Today I want to follow up on two points.
Threats Against A Professor Or School As A Basis For Discipline
Since I wrote my post, the Huffington Post quoted Professor Guth and suggested he agreed to be put on leave based on threats his tweet generated:
I have had conversations with the university and have agreed to this action — an administrative leave with pay — in light of the abusive email threats I and others have received. It is in it the best interests and peace of mind of our students that I remove myself from the situation and let cooler heads prevail.
Professor Guth consenting to being put on leave probably means that it is not a First Amendment violation. However, in general, treating threats as a basis for state employer action against an employee is troubling. Under the Pickering/Connick balancing test, a state university could conceivably take action to censor speech if that speech is generating threats that disrupt the university's activities. (The United States Court of Appeals for the Eighth Circuit said as much years ago, but in that case found there was no reliable evidence that such threats actually disrupted the school in question.) The problem is obvious: this empowers a heckler's veto, and creates an incentive for people who don't like a professor's speech to make anonymous threats or otherwise disrupt a university in order to empower the university to censor the speech. "The First Amendment says you can't censor this professor's speech — unless, I mean, people are really assholes about it" strikes me as a dangerous invitation.
Professor Guth's Pretense and Parsing
Let's remember that Professor Guth said:
Now, if Professor Guth had said "I lashed out in a moment of grief and anger," I could understand that and think that people should forgive it. If Professor Guth said "I meant exactly what I said — the next time there is a mass shooting, I hope it is the children of NRA leaders (or members) who die," I could at least respect that he, ah, sticks to his guns.
But that's not what he is doing.
It is unfortunate that my comments have been deliberately distorted. I know what I meant. Unfortunately, this is a topic that generates more heat than light.
Let me speak plainly: if you tweet something like that and then complain that the subject "generates more heat then light," you're a twit.
What does he think is being distorted?
"If you look at how I structured the statement, I didn’t really bring [the NRA’s) children into it,” he said, according to Fox4KC. “I carefully structured the statement to make it conditional, but apparently it was too much of a nuance for some people.”
“I don’t want anybody harmed. If somebody’s going to be harmed, maybe it ought to be the people who believe that guns are so precious that it’s worth spilling blood over,” Guth added, according to Fox4KC. Guth did not immediately respond to a request for comment from HuffPost.
See, I don't see a conditional. I see "next time." Does anybody think there isn't going to be a next time? Does anyone seriously deny that another mass shooting is certain? No. That, in fact, is the point underlying Professor Guth's excoriation of the NRA.
Moreover, though Professor Guth tries to walk it back saying he meant "it ought to be the people who believe that guns are so precious that it’s worth spilling blood over" who should be harmed, that's not what he said either. He said "let it be YOUR sons and daughters." He suggested the children should suffer for the political positions of their parents. But, under scrutiny, he's too much of a moral coward to (1) apologize for fiery rhetoric or (2) say that he really meant it. So he parses, weakly and unconvincingly.
The core of Professor Guth's rhetorical flourish — "next time it should be the children of the people who support this position who suffer" — is familiar. We hear it from people against war ("it's the children of people who support going to war who should die on the battlefield") and from people who support wars, particularly the War on Terrorism ("if there's another terrorist attack, it's the people who oppose America defending itself and their children who should die.") As long as I've been a lawyer, and before, I've heard it in discussions of the statutory and constitutional rights of people accused of crimes ("People who support letting this guy go should find out what it's like to have their child murdered").
Would Professor Guth support his own rhetoric, carried to other issues? Kids kill themselves because of bullying every year. Some people — including me — oppose badly drafted, vague, and overbroad "cyberbullying" laws on First Amendment grounds. Would Professor Guth support the statement "the blood is on the hands of First Amendment advocates. Next time, let it be one of YOUR sons or daughters who commits suicide. Shame on you. May God damn you"? Professor Guth might protest that it's not clear that cyberbullying laws would prevent suicide, so the two situations are not morally equivalent. I'd respond, in one of the few areas where I agree with the NRA, that it's not clear that the sort of anti-gun legislation the NRA opposes would prevent deaths either. Would Professor Guth feel comfortable uttering that sentiment? If not, why not?
Or take speed limits. More than 30,000 Americans die in traffic accidents every year. Some argue that lower speed limits reduce deaths and some bitterly oppose national speed limits or lower speed limits. Would Professor Guth say "The blood is on the hands of people who oppose a national speed limit. Next time, let it be YOUR sons and daughters who die in car accidents. Shame on you. May God damn you." If not, why not?
Professor Guth's tweet may just reflect a heavy heart and a hot head, even if he lacks the moral fortitude to admit it. It may reflect extreme animus on a particular issue. But the rhetoric — just like when others use it — may also reflect a broader attitude towards rights, and how we argue for and against them.
Last 5 posts by Ken White
- Cracked Drunkenly Paws At Free Speech Theory Again - December 5th, 2016
- Update on The Popehat Podcast - November 30th, 2016
- Lawsplainer: Why Flag Burning Matters, And How It Relates To Crush Videos - November 29th, 2016
- Update: Ninth Circuit Rejects Attack on "Comfort Women" Monument - November 28th, 2016
- True Threats v. Protected Speech, Post-Election Edition - November 16th, 2016