February 15, 2002: The intended firing of tenured University of South Florida (USF) Professor Sami Al-Arian has sparked a national controversy and opened political debate on topics as varied as the limits of freedom, complicity with terrorism, media responsibility, incitement, and racial discrimination. While these arguments will likely rage on, one fact is frighteningly clear: If USF’s justification for firing Dr. Al-Arian is deemed legitimate, both free speech and academic freedom on college campuses will be devastated.
On September 26, 2001, Dr. Al-Arian appeared on the television program The O’Reilly Factor. On the program the host represented him as sympathetic to (and possibly involved with) terrorist activity, which Dr. Al-Arian repeatedly denied. In the wake of the interview, the University claimed that it began receiving hate mail, death threats, negative media attention, and a reduction in donations from alumni. On December 19, 2001, the Board of Trustees approved the recommendation of University President Judy Genshaft and resolved to terminate Dr. Al-Arian, finding that his “activities…outside the scope of his employment…have had an adverse impact on the legitimate interests of the University.”
On that same day, USF simultaneously released the opinion of President Judy Genshaft, the legal opinion, by Thomas Gonzalez, supporting Genshaft’s position, and the decision of the Board of Trustees to terminate Dr. Al-Arian, and it sent Dr. Al-Arian a letter of intent to terminate his tenure and employment. FIRE has already addressed the factual allegations and the alleged basis for the termination in its January 29, 2002 letter to President Genshaft. None of USF’s allegations—the only issues raised by USF in this case—would be sufficient to allow them to fire a tenured professor, even if all of the allegations were true. However, it is essential to understand and to analyze the fundamental reason that USF gave for the termination—the alleged disruption of the University. Public and academic opinion must understand why that reason has to be rejected, and rejected vigorously.
The Presumption of Innocence?
On The O’Reilly Factor and in the local media, Dr. Al-Arian has done little more than find himself accused of knowing criminals, of having made radical or extremist statements in the past, and of having radical or extremist political beliefs. The belief that a tenured professor may be fired because of unproven suspicions of impropriety turns the justice system on its head. “Innocent until proven guilty” is a fundamental right guaranteed by decency and contract at private institutions, and, in the case of this public university, guaranteed by the Constitution of the United States. Firing Dr. Al-Arian because of public pressure generated by these suspicions is no different from simply firing him for the suspicions themselves. In the past, USF investigated Dr. Al-Arian and exonerated him; the courts exonerated the organization he had been affiliated with that had been the center of the allegations; the FBI investigated Dr. Al-Arian and never charged him with any wrongdoing. Those are the facts. USF is implicitly finding Dr. Al-Arian guilty despite that public record, and it has asserted no other set of facts that might justify his termination after an impartial hearing.
USF Is Bound by Both the First Amendment and by Academic Freedom
USF is a public institution of higher education. As such, it is bound not only by the principles of academic freedom, but also by the First Amendment, which prohibits governmental agencies from abridging freedom of speech, press, and association. While the firing of Dr. Al-Arian by a private university would be an outrage and an assault on academic freedom, it would violate the law only if there were a basis for arguing that, for example, some contractual right of the professor had been violated. In the case of a public university, however, the First Amendment legally prohibits governmental incursions into these freedoms. Thus, USF has acted in a manner that is both morally and legally repugnant.
Punished Not for His Speech, but for the Reaction to His Speech
In order to identify some action on Dr. Al-Arian’s part that would justify his termination, the University refers the public to his political speech concerning the Middle East. Because it is almost certainly unconstitutional for a public university to fire a tenured professor for speaking off campus, as a private citizen, on a matter of global concern that is not related at all to university administration, USF takes an additional leap. They explain that they are not firing Dr. Al-Arian for his speech, but rather because of the negative reaction that his speech has “caused.” Although the only actual speech mentioned during The O’Reilly Factor were statements made long ago, and although the alleged torrent of criticism is almost certainly a response to what remains unproven allegations against him, and not to his speech, we will accept, for the sake of argument in this policy statement, USF’s claim that the reaction to Dr. Al-Arian’s speech was the reason for the termination.
The idea that speech is still free when the speaker can be punished if people respond too strongly has long been discredited. People are normally presumed to be responsible for their own reactions to opinions or events, both in our justice system and in our society. Individuals may be held responsible for inciting the actions of others only when they (the speakers) directly advocate “imminent lawless action” directly to those individuals likely to produce it. It is also required that the advocacy be “likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444 (1969). The only other area of Constitutional law where a person can be considered responsible for the reaction to his political speech is the so-called “fighting words doctrine” from the now-discredited 1942 Supreme Court case of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). There is serious doubt as to whether or not this doctrine is still applicable law in the light of subsequent Supreme Court decisions. Assuming, for the sake of argument, that it is, Chaplinsky requires speech directed at an individual by the speaker that would prompt a “reasonable person to violence.” (For an explanation and critique of the “fighting words” doctrine, see Alan Charles Kors and Harvey A. Silverglate, The Shadow University: The Betrayal of Liberty on America’s Campuses [Harper/Perennial, 1999]). In any event, general political advocacy does not constitute either incitement or fighting words and enjoys the “core” protection of the First Amendment. Making one person’s political advocacy the “cause” of the harmful or unlawful action of those who disagree with it not only makes troubling assumptions about free will, but also could suffocate all core political speech.
Granting a Heckler’s Veto
Allowing people to be punished because of the hostile reactions of others to protected political speech confers what is called a “heckler’s veto” upon anyone who would want to silence speech. If we punish people on the basis of how harshly or violently people might react to their words, we create an incentive for those who disagree to react violently. We thereby confer a veto of speech to the least tolerant, most dangerous, and most illiberal members of society. Since this would result in a downward spiral to mob rule, it is extremely dangerous to all of our freedoms ever to grant a heckler’s veto. The fear that USF’s statement could be construed to mean that anyone making death threats would be rewarded should have prevented USF from capitulating to outside threats. Unimaginably, USF has not only granted a heckler’s veto, and thereby endangered all our freedoms, but has publicly based its decision on this premise.
History, Law, and “Inflammatory” Speech
The historical argument against punishing people because of an outcry against their political speech is overwhelming. The first obvious point is the existence of the First Amendment. No separate amendment would be required to protect popular majority speech; the First Amendment exists, as a practical matter, to protect unpopular speech. To deny the government the power to ban unpopular speech directly, but to allow the government to silence such speech when it is threatened by mob rule, would utterly defeat the protections of the Constitution and would devastate the open exchange of ideas that is essential to the survival of democracy and liberty.
One of the first great national debates about “inflammatory speech” (the discredited idea that speech could be criminal if it was too inspiring) occurred during the 1830s and concerned southern attempts to ban abolitionist speech. At this point in American history, some accepted the idea that, although the government could not punish unpopular speech, the public was free to do so with impunity. After the murder of an abolitionist reverend in 1837, however, the northern public began to recognize that freedom of speech means nothing if “the mob” can decide which speakers and opinions live and die.
Free speech in the South, however, still had a long way to go. In 1859, the entire faculty of Berea College in Kentucky was driven from the college for being pro-abolition. Even after the Civil War, speech in the South was suppressed by mobs, Jim Crow laws, and the Ku Klux Klan. Throughout the era of the civil rights movement, a vocal minority relied on death threats, intimidation, and other means of coercion to prevent desegregation. As a southern university, USF should be acutely aware of the necessity to stand up to threats and intimidation, and the evil that results from sacrificing freedom for momentary peace.
First Amendment Jurisprudence in Pickering and Waters
To justify the firing legally, or at least to put a thin legal veneer on this disgraceful action, USF retained attorney Thomas Gonzalez, whose legal opinion was released on December 19, 2001, in conjunction with the announcement of Dr. Al-Arian’s termination. Mr. Gonzalez’s legal opinion relied primarily on two cases: Pickering v. Board of Education of Township High School District, 391 U.S. 563 (1968), and Waters v. Churchill, 511 U.S. 661 (1994). While FIRE maintains that the Al-Arian case is best understood through the line of Court decisions involving “incitement,” because it indeed relates to a “disruption” that Dr. Al-Arian allegedly incited, we will briefly examine the cases upon which USF relies.
In Pickering, a high school teacher’s termination was reversed after he was fired for writing a letter that was published in the local newspaper. The letter was critical of the school board and of the superintendent of schools. The board fired the teacher for reasons that included their opinion that the letter “would be disruptive of faculty discipline.” Pickering at 567. The Supreme Court held that “absent proof of false statements knowingly or recklessly made by [Pickering], a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.” Ibid at 575. Pickering is still considered good law, and its unequivocal protection of teachers’ right to free speech argues against firing Dr. Al-Arian, rather than justifying his dismissal.
The source of the ambiguity in the case of Dr. Al-Arian is the controversial Waters plurality opinion. (A “plurality opinion” is one in which a majority of the members of the court agree on the result, but not on a single opinion, reasoning, or ground. Such opinions normally have diminished force as legal precedents, as a practical matter.) In Waters, the Supreme Court allowed a public hospital to fire a nurse who privately criticized the hospital administration and its policies to another nurse who was considering transferring to her department. The Supreme Court based this decision on Connick v. Myers, 461 U.S. 138 (1983), a case in which the Supreme Court allowed the firing of a public employee who circulated a questionnaire to her workmates in protest of her intended transfer. The way the court in Waters describes the “Connick test” provides the basis for the argument that Gonzalez makes: that a university professor can be fired because of the negative reaction of outside parties to his purported views on matters of public concern.
There are several reasons why Waters should not be interpreted to allow this, and why Waters is most likely not applicable to this case:
1) The Pickering-Connick-Waters cases are concerned only with situations in which the speech in question is direct criticism of the speaker’s employer AND where the claimed disruption comes directly from this speech. In Dr. Al-Arian’s case his speech has nothing to do with USF, its administration, or his managers. The only form of “disruption” relevant in the Pickering-Connick-Waters line of cases is the disruption created by the employee who criticizes, in a particularly disruptive manner, his employers (in Connick this disruption was considered a “mini insurrection” against the employer). These cases do not limit the protection afforded by the First Amendment to a speaker whose “disruption” was caused by angry outside parties.
2) Even accepting a broad reading of Waters, this case was not intended to apply to the special university setting. To do so would mean that university professors are to be thought of in the same way as any other federal or state employees hired to complete a discreet, limited function. This application completely ignores the line of Supreme Court cases that recognize the special protections of academic freedom and the greater need for free speech in this environment (see Keyishian v. Board of Regents, 385 U.S. 589 ). At most, Waters can be applied to managerial positions at a university, where “the efficiency” of the service provided is a primary goal, but it should not apply to professors whose mission is to contribute to the search for knowledge. Even when professors are engaged in scholarly debate outside of their disciplines, it is still perfectly consistent with the overall role of a university to discuss matters of public concern; therefore, professors who do this cannot be punished. Any attempt to regulate scholarly discussion for not being efficient in achieving the “public service” of a university is nonsensical.
3) The time, place, and manner of Dr. Al-Arian’s speech makes it fully protected. Connick and Waters both held that the time, place, and manner of the speech is relevant to deciding if a public institution can punish it. Unlike the speech in question in Waters and Connick, Dr. Al-Arian’s speech took place outside of working hours and of the work setting, and not through any university-affiliated media. The time, place, and manner of Dr. Al-Arian’s expression of his views were all beyond the power of a University to punish.
4) Public employees cannot be punished for public speech that is exclusively about matters of public concern. The holding in Waters was to follow Connick and to make a decision about evidence in government-as-employer cases. Considering this clear fact, and that Waters was a plurality opinion in which a majority of the court could not agree on a correct basis for the decision, Connick and Pickering should be considered the controlling cases. Pickering is very clear that speech by a teacher concerning a matter of public concern cannot be punished, and Connick was quite clear that it should be understood as a case in which the speech in question “touched upon matters of public concern in only a most limited sense” and was “most accurately characterized as an employee grievance concerning internal office policy.” Connick at 154. Therefore, since Dr. Al-Arian’s speech was exclusively about a matter of public concern, it is obvious that he may not be punished for his speech either on the television program or earlier, during the course of his scholarly pursuits concerning the Middle East.
In some jurisdictions, Waters has been interpreted in some troublesome ways for free speech generally, but not in ways that support USF’s firing of Dr. Al-Arian. Perhaps the most disturbing case based on Waters was Jeffries v. Harleston, 52 F.3d 9 (1995). In this case, the U.S. Court of Appeals for the Second Circuit allowed a state university to reduce the term of a professor’s departmental chairmanship after he made offensive comments that implicated some of his coworkers. FIRE maintains that this case is not consistent with the Supreme Court’s decisions. Further, it almost certainly does not apply in the present case because it involved direct disruption and criticism by an employee of his place of employment, and a managerial position not afforded the special protections of academic freedom. Indeed, Jeffries even recognized “that academic freedom is an important First Amendment concern.” The Second Circuit allowed this action only because “the position of department chair—is ministerial” and therefore did not warrant the special protections afforded university professors. Jeffries at 14. This demonstrates that in even the most unfavorable of circumstances, where the Waters case is interpreted in an overbroad fashion, Dr. Al-Arian would still be allowed to profess his beliefs on topics of public concern without fear of dismissal.
In her statement to the Board of Trustees, President Genshaft says, “for us to fulfill our mission, the faculty and students who do academic work within the University—and the people in the world beyond our borders—must have confidence that our scholars are free to pursue ideas wherever they may lead, without fear of political reprisal if they express disturbing ideas or government pressure to distort ideas for political reasons.”
In the paragraph after this ringing endorsement of expansive intellectual inquiry, Genshaft denies that this case has anything to do with academic freedom. Genshaft limits Dr. Al-Arian’s academic freedom to only those issues that fit “within the scope of his employment.” First of all, what constitutes the “scope of his employment” is a far narrower standard than what should be protected by academic freedom. Academic freedom requires professors, both as professors and as private individuals, to be part of the great discussions that universities exist to foster. Universities must strive to have faculty and students who are engrossed in intellectual debate and inquiry and who are unafraid to state their deeply held beliefs. There can be no greater threat to academic freedom than the “chilling effect” on free speech, the creation of an environment in which people will hesitate even to broach topics because they might be punished for simply expressing ideas or opinions. Genshaft has taken an action that will not only chill robust discourse at USF but will send a warning to all faculty and students at all universities across the country.
Second, Genshaft’s narrow interpretation of academic freedom ignores the fact that, before he was tenured and after he was granted tenure, Dr. Al-Arian was the president of the World and Islam Studies Enterprise (WISE), with which USF had formal agreements and which it recognized as a scholarly organization. USF cannot claim that Dr. Al-Arian’s scholarly activity with a USF-recognized organization is somehow outside the scope of academic freedom when USF clearly thought WISE’s academic mission was important enough to warrant aid and cooperation for years. This being true, USF should not claim that his appearance on a TV talk show to discuss a topic directly related to this scholarly interest was outside the protections of academic freedom, even if this appearance turned out to be, essentially, a critical and personal attack on Dr. Al-Arian himself.
This case is particularly egregious, since it involves dismissal of a tenured faculty member. Tenure was devised in order to aid academic freedom-to give faculty members assurance that they will not be dismissed for their expression of unpopular views or because of other outside political factors, including the imputation of protected or unproven political beliefs or associations by outside parties. It is especially important in situations where the reason given for the dismissal (here, campus security) may plausibly be seen as a cover for the real reason—which may simply be the unpopular views. Of course, either reason would be unacceptable from the point of view of academic freedom. Ultimately, it does not matter whether the USF administration is suppressing Dr. Al-Arian’s views, or whether outside violent hecklers are doing so—the results are equally devastating for academic freedom.
AAUP’s Position on a Faculty’s Right to Speak as Citizens
A peculiarity of both Genshaft’s and Gonzalez’s statements is that they quote from the American Association of University Professors’ (AAUP) policies in order to strengthen their position, despite the fact that the AAUP guidelines completely support Dr. Al-Arian’s free speech rights. USF’s quotations from the AAUP guidelines add little to their argument, but, crucially, USF completely ignores the AAUP’s unambiguous statements upholding the right of professors, like Dr. Al-Arian, to express their opinions in public, without fear of reprisal from the University. In its 1964 amendment to its 1940 statement, AAUP issued a Statement on Extramural Utterances, concerning a professor’s right to speak as a citizen on topics outside the university. It states: “The controlling principle is that a faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness to serve.” They emphasize this by adding: “Extramural utterances rarely bear upon the faculty member’s fitness for continuing service.” The Statement goes on to say:
“In the absence of weighty evidence of unfitness, the administration should not prefer charges; and if it is not clearly proven in the hearing that the faculty member is unfit to continue, the faculty committee should make a finding in favor of the faculty member concerned. In the words of the 1940 Statement of Principles, “the administration should remember that teachers are citizens and should be accorded the freedom of citizens.” In a democratic society freedom of speech is an indispensable right of the citizen. Committee A will vigorously uphold that right.
USF has never tried to argue that Dr. Al-Arian is unfit as a computer science professor; in fact his teaching ability has been roundly applauded. Furthermore, having opinions on the Middle East that some may find controversial has no bearing on whether he is fit to teach computer science. USF must understand that, in taking this action against Dr. Al-Arian, they are baldly defying the clearly stated principles of the AAUP, not abiding by them.
Policy and Repercussions
If allowed to stand, USF’s decision to fire Dr. Al-Arian—its stated reasons—would threaten the very existence of free speech and academic freedom on American campuses. Once universities know that unpopular professors can be eliminated by the claim that their unpopularity is damaging to the university, many colleges will take advantage of this to eliminate professors who arouse controversy, who create too much trouble for the administration, or who simply do not toe the line with respect to institutional politics. Imagine the following examples: a vocally pro-choice math professor in a conservative rural institution; a vocally pro-life classics professor in a liberal urban institution; a science professor who stridently supports the war on terrorism at a school that overwhelmingly opposes it; a history professor who believes the admission policies of American universities are racist and classist, at a university that practices those very policies. If any of these professors ever received death threats, or negative publicity, or were the occasions of, or blamed for, a drop in funding, the university president could easily use USF’s rationale and dismiss each one of them.
Conclusion: Putting Free Speech to a Vote
Part of this problem is that universities are increasingly viewed, and increasingly view themselves, as businesses, producing a product and profit and providing students with a serene, predictable experience. Modern universities are often run by administrators who lack any academic background outside of managerial posts, and who are more concerned about calm and donations than about rigorous scholarship, robust discourse, and the search for truth. Rather than protect liberty and academic freedom from mob rule, some universities would prefer to appease the angry mob. Letting the decision of USF stand permits careerist administrators to put free speech to a vote: the ideas that people find untroubling are left unmolested, while ideas that may cause too much trouble, too much debate, and too much thought are abandoned. We will be left with universities that reflect only the prevailing beliefs of the age, that honor familiarity above novelty, that place the idea of challenging one’s own beliefs well behind the values of calm, politeness, and conformity. In other words, instead of being a crucible of vigorous debate and thought-provoking ideas, universities will become a stagnant pool of safe ideas, mainstream politics, and conventional minds.
People must see beyond the particular case of Dr. Al-Arian and understand the dreadful and arbitrary authority that his termination on these grounds—if allowed to stand—would bring into being or would reinforce. We at FIRE hope that USF will come to understand the gravity of this action and will do its best to undo the damage it has already done to academic freedom and freedom of speech in American higher education.
Greg Lukianoff, Attorney, FIRE Director of Legal and Public Advocacy, email@example.com
Harvey A. Silverglate, Attorney, FIRE Vice-President and Co-Director of the Board