Drexel publicly promised professor freedom of expression, but privately pursues investigation

Drexel University Associate Professor George Ciccariello-Maher is no stranger to controversy. Last Christmas Eve, he posted a tweet to his private Twitter account that read: “All I Want for Christmas is White Genocide,” pillorying the notion advanced by some white nationalists that miscegenation and low fertility rates will bring about the end of white people. The next day, Ciccariello-Maher followed up, tweeting: “To clarify: when the whites were massacred during the Haitian revolution, that was a good thing indeed.”

Public outcry ensued, and, as FIRE noted back in December, Drexel responded with a six-tweet-long message and a press release stating:

Drexel became aware today of Associate Professor George Ciccariello-Maher’s inflammatory tweet, which was posted to his personal Twitter account on Dec. 24, 2016. While the University recognizes the right of its faculty to freely express their thoughts and opinions in public debate, Professor Ciccariello-Maher’s comments are utterly reprehensible, deeply disturbing, and do not in any way reflect the values of the University.

The University is taking this situation very seriously. We contacted Ciccariello-Maher today to arrange a meeting to discuss the matter in detail.

Scheduling an ominous meeting like that was concerning and incompatible with free speech principles. My colleague Brynne Madway explained why in December of last year: “By calling for a meeting without providing any information about its purpose or the consequences that Ciccariello-Maher might face, Drexel, an institution that maintains a ‘red light’ speech code along with numerous ‘yellow light’ policies, failed to live up to its already shaky commitment to academic freedom.” Drexel quickly walked back the ominous nature of its Christmas Day inquiry, so it said, telling Ciccariello-Maher in a private phone call that it would not punish him for his expression. For those counting, that was the second time Drexel explicitly stated that its faculty — and Ciccariello-Maher in particular — enjoyed freedom of expression at Drexel.

But as my colleague Adam Steinbaugh noted in a letter to Drexel last week, what the school promised in public, it has failed to follow up on behind closed doors. In letters to Ciccariello-Maher dated February 2 and April 3, 2017, Drexel acted entirely contrary to the promises of free expression that it had made. Adam wrote:

According to Inside Higher Ed, your letters expressed concern with other views expressed by Ciccariello-Maher and committed the university to launching “a special committee of inquiry to investigate your conduct and provide findings and recommendations to me concerning your extremely damaging conduct.” In the same sentence announcing the investigation, you concluded that it was Ciccariello-Maher’s conduct, not that of his critics, that was “damaging” to the university, which has faced “heightened concerns for community safety” and “received significant negative feedback.” That feedback included “suggested violence” and a “volume of venomous calls” that “compelled the university to consider turning off its phones in the days following” the Christmas Eve tweet.

Controversy sprung up again later in April when Ciccariello-Maher sent out a tweet critical of the United States Armed Forces, in which he stated: “Some guy in first class gave up his seat for a uniformed soldier. People are thanking him. I’m trying not to vomit or yell about Mosul.” Drexel’s response to the April tweet was again unsatisfactory. Although Drexel issued a statement supporting Ciccariello-Maher’s right to free expression, Drexel’s provost has launched a chilling inquiry into how Ciccariello-Maher’s tweets may have negatively affected the university community.

Investigations themselves can be impermissibly chilling, and that makes the inquest at issue a problem. There is simply no question that under the First Amendment, Ciccariello-Maher’s speech is protected. That being said, Drexel is a private institution not bound by the First Amendment. However, when a school promises free expression, as Drexel has done, it must follow through on that promise and be guided by the principles behind our nation’s First Amendment jurisprudence. Instead, Drexel is directly contradicting those promises by continuing to investigate him.

While investigations can chill speech, that doesn’t mean they have to, or that they always do. The Supreme Court of the United States noted in Laird v. Tatum (1972) that broad, intelligence-gathering programs do not, “without more,” impermissibly chill speech. But in the academic context, the Supreme Court observed in Sweezy v. New Hampshire (1957):

There is no doubt that legislative investigations, whether on a federal or state level, are capable of encroaching upon the constitutional liberties of individuals. It is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association, and freedom of communication of ideas, particularly in the academic community.

As Adam noted in a previous post about the troubles with investigating speech, “while the First Amendment does not require college administrators to refrain from collecting information, there are some limits to how an investigation may be undertaken.”

By continuing to investigate Ciccariello-Maher for his tweets, Drexel has crossed a line. An investigation, “without more,” is not necessarily a problem. But there is “more” here: the duration of Drexel’s months-long investigation and the fact that it will end with “provid[ing] findings and recommendations to [Ciccariello-Maher] concerning [his] extremely damaging conduct.”

FIRE has reminded Drexel — and our readers are well aware — that the First Amendment exists for more than protecting palatable speech. Indeed, it is speech that offends that needs the most protection. Concerning offensive ideas on the college campus, the Supreme Court held in Papish v. Board of Curators of the University of Missouri (1973) that “the mere dissemination of ideas — no matter how offensive to good taste — on a state university campus may not be shut off in name alone of ‘conventions of decency.’” Likewise, as the Supreme Court observed in Terminiello v. Chicago (1949), speech "may indeed best serve its high purpose when it induces a condition of unrest . . . or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea."

Drexel’s actions run directly contrary to that precedent, and send a dangerous message. Adam explained in his letter:

Drexel’s message to its faculty is chillingly clear: If faculty members encounter speech or views they find offensive and challenge them in a manner that draws attention, they are subject to investigation by their employer. If faculty members express their view that American military efforts are immoral, they and their colleagues will be summoned for official interviews.

Investigations and interviews like those Ciccariello-Maher now faces are antithetical to the freedom that Drexel purports to embrace: the right to express views on issues central to our national conversation in a way that might be provocative or disagreeable.

To put it succinctly, “[t]he investigation is often the punishment.” But this is something Drexel does not seem to understand. In a response to our June 2 letter, Drexel defended the investigation, noting that the advisory committee would be composed of faculty members and that no other action had been taken. But regardless of who sits on the committee, and regardless of the outcome — whether or not they determine Ciccariello-Maher violated any policies — he has already undergone punishment by the very nature of Drexel’s prolonged investigation.