work does not focus upon Professor Kilbourn's December 2020 examination question alone.
The university stands by its compliance protocols and decision to confidentially investigate these matters.
Investigation allows the university to obtain direct relevant information before taking any action involving any member of the campus community.
I think this letter is really good, so actually I'm going to keep reading because I think this says a lot.
The university therefore respectfully disagrees with FIRE's contention that any investigation into certain content within the Civil Procedure 2 examination administered by Professor Kilbourne violates or chills his First Amendment rights or compromises principles of academic freedom.
This matter involves multiple concerns and implicates the interests of several other constituents, including not only Professor Kilbourne, but also the employees and students who have brought confidential concerns to the University's attention.
The university rejects any suggestion that this investigation violates faculty rights or constitutes a sanction.
Quite to the contrary, this is precisely the kind of situation in which an investigation is essential to protect the due process rights and principles of academic freedom enjoyed by Professor Kilbourn, as well as the rights of others.
Moreover, in cases where faculty believe that they do not enjoy the academic freedom, which it is the policy of our institution to maintain and encourage, this is... go.
This poor Chancellor Michael D. Amiridis is writing to an idiot and is like, I gotta put this really slow for you, bud.
Listen to this one.
University policies provide faculty with a process by which they may seek review of the matter by the Faculty Senate's Committee on Academic Freedom and Tenure.
This process allows faculty to raise concerns about alleged violations of academic freedom to faculty colleagues through the university's shared governance system.
Indeed, Professor Kilbourne has already availed himself of this process in the present case.
I hope that this letter addresses FIRE's concerns about this matter.
Wow.
Basically, in so many words, hey idiots, investigation means fucking looking into it.
So, if thefire.org were at all an honest actor, What do you think they should do upon receiving this letter, February 11th, 2021, when, again, their guy, Kilborn, was suspended with pay and then came back.
That was clarified in this letter that that was due to a violence thingy.
And this letter now says, hey, man, there's other complaints.
Yeah.
For all they know, for all the fire.org knows, maybe he has a bunch of complaints about, yeah, he called me the n-word.
Who knows?
Yeah.
They don't know because they are not there.
They're a fucking Karen organization that's putting its little fucking myths in it to say, oh, you're definitely violating this guy's freedom.
Wouldn't you think on February 11th, upon receiving this letter, wouldn't you be like, oh, okay.
Yeah.
So there's other complaints.
Okay.
So an investigation would probably be the very fucking logical thing to do to see if those complaints have merit.
And by the way, if they don't, then the investigation is the very fucking thing that will clear his name.
Yeah, like if I were fire, if I received that letter, I would do two things.
I would say, my bad.
You're right.
All right, I'm going to back off.
I'm going to cool my jets.
That's the other thing I would do, is I would cool my jets.
Yeah.
And I have a feeling they did not cool their jets.
I'd be like, hey, yeah, no, okay, thanks.
Just want to make sure, you know.
Okay, you're on it.
Okay.
Yeah, no, I appreciate, you know, we're on the same page here.
Sounds like you got it covered.
Yeah, we'll circle back later.
Totally.
It's very, very obvious that they take Kilborn's word as gospel.
Because for all they know, who knows what skeletons are in this investigation?
The letter has made it plain.
There's multiple complaints, not just students, but other faculty.
Like, who fucking knows?
Yeah.
And so, what they proceed to do then is on, that was February 11th, they received that reply.
On February 17th, six days later, they include UIC in the 10 worst colleges for free speech.
Wow.
For just investigating this.
That's it.
Wow.
That's all they have.
Literally just in, Again, the investigation could be the thing that says, boy, this guy actually is great.
You guys are full of shit.
And Kilborn is a maze.
That could be what it says for all they know.
He's our modern day Galileo.
I won't hear a bad word about him.
Yeah.
I am in disbelief at how fucking stupid this is.
Like, truly, this is fucking stupid.
Were they bored?
Like, did they have nothing else to do?
Exactly.
I don't know.
It's incredible.
So here we are on February 17th, and let me read the little, some of the blurb about them, again, being included on their fucking list of 10 worst colleges.
By the way, worst colleges for free speech, not for nothing.
They already mentioned, yeah, also we have a process for if any teachers, if any professors feel like their academic freedom is being violated, and Kilbourn has started that process.
Right.
For all fire knows, they're gonna be like, holy shit, yeah, the process has revealed that Kilbourne's academic freedom has been violated.
We will make that right.
Wouldn't that make them pretty good on free speech?
Like if they have a good robust system of checks and balances to make sure nobody's academic freedom is infringed?
You don't know!
Yeah, it also would save a lot of money if they just kind of like let that play out first before they start spending all those lawyer hours.
I mean, so far they're just writing letters, so it's not, you know, they haven't done that yet.
It's billable, right?
I mean, I assume they're on sta- I don't know how their fucking system works, but you're not wrong.
These letters are not free to you or I.
Note to the listener, Thomas is about to start yelling.
This is because it is simply impossible for anyone to overstate the stupidity of what forfire.org has done here.
You may want to adjust your volume accordingly.
University of Illinois Chicago on the list.
And the main, the one sentence kind of thing is, a law professor is investigated because his exam question contained censored references to slurs in the fact pattern.
You're lying!
You already know that that's not what it is.
I can't take it.
How is this the world we live in?
I can't understand.
You're just lying.
You're just liars.
I read the letter.
You know why I read that letter?
Because you posted it!
I read it on your site, your website, thefire.org, had the letter in which they said, hey, we're investigating a lot of stuff.
There's other stuff we're investigating.
I can't do it.
I can't.
This is why we're never going to run out of work.
There's never going to be an end to this podcast because there's just fucking liars in the world who love to position themselves as defenders of these high up, high minded concepts like freedom of speech, academic expression.
They just lie.
They don't care about the truth.
They don't care.
And going back all the way to when we set this up, like you said, the coverage for this was so incredibly pro-Killborn, partly because he did his little, you know... Likely did a press tour, yeah.
Grand tour.
Yeah.
His little roadshow.
Allegedly by us.
Allegedly by us.
Yes, yes.
We don't know for sure, but it just seems a little... Just coincidentally, he's constantly quoted by a bunch of sources and nobody else on the other side really is much.
Yeah.
It's incredible to me because if you don't have anybody who's willing to like piece this together, all you have then is UIC feeling like they're going to have to pull their hair out because they're going crazy whenever they see this stuff posted constantly because, you know, it's just a lot of bad actors and people giving poor information.
I guess I didn't even need to read more than that one sentence.
That's all they just set up.
Oh, he used the slur, but it was blotted out.
Yeah.
Blah, blah, blah, blah, blah, blah, blah.
Last couple of paragraphs.
Law professors have long predicted they would face pushback and potential punishments for teaching the law of sensitive topics.
In 2014, Harvard Law School's Jeannie Suk Gerson wrote about, oh wait, did we look into that?
Stop it.
Yeah.
Yeah.
Yep.
That's going back to Michael Powell's Title IX article.
Oh, man, it's all coming together.
That's why.
Oh, boy.
Yeah, we're going to do another episode on.
That's awesome.
I think because, yeah, we're starting to build that fucking web.
We're starting to connect the dots.
I love it.
I got some spreadsheets.
We should just for fun.
We actually should make a big cork.
We're doing that 100 percent.
OK, we're making a giant.
It's going to be the size of our house, though.
A giant cork board with yarn just for fun.
Like, because it is that, really.
Like, it kind of is, right?
It is.
They all, it's all, they all side each other.
Anyway, I don't want to, we've already gone on for fucking 40 hours, but.
Yeah, more to come.
Wrote about how sensitivity over sexual assault led many criminal law professors to drop the subject entirely.
She noted that ultimately victims would be the ones to suffer if lawyers weren't trained in the law because professors felt it was too risky to do.
So ridiculous.
I know that's not true.
I've not looked into it.
Whatever this is, I know you're full of shit.
I just know, but we'll look into it eventually.
Sook Gerson's fear has been given horrifying shape by UIC.
Kilbourne obliquely identified the slurs without using them.
A student said she had heart palpitations.
Moore called for his punishment and the school opened an investigation.
UIC has functionally chilled the ability of its professors to harass students who complain about them.
Oh no, sorry.
To teach the tough subjects.
And as Sook Gerson noted, the people who will ultimately be hurt are the victims.
What?
What victims?
Are the victims of the attorney work product rule that the question was about.
Oh god... Oh my god, I...
I can't even, there's so much more, but like already, this is, look, I don't want to do the thing that people of bad faith do specifically, and I know I'm connecting dots that are insane here, but specifically with like female candidates for stuff where they find one bad thing and they're like, that disqualifies.
They're completely disqualified.
And they're just being unfair.
Cause like every politician has a thing you could say like that just disqualifies.
But like, this is pretty disqualifying from the field of being honest at all.
Yeah.
This is so dishonest.
And I think that's a really, really important thing to keep in mind, because, you know, one of the things that you asked me about was like, oh, what's their stance on Ron DeSantis?
Right.
And when I was looking into that, you know, they're actually pushing back on the Stop Woke Act out of Florida.
Jonathan Haidt, you know, Greg Lukianoff's best friend, wrote specifically that, you know, it's really interesting that this organization that liberals tend to hate is the one that's having like the biggest impact.
And so I think we need to keep this kind of stuff in mind that, yes, obviously Stop Woke Act in Florida is horrific, but this organization literally is lying up and down on these other cases.
And they're not our friends.
They're taking the lowest of low-hanging fruit for cred.
Yeah.
You know, if I complain about you and then you're like, well, I just donated $200 to orphans, so you hate orphans?
You don't want me to help orphans?
Like, no, dude, I know you're full of shit.
Sorry, I know you're full of shit.
Anyway, that is already incredible.
It's so hard to not repeat myself, but just the timeline, the timeline.
Six days after receiving that letter, way before they know fucking shit about the actual investigation, which was in, like, July or whatever, when they actually find out about that.
So, again, for all they know, he fucking killed somebody.
Like, they just don't know.
Unless they just, for, hmm, potentially biased reasons, take the word of a fucking angry white guy as gospel, And just assume that the non-white people complaining about him must be lying, right?
That's the only way you could at all take this course of action.
We got to get to some law stuff.
Let's get back.
Let's get back to that timeline.
You know, looking at the calendar, too, because that's what I'm here for, is to tell you when the weekends fall.
Sure.
February 11th was a Thursday, and so some poor person was working the weekend to probably update their database to throw down UIC.
To get that top 10.
Yeah, and that top 10, because the 16th was then the Tuesday.
So then we get, and I'm not going to retell it, but the next kind of fire event.
They're corresponding here and there.
They're writing their bullshit.
The next thing is them claiming victory for the settlement, quote unquote, that they reached.
The conclusion that they reached that we have later found out, thanks to my finally reading the fine, fine print on one of the letters, was not an agreement at all.
That was just them notifying.
An acknowledging receipt.
Yes.
You know, there's a great family guy joke where I think, I can't remember, it's been a while, but they enter Brian, the dog, the talking dog, in like one of those dog contest things or whatever, where they're supposed to do whatever.
Yeah.
And in the middle of it, they have a fight or something.
And so Brian's pissed at him.
You know, he's trying to tell him what to do for the dog show.
He's like, roll over, do the thing.
And then he just starts saying what he's, walk away, flip me off.
Yeah, good dog.
And he just starts pretending he's telling him what.
What are you doing?
Such a good joke.
That's like this.
Brian, come.
Hey, don't you walk out on me.
I now command you to leave.
Yep.
Keep going.
That's right.
Yes.
Flip me off.
Good boy.
Oh, you just gave me notice, written notice of what you're requiring me.
We agree.
Yeah.
Very well.
You drive a hard bargain, but we'll take it.
Just pretend that's your accomplishment.
God, you gotta see the photo that goes along with that, folks.
It's just this, the pose that goes along with how bullshit that claim of victory is.
It's too good.
It's too good for this world.
Yeah.
So then we get the announcement of the lawsuit.
And the lawsuit, of course, it's by fire.
It's because of Wayne G. M. Pietro, an attorney in the Foundation for Individual Rights in Education.
Again, that's the acronym, what it used to be.
Faculty Legal Defense Fund Network.
The only thing that will hold UIC accountable for its unconstitutional actions is a lawsuit.
And so they sue.
And you heard, I already played, the very confident predictions of what would happen.
So why don't we talk about the status of the whole legal fight?
What do you think?
Yeah.
You don't know anything about this.
No.
How's that going?
How's that legal fight going?
So his original complaint, again, I'm not the fucking lawyer, but I'll summarize, you know, I've gotten decently good at reading these complaints, actually.
And I'll summarize kind of the counts.
And here at WTW, we read the complaint from the top down.
So count one is, you know, violation of the first and 14th amendment.
We already heard him go through some of it.
You know, it's essentially they're punishing him for his speech and they didn't give him due process and whatever.
Count two, violation of Illinois statutes.
Now this is exactly what I'm not going to do.
There's, this is federal court.
They're also suing under state law, you know, so there's that kind of thing there, which you can do, but there's complications there that I'm not lawyerly enough to say, but I will tell you what the judge thinks of them later.
So that's that.
I don't need any expertise to do that.
I can tell you exactly what the judge thinks of all of it.
So they sue, you know, under state and the Constitution.
So you're allowed to do that.
You know, it's in federal court, all that kind of crap.
So this is actually the due process stuff.
The process of investigating and sanctioning plaintiff speech here involved a series of violations of due process.
It's just, I mean, I read you what happened.
The factual conclusions are clearly erroneous and demonstrate an intentional failure to provide plaintiff with an opportunity to respond.
Yeah, man, like you did though.
Yeah.
You did respond.
So they're just saying like the shortcomings in that investigation process violate due process and that kind of crap.
And they try to say like, the due process principle of clarity is especially demanding and a more stringent vagueness test applies when First Amendment freedoms are at stake.
And they might be right about that principle, but like, are First Amendment freedoms really at stake here?
We'll see what the judge says.
Okay, so here's one that's a little important.
Paragraph 75, the finding by OAE that plaintiff is guilty of, quote, harassment is based upon an assertion which is hidden from plaintiff and is arbitrary and capricious.
And as OAE admits, is broader than applicable law.
Yeah, man.
You wouldn't have a thing called a policy if you could only have law.
Am I crazy?
No, yeah.
I mean, there's plenty more things to govern behavior and expectations and stuff.
Yeah.
It's broader than a... Well, of course it's broad.
They can't have a policy that's like, actually, you can murder.
That's our policy here.
Yeah.
No, you can only say, not only can you not murder, you can't even like kind of murder, you know, like, or something.
You can't contemplate murder.
Things that aren't going to be against the law per se, but are going to be against the university policy.
Of course, that's true.
But he says such an admission That's an admission.
Admits it's broader than applicable law.
Such an admission runs afoul of both the federal and state protections of free speech.
No, it doesn't.
But punishing plaintiff for violation of policy with no stated substance and no advanced notice or guidance is an arbitrary and capricious abuse of authority.
It is important that I'm bringing this up.
So this claim is the word harassment is too vague and it's not defined so he couldn't have kind of known what he needed to not do essentially.
Count four.
And these are all restated.
Each defendant is named individually and in their official capacity, all that crap.
So, you know, it adds up count wise, but that's how they normally do these things.
So count four is defamation.
These are pretty funny because one of them is based on what like journalists said.
So they're like, you defame me.
Here, look how this journalist said that I called black people cockroaches.
And so pin in that.
And UIC is responsible for that.
Exactly.
Pin in that.
Count five, false light.
False light, again, I want to emphasize 100%, I'm not a lawyer, this is not a law show, but false light kind of, it sort of repeats the defamation-y stuff.
Like it's kind of a little redundant, but it's another count, you know, that makes sense, whatever.
But I did read, I think the judge says that like, if the defamation fails, then the false light fails, I think is what it is.
And it might go the other way, but I don't remember.
Then IIED, Intentional Infliction of Emotional Distress.
And for that, he says the abrupt cancellation of the classes and banning them from contact with students in the middle of all that blah, blah, blah.
Defendants also publicly attributed inflammatory race-based comments.
To plaintiff and knowingly allowed others, knowingly allowed others to attribute, think about that standard, knowingly allowed others to attribute extreme and inflammatory race-based comments to plaintiff in the public domain.
So they have a duty like to monitor the public domain and like stop people from misinterpreting what they said.
But I mean, I don't know, it seems wrong.
Peripheral relief is possibly interesting here and that's, Law dogs will recognize we're at the end here.
Sorry, I'm boring you with a legal complaint, but I'm trying to set up as little as possible to make the points I need to make.
So here's what he wants.
He wants a declaratory judgment that defendants' punishment and compulsion of plaintiff's speech violates the first, fifth, and fourteenth amendments, as well as the University of Illinois statutes, along with an order of specific performance requiring defendants to abide by their contractual obligations of freedom of speech and academic freedom to plaintiff under the University of Illinois statutes.
Issuing a permanent injunction barring defendants from enforcing the anti-discrimination policy in a way that violates faculty and student rights under the First, Fifth, and Fourteenth Amendments and the University of Illinois statutes.
Award to plaintiff compensatory and punitive damages against defendants for their violations of his rights and consequent harm inflicted upon him by reason of their actions in an amount of not less than $100,000.
Award to plaintiff his reasonable costs and expenses of this action.
Including attorney's fees and a word to plaintiff, all other and further relief to which the court finds plaintiff is entitled.
So that's pretty, pretty normal there.
So that's what he wants.
And I would like to, once again, remind you of the extreme confidence he had.
Not only is he not settling, they couldn't even come up with a settlement that he would accept.
He needs to teach these people what the law is and he's not going to rest until this is, and he even notes.
His case might not be the most extreme, but the college's reaction is the most extreme of all the examples in his mind, which is fucking insane.
So naturally, the next thing that kind of happens in these things is?
Counter-complaint.
A motion to dismiss and maybe a counter-complaint, but there isn't a counter-complaint here.
It's just a motion to dismiss.
That's the first thing you do.
And I'm not going to go through the motion to dismiss.
I'll tell you why I'm not going to go through this much.
It's because it's the side that I agree with and I'm not a lawyer.
So I can't really tell where, because obviously they're not a hundred percent right on everything.
That's not really how these things work.
They're going to lose on some arguments.
So I'm not a lawyer enough to tell you like, Oh, this was a good argument.
This was a bad argument because I'm not a lawyer.
And it's pretty complicated stuff, honestly.
So I'm not really going to read you their motion to dismiss.
I've read it several times.
It's fun.
It's good.
It makes me feel good because a lot of it is about how dumb his complaint is.
It feels compelling, but you don't necessarily have an informed take.
But that would be true even if it weren't probably because I'm not a lawyer.
But the good news is I don't need to do that because we hire people to do this in our society and that's a fucking judge.
And the judge has ruled on That motion to dismiss.
After some, you know, more back and forth, there's some additional briefs filed.
But I can go through the ruling.
And this happened 2-15-23.
So pretty recent.
So naturally, what's going to happen is the judge is going to say, holy shit, you are literally Galileo.
First off.
First off, it's an honor, sir.
It's an honor.
Yes.
First off, Mr. Kilbourne, can I just say it's an honor to meet you?
Should you take my robes now, sir?
Now that you have arrived.
Here's my gavel.
Tell you what.
Do you want to bang bang it at the end of it?
You do it.
You do the honors.
You're such a fucking brilliant guy.
You're just fucking amazing.
Bye.
No, I mean, I'm gonna kind of long story short it here.
It doesn't get completely dismissed.
I will say that in fairness.
I'll tell you what does and what doesn't, roughly speaking.
Okay.
But mind you, dismissing a lawsuit is a pretty high bar.
What you get to do, the judge, the court, will assume you're telling the truth about basically all the facts.
They'll just assume you're right about it.
And then say, okay, even if you're right about it, do you have a real case here?
Like, have you actually pled properly as to what violates the law?
And surprisingly, for non-lawyers listening, often the answer is no.
There's plenty of like, well, even if everything you said is true, there's no violation of law here because you misunderstand what the law is and how it applies.
So, mind you, it's a high bar to get stuff dismissed, but a lot of this got dismissed.
I would say roughly, I mean, it's hard to quantify, but I don't know, 80 percent of the cases dismissed.
That's significant.
Which is pretty inconsistent with his confidence earlier.
Wow.
Part of it is, and this is something people might know just kind of, I don't know, from fucking civics class.
The state can only be sued when it agrees to be sued in general.
Right.
Um, and so basically everything in their official capacity is dismissed.
There's some nuance there.
There's like this ex parte Young exception that can let you sue the state for different things.
I'm not, again, not a lawyer, not going to go through it.
I vaguely remember that has to do with like stopping them from violating the law continuously on you.
And note, that was why I kind of read what he wanted.
Ex parte Young, I believe, has something to do with like, well, if they're just going to be constantly breaking the law against you, like ongoing violations of federal law, then you can sue a state for that.
Because the state and by the state, I don't mean like the state as in the whole federal government.
I mean, an individual state.
It's kind of a separation of powers thing to sue a state in federal court.
Like you're suing literally the state because the state university.
Yeah.
In federal court, that's not really allowed with a few exceptions, because that would be then you getting the federal government to tell the state what to do.
And by default, you can't do that.
There are exceptions when you can, but that's just kind of how our government works.
Like we have states for some reason, I don't, you know, even if you don't agree with any of this, like states have some amount of sovereignty and you don't just get to be like, hey, federal government, I don't like what they're doing.
You know, make them do something else, unless you have good reason for that.
And one of the reasons would be ongoing violation of your federal rights, essentially.
And some other, you know, there's other stuff.
Again, I'm not a lawyer, but like, basically this doesn't apply because what you asked for is like a declaration that you're right, essentially.
Like, they want like a federal judge to be like, yeah, man, you're the best.
You're right.
Which is not, that's not what that is.
That's not the same thing.
It's not even, you know, like, oh, they continue to violate my rights.
He kind of said like, I don't want them to sometime in the future, maybe enforce this policy on me, which is not the same thing.
That's actually, that's just a perspective.
Like, oh, maybe I'll have a case later on.
And the, you know, the courts are like, nah, man, like come back to us when you have a case.
Yeah.
Unless they were doing a continuous action that was like, you know, my rights are currently being violated in a like permanent state because of this policy, then OK, sure.
But not like, oh, they might enforce it in a way that's bad later.
So that's why some amount of this is dismissed.
The court notes pretty early on in the background section, it's not just the fucking exam question.
They mention, they don't say that sentence, but they mention like paragraph two is like the email and the attack letter and the Zoom call.
Like it mentions all that pretty early on, I think, importantly.
And it reminds us, helpfully, that a motion to dismiss challenges the sufficiency of the complaint, not its merits.
The court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor.
Because, again, this is a high standard.
Because you're just, if you lose, you're just done.
You're out.
You don't get to do anything.
So, the court starts by basically dismissing all the First Amendment bullshit because none of the speech involves matters of public concern, which is kind of important.
If a teacher was making a political speech and like, yeah, people should be allowed to unionize, and then the university was like, well, fuck you, you're now fired or something, you know, that's one thing.
But if a teacher emails a student and is like, hey, I'm disappointed, you know, like does whatever.
That's not free speech in the same way.
That's your private interaction.
Not even private.
That's your interaction as like an employee with a student.
Free speech doesn't apply all the time everywhere.
Like First Amendment protections.
It applies to specific things.
You know, it applies to like, we want university professors to be able to have like political views and express them outside of campus and do a...
You know, there's more to it than that.
But the judge says, essentially, none of the speech involved here is matters of public concern at all.
So, all the First Amendment retaliation claim stuff is dismissed.
Yeah, yeah, that makes sense.
So the next thing is kind of like this compelled speech, the idea that doing any of these trainings is compelled speech, because that makes you sign on to the like the goals of the university.
And it's just such fucking complaining nonsense.
But like, again, the judge has to consider like, is this even a thing if I accept all your facts as true?
So in this, the defendants kind of complain about the fact that he has failed to identify any speech that they compelled him to make, but the judge is like, well, I don't see any reason why he has to necessarily.
And, quote, the court has no reason to believe that requiring Kilbourn to express, quote, commitment to certain goals would not constitute compelled speech.
So again, construing everything in his favor, the judge is allowing that claim to go forward.
Now on the due process stuff, the judge is not having it.
He talks about the 2% raise and he's like, buddy, due process is like taking away, you know, something that you had.
Quote, an essential component of a procedural due process claim is a protected property or liberty interest.
And so it says a plaintiff, quote, must have more than a unilateral expectation of the claimed interest.
He, quote, must instead have a legitimate claim of entitlement to it.
Kilbourn bears the burden of demonstrating that he possesses a protected property interest.
Here, although Kilbourn may have expected a raise, he has not established a legitimate claim of entitlement to one.
Kilbourn supports his claim by arguing that defendants provided the merit raise to all other faculty members and that it amounted to a significant sum.
These facts do not suffice to establish a protected property interest.
So that one's gone.
Kilbourn cannot proceed with due process claim on that basis.
Now, remember the harassment thing I brought up earlier?
Mm-hmm.
So, he skates by on this one.
So, because he alleged that the undefined term, quote, harassment is unconstitutional for being vague or whatever, Kilbourne's allegations, quote, suffice to put defendants on notice of the claim against them, which is all courts require at this stage.
Mm-hmm.
The bottom line on this is, quote, because defendants have not moved to dismiss Kilbourne's due process claim based on the constitutionality of the policy, which I think is the judge giving a little hint, hint, like, Hey, you could have done this.
Yeah.
Gilborn may proceed with his claim on that basis against defendants in their individual and official capacities.
So that one survives.
I mean, in my opinion, that's pretty fucking weak.
Like we all know what harassment is.
That's a pretty common word, you know?
So like, yes, you skated by a motion to dismiss on that because everything's construed in your favor.
But personally, I don't really have optimism about him prevailing on that claim.
But so the defamation one is interesting.
The judge is not a fan of the argument that like some reporters saying the wrong thing means that the college is guilty of defamation.
Yeah.
The court just goes back and quotes what the school actually said.
And it's like, here's what they actually said.
And it's fine.
You can't sue for defamation because someone else might have said a thing that sounds different.
So the defamation stuff gets dismissed in part and allowed to proceed in part.
So it says, "In sum, Kilbourne may proceed with his defamation claims based on only the following statements or group of statements: One, his actions interfered with black students' participation in the university's academic program and therefore constituted harassing conduct.
And two, he expressed, quote, "overtly intimidating and threatening reactions to students who criticized his in-class comments and exam questions." And three, he made, quote, inappropriate comments in class.
And four, his reactions created intimidation and fears of physical safety and retaliation.
Now, once again to note, those are the ones he's allowed to proceed on because he, like, pled them properly.
But if you listen to all those things, truth is an absolute defense here.
And all those things sound pretty fucking true to me.
Like I, I cannot imagine him prevailing on these claims, but he gets to go through with them.
And so, oh, what I said about the false light claims earlier is true.
That's where I picked it up.
So he can also proceed with the false light claims based on the same statements.
And the judge quotes, when a false light invasion of privacy claim follows an unsuccessful defamation claim, the false light claim must also fail.
So basically if the defamation stuff fails, that'll fail.
Gotcha.
And then the intentional infliction of emotional distress.
That is completely dismissed because he never alleged anything that's even close to like extreme and outrageous conduct.
You know, it's just not even close.
So that's dismissed.
Now, the defendants moved for Rule 11 sanctions, and that is very, I think, pretty rare.
That didn't go through.
So that would mean like, again, I'm not a lawyer, but essentially like this complaint is so bad that you're in trouble or something or, you know, you have to pay.
So like that's a very high burden.
But this is interesting because the court, this is not like a complete exoneration.
I skimmed over this at first because I figured like, Yeah, I mean, these are rare, these rule 11 sanctions.
So I honestly, once again, because I'm the fucking optimist, apparently, I saw that the judge dismissed him.
So I just didn't think anything of it.
But now upon the 40th time of reading this, I'm noticing like this was like a closer call than I thought, which I think says quite a lot.
So Rule 11 sanctions serve to deter baseless filings in the district court.
Under Rule 11, an attorney certifies that to the best of her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, the contentions she makes in a filing are, quote, not being presented for any improper purpose.
Essentially just setting the standard there.
It's got, you can't have like knowingly lied about stuff, that kind of thing.
The judge says, defendants specifically argue, and this is, this is funny, hon, listen to this.
Specifically argue that Kilbourn and his attorneys violated Rule 11, which requires that evidentiary support exist for factual contentions.
They based their argument on the fact that Kilbourn and his attorneys erroneously assert that Kilbourn does not know whether he has sufficiently completed his training program or will return to teaching.
What?
In light of the fact, listen to this, that defendants informed Kilbourn and UIC students that Kilbourn had completed the program and was scheduled to teach two courses in the fall of 2022.
What?
Defendants included this information in emails sent to Kilbourn and to UIC students months before Kilbourn filed his response brief, but after he filed his amended complaint.
Defendants contend that these contrary statements carry significance because they underlie the basis of Kilbourn's official capacity claims.
Although the court finds that the 11th Amendment bars Kilbourn's compelled speech claim against defendants in their official capacities, the court does not find that Kilbourn's conduct warrants the imposition of sanctions.
This is especially so given the early stage of litigation.
The court notes that several documents appended to the party's sanctioned briefs appear to indicate that Kilbourn may have included arguments in his response brief that do not sound in fact.
That's interesting that it says that.
I think it would be that are not sound in fact, but I don't know.
However, the court still finds sanctions inappropriate at this early stage and denies defendants motion for sanctions.
But listen to this son.
If Kilbourn elects to file a second amended complaint and persists in presenting potentially spurious allegations, the court will entertain a renewed motion for sanctions at that time and may hold an evidentiary hearing.
Wow.
That's yeah.
So that's under normal circumstances.
If you filed a complaint in good faith, this would just be like, nah, this is fine.
Dismissed for rule 11 sanctions.
Yeah.
Because again, that's a high burden.
I mean, it's like not only no, but fuck, you know, like you lied and the judge is like.
I'm kind of seeing what you're doing here.
The judge specifically warns him, if you fucking do this again, like, yeah, OK, then I will entertain it.
Yeah.
So, yeah, he even the judge is seeing that Kilbourne is knowingly lying, but it's just not quite enough to do sanctions, which is a pretty serious thing.
So here's the conclusory paragraph.
For the foregoing reasons, the court grants in part and denies in part defendants' motion to dismiss.
The court grants, without prejudice, defendants' motion to dismiss Kilbourne's First Amendment retaliation claim against all defendants and his compelled speech claims against defendants in their official capacities.
The court also grants defendants' motion to dismiss Kilbourne's claim for IIED without prejudice.
Kilbourne may proceed, in part, with all other claims as discussed thoroughly above.
The court denies motions for sanctions.
So did Fyre post an article and say, we won?
I'm so glad you asked.
Because yet another thing I just noticed recently, again, I never know when I'm done because I clicked on a link that I didn't think about.
Always.
Yeah.
Always the links within the article.
This is interesting because I had all the Fyre stuff up, obviously.
And then I just saw, for whatever reason, I saw like on the side, you know, where it's like just kind of a basic website navigation thing where they've like coalesced all the things about this case.
And I clicked on case news because I was like, oh, I want to see how they've reacted to like the fact that this mostly got dismissed.
And here's what I see.
I see in chronological order from the beginning, you know, fire warrants, University of Chicago, January, February.
It's kind of the stuff I've already read you.
And then, February 17th, FIRE presents 10 Worst Colleges.
There's that.
And then, University of Chicago renegs.
All this is before the complaint, which is funny because this is the case news.
January 27th, lawsuit.
Professor suspended for redacted slurs in law school exams sues University.
That's one I've already covered.
And then there's only one more item, and that item is 10 Worst Colleges for free speech 2022.
Yeah, they're just like pretending it doesn't exist.
That's it!
And so the latest news is that they kept the same fucking bullshit for 2022.
And it's just like, yeah, now we're suing.
And that's it.
There's no other news after that.
Isn't that curious?
And you might say, oh, maybe they haven't updated.
Well, if I look at the case overview, hun, it says case status closed.
Closed?
Yep.
Closed.
What is closed about this?
Well, I'll tell you what's closed about this.
Okay.
After, you know, getting his ass handed to him, essentially, in my opinion, Kilbourne changed lawyers and is no longer represented by FIRE.
Because yeah, it's a loser of a case, man.
Wow.
He's just pursuing, here's how they diplomatically put it, or whatever.
The last paragraph of the thing, of their status, it's only, case overview is only three paragraphs.
The lawsuit seeks a court order to stop UIC from enforcing its training mandate as well as compensatory and punitive damages for that and the other unconstitutional harms inflicted by UIC.
Kilbourn amended the lawsuit to add additional claims through his own attorney and is no longer represented by an FLTF attorney.
Wow.
Do you think Killborn thought, man, fire sucks.
I'm going to go get another guy.
Or do you think fire was like, hey, this does not look good.
No, it's just closed.
Do you think Kilbourne thought, man, fire sucks.
I'm going to go get another guy.
Or do you think fire was like, hey, this does not look good and we should probably, you know, pursue.
I think it's the second thing.
The second one?
And then Killian was like, how dare you?
Yeah, I haven't seen anything, but it's like, I think this is a case of a lot of the stuff that was dismissed is probably the stuff that they would have wanted to, you know, their whole selling point is First Amendment due process.
And, like, pretty much all that stuff got dismissed.
I mean, there's some stuff, but, like, the constitutional vagueness of the word harassment, is that where you want to put your fucking... Yeah, that has nothing to do with their omission.
Yeah, I mean, it's... I mean, maybe it does, like, the vagueness of that, but, like, this case is a loser, man.
I think they're, like... This shit... I don't know... Hun, I don't know if you know this trivia fact.
This shit is fucking expensive.
Oh, I know.
It's really expensive.
I was going to say, how much money do you think they spent on this?
Oh, my God.
This could be a million dollars.
Oh, my God.
Not even joking.
What a mess.
And I would imagine FIRE is like, I think we're kind of done supporting the nothing that this is.
Exhausted all our funds.
Yeah.
Good luck, buddy.
Because it's nothing.
It's a loser.
But they're not going to admit they were wrong about anything.
No, no, absolutely not.
They would never do that.
Because that would be attorney work product.
Nice one, hon.
Makes no sense, but it's great.
That's my favorite kind of joke.
I love those ones.
You ask him, hey, so were you lying and you were full of shit this whole time?
Nah, it's a privilege.
Yeah.
Can't reveal that, sorry.
I passed that test that had the fucking racial slur in it.
That's how I know.
Another thing I love about our show, hun, is we are subscribing to a lot of updates on things, you know, like to a lot of alerts.
We are, yeah.
We're going to get all kinds of alerts.
This case is ongoing.
I wish it were finished because I don't think it's going to go very far in my professional legal opinion.
Tie that little bow, you know, and just kind of, you know, literally have it closed, put it in the bookcase and move on to the next.
But we'll keep an eye on it.
The latest thing in the docket is June 2nd.
So pretty recent.
And that was the like response for the motion to dismiss.
So they went back and forth on a new motion to dismiss for the new what's left of the claims, you know.
And so, for all we know, the whole shit could get dismissed.
I mean, maybe not, because again, motion dismissed, high bar.
You may get to the discovery phase on something.
I have no idea.
Again, not a lawyer.
But I am looking forward to the next time I get to read a court's opinion on this fucking idiot.
Yeah.
Because I don't think it's going very far.
Is he paying out-of-pocket now?
Well, he has to be.
Yeah, if he doesn't have that legal fund.
Did he crowdfund?
I haven't seen anything regarding crowdfunding.
So the point of this episode is TheFire.org is a piece of shit.
And they backed a loser.
They lied actively about it.
They filed a complaint so bad that the judge was like, it's not not sanctionable.
I'll say that.
Yeah, totally.
You know, this is not good in my professional opinion.
And they suck.
So I'm going to tease the final installment of this series by telling you that due to a random comment I saw somewhere where someone said, Kilborn has a bit of a history with racism because one time he had to pay attorney's fees for his conduct in this case.
And it was bad.
And I saw that and I was like, all right, is someone bullshit?
And this is a random comment.
But mind you, it was, I think it was a black attorney who was like chiming in.
I never know if anybody's honest about who they are online, but it was someone saying they were a black attorney who was like, fuck this guy.
And he has a history of this because of this case.
They said what the case was.
And so I proceeded to search and search and search, but I don't understand how that works for cases.
So then I proceeded to ask the opening arguments group about it.
And someone was kind enough to help me.
Santiago Posas, thank you so much for this.
Because of this amazing upstanding citizen and lawyer, I was able to get the full text.
And I was thinking, okay, there's so many reasons this could be wrong.
Maybe it's a different Jason Kilbourne.
Maybe he was the lawyer, but he wasn't the person who did the bad shit that they're saying.
You know, like there's, I need to make sure I track this down before I go ahead and say what this is.
And hun, it is fucking great.
Oh, my God.
So I know nothing about this, folks.
I cannot wait.
That and more in our final installment, where I truly just drive home how big a piece of shit this guy is.
And there's a lot we need to go over about this whole case in sort of the conclusion episode.
So I can't believe you're still in suspense, son.
It's going to be amazing.
You're going to want to hear this, everybody.
Trust me.
It's you're going to think it's made up.
It's not.
It's in a fucking court document.
And so there you go.
Tune in when Thomas spills the tea.
Tea and the T. Could have been a good name for a podcast.
Next project.
Do you know what idiom I'm referencing?
Broken clock, right twice a day.
Thank you.
Okay.
I have to check, because one time I said, as the crow flies, and you didn't know what I was talking about.
I didn't know.
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