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AAA: US Court of Appeals Hears Oral Arguments in Massachusetts

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  • AAA: US Court of Appeals Hears Oral Arguments in Massachusetts

    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.
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