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Special issue: Academic speech — Protected or perilous? ACLU’s David Cole weighs in on Georgetown University law school controversy. Commentaries to follow — FAN 329

David Cole: "Condemning the message is the right response; firing the speaker is not."
ACLU National Legal Director David Cole (ACLU)

ACLU National Legal Director David Cole (ACLU)

From the predictable outset, controversy swirled around Ilya Shapiro once he tweeted his views on President Biden's renewed pledge to nominate an African American woman to the Supreme Court.

Judge James C. Ho
Judge James C. Ho (FedSoc)

First, there was the public outcry; then the school's Black Law Students Association called for the revocation of his contract; next, the Foundation for Individual Rights in Education (FIRE) released a letter, signed by 204 professors and scholars, addressed to the Georgetown University Law School dean. The letter to Dean William Treanor was in support of Shapiro's right to academic freedom. Thereafter, Dean Treanor placed the newly hired senior lecturer on leave pending a decision of what to do, if anything. And there was much more: an op-ed in The Washington Post ("Don’t fire an academic over tweets") by FIRE's Greg Lukianoff and Adam Goldstein, followed by a statement in support of Shapiro by Fifth Circuit Judge James C. Ho: “If Ilya Shapiro is deserving of cancellation, then you should go ahead and cancel me too,” said the judge in remarks to Georgetown Law's chapter of the Federalist Society. Subsequently, Georgetown University Law Professor Paul Butler published an op-ed in The Washington Post calling for Shapiro's ousting.

Then there was David Cole's essay in The New York Review of Books: "The University and Freedom of Expression." In that essay, the longtime Georgetown law professor, and ACLU national litigation director, wrote:

Shapiro's message was offensive, but if academic freedom is to mean anything, [Shapiro's] two tweets can't be a firing offense. And without academic freedom, the voices suppressed are as likely to be those of critical race theorists as opponents of affirmative action.

The concept of academic freedom was initially advanced in the United States by universities and professors as a defense against political intrusions aimed at perceived anarchists, Communists, and other critics of the status quo. Universities argued that because a robust exchange of ideas and free inquiry are essential to the academic enterprise, state officials must respect the independent judgments of universities and the free speech rights of their employees. The Supreme Court's academic freedom cases have all involved government efforts to banish Communists from campus. [. . .]

If universities do not respect this principle [of academic freedom] within their own institutions, how will they resist the political encroachments of outsiders?

Later on, he added:

The principle of academic freedom, like the freedom of speech generally, is not absolute. It does not protect those who engage in targeted racial harassment or threats, or speech that creates a pervasively hostile environment. But Shapiro's tweets do not come close to crossing those lines. And in an instance such as this, in which he immediately responded by deleting the tweets and apologizing, the commitment to academic freedom demands tolerance for those with whom we disagree. Some have raised concerns about whether students of color will feel comfortable taking Shapiro's classes. But his primary role will be running a conservative institute on campus, and as a lecturer he would not teach any compulsory courses.

And then this:

As a private university, Georgetown is not bound by the First Amendment. But like virtually all institutions of higher learning, it has committed itself to respecting the free exchange of ideas. Its policy protects even speech that "most members of the University community [consider] offensive, unwise, immoral, or ill conceived." That so many faculty, students, and student organizations have demanded Shapiro's ouster will make Georgetown's adherence to its own standards extraordinarily difficult.

In the end, Cole counseled against terminating Ilya Shapiro's employment.

Dean Erwin Chemerinsky (Berkeley Law)

It is against that entire backdrop that starting tomorrow First Amendment News will post a series of original commentaries, including:

I will close the series with my own reflections on the matter: "Georgetown’s Free Speech Experiment: What’s Next?"

2021-2022 SCOTUS term: Free expression & related cases

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