Why the University of Kansas Was Wrong to Suspend Tweeting Professor
September 25, 2013
The Huffington Post
After the Washington, D.C., Navy Yard shootings last week, Professor David Guth of the University of Kansas (KU) sparked national controversy by tweeting the following: "#NavyYardShooting The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you."
Predictably, a firestorm of criticism followed. In addition to being lambasted online and in the press, Guth says he has received threats, and state legislators have even called for his firing.
As First Amendment Center President Ken Paulson has explained, Guth's speech is protected by the First Amendment, offensive though many may find it. That's why my organization, the Foundation for Individual Rights in Education (FIRE), wrote KU Chancellor Bernadette Gray-Little last weekend, reminding her that Guth cannot lawfully be punished for his tweet. We wrote:
To be clear, Guth's remarks do not come close to constituting unprotected threats or incitement. The Supreme Court has defined "true threats," which are not protected by the First Amendment, as "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Virginia v. Black, 538 U.S. 343, 359 (2003). The Court further elaborated that speech may lose protection as "intimidation," a form of true threat, when "a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." Id. at 360. Concerning incitement, the Court held in Brandenburg v. Ohio that in order to qualify as punishable incitement, speech must be "directed to inciting or producing imminent lawless action" and must be "likely to incite or produce such action." 395 U.S. 444, 447 (1969). Guth's remarks do not meet any of these standards.
In order to fall beyond the First Amendment's protections, the speech in question must be more than the simple political hyperbole at issue here. Indeed, political hyperbole similar to Guth's has been found protected by the Court before. For example, the Supreme Court has held that the statement "[i]f they ever make me carry a rifle the first man I want to get in my sights is L.B.J.," spoken by an opponent of the Vietnam War draft, was not a true threat on the President's life. Instead, it was constitutionally protected, although a "very crude offensive method of stating a political opposition to the President." Watts v. United States, 394 U.S. 705, 708 (1969). In light of this clear precedent, Guth's remarks constitute protected speech.
Nevertheless, Guth was placed on administrative leave; though he has called the move "painful," he has said that he accepts the decision in order to provide "some time for cooler heads to prevail."
Attempting to extricate her institution from this faculty speech controversy, Chancellor Gray-Little issued a statement Monday to the KU community. Gray-Little's message proclaimed that "[f]ree speech is essential to the functioning of a university," and contended that the professor was placed on administrative leave "in order to avoid further disruption of the learning environment and not because of the nature of the professor's comments, regardless of how controversial they may be."
The chancellor's statement is a small step forward -- followed quickly by a big stumble back.
First, the step forward.
In acknowledging the essentiality of free speech on campus, Gray-Little demonstrates at least a cursory understanding of the both the legal and philosophical importance of unfettered expression in higher education. As the Supreme Court of the United States has made clear in rulings stretching back decades, the First Amendment applies in full to public institutions like KU. Indeed, the Court has stated that "[t]he college classroom with its surrounding environs is peculiarly the 'marketplace of ideas.'" And as thinkers like John Stuart Mill teach us, being able to air and debate ideas, no matter how unpopular, helps us find truth and secure knowledge -- precisely the endeavor of students and faculty. So even if it's only lip service, Gray-Little at least gets this much right.
Unfortunately, the stumble backwards is a doozy.
Gray-Little states that Guth was put on administrative leave "so that the university may review the entire situation." But this poses the obvious question: What's to review? If Guth's speech is protected -- and it plainly is -- then the review should be over very quickly. There's no need to place Guth on administrative leave (the functional equivalent of a paid suspension) just to figure out whether his speech is or isn't protected by the First Amendment.
Gray-Little continues by claiming that it wasn't "the nature of the professor's comments" that prompted his being placed on administrative leave. Rather, Gray-Little argues that the move was necessary "in order to avoid further disruption of the learning environment."
Guth accepted the suspension, apparently because he was receiving threats. But if he's receiving threats, it's the university's duty to protect him, not suspend him. When Salman Rushdie faced death threats on the basis of his speech, he received police protection from Scotland Yard. In a free society, we can't allow those who threaten speakers with violence to win by silencing voices they don't like.
By conditioning the university's response to controversial but protected speech on the basis of listeners' reaction, Gray-Little is sanctioning what's known in First Amendment jurisprudence as the "heckler's veto." She's empowering those who disagree with a speaker to determine if his or her message may be heard on campus. Don't like what someone has to say? Simply threaten to act violently or otherwise "disrupt the learning environment," and the university will quickly censor the speech in question. The university's explanation provides would-be censors with a road map for how to shut down speakers in the future.
Guth's tweet may be offensive to some, most, or even all. But that's beside the point; the First Amendment exists to prevent the government from silencing unpopular, dissenting, or minority viewpoints. Paeans to the awesomeness of puppies and apple pie don't need protecting.
Gray-Little could have simply criticized the speech and made clear that Guth didn't speak for the university. She could have welcomed a dialogue between students, faculty, and the community at large about free speech, gun policy, even civility. Instead, she effectively suspended the professor, then provided an explanation that introduces a distorting incentive into the marketplace of ideas, encourages grave overreaction, and sets a terrible precedent.
The University of Kansas' rationalization for withdrawing Guth from campus is dangerous. All of us who care about free speech on campus and in our society must reject it.