PRESS RELEASE
Assembly
March 2, 2010
Contact: Press Department
Email: [email protected]
Phone: (202) 393-3434
U.S. COURT OF APPEALS HEARS ORAL ARGUMENTS IN MASSACHUSETTS ON
ARMENIAN GENOCIDE DENIAL CASE
Boston, MA. – The United States Court of Appeals for the First Circuit
in Boston, Massachusetts, heard oral arguments today in the Theodore
Griswold, et al. vs. David Driscoll, et al. case. The case centers on
the teaching of the Armenian Genocide and a challenge filed by a
Turkish-American denialist organization under the guise of a First
Amendment defense for the inclusion of denialist literature in public
school instructional material. The lawsuit was filed in October 2005
by Griswold, others, and the Assembly of Turkish American Associations
(ATAA) against Driscoll in his official capacity as Commissioner of
Education for the Massachusetts Department of Education, as well as
the Department and the Board of Education.
The case was argued today in front of a three judge panel consisting
of Michael Boudin, Jeffery R. Howard, and retired Associate Justice of
the United States Supreme Court David H. Souter. The Commonwealth’s
Assistant Attorney General William W. Porter defended the
Massachusetts Department of Education. Harvey A. Silverglate, the
lead attorney for the plaintiffs, spoke on behalf of his clients.
The panel of judges actively questioned both attorneys, while pointing
out that this case did not parallel the issues surrounding the removal
of books from a library based on political pressure. Justice Souter
asked specifically whether the Massachusetts legislature had mandated
the teaching of the Armenian Genocide and not the point of view
denying it, which Silverglate acknowledged was the case. Questions
were also raised as to what would happen if any and all groups were
allowed to insist that the government adopt their views, and whether
that would open the door to Holocaust deniers.
Assistant Attorney General Porter asserted that Massachusetts had the
right to teach about the Armenian Genocide and to exclude denial
literature from instructional materials. He argued as well that the
plaintiffs lacked standing, that no constitutional right was impaired
by adoption of the curriculum, that the teaching guide was protected
government speech, and the statute of limitations had expired three
years before the claim was filed. Porter asserted as well that the
democratic and legal process had worked to result in the Massachusetts
curriculum guide as promulgated.
Armenian Assembly of America Board of Trustees President Carolyn
Mugar, who attended today’s hearing, applauded Assistant General
Attorney Porter for speaking forcefully in defense of the department
of education’s rights and duties for teaching history accurately and
responsibly. "What could be more important than teaching about human
rights and the value of tolerance?" asked Mugar. "The historic
examples of genocide stand as warnings to all future generations about
the critical need to confront the hatreds that threaten to undo
efforts at peaceful co-existence. I am particularly proud of the
record of the state of Massachusetts for setting and defending
standards for the teaching for human rights in public schools."
Attending the hearings were also Arnold R. Rosenfeld of K&L Gates LLP,
Anthony Barsamian and Van Z. Krikorian of the Armenian Assembly, Mark
Mamigonian of the National Association for Armenian Studies and
Research, and Sonya Nersessian and Mark Fleming of the Armenian Bar
Association.
Rosenfeld, who along with Duke University School of Law Professor
Erwin Chemerinsky, and Van Krikorian filed amicus briefs on behalf of
Armenian Genocide survivors, descendants of survivors, and the
Armenian Assembly, stated after the oral argument that he "heard no
legal or factual arguments presented by the plaintiffs that would
justify the Appeals Court overruling Chief Judge Wolf’s well written
opinion that the case should be dismissed."
Contradictory filings by the ATAA and the Turkish American Legal
Defense Fund (TALDF) had exposed the hypocrisy at the heart of their
arguments in this lawsuit. Seemingly posturing in defense of the
public interest in its appeal, ATAA’s attorney Silverglate had argued
that "the plaintiffs have never in this litigation posited a view –
any view -on the question of whether the events at issue do or do not
constitute the crime of genocide as defined by historians or by
international law."
Yet at the same time Silverglate took the position that
"contra-genocide" websites should be included in the curriculum,
overlooking the inherent contradiction of "contra-genocide"
information, which does hold a position on the Armenian Genocide by
disputing or denying it. Silverglate also failed to advise the court
that the websites in question, whether of the ATAA or the Turkish
Embassy, display brazenly denialist pages on the Armenian Genocide,
therein holding yet again a very distinct view of history,
disqualifying them as either pedagogically objective or scholarly.
Meanwhile their supporting organization, the TALDF, in an amicus
brief, resorted to invoking a recent California court decision that,
ignoring the position of the current Obama administration as well as
the historic record of the United States on the Armenian Genocide,
ruled, according to TALDF, that "state laws officially recognizing or
affirming the Armenian genocide thesis are constitutionally preempted
by the express foreign policy of the United States." Repeating this
argument of the federal pre-emption doctrine of state legislation,
Silverglate revealed that ATAA’s arguments were disguised as a freedom
of speech case in order to advance the denialist agenda that objects
to all forms of Armenian Genocide recognition.
Indicative of the type of whitewashed history the ATAA would prefer
taught in public schools, it argued on the one hand in its amicus
brief that "the clear intent of the [Massachusetts curriculum] statue
is to leave the teaching of the these topics and the formulation of
the [human rights and genocide teaching] Guide to educators, in
consultation with academic experts." All the same, it also attacked
the very experts who can best inform on the subject matter by accusing
the International Association of Genocide Scholars (IAGS) of "smear
tactics" and "calumny." Silverglate even disputed the IAGS’s
comparison of Armenian Genocide deniers with "Holocaust deniers," when
membership of the IAGS is mostly composed of Holocaust experts.
The real intentions of the TALDF, however, were revealed by the
activities of Bruce Fein, whose June 4, 2009 article in the Huffington
Post is headlined "Lies, Damn Lies, and Armenian Deaths." Fein,
however, has not confined his campaign of denial to commentary alone.
He is also the lead attorney in what is tantamount to a harassment
suit filed by TALDF against the Southern Poverty Law Center for
revealing how Guenter Lewy, the author of a spurious book on the
Armenian massacres, is part of the overall Turkish campaign to deny
and cover up the Armenian Genocide.
Effectively Fein and his cohorts have made themselves the instruments
of the Turkish government’s standing policy of suppressing discussion
of the Armenian Genocide and exporting to the United States Article
301 of the Turkish penal code intended to discourage mention of the
Armenian Genocide in Turkey by threatening prosecution. Rarely has a
practicing attorney so blatantly misused the courts to suppress
freedom of speech by pretending to be defending it. This brazen
attack on academic freedom has not gone unnoticed and Fein’s tactics
were reported by the prestigious trade publication Inside Higher Ed
that headlined its story "Going After a Scholar’s Critic,"
demonstrating how the lawsuit violated the very spirit of academic
inquiry because, once again, the hypocrisy of the Turkish position was
exposed and challenged.
In a further shocking display of ignorance about the atrocities
committed during the Armenian Genocide and insensitivity about the
scale of the accompanying destruction of Armenian educational
institutions and libraries in 1915, the TALDF characterized the
court’s decision supporting the inappropriateness of including
contra-genocide websites in the Massachusetts curriculum as equivalent
to "electronic book burning." In a further ludicrous and offensive
argument implicitly equating the Armenian-American community of
Massachusetts to the Ku Klux Klan, TALDF attorneys and denialists
extraordinaire Bruce Fein and David Saltzman asked for "heightened
constitutional protection" for the Turkish-American community "from
government overreaching, subjugation, or discrimination."
The appeals argued today resulted from the major blow dealt to
Turkey’s global campaign to suppress the truth about the Armenian
Genocide when U.S. District Court Chief Judge Mark Wolf ruled in June
2009 in favor of the Massachusetts Department of Education, allowing
it to continue teaching the facts of the Armenian Genocide, and other
crimes against humanity, in public schools across the Commonwealth as
constitutionally protected government speech. Shortly after this
landmark decision, as part of its ongoing campaign to derail human
rights education, the ATAA and its attorney Silverglate filed an
appeal in July 2009.
The court’s ruling preserved the teaching of accurate history, which
is part of the official "Massachusetts Guide to Choosing and Using
Curricular Materials on Genocide and Human Rights," prepared in 1999.
In 2005, the Assembly of Turkish American Associations (ATAA), along
with others, filed the suit against the Massachusetts Department of
Education arguing that the Commonwealth violated the plaintiffs’ First
Amendment rights by removing materials from the curriculum that deny
the events of 1915.
The Armenian Assembly immediately responded when the suit was filed,
hiring Professor Chemerinsky, one of the nation’s leading First
Amendment experts, and co-counsel Rosenfeld. Over the past five years,
the Assembly and others have challenged the ATAA at every turn by
filing a series of pleadings including amicus curiae (friend of the
court) briefs intended to assist the Court in bringing the case to a
conclusion in favor of the Commonwealth. Presenting their amicus
brief before Judge Wolf, attorneys Rosenfeld and Krikorian had warned
that if the court accepted the plaintiffs’ First Amendment claims, it
would open the door for any extremist group, such as Holocaust
deniers, to challenge curriculum matters in court.
In December 2009 the Armenian Assembly filed again an amicus curiae
(friend of the court) brief in support of the Commonwealth, when the
ATAA and its supporters appealed the June 2009 decision by Judge Wolf.
In its brief, the Armenian Assembly stated that: "This lawsuit is an
unprecedented attempt by the plaintiffs to utilize the federal courts
as a vehicle for their unconstitutional intrusion into educational
policy in the Commonwealth of Massachusetts. It is motivated by the
plaintiffs’ claim based on its historically and educationally
unsupported assertions, that there is a credible position that the
Armenian Genocide did not occur, and therefore that view point should
be part of the Curriculum Guide on teaching about the Armenian
Genocide issued by the state Department of Education."
The brief also stated: "The amicus curiae are interested in ensuring
that the Massachusetts Curriculum Guide, prepared by responsible
educators, not be altered by lawsuit by those who seek to use the
federal courts to advance their own view of history, the denialist
view," and made the case that the plaintiffs lacked standing to
dispute government speech and had suffered no damages, questioning how
the accurate teaching of history could result in damages. The brief
further stated: "First plaintiffs suffer no injury from the content of
the Curricular Guide promulgated by the Department of Education.
Their only injury is that they disagree with what might be taught in
the public schools. But such an ideological disagreement is not a
cognizable injury."
The Assembly also expressed its disappointment with the American Civil
Liberties Union decision to file an amicus brief in support of ATAA,
which completely ignored the real intent of the lawsuit and the long
history of the ATAA as the foremost denialist organization in the
United States with a record of disputing the facts of the Armenian
Genocide, a crime against humanity which it continues to describe as
allegations and falsehoods. ACLU’s position supported a one-way
street that paradoxically would deny the freedom of speech to
instructors, scholars and others who want the Armenian Genocide
subject taught accurately and objectively.
In view of the importance of the case, many other organizations have
joined in supporting the Massachusetts Department of Education by
filing amicus briefs. Besides the International Association of
Genocide Scholars, the Armenian Bar Association took the lead in
filing jointly on behalf of the Armenian National Committee of
America, the Irish Immigration Center, the Jewish Alliance for Law and
Social Action, the Genocide Education Project, and the Zoryan
Institute for Contemporary Research and Documentation. The Assembly
thanked all of them for addressing this serious challenge to freedom
of expression, human dignity, and educational integrity.
Assembly Board of Trustees Counselor Van Krikorian, repeating his
remarks welcoming the court’s June decision, restated: "In light of
the fact that Turkey criminalizes honest discussion of the Armenian
Genocide, it is especially ironic that Turkish denialists and their
supporters turned to U.S. courts in an attempt to twist freedom of
speech in America. Even though the court viewed this case ‘in the
light most favorable to plaintiffs,’ it still ruled in favor of truth,
history and the U.S. Constitution. The sooner Turkey comes to terms
with its past, the better it will be for everyone."
Assembly Board of Trustees Chairman Hirair Hovnanian and Assembly
President Mugar also restated: "At a time when Armenia has taken bold
steps to normalize relations with Turkey, a process that is strongly
supported by the United States, it is deeply troubling that Turkey has
escalated its global campaign of genocide denial."
Krikorian added: "We want to thank all the lawyers that supported the
Commonwealth of Massachusetts in this case, including Massachusetts
Attorney General Martha Coakley, Assistant Attorney General William
Porter, David Gruberman, Professor Erwin Chemerinsky, Arnold
Rosenfeld, Mark Fleming, Gabrielle Wolohojian, Sheri Rosenberg, and
all others, and especially Aram Kaloosdian."
Established in 1972, the Armenian Assembly of America is the largest
Washington-based nationwide organization promoting public
understanding and awareness of Armenian issues. The Assembly is a
501(c)(3) tax-exempt membership organization.