U. of Tennessee “Investigating” Professor for Tweet

In recent years, colleges and universities have shown a disturbing willingness to punish students and faculty members for Internet postings that, while consisting of constitutionally protected speech, are labeled “violent,” “offensive,” or “harassing” towards some person or group. FIRE has seen many instances of this trend. A common thread in these cases is that, rather than being driven by a sober assessment of the law or commitment to principle, they tend to be driven by a public relations imperative to distance the institution from expression it thinks will be unpopular. That pattern is playing out again this week, as the University of Tennessee (UT) announced yesterday that it is investigating law professor and blogger Glenn Reynolds, founder of the blog Instapundit, for online speech.

Yesterday morning, Reynolds opened up Twitter to find that the service had suspended his account. His offense turned out to be a tweet—since deleted, but preserved on Twitchy— reading “Run them down,” which linked to this tweet from a Charlotte, N.C.’s WBTV, reporting, “Protesters on I-277 stopping traffic and surrounding vehicles. AVOID.” (WBTV actually sent a series of tweets about this.)

Reynolds explained the comment on his blog and has since apologized in USA Today (which suspended his twice-weekly column for a month), saying:

Those words can easily be taken to advocate drivers going out of their way to run down protesters. I meant no such thing, and I’m sorry it seemed I did… I remember Reginald Denny, a truck driver who was beaten nearly to death by a mob during the 1992 Los Angeles riots. My tweet should have said, ‘Keep driving,’ or ‘Don’t stop.’

After acceding to Twitter’s demand to delete his tweet, his account access was restored.

Twitter is a private company, and is free to police the language of its users as it sees fit, although one would be remiss not to point out that a great many people are dissatisfied with either its decision to do so, or its method of deciding what expression is acceptable, or both. And USA Today is, of course, also free to run the columns it chooses to run.

It’s what is happening to Professor Reynolds on campus, of course, that is of concern to FIRE. UT College of Law Dean Melanie Wilson issued a statement yesterday morning announcing:

I am aware of the remarks made last night on Twitter by Professor Glenn Reynolds and of the serious and legitimate concerns expressed by members of the UT Law family and the University of Tennessee community, as well as concerned citizens across the country. Professor Reynolds’ comments do not reflect my views and opinions, nor do they reflect the values of the college and university… University administrators, college faculty, and I are investigating this matter.

UT Chancellor Jimmy Cheek also weighed in about an hour later to the Knoxville News-Sentinel, saying, “Wilson’s statement about the faculty member’s social media post reinforces the university’s commitment to fostering a civil and inclusive learning environment.”

But did Reynolds’ speech actually violate any law or rule? The dean mentioned specifically that UT “do[es] not support violence or language that encourages violence,” but did not cite any actual rule that he might have been broken. So, we’re left to ask: leaving aside Reynolds’ explanation that he did not, in fact, mean to encourage violence, could Reynolds’ tweet have risen to the level of punishable, unprotected speech?

The most important governing case on the issue of advocacy of violence is the 1969 Supreme Court case of Brandenburg v. Ohio. In Brandenburg, a Ku Klux Klan leader was convicted of violating Ohio’s criminal syndicalism statute when he threatened that his organization would seek “revengance” (his “word”) on various organs of the government if it continued “to suppress the white, Caucasian race.” The Court rejected his conviction in a per curiam opinion, noting that First Amendment case law stood for “the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (Emphasis mine.)

One must consider, then, whether Reynolds violated this principle. Was his tweet regarding events taking place 230 miles away directed to inciting or producing imminent lawless action, or likely to produce it? Even if one refuses to credit Reynolds’ disavowal of intent to encourage illegal violence, to find his speech unprotected one must also believe:

1. that drivers on the affected area of I-277 in Charlotte were reading Twitter while driving;
2. that they were followers of the @Instapundit account;
3. that they saw the tweet itself; and
4. that Reynolds had a substantial enough level of control or influence over those drivers that they would be likely to immediately follow his advocacy.

This confluence of events seems—to put it mildly—extremely unlikely.

UT would also be wise to consider the American Association of University Professors’ 1964 Committee A Statement on Extramural Utterances. It states: “The controlling principle is that a faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness to serve. Extramural utterances rarely bear upon the faculty member’s fitness for continuing service.”

FIRE will be watching this case closely and will keep readers updated on the latest.