This week brought another tragic mass shooting, and that means another professor indulging in creepy anti-NRA rhetoric and another discussion about free speech for college professors.
Last time it was Eric Loomis who used the occasion of Newton to fantasize about violence against Wayne LaPierre and advocate — as hyperbole, perhaps — for the prosecution of people who urge an interpretation of the Second Amendment with which he disagrees. This time it was University of Kansas Professor of Journalism David Guth using the Navy Yard shooting as an occasion to wish harm on the children of the NRA on Twitter:
It's not clear if Professor Guth intends to invoke God to wish harm on the children of the leadership of the NRA, or the children of all its members, or the children of everyone who disagrees with him. It strikes me as an emotional tweet by an unserious person, perhaps not a good subject for deep analysis.
It is right and fit that Professor Guth experience social consequences, which will include widespread condemnation, shunning, ridicule, contempt, some students avoiding his classes, some colleagues avoiding him, and a loss of reputation and credibility that may or may not strike you as proportionate. Those consequences represent the free speech and free association of others, exercised in the marketplace of ideas. The more difficult question is whether he can, or should, experience government-imposed consequences in the form of his state school disciplining him. On that issue he is differently situated than a private employee.
As I've discussed recently, government employees in general and professors in particular enjoy protection from firing over speech that private employees don't. Some argue that this is objectionable because it represents special rights for government employees. I maintain that it is better seen as a limit on government power. Under applicable law — sometimes called the Pickering/Connick balancing test — the applicable questions are (in over-simplified form) (1) was this a statement on a subject of public interest (in which case it is entitled to protection), and (2) how does University of Kansas' need to maintain discipline and harmony balance with Guth's interest in free speech. As I suggested recently, recent caselaw establishes that the interest in free expression is particularly powerful in the college environment.
Guth's tweet is on an issue of public concern. It's made by a professor, in a context where the interest in free expression is at its maximum. It's difficult to see how KU could have an interest in discipline or harmony that overcomes the free expression rights here, as repulsive as the expression is. The analysis might possibly be different if Guth singled out students or colleagues at his university, or directed such speech at a controversy at his university, or said something exposing KU to significant litigation risks. Then, at least, KU might argue that it is disruptive of local harmony or discipline. But this seems to be disgusting speech on a straightforward national political dispute. Guth might have said "I hope that everyone supporting a cut in food stamps sees their children starve" or "I hope that everyone who opposes bombing Syria sees their children gassed" or "I hope that anyone who supports abortion has a miscarriage" or otherwise applied the sick little rhetorical flourish to a dozen political disputes from any political perspective. Unless KU can make a very strong showing that this impedes discipline and harmony in an environment where unbalanced political rhetoric is commonplace, it shouldn't be able to discipline him.
In order to prevent disruptions to the learning environment for students, the School of Journalism and the university, I have directed Provost Jeffrey Vitter to place Associate Professor Guth on indefinite administrative leave pending a review of the entire situation. Professor Guth’s classes will be taught by other faculty members," Gray-Little said in a statement.
KU also released statements:
Ann Brill, dean of the William Allen White School of Journalism and Mass Communications:
“While the First Amendment allows anyone to express an opinion, that privilege is not absolute and must be balanced with the rights of others. That’s vital to civil discourse. Professor Guth’s views do not represent our school and we do not advocate violence directed against any group or individuals.”
The last sentence is perfect and is exactly what a school should say if it wants: this guy's a freak and we disagree. The "balancing" reference is a concern, because it's not clear how any credible balancing could weigh in favor of the school disciplining Guth, given applicable law.
Timothy C. Caboni, vice chancellor for public affairs:
“The contents of Professor Guth’s tweet were repugnant and in no way represent the views or opinions of the University of Kansas. Like all Americans, he has the right under the First Amendment to express his personal views and is protected in that regard. But it is truly disgraceful that these views were expressed in such a callous and uncaring way. We expect all members of the university community to engage in civil discourse and not make inflammatory and offensive comments.”
This one is fine until the last sentence. Public entities should feel free to announce that they despise and do not support the speech of their employees. But "we expect all members of the university community to engage in civil discourse and not make inflammatory and offensive comments" is vague, unprincipled, and dangerous. A university might conceivably strike a balance that prevents Professor Guth from shouting in the face of a colleague "I HOPE YOUR KIDS DIE BECAUSE YOU SUPPORT THE SECOND AMENDMENT," which for all I know he is planning to do next week. But they are trying to discipline him for a general statement about a political issue on social media. Universities are places for discussion of the most controversial and upsetting ideas facing us. Demanding "civil discourse" and forbidding "inflammatory and offensive comments" are policies that tend to mean whatever a university says they mean, and represent the government chilling debate over important issues. Organizations like the FIRE demonstrate how civility codes impede academic freedom. It's easy to see how public universities could abuse "civility" policies to discipline speech based on disagreement with its politics if "civility" is taken uncritically as satisfying the need for discipline and harmony. In this instance "civility" is being used as justification to punish what might be described as a "liberal" view, but given the landscape of American academia, it is very unlikely that's how it will most often be used.
So: KU's suspension of Guth and "review" should be brief; they are subjecting themselves to civil liability each day they suspend him. Let him encounter the judgment of the marketplace of ideas.1
Edited to add: A commenter points out that the school says he is on administrative leave, and I describe him as being suspended. He may be getting paid, but he's being prevented from teaching.
- I anticipate people saying "OMG YOU SAID IT WAS OK TO FIRE PAX FOR TWEETS." Indeed I did. The differences are (1) Pax Dickson was a private employee and his employer has a legal right to fire him for speech, Guth is a public employee and the government's right to fire him is more limited; (2) I support the limits on barriers to the government firing employees for speech as a limit on government power, and believe that the marketplace should address private employers firing employees for speech. Put another way, government discipline doesn't fit in the category of "social consequences"; (3) Pax Dickson's tweets subjected his employer to increased risk of civil liability, while it is unlikely that Guth's did. However, I support "more speech" in the form of condemnation, ridicule, and boycotts of either employer. ▲
Last 5 posts by Ken White
- RIP Abe Doe - October 21st, 2016
- Lawsplainer: The Ninth Circuit and Compelled Speech About Abortion - October 17th, 2016
- Thanks and Congrats To Dhillon Law Group For Important Pro-Bono Anti-SLAPP Win - October 10th, 2016
- Hillary Clinton, the Sixth Amendment, and Legal Ethics - October 10th, 2016
- FIRE Attacks Northern Michigan University's Shocking, Wanton Rule Against Students Sharing Suicidal Thoughts - September 22nd, 2016