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Fresno State University won’t — and cannot — punish professor for Barbara Bush tweets

Barbara Bush, former First Lady and matriarch of the Bush family, passed away yesterday at her Houston home at the age of 92, leading to statements of condolences from across the world. Following the announcement of Bush’s passing, a Fresno State University professor, Randa Jarrar, caused controversy on Twitter, leading the university to issue a statement distancing itself from Jarrar’s tweets amid calls for her termination.

As the Fresno Bee reports:

Randa Jarrar, a professor in Fresno State’s Department of English, expressed her displeasure with the Bush family within an hour after the official announcement that Mrs. Bush died Tuesday at the age of 92.

“Barbara Bush was a generous and smart and amazing racist who, along with her husband, raised a war criminal,” Jarrar wrote on Twitter. “F--- outta here with your nice words.”

Jarrar’s tweet generated more than 2,000 replies back to her, with many upset at her and tagging Fresno State and University President Joseph Castro in their comments.

Jarrar added that she “can't wait for the rest of her family to fall to their demise the way 1.5 million [I]raqis have” and sparred with critics of her tweets. When one user responded to her that she should “start losing writing gigs” and another tweeted at Fresno State to call on the university to “reivew this womans actions,” [sic] Jarrar retorted that her tenured status at Fresno State, coupled with her First Amendment rights, meant that her employment was secure and encouraged aggrieved readers to contact the university’s leadership. In response to a Twitter user posting Jarrar’s contact information, Jarrar falsely responded that her real phone number was a crisis hotline at Arizona State University, drawing condemnations on Twitter.

Jarrar has since made her Twitter account private and added that she is "[c]urrently on leave from Fresno State" and that her Twitter account is "my private account and represents my opinions." (Our understanding is that her leave from Fresno State came before this controversy and is unrelated to it.)

In response to the Twitter firestorm, Fresno tweeted a statement from the university’s president:

Fresno State correctly acknowledges that Jarrar’s tweets were made as a private citizen. As such, and because they touched upon a matter of public concern, Jarrar’s tweets are unquestionably protected speech under the First Amendment and Fresno State has no power to censor, punish, or terminate Jarrar for them.

It’s often said that the First Amendment doesn’t protect a speaker from the consequences of his words. That’s true to a certain extent. One who says something that offends others will often face consequences of some sort, whether it’s caustic criticism from people he offended, loss of private sector job opportunities, loss of membership in voluntary associations, and so on. But the First Amendment places limits on what consequences a government actor may impose in response to speech.

As we’ve explained in response to another professor terminated for her public commentary, public universities are government actors bound by the First Amendment:

The law is well-established that employees of government institutions like [a public university] retain a First Amendment right to speak as private citizens on matters of public concern and may not be disciplined or retaliated against for their constitutionally protected expression unless the government employer demonstrates that the expression hindered “the effective and efficient fulfillment of its responsibilities to the public.” Connick v. Myers, 461 U.S. 138, 150 (1983); Pickering v. Bd. of Ed., 391 U.S. 563 (1968).

Jarrar spoke on her personal Twitter account about a matter of public interest. That her speech offended some or many is not a lawful basis to penalize its expression. Speech cannot be restricted because of its offensive nature. Nor does the expression of hope that another person dies rise to the level of unprotected speech. (See, e.g., Rankin v. McPherson (1987), wherein the Supreme Court observed that the First Amendment protected a police department employee who, upon hearing that President Reagan had been shot, criticized Reagan’s welfare policies and said, “shoot, if they go for him again, I hope they get him.”)

Similarly, a public university cannot punish such expression because it led to a deluge of complaints or angry correspondence directed at the school. Otherwise, the law of public employee speech would institutionalize the heckler’s veto; all it would take to remove a professor’s expression from constitutional protection is enough outrage. Clearly the First Amendment does not permit this result, and courts have so held. Rejecting a college’s argument that intervention by a local civil rights activist after an adjunct instructor used gendered and racial slurs as part of a classroom discussion posed an actionable risk of disruption to the school’s operations, the U.S. Court of Appeals for the Sixth Circuit wrote:

Only after Reverend Coleman voiced his opposition to the classroom discussion did Green and Besser become interested in the subject matter of Hardy’s lecture. Just like the school officials in Tinker, Green and Besser were concerned with “avoiding the discomfort and unpleasantness that always accompany” a controversial subject. On balance, Hardy’s rights to free speech and academic freedom outweigh the College’s interest in limiting that speech.

Nor is it relevant to this analysis that Jarrar responded to calls for her termination by observing, correctly, that her speech was protected by the First Amendment. Faculty and students of all stripes should be able to feel confident that public universities — and private universities that promise freedom of expression — will not infringe upon their free speech. Too often that is not the case, but that’s not a good reason to restrict it again.

Update (April 18 at 5:45 p.m.): Spoke too soon. Fresno State University held a press conference this afternoon, announcing the initiation of an investigation. This is an unfortunate and unwise shift. Here's video of the press conference:

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