Boston, MA. - The United States Court of Appeals for the First Circuit in Boston, Massachusetts, heard oral arguments on March 30, 2010 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, 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."
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."
In contradictory filings by the ATAA and the Turkish American Legal Defense Fund (TALDF), ATAA's attorney Silverglate 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."
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.
The TALDF also 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 at this time 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 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 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 an amicus brief before Judge Wolf, attorneys Rosenfeld and Krikorian 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 again filed 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, indicting? 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.
Armenian 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."
Source: U.S. Court of Appeals hears oral arguments in Massachusetts on Armenian genocide denial case. Armenian Assembly of America.Partially edited by GPN (March 2, 2010). Email: info@aaainc.org Phone: 202 393 3434.
Excerpted from Press Release by the Armenian Association of America.
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, 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."
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."
In contradictory filings by the ATAA and the Turkish American Legal Defense Fund (TALDF), ATAA's attorney Silverglate 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."
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.
The TALDF also 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 at this time 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 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 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 an amicus brief before Judge Wolf, attorneys Rosenfeld and Krikorian 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 again filed 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, indicting? 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.
Armenian 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."
Source: U.S. Court of Appeals hears oral arguments in Massachusetts on Armenian genocide denial case. Armenian Assembly of America.Partially edited by GPN (March 2, 2010). Email: info@aaainc.org Phone: 202 393 3434.
Excerpted from Press Release by the Armenian Association of America.
