Free Speech at Stake at Warren County Community College

By November 22, 2005

FIRE Program Associate Sean Clark sent me the following, which I would like to share with Torch readers:

Tonight, the Warren County Community College Board of Trustees meets presumably to determine the fate of Professor John Daly, a nontenured faculty member. Early last week, Daly wrote an e-mail in response to an advertisement he received about a pro-war speaker on campus. In the response, he wrote, among other strong statements, that “[r]eal freedom will come when soldiers in Iraq turn their guns on their superiors and fight for just causes and for people’s needs—such freedom fighters can be counted throughout American history and they certainly will be counted again.” This statement immediately garnered national media attention and soon calls for his termination could be heard. In particular, one such call (from an organization with which I was involved in college and to whose defense FIRE came) claimed that Daly’s e-mail is not protected by the First Amendment because it is “harassment.”

There is little question that Daly’s speech is protected by the First Amendment. The Supreme Court stated in the case of Pickering v. Board of Education, 391 U.S. 563 (1968), that “statements by public officials on matters of public concern must be accorded First Amendment protection….” In general, since Pickering, the Supreme Court has held repeatedly that public employees cannot be terminated or disciplined solely because their speech on matters of public concern (see Connick v. Myers, 461 U.S. 138, Rankin v. McPherson, 483 U.S. 378, and Waters v. Churchill, 511 U.S. 661). Daly, an employee of a public college, is entitled to First Amendment protections when opining on matters of a public concern.  It would be almost impossible to argue that a statement concerning the Iraq war, a subject in the headlines on a daily basis, is not a matter of public concern. Although Daly advocates a rather extreme position (suggesting that troops should murder their superior officers), speech must be more than merely offensive to fall outside the realm of protected speech (see Cohen v. California, 403 U.S. 15, and Texas v. Johnson, 491 U.S. 397). The content of the e-mail, even though many people would view it as highly offensive, is related to a matter of public concern and thus is entitled to the full protection afforded by the First Amendment.

Furthermore, the misunderstanding that mere offensive speech is enough to create a “hostile environment” has been so pervasive that in July 2003, the Department of Education Office for Civil Rights was forced to issue a letter clarifying this very subject. The Department of Education unequivocally stated, “[The] OCR has recognized that the offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment.” Furthermore, the Department reiterated that “[i]n order to establish a hostile environment, harassment must be sufficiently serious (i.e., severe, persistent or pervasive) as to limit or deny a student’s ability to participate in or benefit from an educational program.” A single personal e-mail, even though it expressed highly offensive views, is simply not serious enough to create a “hostile environment.”

It is also interesting to note how censorship knows no political boundaries. This incident closely mirrors the case of Jihad Daniel at William Paterson University.  Daniel, also responding to an e-mail advertising a public event, referred to homosexuality as a “perversion” and was later reprimanded for violating the Interim State of New Jersey Policy Prohibiting Discrimination, Harassment or Hostile Environment in the Workplace. When this story broke, conservative pundits were quick to come to Daniel’s defense—just as when Daly’s story broke, liberal groups were quick to defend his statements. What is the moral of the story? Censorship can be easily used by authorities regardless of political ideology. The only answer is for everyone, regardless of political persuasion, to denounce censorship no matter what the content of the speech.

Daly’s speech (much like Daniel’s speech) is without a doubt protected by the First Amendment, and this single incident does not even come close to meeting the standard necessary to establish a “hostile environment.” The WCCC Board of Trustees should make the correct choice tonight by affirming a commitment to freedom of speech and openly dismissing the calls to investigate and terminate John Daly.