Oct. 12, 2020 Letter from Aubrey Daniel to Rector James B. Murray, Jr.

Aubrey M. Daniel III, an alumnus of the University of Virginia and the University of Richmond law school, made his name as a young Judge Advocate General captain who successfully prosecuted the court-martial of Lt. William L. Calley Jr. for his role in the infamous My Lai Massacre. Daniel went on, after his military career, to become a top litigator with the Williams & Connolly LLP law firm.

Letter from an alumnus…

“We ought not to die before we have explained ourselves.”
  –Thomas Jefferson

I have read your response and the advice given to you by University Counsel, Timothy J. Heaphy, both dated September 29. Rather than characterizing your response as a “Statement in Support of the Administration,” wouldn’t it be more accurate to say it is your defense of President Ryan’s conduct and not that of the entire administration? However, if you were involved in making the decision to do nothing, that decision should be more carefully scrutinized. It certainly could reveal a bias in your evaluation of President Ryan’s conduct.

I was somewhat surprised that President Ryan did not respond on his own behalf to my letter. Now he has in his statement, “Great and Good Revisited,” on October 02 and in his message to me on October 05.

At the outset, I want to convey to you my very personal feelings about this situation. I was not dragged into this controversy but invited into it by President Ryan when he said, “the answer to speech that offends is more speech.” I am thankful that President Ryan has given me this opportunity to engage in such an important debate at a critical time in our country. I will participate in this debate in accordance with the guidelines set forth in Student’s Rights and
Responsibilities. I am not trying to muzzle anyone’s right to exercise their Freedom of Speech.

Debates or protests necessarily have two sides and maybe more. All sides should be accorded respect although others may disagree. My personal interest in this matter derives not only from my personal experience as a lawyer having sworn to uphold the Constitution of the United States but also as an amateur architect and restorer of ancient buildings. Creators of great masterpieces and beautiful pieces of art achieve their result by paying great attention to detail.

The University of Virginia as a UNESCO World Heritage Site is like a great public museum in which the structures are pieces of art. No public museum would allow anyone who enters that museum to deface any of that art. I think of the protection it deserves first and not like you who have thought of it as an afterthought which I had to bring to your attention.

Your response contains a major concession and an admission of a mistake, that the signs can be removed from the doors on the Lawn and the doors kept clean and beautiful, without violating the Constitution. You state:

“Simply put, there are no exceptions to the protections afforded by the First Amendment against state attempts to regulate political speech.”

But then you state there is an exception,

“…We have been advised that some regulation of expression in a UNESCO World Heritage Site visited by families and international visitors will be constitutionally defensible….”

“The administration has committed to review and clarify appropriate regulation of the Lawn before the next academic year.”

Mr. Heaphy’s change of advice is also reflected in what he states:

“Looking ahead, we could choose to enact a new policy banning all signs on lawn
room doors.”

“A new policy banning signs would also maintain the historic character of the Lawn, consistent with its status as a UNESCO World Heritage Site. Students would have ample other opportunities to exercise free speech even if they could not post signs on their doors.”

However, in this major admission that the defacement on the doors can be removed constitutionally, you refuse to take them down immediately and seek a delay of almost a year to study the issue. This is a typical bureaucratic response and unacceptable. It is inconceivable that at a time when the University is “in a state of deep financial crisis” and donations are being lost every day, that an order in the nature of an executive order could not be issued. The defacement still remains on the doors. This is simply a continuation of the Do Nothing Strategy, where you offer the possibility of change without a guarantee.

This admission demonstrates that what President Ryan characterized as “no doubt (legal) opinion” was incorrect. As President Ryan observed after arguing a case before the Supreme Court, it would be impossible to predict the Court’s decision. As I stated previously, a categorical legal opinion is both very rare and risky. This opinion as a defense for the University is no longer valid.

It seems counterintuitive that the University Administration and Board of Visitors chose to invoke the student’s First Amendment Right and not exercise their own First Amendment Right. It was not the duty of the President of the University and its counsel to assert that right on her behalf, a right which she might never have used if the defacement of the door had been cleaned up immediately. President Ryan should have used the authority of his office and his
great skills as a lawyer who has argued cases before the Supreme Court to persuade her take it down.

Before addressing your advice of counsel defense in further detail, I want to ask two fundamental questions:

“Where is common sense and good judgement?”

“Do mistakes have consequences?”

We have two examples of people who used common sense to conclude that the University’s management of the Lawn door issue was a mistake. The first is something I brought to your attention in my first letter to President Ryan. It was the review of a woman on a tour of the campus who said,

“The famous Lawn lined with student housing, is a pretty walk (though UVA mistakenly allows students living there to plaster their doors with unsightly junk).”

The second example comes from a person with multiple points of view. She wrote the following letter,

“President Ryan,

As the wife of a graduate and the mother of two Virginia graduates, I am appalled and displeased that you haven’t taken immediate steps to remove such profanity and defacing of school property on Lawn doors.

We find your 1st amendment right argument ludicrous. I am hoping not to see a “Fuck Duke” sign at the next Football game. This is not the Virginia we know. It is not the Virginia education or experience we want to support.

By ignoring and permitting such bad behavior we feel you have made an egregious mistake. We respectfully request your immediate resignation and
until that occurs we will not be making any donations to The University.”

Great institutions deserve great leaders and great managers. How is it possible that under the leadership and management of President Ryan and the Board of Visitors we have ended up in this disaster, having lost over 150 million dollars in donations at a time when The University as you say is “in a deep financial crisis?”

Great leaders and managers have a duty to their university or a company to make decisions that protect them. They have a duty to apply their persuasive managerial skills to avoid a situation from turning into a crisis which puts the reputation and image of the institution at risk both in terms of its public image and financial stability. At the outset of making an important strategic decision, it is wise to remember the KISS Principle – KEEP IT SIMPLE STUPID. Sometimes lawyers have a tendency to make things complicated when they should be simple. Over-lawyering can cause one to lose focus of a practical solution. Not thinking about the UNESCO solution is an example.

A great leader would have taken decisive action the instant he or she learned of the defacement on the Lawn. As cited previously, there are ample existing enforcement avenues that were afforded to President Ryan to walk up to the Lawn room, confront the student, and remove the sign, e.g., University regulations on deportment, mandates on decorum which all Lawn residents sign and agree to, the obligations imposed by it being a specific UNESCO World
Heritage sites, and Va. code section 18.2-138.

If the door was cleaned and her FUCK UVA sign removed, what were the student’s options? Administrative appeal? A court injunction? How likely would the student’s success have been? Even if the student prevailed, would the cost of that have been as great as the losses that have occurred to date?

Simply stated, using a commonsense approach should always be tried before resorting to a legal approach. The decision to pursue a legal defense for the student and not adopt an approach to protect the University was a great mistake.

The quote below from a very successful business executive is germane:

“If you are not in touch with your intuition, you cannot be successful. Data is
great. But sometimes, even when you have all the data in the world, if you don’t
follow your gut, you won’t discover the true potential and be able to recognize
critical opportunities.”

President Ryan missed a “critical opportunity” to solve the problem and it has resulted in the alienation of a significant and growing number of alumni. They will no longer support their beloved alma mater due to his and the Boards’ Do Nothing Strategy. President Ryan’s Curriculum Vitae is stunningly impressive as a lawyer clerking for a Chief Justice, arguing two cases before the Supreme Court, and much more. It is simply incomprehensible how a man in such a powerful office, possessing such talent and legal experience, was unable to convince his young student that she did the wrong thing by defacing
the doors with profane, obscene language and should take it down. It is so incredible that it would make one wonder if there were not other considerations involved.

President Ryan in his initial response stated he “wanted a chance to speak with the student to hear her views and to share my own….” President Ryan’s response to this offensive speech was “the answer to speech that offends is more speech.” Where is Presidents Ryan’s speech to the student when they exchanged views? That was a very important speech to keep a record of. The public deserves to know what he said, what she said, and when and where the speech was
delivered. So far President Ryan has not answered my questions posed to him in my original letter about this conversation.

Normally, when people make mistakes, they are held accountable. If a doctor with the greatest resume in the world operates on a person and makes a mistake, he can be held accountable. Instead of concluding his inaction was a mistake, you defend President Ryan and find that he deserves to be commended. Normally commendations are awarded for excellence and outstanding performances. The Do Nothing Strategy was anything but excellent. Every day
those signs remain up is another day you will be hearing from more donors who will be telling you that there will be no more donations to the University of Virginia. President Ryan’s abrogation of his duty in this case is an egregious failure of leadership that could have resulted in his termination if he were running a business in the private sector.

My opinions have been based on my life’s experience as well as my legal education. I have managed many crises and have advised general counsels, boards of directors and CEOs with respect to specific strategies for managing them. Many of those companies were bigger than the University. To cite one example, I was retained by the Virginia Student Aid Foundation to conduct an internal investigation involving an NCAA investigation. The results of that
investigation led to the firing of the head of the organization. That in turn led to the involvement of the University and its then President John Casteen. As his advisor, I prepared his remarks to be delivered to the Board of Visitors. It was a very controversial time, and the decision provoked a lot of criticism much coming from major donors. Despite that pressure, President Casteen confirmed to the Board that the decision to terminate was necessary and the right thing to do.

I would now like to focus on the Board’s role in adopting and continuing to approve of the Do Nothing Strategy. Mr. Heaphy’s client is the University and the public, not an individual student nor a group of students. The word counsel encompasses more than just being a lawyer who renders a legal opinion on a narrow legal issue. A good counsel understands that he should be informed by wisdom, experience, and common sense to find the best course of action to
achieve a result that is in the best interest of his client. I do not know President Ryan nor any member of the board or counsel personally. However, the record and common sense would suggest that they are all colleagues.

Mr. Bert Ellis, who initially brought this matter to the attention of President Ryan on September 5, was interviewed by Robt Schilling on his Tuesday October 6 WINA radio show and recounted from the Lawn his story of what has happened. He documented the events as they occurred. The record clearly shows that members of the Board were involved throughout.

The public deserves an objective evaluation of this mismanagement. A recent editorial in the Cavalier Daily said “The University’s closed–door decisions do not benefit us.” The public needs to know what the discussions were behind closed doors. The documents relating to these discussions need to be made public. The attorney client privilege has been waived.

It has been suggested that the First Amendment arguments should be left to a court to decide. However, an analysis of Mr. Heaphy’s opinion is appropriate. His First Amendment argument relies on a series of Supreme Court cases. In every case, facts make the difference in the ultimate decision. None of the facts in any of the cases he cites are comparable to these and thus are distinguishable. For example: Cohen was an appeal of a disorderly conduct conviction of a man who wore a jacket labeled with the words “Fuck the draft” to a courthouse; Texas vs. Johnson struck down a criminal conviction of a man who burned the American flag at the 1984 Republican convention; Court of Missouri and Stanly vs. Magrathwas a student newspaper case.

When I was making a legal argument before United States District Court Judge Robert R. Merhige Jr., he told me “Mr. Daniel, you know there is more than one way to kill a snake.” I said, “I do.” The facts have shown that this matter could have been resolved with good judgment and common sense or by enforcing the Va. Code section 18.2-138. Therefore, the First Amendment Argument is irrelevant, as you have admitted.

In President Ryan’s email to me on October 5 he states, “We would be within our rights to intervene if a student caused physical damage to the Lawn doors, but that is not the situation in this case.” Although President Ryan does not cite the one criminal law that is relevant, Va. Code section 18.2-138 “…damaging or defacing public buildings or property,” it is clear that he is referring to this statute. However, he ignores the word defacing which does give him the right
to intervene. This is quite remarkable since President Ryan does not have the legal authority to cancel out a word in the statute and therefore deceive the public. A judge would never allow it. In doing so he seeks to lessen the protection afforded to public buildings which is totally contrary to the intent of the law.

Mr. Heaphy’s interpretation of the statute is also inconsistent with the intent of the statute to protect public property. A prosecutor charging this criminal offense would not charge “damaging” the property if there was none. He would charge “defacing” the property. He interprets the statute to defend the student rather than enforcing it for the good of the University and the public.

There is a fundamental rule that applies to statutory interpretation. It is called the Plain Meaning Rule and President Ryan and every lawyer working on his behalf knows what it is. It is a perfect example of the KISS principle. Applying the Plain Meaning Rule means statutes are to be interpreted using the ordinary language of the statute. The statute must be read word for word and has to be interpreted according to the ordinary meaning of the language unless the
statute defines some of the terms. There are no such definitions for the terms in this statute.

Ordinary words are given their ordinary meaning and technical terms are given their technical meaning. Property “damage” and “defacing” are ordinary words, and the definitions can be found in the dictionary.

Mr. Heaphy’s analysis of the statute seems to suggest that there is no difference between property “damaging” and “defacing”. The two words have two different meanings. Mr. Heaphy states that there is no evidence of property damage on the door, but the door has been defaced without damaging it. The threshold for finding property damage is very low. From one dollar to one thousand dollars is a misdemeanor. If the damage is over one thousand dollars it is a felony. An unbiased inspection of the door might in fact find some property damage.

His statement that “an attempt to classify this sign as one which defaces state property (i.e. Mr. Jefferson’s doors and not billboards) would rest solely on the offensive nature which implicates the First Amendment” is not correct. It rests on the fact that the signs are ugly and have changed the intent of Mr. Jefferson’s design. All the doors on the Lawn are meant to be harmonious in their appearance. All were meant to look the same. The defaced doors look like
anything but the same as the others. Jefferson designed the doors to be doors, not billboards.

The First Amendment is no defense for the commission of a crime. Mr. Heaphy’s statement to the contrary is not supported by a single court decision, Supreme Court or otherwise. President Ryan’s and Mr. Heaphy’s tortured interpretation is highly irregular and a dishonest interpretation of the statute. They can’t rewrite the statute to justify not enforcing the law.

I commend the University for including on the grounds the Memorial to Enslaved Laborers. It is a beautiful piece of art with an important acknowledgement. It has become a part of this UNESCO site and deserves as much protection as the doors on Jefferson’s Lawn. At the same time, Jefferson’s doors deserve as much protection as the memorial. That is called equal enforcement of the law. I am sure that if anyone did anything to that memorial to deface it, it would be immediately removed.

As to whether the KKKOPS was a defamatory statement, I stand by my citation to The Restatement (Second) torts sec. 559 which lists “membership in the Ku Klux Klan” as the quintessential illustration of a defamatory statement. I did not assert as he seems to suggest that it was an actionable statement. The fact that it may not be actionable does not mean that the statement is not defamatory.

Suggesting that your police were affiliated with or part of the Ku Klux Klan is on its face an outrageously false accusation. The fact that neither you nor the Board have used your Freedom of Speech to condemn this is an outrage. You have allowed this defamatory statement to remain there even though the student made it public on television. She was quoted on September 16 by NBC29.com as saying “she hopes the sign will push the University to listen to student groups like the Black Student Alliance or community efforts to defund the police
department.” You have never publicly denounced the false Ku Klux Klan statement. Don’t they deserve an apology?

Instead of changing your Do Nothing Strategy, you have doubled down on the “opinion without doubt.” You called in more lawyers and asked for more time to study and draft regulations. The last thing we needed was more lawyers and more bureaucratic excuses for delay. There is no wonder that lawyers are not highly regarded by the general population. Shakespeare said, “let’s kill all the lawyers.”

Your overriding concern for the students’ Freedom of Speech could have been handled with common sense when Mr. Ellis brought it to your attention. He told you, “shoot the blasted lawyers if you have to. Please use some commonsense even if the lawyers advise differently. This is disgusting.” You ignored his advice and have thereby created this crisis. My interest here is preserving history and bringing decorum to the public debate. This student and the others have other places on the Grounds where they can express and exercise their Freedom of
Speech. I challenge President Ryan to offer those students his residence on Carr’s Hill as a place they can exercise their First Amendment right.

There are no more aggressive advocates for Free Speech than journalists. Brit Hume, an alumnus of UVA, is one of the most admired and respected journalists in the country. In a recent tweet he said this, ““Been following this controversy as a UVA alumnus. I very much support Freedom of Speech, but I think the writer of the letter cited here has a good argument. Too bad the school’s governing board doesn’t see it that way.” Too bad indeed.

At the end of any jury trial, the judge instructs the jury on the law and the standards to be applied to the facts. In turning over the case for the jury to decide there are normally a series of questions the judge proposes to the jury to be used in reaching the verdict. While I am not a judge nor on the jury in this case, these are some questions that must be answered:

  1. Was it a mistake to allow students to plaster their doors with unsightly junk on a UNESCO World Heritage Site?
  2. Was it an egregious mistake to ignore and permit the defacement of the doors in this manner?
  3. Could this situation have been avoided by using common sense and good judgement?
  4. Was it ludicrous to say that it will take almost a year to adopt a simple rule to protect a UNESCO World Heritage site?
  5. If there was a mistake that has cost the University 150 million dollars in donations, who made the mistake:
    a. President Ryan,
    b. The Board of Visitors,
    c. Mr. Heaphy or
    d. all of the above?
  6. If any of these public officials made that mistake and did not fulfill their duty to the public, how should they be held accountable?

I have friends who are bringing their son to visit the University. I am horrified at the thought of them walking down the Lawn with their son and seeing this disgrace. I have shown you now with the facts and the law how those signs and those doors can be cleaned up and restored to what they were intended to be, beautiful doors and architectural jewels, not billboards filled with trash and junk.

I have added as much speech to this public debate as I am going to add. It is now in the hands of the jury, the public, to continue the debate with the information they have and ought to have from FOIA. In exiting, I want to thank my fellow alumni/ae and all who share our concerns for Freedom of Speech. It is no time to remain silent. We are at a critical point in our country’s history and your voices must be heard loudly and clearly.

“Where would you be without Thomas Jefferson?” That is a question everyone needs to answer whether you work for the University, study at the University or are members of the local community. Your world would look much different than it does today. One of my high school teachers taught us to be humble and wise and grateful for what you have.

When I attended my 50th Class Reunion, President Sullivan in an address to us used this quote from Thomas Jefferson: “I retire from scenes of difficulty, anxiety, and contending passions to the Elysium of domestic affection & the … direction of my own affairs.”

This is what I am doing.

God Bless America, The Land I love.

Aubrey M. Daniel III

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