Marquette’s Dangerous Subversion of Free Speech

Last week, I wrote about the systemic due process failures at Marquette University, which plans to fire tenured political science professor John McAdams for criticism of a graduate student and philosophy instructor published on his blog. As I wrote, “No one concerned for fundamental fairness in campus proceedings should be okay with the extent to which Marquette has flouted its obligations in McAdams’s case.”

In this second of my three-part series of Torch entries examining the myriad faults with Marquette’s case against McAdams, I focus on Marquette’s dangerous subversion of basic free speech principles to suit its purposes.

Marquette is a private university, and thus is not bound directly by the First Amendment. Despite this, Marquette makes various promises of free speech and academic freedom to students and faculty that hold it to standards similar, if not equal, to those of a public university. And Marquette has been consistently backwards on free speech throughout McAdams’s case. While refusing to defend his free speech rights in the context of his private blog, for instance, Marquette has argued that graduate students, by the very virtue of being graduate students, have a right to be free from public criticism, an argument that does not withstand basic scrutiny.

And there have been ridiculous claims like the one made by Dean Richard C. Holz in his letter notifying McAdams of Marquette’s intent to strip him of tenure, in which Holz blames McAdams for the fact that some faculty allegedly censor themselves to avoid his criticism:

[F]aculty members have voiced concerns about how they could become targets in your blog based upon items they might choose to include in a class syllabus. Your conduct thus impairs the very freedoms of teaching and expression that you vehemently purport to promote.

This is a preposterous argument, yet again asserting a nonexistent right to be free of criticism, under which one can claim a rights violation simply because another person spoke his or her mind. Ironically, this argument ignores the very real chilling effect Marquette has created at the university by attempting to fire McAdams because of his blog.

Primarily, however, I want to focus on Marquette’s most dangerous argument, which is that McAdams himself bears direct responsibility for the harassing and threatening communications received by graduate student and philosophy instructor Cheryl Abbate from third parties after McAdams published his criticisms. McAdams, of course, had no control over what unidentified third party individuals sent to Abbate. Yet Marquette justified revoking McAdams’s tenure in part by arguing that he “knew or should have known that [his] Internet story would result in vulgar, vile, and threatening communications” and that he thus bore responsibility for them.

On this point we cannot be too clear: Marquette’s logic is entirely divorced from basic notions of free speech. As Robert Shibley put it in FIRE’s press release, “A fundamental principle of our society is that you aren’t responsible for how unrelated and possibly unhinged third parties react to your speech.” The only exceptions to this hard-and-fast rule exist in the most extreme circumstances, such as incitement, which the Supreme Court defined in Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) as speech that is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action.” McAdams’s blog comes nowhere close to meeting this standard.

If bloggers like McAdams become vicariously liable for what others say or do in response to their writing, free speech as we know it ceases to exist, and industries like journalism immediately collapse under the weight of their collective liability. Indeed, some journalists following the case have noted the threatening implications of this argument. Conor Friedersdorf, for instance, in an authoritative account of the case at The Atlantic, writes that “[Holz’s] decision to hold McAdams responsible for [Abbate’s] harassment sets an alarming precedent” and cautions that “[o]nly myopia can account for failure to see the threat to academic freedom.”

Marquette has been happy to compress into a single, linear narrative McAdams’s writing and the harassing and threatening messages to Abbate that came after. In doing so, perhaps it hopes the rest of us lose sight of what McAdams is actually responsible for. And what is he responsible for? This: McAdams wrote a blog entry criticizing Abbate’s pedagogical choices and expressing his view that she had wrongly suppressed debate on an important topic, and then defended himself in later writings against criticism both from faculty peers and from outside the university. Did McAdams himself harass Abbate in violation of Marquette policy? No (though Marquette publicly implied that he had). Did McAdams himself make threats against her that could potentially be punishable by law? No (though again, Marquette publicly implied that he had).

The threats Abbate received from others are reprehensible. But McAdams is simply not responsible for them. If Marquette fires McAdams based on its profoundly misguided notions of free speech, it will have ended a lot more than McAdams’s professional career: It will have ended free speech and academic freedom at Marquette in any meaningful form.