Feelings vs. Freedom

FIRE was pleased to see that on September 14, the Pioneer Times—the student newspaper at William Paterson University—covered our case there. Since we first exposed the ongoing injustice to student and employee Jihad Daniel over the summer, when the Pioneer Times was not being published, the incident didn’t really have a chance to permeate the campus until now. And permeating it apparently is: graduate student Robin Kavanagh has written a truly disturbing piece in response to the news story.

Kavanagh’s essential argument is that “those who have spoken out citing freedom of speech issues have missed one important piece of this puzzle.” That piece, allegedly, is that Daniel is an employee of the university and therefore bound to abide by the Interim State of New Jersey Policy Prohibiting Discrimination, Harassment, or Hostile Environments in the Workplace, the Orwellian thought-control edict under which he was punished. That blatantly unconstitutional diktat outlaws “derogatory” or “demeaning” comments directed at members of a whole host of protected groups. By claiming that Daniel ought to abide by it, Kavanagh falls into the same trap as New Jersey Attorney General Peter Harvey, who upheld the university’s punishment.

The trap is a simple one. Harvey believes that New Jersey’s antidiscrimination regulation trumps the Constitution—he claimed in his letter to FIRE that “speech which violates a non-discrimination policy is not protected” by the First Amendment. Unlike many of my FIRE colleagues, I am not a lawyer, but even I know that turns the law on its head. Laws and regulations have to jibe with the First Amendment, not vice versa. And the mere fact that Daniel is an employee does not change that. For one thing, he works at a university, a place ostensibly founded on the free and open exchange of ideas. For another, he is also a student, and the e-mail to which he responded was intended for the educational community in general, not just the IT department where he works.

Moreover, claiming primacy for New Jersey’s policy over the Constitution also gives a dangerously privileged position to feelings. After all, the feelings of Professor Arlene Holpp Scala, to whom Daniel sent the e-mail that got him in trouble, are what triggered the punishment. She felt threatened—she wrote:

Mr. Daniel’s message to me sounds threatening and in violation of our University’s non-discrimination policy. I don’t want to feel threatened at my place of work when I send out announcements that address lesbian issues.

And here is Kavanagh’s comment:

If this is how she [Scala] felt, then the citation Daniel received was just. Even though it was a technical infraction of the codes of conduct, it was an infraction all the same, and Scala was simply excising her right to complain.

Got that? According to Kavanagh, it doesn’t matter that Daniel had no intention of threatening Scala. The mere fact that she felt something she didn’t like meant he should pay.

But the truth is that no one has a right not to feel something unpleasant. By any reasonable definition, Daniel’s email was not a threat. He didn’t hint that he was going to drop by her house with a torch. In fact, he didn’t say anything about her as a person.

But by Kavanagh and Harvey’s logic, the combination of hurt feelings and ridiculous rules takes precedence over the freedoms guaranteed by the First Amendment. That is a ridiculous argument—but as FIRE’s cases show, it’s also unfortunately typical of contemporary American higher education.