14 May 2020 — 0411 mdt
Should the health board censure Bukacek?
The Whitefish City Council’s letter on Dr. Bukacek
contains a dangerous definition of free speech
Whitefish’s city council, convinced that Annie Bukacek, M.D., should not be a member of the Flathead’s city-county board of health, sent to the Flathead County Commission a letter (below) urging her removal from the board. The letter accuses Bukacek of malfeasance, of being “…a danger to the citizens of Flathead County, and given the viral status of her video, the entire country,” and to “…incite others to violate and ignore a lawful order ofthe Governor.” The letter concludes by asserting that “Dr. Bukacek’s right to engage in free speech ends Where the public’s right to be safe from COVID-l9 begins.”
An obnoxious little act of civil disobedience.
Whether Bukacek’s conduct was malfeasance or something less is debatable. The letter does not identify the act that convinced the council to accuse her of malfeasance, although I suspect the council was referring to the 6 April demonstration outside Kalispell’s city hall she organized, where she was photographed holding a sign reading “Heil Russell.” (Russell is Kalispell’s city manager.)
Flathead City-County Health Board member Annie Bukacek organized an impromptu demonstration with about 40 people to protest the decision outside City Hall prior to the meeting, even though most city officials were not at the building for the virtual meeting.
“We are meeting in protest [of] the City Council plan to vote YES on empowering the city manager to call a curfew and otherwise usher in martial law for Kalispell,” Bukacek wrote in an email Monday afternoon.
Cornell Law’s legal encyclopedia defines malfeasance as:
Intentional conduct that is wrongful or unlawful, especially by officials or public employees. Malfeasance is at a higher level of wrongdoing than nonfeasance (failure to act where there was a duty to act) or misfeasance (conduct that is lawful but inappropriate).
Bukacek's little demonstration was not armed insurrection such as is occurring now in Michigan and Texas. The letter does not identify any laws that her demonstration violated, and, wisely, neither the state, nor the county, nor the city, charged her with a crime. If her conduct was illegal, it was an example of non-violent civil disobedience, and no more serious than a parking violation.
I would characterize her leadership of the demonstration as sincere, foolish, and irresponsible. But if what she did was illegal, the seriousness of her offense strikes me as being a lot closer to misfeasance than malfeasance.
The viral video
That protest occurred on a Monday. The day before, 5 April, at Chuck Baldwin’s Liberty Fellowship, costumed in a lab coat and pink stethoscope, she delivered a short lecture arguing that the coronavirus death count was being inflated (the same argument the loonies in Trump’s administration are making). Baldwin made sure his congregation knew she sat on the board of health.
The video of her lecture reportedly has gone viral; the You Tube version reports 822,514 views. No one knows how many of those views, if any, resulted in the viewer’s adopting her position. Watching it so infuriated me that I was tempted to hurl a lamp through my computer’s screen.
Bukacek’s lecture at Baldwin’s church was irresponsible and disgraceful, as clear an example of misfeasance by a public official as one will find. How much harm, if any, she did is another matter. She preaches to the choir. Whether her lecture converted anyone to her point of view is not easily verified or quantified. My questions to the Whitefish City Council, exactly what are the dangers you allege she poses, and how do you know?
A Schenck wrapped misunderstanding of the First Amendment
The council’s letter ends asserting that “Dr. Bukacek’s right to engage in free speech ends Where the public’s right to be safe from COVID-19 begins.” This is a variation of Oliver Wendell Holmes, Jr.’s dictum from Schenck v. United States, decided on 3 March 1919, that:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.
But according to Trevor Timm, writing in The Atlantic in 2012, Holmes’ dictum has been dead for half a century:
In 1969, the Supreme Court’s decision in Brandenburg v. Ohio effectively overturned Schenck and any authority the case still carried. There, the Court held that inflammatory speech — and even speech advocating violence by members of the Ku Klux Klan — is protected under the First Amendment, unless the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (emphasis mine).
Today, despite the “crowded theater” quote’s legal irrelevance, advocates of censorship have not stopped trotting it out as the final word on the lawful limits of the First Amendment. As Rottman wrote, for this reason, it’s “worse than useless in defining the boundaries of constitutional speech. When used metaphorically, it can be deployed against any unpopular speech.” Worse, its advocates are tacitly endorsing one of the broadest censorship decisions ever brought down by the Court. It is quite simply, as Ken White calls it, “the most famous and pervasive lazy cheat in American dialogue about free speech.”
In the Whitefish City Council’s letter, “the public’s right to be safe from COVID-l9 begins” is Schenck’s fire in a crowded theatre. The council’s letter does not explain what tests a court must apply to determine whether, and if so, how much, a person’s words impinge on the public’s right to be safe from COVID-19. The test implicit in the letter, of course, is that the First Amendment does not protect speech about the coronavirus with which the Whitefish City Council disagrees. That’s bushwa. A prosecution of Bukacek for delivering remarks that the council dislikes and disagrees with would be thrown out of court.
I think the council was trying to argue that as a public official she has a moral obligation to stand up in public and make statements that are consistent with the policies of the board of health of which she is a member; that her not doing so is a serious impropriety and a reason to remove her from the board, thereby denying her a bully pulpit and a bullhorn.
The censure option
Finally, kicking Dr. Annie off the board of health is not the only option available to her detractors.- They could call for the board to formally censure Bukacek. That would diminish her moral authority as a board member.
- They could start a website — annie-bukacek-andthetruth.com, for example — that with great specificity and neutral language lays out her assertions and why they are wrong or are on the fringe.
In the meantime, the campaign to force Bukacek off the board is making her better known than she was, and perhaps more popular. At the Kaiser Health News (a great source of information), Kathleen McLaughlin reported that Bukacek’s critics are losing the petition war:
Local organizers have started a petition drive to remove her from the health board — an effort that’s so far drawn more than 2,300 signatures. A competing petition to keep her on the board has garnered more than 4,500 signatures.
If the pro-Bukacek petition wins the petition war, and by a substantial margin, her position on the board will be solidified, her soapbox will grow higher, and her bullhorn will become louder.
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Whitefish City Council's letter
April 27, 2020
Flathead County Board of Commissioners
800 South Main Street
Kalispell, MT 59901-5435
RE: Request for Dr. Bukacek Removal
Dear Commissioners:
We are writing to urge you to remove Dr. Annie Bukacek from the Flathead City-County Board of Health. Dr. Bukacek’s recent actions rise to the level of malfeasance, violate the public trust, and cannot be tolerated.
In a video that has gained nationwide attention, Dr. Bukacek blatantly used her position as a Board member not only to spread inaccurate information regarding COVID-19 to the public, but also to push her own personal political agenda. Her organization of a rally to protest the City of Kalispell’s emergency COVID-19 declaration on April 6, 2020, was a direct violation of the Governor’s orders. Dr. Bukacek’s actions demonstrate an appalling disregard of the clear direction given by both state and local officials. Rather than promoting public health, as is Dr. Bukacek’s obligation, she is actively undermining it by publicly diminishing the very real threat of COVID-19. Simply put, Dr. Bukacek is a danger to the citizens of Flathead County, and given the viral status of her video, the entire country.
We recognize that as a private citizen, Dr. Bukacek enjoys the same right to engage in free speech that we all do. However, her use of her position as a Board member to promote her personal views (which lack scientific support, and if followed would undoubtedly endanger the public health) as well as to broadcast fallacies, and incite others to violate and ignore a lawful order ofthe Governor, is unacceptable. Dr. Bukacek’s right to engage in free speech ends Where the public’s right to be safe from COVID-l9 begins. It is imperative that she immediately be removed as a Board member.
Sincerely,
John M. Muhlfeld, Mayor
Melissa Hartman, Councilor,
Rebecca Norton, Councilor
Andy Feury, Councilor
Ryan Hennen, Councilor
Steve Qunell, Councilor
Frank Sweeney, Councilor
cc: Dana Smith, City Manager
Angela Jacobs, City Attorney
Flathead City-County Board of Health