FIRE announced last month that lawyers for Oakton Community College (OCC) are refusing to back down from the claim that a one-line “May Day” email from a former adjunct professor, referring to the 1886 Haymarket Riot, was a threat. Responding to a May 22 letter from FIRE, OCC declined to rescind a “cease and desist” letter it issued to the professor which warned of legal action against any future “threatening” communications. Last week, FIRE replied to OCC and explained why we believe the law is not exactly—or at all, really—on the college’s side.
The allegedly threatening email was sent by former OCC lecturer Chester Kulis, who was involved in a grievance arbitration with OCC at the time he sent it. After learning of an event to honor then-college President Margaret Lee before her retirement, Kulis sent the email to several adjunct colleagues and Lee. Titled, “May Day — The Antidote to the Peg Lee Gala,” the entire email read, “Have a happy MAY DAY when workers across the world celebrate their struggle for union rights and remember the Haymarket riot in Chicago.”
When Lee read this line, she claims to have feared for her personal safety and that of the college campus. According to the college’s attorney, that’s because “[i]t is common knowledge that the Haymarket Riot involved a bomb-throwing incident at a striking worker’s rally in Chicago which resulted in 11 deaths and more than 70 people injured.” The email, OCC argues, was a violent threat rather than protected speech.
OCC is right on one point. “True threats” are not entitled to First Amendment protection. But after that, OCC and FIRE part company. We disagree that a court would find Kulis’ one-liner to meet the narrow criteria of an unprotected threat.
According to the Supreme Court in Virginia v. Black, true threats are “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” As we point out in our July 16 letter, courts require that a statement be objectively threatening to a reasonable person in order to lose First Amendment protection. The mere reference to a historical event like the Haymarket Riot can’t reasonably be taken as a threat. If that were the case, then the Haymarket Martyrs’ Monument, designated a National Historic Landmark, would be equally threatening, as FIRE’s Ari Cohn noted last month.
Moreover, as we point out to OCC, courts take into account the context surrounding the supposed threat. Kulis, who had an active history in the adjunct faculty union, was not rehired after the Spring 2014 semester, along with 50 other adjuncts, and had a pending grievance with OCC over that decision at the time he sent his May Day email. His email, unfavorably comparing an event honoring Lee’s leadership with a day commemorating workers’ rights struggles, can’t reasonably be seen as more than a criticism in context. As Kulis told the Chicago Tribune, “I kind of said hold it, Peg Lee is having such a wonderful day, and we are getting fired.” Is this a more reasonable interpretation than OCC’s? “I would put it this way,” said Kulis, “No one who read this email, with the exception of Peg Lee and her attorneys, thought there was any violent intent.”
Our letter reminds OCC that courts have set a high threshold before speech crosses the line from the protected realm of political hyperbole to a threat. In Watts v. United States, the Supreme Court reminded us that “[t]he language of the political arena, like the language used in labor disputes … is often vituperative, abusive, and inexact[,]” and that “crude offensive method[s] of stating political opposition” are protected under the First Amendment. In the 1969 Watts case, the Court overturned the conviction of a draft opponent who said at a rally, “If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.” The Court saw this statement as no more than protected political hyperbole. To find a threat, courts require specifics showing that the speaker communicated his or her own intent to cause harm to an identified person or group. Kulis’ email—with its passing reference to a nearly 130-year-old event—doesn’t contain the expression of an intent to harm anyone. It doesn’t even mention Lee (as opposed to her gala) or anyone in the campus community. Far from approaching the line between political speech and threat, Kulis’ email is solidly in the hyperbole camp.
We also couldn’t help pointing out that OCC cites Schenck v. United States and Justice Holmes’ infamous “fire in a crowded theater” quote to support its argument. Not only is Schenck not a true threat case, but it is an obsolete precursor to the modern incitement standard and permitted the wartime suppression of expression that would nowadays be protected political speech.
FIRE’s July 16 letter reiterates and underlines that OCC has no basis in law for the cease and desist letter issued to Kulis. We again call on OCC to rescind it and assure its faculty that they are free to express opinions critical of the administration. You might read this and wonder, “So what? He doesn’t work there anymore.” It doesn’t matter. By doubling down on its seriously wrongheaded interpretation of the First Amendment, OCC has signaled to all of its faculty that it’s willing to take exactly the same unconstitutional action against them. If OCC has any sense, it will get itself on the right side of the law, and fast.