FIRE warns Temple against punishing professor Marc Lamont Hill

Today, FIRE sent a letter to Temple University president Richard M. Englert to remind him of the university’s moral and legal obligations to the First Amendment as a public university in light of the controversy surrounding professor Marc Lamont Hill’s speech last week about Israeli-Palestinian relations. While Temple (which is in FIRE’s hometown of Philadelphia) initially defended Hill’s First Amendment rights, the university’s board chairman has reportedly directed legal counsel to explore options and “remedies,” and stated that members of the administration and board of trustees wanted to “fire him right away.”

On Nov. 28, Hill spoke before the United Nations in recognition of “International Day of Solidarity with the Palestinian People.” During his speech, Hill discussed boycotts of Israel and said, “We have an opportunity to not just offer solidarity in words but to commit to political action, grass-roots action, local action and international action that will give us what justice requires and that is a free Palestine from the river to the sea.”

Hill’s speech sparked swift outrage on social media and from advocacy groups, some of which called for his firing from Temple and CNN, where he worked as a contributor. By the next day, CNN had fired Hill.

That same day, Temple distanced itself from Hill’s remarks but reaffirmed his right to make them. Spokesperson Brandon Lausch told Jewish News Syndicate that “Hill does not represent Temple University, and his views are his own,” and that the university “acknowledge[s] that he has a constitutionally protected right to express his opinion as a private citizen.” The statement was quickly rebuked by the Zionist Organization of America, which “urge[d] Temple University to strongly condemn Marc Lamont Hill’s dangerous public calls for violence against Israelis and the destruction of Israel, and to fire Hill immediately or at least suspend him and remove him from the prestigious Steve Charles Chair that he holds.”

Englert issued a longer statement on Nov. 30, reaffirming that Hill’s “views are his own” and that “Hill’s right to express his opinion is protected by the Constitution to the same extent as any other private citizen.”

However, that same day, Philly.com published an article divulging that Philadelphia attorney and chairman of Temple’s board Patrick O’Connor was pressing for the university to take action against Hill. O’Connor told media: “Free speech is one thing. Hate speech is entirely different.” He also said, “I’m not happy. The board’s not happy. The administration’s not happy. People wanted to fire him right away,” and warned that “[w]e’re going to look at what remedies we have.” Finally, O’Connor explained that he would plan to “fire [Hill] immediately” if he worked in the private industry and again reiterated that the university’s legal team would look into its options regarding Hill.

FIRE wrote to Englert today reminding him that the university — a public university that, as federal courts have repeatedly held, is a state actor bound by the First Amendment — can neither investigate nor punish Hill for protected speech.

As FIRE explained, O’Connor’s suggestion that Hill can be punished for “hate speech” is blatantly false:

Despite O’Connor’s statement that “[f]ree speech is one thing” but “[h]ate speech is entirely different,” there is no “hate speech” exception to the First Amendment’s protection of expression. In contrast to O’Connor’s invocation of “hate speech” stands decades of precedent making clear that the First Amendment protects expression viewed as hateful. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (striking down an ordinance that prohibited placing on any property symbols that “arouse[] anger, alarm or resentment in others on the basis of race, color, creed, religion or gender”). The Supreme Court reiterated this fundamental principle in Snyder v. Phelps, 562 U.S. 443, 461 (2011), proclaiming:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. . . . [W]e cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

Last year, the Court once again reaffirmed this principle in Matal v. Tam, 137 S. Ct. 1744, 1764 (2017), holding unanimously that the perception that expression is “hateful” or that it “demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground” is not a sufficient basis on which to remove speech from the protection of the First Amendment.

Hill’s speech did not fall under any recognized exception to the First Amendment. Hate speech, cited by O’Connor as the basis to take action against Hill’s speech, is not categorically exempted from First Amendment protection. Rather, Hill’s remarks are political speech, which is afforded the highest protection under the First Amendment.

FIRE’s letter went on to remind Temple that the First Amendment protects the private speech of government employees like Hill, who was speaking as a private citizen on a matter of public concern, regardless of how controversial his “river to the sea” reference might have been. Finally, FIRE noted that an investigation into Hill’s speech would create an unacceptable chilling effect among Temple faculty, and warned that an investigation of constitutionally protected speech can itself violate the First Amendment.

As FIRE’s Adam Steinbaugh told Inside Higher Ed, Temple had it right the first time when it acknowledged that Hill’s speech was protected regardless of the controversy it raised. By even suggesting that the university is looking into its options regarding Hill, Temple has threatened the rights of its entire community by signaling to opponents of free expression that, with enough pressure, the university may be willing to abandon the rights it is required to protect.

Temple University must immediately announce an end to any investigation into or potential punishment of Hill for his protected speech and reaffirm that it will not abandon its moral and legal obligations under the First Amendment.