Comments by perennially controversial University of Pennsylvania law professor Amy Wax — who said in a recent interview that the U.S. is “better off with fewer Asians and less Asian immigration” — have once again drawn widespread criticism. Unfortunately, they have also drawn a troubling call from 16 of the 17 members of Philadelphia’s City Council, on city letterhead, for Penn to “begin a comprehensive and transparent review of Professor Wax’s position and role with the university.”
Penn condemns what Wax said; defends her right to say it.
Penn Law’s dean, Theodore W. Ruger, issued an acidic denouncement of Wax’s comments earlier this month, calling them “thoroughly anti-intellectual and racist.” At the same time, Ruger properly defended her right nonetheless to make the comments, citing core principles of academic freedom and free speech.
“The same academic freedom principles that permit current scholars to engage in critical and overdue analysis of this nation’s historical and structural discrimination – despite zealous efforts to censor such speech by some,” Ruger wrote, “also apply to faculty like Wax who voice xenophobic and white supremacist views.”
Ruger is correct on Wax’s rights and the importance of preserving them for all faculty. Penn, while private and not bound by the First Amendment, makes corresponding promises of free expression and academic freedom to students and faculty, and is obliged to adhere to the commitments it makes. Penn’s “Statement on Open Expression,” for example, goes further than simply protecting controversial speech from institutional punishment, but enshrines “the concepts of freedom of thought, inquiry, speech, and lawful assembly,” as “cherishe[d],” proclaiming that “[t]he freedom to experiment, to present and examine alternative data and theories; the freedom to hear, express, and debate various views; and the freedom to voice criticism of existing practices and values are fundamental rights that must be upheld and practiced by the University in a free society.”
Sanctioning Wax for her speech would dilute the expressive rights of faculty members across the ideological spectrum, including many who do not enjoy the breathing room afforded by tenure, the spotlight that accompanies prominent Ivy League professors, or — at public institutions — the strong medicine the First Amendment provides for faculty expression. Doing so would also give a foothold to authoritarians and ideological movements of all stripes to suppress academics’ speech, whether from the left or from the right.
These normative arguments for protecting even the most controversial statements are also implicit in the First Amendment, which protects both Wax’s speech and that of her critics from government retaliation.
Can the government pressure Penn to punish Wax anyway?
So what then, to make of the new condemnation of Wax from the members (save for one) of Philadelphia’s City Council, who sent an open letter on government letterhead late last week calling on Penn to “begin a comprehensive and transparent review of Professor Wax’s position and role with the university”?
— David Oh (@DavidOhPhilly) January 8, 2022
While City Council members have their own First Amendment rights to criticize Wax’s views in their personal capacities, it is not appropriate for government officials — as a body, or as individual members purporting to wield governmental authority — to call for universities and colleges to violate the expressive rights of their faculty or students. Even pressuring private institutions to take action against unpopular speakers is a step toward violating the speakers’ First Amendment rights. When taken too far — for example, when the pressure includes explicit or thinly veiled, implicit threats of retaliation — these actions do violate their rights.
Sanctioning Wax for her speech would dilute the expressive rights of faculty members across the ideological spectrum.
Universities and colleges cultivate relationships with elected officials, particularly when those institutions may have business pending before a given body, as the University of Pennsylvania does now. While the council members’ letter does not make any express threat, officials who act under the color of public authority wield power that other members of the public do not hold, and that authority is constrained by constitutional protections. They must take care not to imply they might leverage their authority against institutions for being affiliated with an unpopular speaker.
The overstep here by members of Philadelphia’s City Council writing on the body’s official stationery is, unfortunately, not a first of its kind. There is a history of city councils attempting to pressure universities to prevent objectionable speakers from speaking or punish unpopular speech. In 2013, elected officials in New York City threatened Brooklyn College for hosting anti-Israel speakers. In 2018, the Los Angeles City Council pressured UCLA to cancel an Students for Justice in Palestine conference. And in 2020, a Florida city council resolution called for a college student to be punished over tweets about Israel.
The problem hardly ends at the municipal level, of course. FIRE has long been critical of state legislators nationwide who exert similar pressure on institutions to censor speech or punish faculty for their speech both inside and outside of the classroom. Last spring, we compiled a list of nine states that considered legislation with provisions restricting the teaching of certain specified “divisive concepts,” and wrote at length about Idaho’s attempts to do so. Other times legislators tried to silence speech they didn’t like include six members of a South Carolina congressional delegation who pressured Clemson University and the University of South Carolina to restrict instruction about critical race theory, a lecturer’s anti-police tweet at Auburn University, and a student group’s sex positive event at the University of Arkansas, which prompted a threat from three state representatives to defund the university’s entire Department of Diversity and Inclusion.
The United States Court of Appeals for the Seventh Circuit addressed the question of when government interventions in the actions of private actors raise constitutional questions in 2015 in the case of Backpage.com, LLC v. Dart. In Backpage, a sheriff wrote to credit card companies that processed transactions for an adult website and (incorrectly) informed them they might be accomplices to criminal activity. The court held the sheriff’s actions infringed Backpage’s right to free expression, holding that “a public official who tries to shut down an avenue of expression of ideas and opinions through actual or threatened imposition of government power or sanction is violating the First Amendment.”
Officials cross the line, the court explained, between expression of displeasure permitted by the First Amendment and intimidation forbidden by it, when they go beyond “attempts to convince and [engage in] attempts to coerce.”
While the Philadelphia City Council’s letter may not go as far as the sheriff in Backpage, its pressure on Penn is a troubling step in that direction.