Last week, Kevin Allred — a professor we’ve written about before — again caused controversy when, weighing in on President Trump and the debate over the healthcare bill, he tweeted: “This is all a sham. I wish someone would just shoot him outright.” After a number of largely-conservative media outlets highlighted Allred’s tweet, which he deleted, Montclair State University claimed that it had “never” employed Allred.
But emails provided by Allred contradict that claim. And while his tweet was offensive to many people, the Supreme Court has made it abundantly clear that merely wishing that harm would come to the president is protected by the First Amendment, as it does not amount to an unprotected true threat.
Today, FIRE sent a letter to Montclair raising our concerns.
The First Amendment does not, of course, protect certain well-defined categories of speech, including “true threats” and incitement. But these categories have narrowly-drawn definitions in order to avoid prohibiting wide swaths of speech that, while widely seen as offensive or vituperative, do not constitute incitement or a true threat. These narrow definitions afford political speech “breathing room” against the possibility that a government, empowered to regulate the speech of its critics, might stretch or willfully misinterpret inflammatory speech in order to silence dissent.
There is no special exemption for the president. In fact, the Supreme Court has repeatedly found purported threats to amount to no more than “political hyperbole” that must be protected — as the Court explained in Watts v. United States (1969) — because of our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
That includes merely hoping that someone might assassinate the president. In Rankin v. McPherson (1987), the Supreme Court addressed a comment by a police department employee who, upon hearing a news report 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.” The Supreme Court explained that this statement — expressing mere hope that harm would come to the president — did not amount to an unprotected threat and “could [not] properly be criminalized at all.” And, in Watts v. United States (1969), the Vietnam-era Supreme Court held as protected speech a would-be draftee’s statement that “[i]f they ever make me carry a rifle the first man I want to get in my sights is L. B. J. . . . They are not going to make me kill my black brothers.” As the Supreme Court explained in Virginia v. Black (2003), unless the words are “a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,” they do not amount to an unprotected “true threat.”
Montclair, perhaps unwilling to make a First Amendment argument on behalf of a new, unproven adjunct, has instead ducked the issue altogether by denying that it ever hired Allred at all:
Kevin Allred has never been an employee of Montclair State University, is not one at this time, and the University has not made any formal offer of employment to him.
That position does not square with emails Allred has shared with FIRE, which document assurances by multiple Montclair directors, over a seven-month period, that Allred had been “hired” to teach specific courses at Montclair.
In January, Allred emailed the director of Montclair’s Gender, Sexuality, and Women’s Studies Program who, after some back-and-forth, informed Allred that he had been scheduled to teach specific courses on particular days and times during the fall and spring semesters. Allred was also told how much he would be paid, and that the “official hiring process” would take place in “late Spring or early Summer.” That process would involve sending Montclair letters of recommendation, transcripts, and coming to Montclair to fill out Form I-9, which is used to establish an employee’s identity. In May, Allred inquired whether Montclair “needed anything from me to finalize things for the fall,” and was told that he would be contacted by a program assistant to complete “some paperwork.”
Exactly as described, a Montclair program assistant contacted Allred in early June with a list of documents to fill out. Two weeks later, Dr. Fawzia Afzal-Khan emailed Allred to introduce herself:
I'm the current director of the Gender, Sexuality and Women's Studies Program at MSU and wanted to introduce myself as I know you've been hired to teach some of our courses starting this fall. [...]
If that weren’t enough, emails provided by Allred also indicate:
- Allred was asked to, and did, provide syllabi for courses he would be teaching;
- Allred was provided with a montclair.edu email address and added to the faculty listserv;
- Allred was asked to provide a form, referring to him as the “Employee,” concerning his pension;
- Allred was asked to provide information to set up payment by direct deposit;
- Allred’s biography and photograph were posted to the department’s website, listing the courses he would teach, and removed only after the controversy arose (but we managed to save a copy);
- Allred went to Montclair’s Human Resources office to complete a Form I-9 — which requires the employer to identify the “first day of employment” and requires signatures of both “employer” and “employee.” Under federal regulations, the form must be completed “at the time of hire.” Additionally, the U.S. Citizenship and Immigration Services warns that an employee with a future start date “MUST have accepted an employment offer before you may complete Form I-9.”
None of this is consistent with merely prospective employment, so we’re skeptical of Montclair’s claim that it never employed Allred.
If Allred was hired, then he could not lawfully be terminated for his tweets, which are unequivocally protected by the First Amendment. Yet that is exactly what Montclair did.
When Allred emailed Montclair about the controversy, a Montclair dean emailed Allred, with emphasis added:
This is in response to your e-mail earlier today . . . regarding your potential employment as an adjunct professor at Montclair State. Please be advised that the University will not be extending you a formal offer of employment as an Adjunct Professor. Thank you for your interest in the position.
That’s why we sent Montclair a letter today asking the university to clarify the matter and, if its claim that it never employed Allred is indefensible, calling on the university to reinstate his employment. We have also, pursuant to New Jersey’s public records laws, asked Montclair to provide documents related to the matter.
We’d encourage you to email Montclair’s administrators to join us in asking for an explanation, but we’ve been led to believe that Montclair will give you a montclair.edu email address even if you’re not an employee.
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