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FIRE's response to Nebraska state senators

The University of Nebraska-Lincoln has been embroiled in a free speech controversy since late summer. In August, a video recording surfaced of a university employee telling student Kaitlyn Mullen her Turning Point USA recruitment table had to be moved to a campus “free speech zone” or police would be called. Now, three state senators have weighed in, further complicating the situation for free speech on that campus.

For those who haven’t been following the controversy, here’s a recap of the event that piqued the legislators’ interest:

After TPUSA began its tabling in an outdoor area of campus, the footage shows the students were met by protests from members of the campus community including a tenured professor and a graduate student lecturer named Courtney Lawton. The professor held a sign reading, “Turning Point: Please put me on your watchlist.” Lawton held a sign reading “just say no! to neo-fascism.” When the student recorded video of Lawton demonstrating, Lawton displayed her middle finger to the camera and said, “Neo-fascist Becky right here . . . wants to destroy public schools, public universities, hates DACA kids.” Demonstrators were also recorded saying, “No KKK, no neo-fascist USA. . . . Fight nationalism, fight white supremacy.” There was no physical altercation or threat of violence made during the demonstration and Mullen was not enrolled in any classes taught by either protestor.

TPUSA has published the video of the exchange:

As public pressure mounted — including pressure from state legislators — the institution stripped Lawton of her teaching responsibilities and subsequently announced it would not resume her employment in the future.

Concerned by these events, FIRE wrote to the university’s administration to urge it to protect the free speech rights of both students who support TPUSA and those critical of it. Our position has drawn criticism from conservative donors in Nebraska, as well as the legislators, who took their displeasure to the Lincoln Journal Star.

In the published letter to us, the legislators wrote, “[w]hile we do not completely agree with all of the findings nor the final recommendation offered by FIRE, we are not surprised by their conclusions given the limited amount of information they used to draw their conclusions.” According to the lawmakers, FIRE’s analysis was wrong because we did not take into account the proximity of the protest to the TPUSA table, that the lecturer called Mullen “Becky,” a term that allegedly has racial and gender connotations, and signs held by the protesters demonstrating that their actions were premeditated. They conclude that “[c]ontrary to the opinions of FIRE and the AAUP, the First Amendment does not give university professors (or any other private citizen for that matter) the right to harass students or to deprive them of their right to freely express themselves on campus.”

As noted in our letter, we based our analysis on the published news reports about the incident, the video of the incident, and public records obtained from the university, which included emails sent from legislators. The letter also cited opinion pieces written by the legislators, as well as the university’s public statements concerning the events. As we tell the recipients of all of our letters, we are happy to consider any additional facts, or errors in fact, that might change the analysis. Having considered each of the arguments presented so far by the senators, however, our analysis remains unchanged.

Public institutions may not take punitive action against students or instructors for speech that is protected under the First Amendment, even if the speech was premeditated. Lawton was engaging in protected speech when she confronted Mullen at her table and there was no indication that the outdoor area was reserved for TPUSA, a fact that negates the argument that the protest was unprotected because of its proximity to the table.

Moreover, it is a common misconception that there is a “hate speech” exception to the First Amendment. Most speech that someone might consider hateful is nevertheless protected speech — a principle most recently reaffirmed by the United States Supreme Court in its unanimous opinion in Matal v. Tam.

The exchange at UNL also appears to fall well short of the legal definition of harassment set forth by the United States Supreme Court in Davis v. Monroe County Board of Education, which defines discriminatory harassment in the educational context as targeted, discriminatory conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” The episode between Lawton and Mullen does not meet the pervasiveness requirement, and thus does not constitute discriminatory harassment. Nor would it meet the lesser “severe or persistent” standard used to define harassment in the employment context.

Since there is no “hate speech” exception to the First Amendment, and because this isolated exchange of words in public cannot be considered discriminatory harassment, the question of whether the term “Becky” was intended as an insult with racial connotations does not change the constitutional analysis.

While it is certainly possible for a faculty member’s conduct to reach the standard set forth in Davis or in the employment cases defining harassment, Lawton’s expressive conduct does not meet those definitions in this instance. The conflict between Lawton and Mullen did not take place in the context of a class, nor did it implicate any kind of current faculty-student relationship between the two. Adult students are fully participating members of our political system — a system in which we may occasionally expect heated political exchanges to take place between citizens with different perspectives. The Constitution does not permit subjecting such disputes to civility requirements or to regulation of tone. That Lawton happens to have had teaching responsibilities appears to be incidental to the situation, as Mullen does not appear to be one of her students.

If the concern is whether campus administrators will use the levers of power to chill speech by those whose expression might offend some or many on (or off) campus, the solution is not to go down the path of punishing speech on the basis that it offends. Vague and seemingly limitless professionalism requirements placed upon professors or students at all times will chill views across the political spectrum. We know this from experience.

For example, in Wisconsin, tenured Marquette University professor John McAdams will soon enter his third year of indefinite suspension over comments he made on his personal blog in 2014. In that blog, he criticized a graduate student instructor’s pedagogical practices after she was recorded telling a student that it was inappropriate to express opposition to same-sex marriage in class because it might offend others. FIRE believes that case was wrongly decided in favor of the university at the trial court level, and has filed an amicus brief with the Wisconsin Supreme Court on McAdams’ behalf. (We asked the court to hear the case on bypass, instead of waiting for a state appeals court to rule first.)

And while Marquette is a private institution, similar First Amendment cases at public schools, when decided on the merits, have largely been successful. Just one example is the case of University of North Carolina Wilmington professor Mike Adams, who sued — and won — after a federal court determined the school had retaliated against him for expressing conservative views. FIRE had urged that result; we joined the American Association of University Professors and the Thomas Jefferson Center for the Protection of Free Expression in filing an amici curiae brief in the case.

Because FIRE cares about the rights of all students and faculty, we are especially wary of  instances when they are censored or punished to satisfy critics and their demands — whether by students, faculty, outsiders, or legislators — in response to protected expression. Instead, we insist upon robust protections for all points of view, including unpopular, controversial, or minority perspectives, and the enforcement of those protections with equity and integrity. We welcome the opportunity to discuss our cases with legislators so they may have a better understanding of the legal considerations that guide our work, and we are always hopeful that honest disagreements with legislators on particular cases or issues do not create barriers preventing us from working with those legislators on the many areas of common ground we share. We trust that will be the case here and look forward to working with Nebraska lawmakers to eliminate unlawful speech codes that restrict student speech.

We take seriously concerns voiced by these elected officials and others that institutions throughout Nebraska and the United States be welcoming to students of all views and backgrounds. In our experience, however, expanding administrators’ ability to punish protected speech will further empower them to crack down on speech with which they disagree.

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