FIRE warns University of Georgia and state attorney general to end speech-chilling investigation into TA’s protected expression

The University of Georgia, in conjunction with Office of the Attorney General of the State of Georgia, is “vigorously exploring” whether the First Amendment permits it to take action against a philosophy graduate student and teaching assistant. The investigation arises from a public campaign demanding the termination of Irami Osei-Frimpong over statements about “crappy white people” and politics made on his personal social media accounts and during a Young Democrats of UGA meeting, where he spoke about civil rights as an activist.

Today, FIRE sent a letter to UGA and the Office of the Attorney General reminding them of the well-established First Amendment rights that protect Osei-Frimpong’s speech, and calling for an end to the investigation.

A sustained campaign against a TA leads to a chilling investigation

The saga started on Sept. 12, 2018, when Osei-Frimpong spoke at a public meeting of the Young Democrats of UGA, where he was identified as a “local activist.” Andrew Lawrence, then a student at UGA, had seen social media posts from Osei-Frimpong he found offensive. During the question-and-answer session, Lawrence recorded himself confronting Osei-Frimpong about what Lawrence describes as “negative rhetoric against white people when you don’t know every white person” at UGA:

Me confronting a professor at UGA that referred to white people as autistic sociopaths and last week, tweeted that whites people should be killed. #uga #dawgs #gapol @benshapiro @FoxNews pic.twitter.com/JFavQ8ZR14

— Andrew Lawrence (@YoungGaGOP) January 16, 2019

Among the statements that drew Lawrence’s ire were, in particular, Facebook posts about the Democrats’ loss in the 2018 Georgia gubernatorial race, in which Osei-Frimpong argued that Democrats needed to change the electorate’s views in order to win, and should “go to war on the White electorate” and “dismantle the institutions that make crappy white people: their churches, their schools, their families.”

Lawrence published the video four months after the Young Democrats meeting and after he had graduated from UGA, citing a “fear of backlash from the University of Georgia and other students.” In the intervening four months, Lawrence wrote a series of articles for Campus Reform concerning Osei-Frimpong’s personal views. Lawrence also says he met repeatedly with UGA officials, who were provided with the video and social media posts in September.

In November, responding to one of Lawrence’s requests for comment, UGA issued its first statement, correctly noting that the “[v]iews expressed by students, faculty, and staff in their personal capacities do not reflect the views of the university.” On Jan. 17, 2019, in response to an email from Lawrence concerning “Osei-Frimpong Posts from This Week,” UGA’s Equal Opportunity Office explained, again, that the “views expressed are personal opinion expressed by this person in their personal capacity on a private platform.”

In response to a Facebook thread about Lawrence’s video, Osei-Frimpong argued that “[s]ome White people may have to die for Black communities to be made whole in this struggle to advance to freedom. To pretend that’s not the case is ahistorical and dangerously naive.” The full context of the now-deleted thread isn’t clear, but Osei-Frimpong discussed the exchange in a radio interview, explaining that he was simply recognizing the possibility that white people could die in civil unrest over civil rights, pointing out Heather Heyer as one such example. Not exactly a rallying cry to violence, much less one that would satisfy the legal test for incitement under the First Amendment.

On Jan. 18, after the video and social media posts continued to attract attention and criticism online and in the media, UGA posted a public response on Twitter. The university acknowledged — for at least the third time — that Osei-Frimpong’s speech was expressed “in his capacity as a private citizen,” and that UGA was “unaware of any allegation of racially hostile or discriminatory conduct in the course of [Osei-Frimpong’s] professional duties or any statements falling outside of First Amendment protections.”

In other words, after repeatedly being shown Osei-Frimpong’s private views, UGA correctly concluded that it was powerless under the First Amendment to punish Osei-Frimpong. That was the correct response and should have been the end of the story.

However, as the story continued to garner attention on Twitter and in media reports, UGA changed its tune.

In response to an open letter Lawrence posted on Twitter complaining that Osei-Frimpong represented a threat to the “safety and well-being” of students, and calling on alumni to cease donating to the university, UGA released a fourth statement on Sunday. This statement proclaimed that “[r]acism has no place on our campus, and [UGA] condemn[s] the advocacy or suggestion of violence in any form,” and announced a reversal from its earlier conclusions: UGA is now “vigorously exploring all available legal options” and “seeking legal guidance from the Office of the Attorney General as to what actions we can legally consider in accordance with the First Amendment.”

Osei-Frimpong was engaged in protected political expression

As UGA had originally, repeatedly, and correctly concluded, Osei-Frimpong’s remarks were made in his capacity as a private citizen and not under the auspices of his role as an employee of UGA. Further, the university has provided no indication or evidence that Osei-Frimpong engaged in any discriminatory harassment, which it could penalize without abridging the First Amendment.

Employees of public universities, like students, do not surrender their First Amendment right to speak in their private capacity on matters of public concern by virtue of their employment or enrollment. FIRE has repeatedly explained as much in defending faculty members, teaching assistants, and students across the political spectrum. Graduate teaching assistants, like Osei-Frimpong, are both students and instructors, and have First Amendment rights in both of those capacities. These rights are particularly critical because academics without the benefit of tenure — whether associate professors, teaching assistants, or faculty members — can rely only on their institutions’ willingness to defend their academic freedom and First Amendment rights.

As FIRE explains in a letter sent to UGA today, Osei-Frimpong’s speech is protected by the First Amendment. It falls far short of the “incitement” exception to the First Amendment and, as UGA has recognized, was speech as a private citizen on a matter of public concern. Under the First Amendment, speech cannot be limited solely on the basis that it offends others. Penalizing a speaker because of the disruption caused by those opposed to his or her views would effectively reward the hecklers’ veto, and academics’ freedoms of inquiry and speech are not subject to a majority vote or the disapproval of the general public.

UGA has repeatedly expressed its disapproval of Osei-Frimpong’s views, as is its right. The First Amendment forbids it from taking any punitive action, and the initiation of an investigation — in conjunction with the Office of the Attorney General, no less — will have an unacceptable chilling effect on protected expression.