UPDATE 8/11/20: Goldberg's position at Auburn has been converted to a research-only fellowship in which he will not teach. Goldberg tells the Chronicle of Higher Education that he agreed to the change in role because he feels "much safer with this option" after receiving threats of violence. For more, check out Keith Whittington's analysis.
Last week, Auburn University said it was looking at “options” following comments by Jesse Goldberg, a lecturer whose condemnations of — and advocacy of the abolition of — police had sparked calls for his termination. Those calls have since grown to include an Alabama state legislator and a member of Congress.
Goldberg spoke not on behalf of Auburn, but as a private citizen sharing his own views.
In response to FIRE’s Aug. 3 letter explaining that the First Amendment protects Goldberg’s speech, Auburn now says it will “not take adverse action against Dr. Goldberg or any member of the Auburn community based on” protected speech.
As we explained on Monday, Goldberg had tweeted a response to an ACLU video which condemned the New York Police Department over what the ACLU characterized as the “kidnapping” of a demonstrator. A variety of conservative figures, including Donald Trump, Jr., condemned Goldberg’s tweet: “Fuck every single cop . . . The only ethical choice for any cop to make at this point is to refuse to do their job and to quit. The police do not protect people. They protect capital. They are instruments of violence on behalf of capital.”
Members of the public — joined by representatives in the Alabama legislature and Congress — called for Goldberg’s termination. One state legislator, Rep. Brett Easterbrook, demanded that Goldberg “be fired before the sun sets.” He was joined by Rep. Mo Brooks, a member of Congress, who tweeted:
If true, #Auburn Univ. should FIRE Jesse Goldberg for venomous hate of America’s law enforcement community.
Auburn: please investigate, determine truth, fire this guy IF media reports accurate!
Tax dollars should not fund police haters.
— Mo Brooks (@RepMoBrooks) August 5, 2020
FIRE wrote to Auburn University seeking reassurance that its administration would not undertake disciplinary action against Goldberg. We explained the First Amendment framework established by the United States Supreme Court, under which faculty members retain a robust right to speak on matters of public concern.
Yesterday, Auburn president Jay Gogue answered:
I acknowledge receipt of your August 3, 2020 letter regarding Dr. Jesse Goldberg and your concerns for the protection of his First Amendment rights. I am pleased to respond in order to confirm Auburn’s commitment to the Constitution.
Your letter specifically requests that Auburn “publicly disclaim the possibility of disciplinary sanctions” against Dr. Goldberg. Dr. Goldberg, in expressing his thoughts, was not authorized to and did not purport to speak on behalf of Auburn University. Auburn affirms that it will not take adverse action against Dr. Goldberg or any member of the Auburn community based on that person’s engagement in individual speech or conduct protected by the Constitution or laws of the United States or the State of Alabama. That is true even when such speech is deemed by many to be offensive, indecent, of little value, and of great cost to the institution. Indeed, even when a message may be viewed as disrespectful and abhorrent, Auburn will not violate the law or Auburn policy.
Gogue’s letter tracks — and exercises — the First Amendment.
First, it recognizes that Goldberg spoke not on behalf of Auburn, but as a private citizen sharing his own views. When faculty members at public institutions speak as private citizens (and sometimes even as faculty members) on matters of public concern, their speech is protected by the First Amendment unless the employer can demonstrate that the speech interfered with its ability to serve the public. That rarely happens — and that’s a good thing.: Faculty members are hired precisely for their ability to engage in the exchange of ideas and views, some of which will inevitably anger members of the public, the legislature, the student body, donors, and other constituencies.
In other words, no matter how many people are aggrieved by the substance or tenor of Goldberg’s views, the university cannot take adverse action against him. Doing so would violate the First Amendment, state law, and policy at Auburn — an institution whose policies comply with First Amendment standards and have earned FIRE’s highest, “green light” rating since January 2018. (Nor, for that matter, can Auburn refuse to later renew his contract on the basis of his protected expression.)
Second, Auburn’s response also exercises the First Amendment. In discounting Goldberg’s speech as “offensive, indecent, of little value,” and “disrespectful and abhorrent,” Gogue leaves little to the imagination as to his perspective on Goldberg’s remarks. Criticism and condemnation, even from the highest echelons of a university’s administration, generally do not violate the First Amendment in the way that an adverse job action would. They represent the outer bounds of how a university can respond to offensive expression without violating legal rights.
FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If your rights are in jeopardy, get in touch with us: thefire.org/alarm.