This week, Rutgers University suspended adjunct professor Kevin Allred, apparently over tweets and statements concerning the outcome of the 2016 presidential election. Allred’s suspension came several days after he was detained by law enforcement and quickly released following a psychiatric evaluation. Allred’s tweets, while hyperbolic, do not rise to the level of a “true threat” unprotected by the First Amendment, and Rutgers’ refusal to clarify whether it suspended Allred over protected political speech risks a chilling effect on the speech of its faculty and students. If Allred was suspended from teaching solely over his tweets, Rutgers is in the wrong.
On the morning following the election, Allred tweeted:
if i see any Trump bumper stickers on the road today, my brakes will go out and i'll run you off the road.
— Kevin Allred (@KevinAllred) November 9, 2016
That evening, Allred tweeted:
Neither tweet falls outside the bounds of the First Amendment. In context, both tweets are the sort of hyperbolic political speech that the Supreme Court has recognized as falling short of an unprotected “true threat.” In Watts v. United States (1969), a man at a protest against the war in Vietnam remarked that he might be drafted and would soon have to undergo a physical examination. He continued: “I am not going. If they ever make me carry a rifle the first man I want to get in my sights is [President] L. B. J. … They are not going to make me kill my black brothers.”
Threats against the president are, of course, among those viewed most seriously by law enforcement and the public. The Supreme Court, however, urged restraint in the face of the context and “the kind of political hyperbole” exhibited by the speaker. “The language of the political arena … is often vituperative, abusive, and inexact,” the Court reasoned, and this “crude offensive method of stating a political opposition” could not be read as a true threat. Where political speech is concerned, the Court observed that alleged threats must be measured “against the background of a 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.”
Both of Allred’s tweets fall short of the “true threat” mark. The first, like the threat in Watts, is conditional: “if I see any Trump bumper stickers on the road today … .” In the wake of a hotly-contested political campaign, hyperbolic political speech is common and, while it may not convert future voters, it can have a cathartic effect.
The second tweet draws closer to “true threat” territory by using predictive, rather than conditional, language (“when” instead of “if”). However, Allred’s use of the rolling-eyes emoji, along with the wide latitude granted to political speech, makes it difficult to read the tweet as a sincere expression of an intent to cause fear or harm.
In another series of tweets, Allred joked that he might burn or cut up an American flag in class:
i'm not even joking. i'm at target right now trying to buy a flag, scissors, and cigarette lighters.
— Kevin Allred (@KevinAllred) November 9, 2016
Burning or mutilating a flag you own is protected by the First Amendment. While Rutgers might impose regulations that incidentally prevent such speech (for example, a prohibition on all open flames), Allred ultimately didn’t burn or cut up an American flag, instead choosing to discuss doing so during class. But if actually burning a flag is protected by the First Amendment, then it naturally follows that talking about theoretically burning a flag is protected speech.
That much we know. Some of what transpired is not clear. Allred relayed via Twitter that the responding police officers indicated that the concern was raised by both his statements on Twitter (which are public) and his remarks on campus (which we do not know). We also do not know what police officers observed when they first made contact with Allred. But we do know that, whatever those classroom statements were, and whatever the officers observed (if anything), a doctor apparently concluded that Allred was not a threat to himself or others. Allred later returned to teach class.
That makes Rutgers’ suspension of Allred—after he resumed teaching—both puzzling and chilling. If Rutgers had a sincere reason to believe that Allred presented a threat, aside from his protected speech, it could have easily made that clear. Rutgers’ statement to Inside Higher Ed is unilluminating:
We will not comment on the specifics of an individual personnel matter. As a general rule, however, when the university is presented with allegations of threats to public safety, we take those allegations very seriously and have an obligation to investigate. Mr. Allred — a part-time lecturer — has been placed on administrative leave and will therefore not be teaching.
When I reached out to Rutgers University inquiring whether Allred was suspended for some conduct or threat other than his tweets and classroom remarks, and inviting Rutgers to clarify the matter, I received no response whatsoever—not a “no comment,” not a terse affirmation of Rutgers’ respect for freedom of speech, and not even a copy-and-paste version of the unilluminating statement offered to Inside Higher Ed. Silence.
That’s not helpful. For all the faculty, students, or public know, Allred’s suspension is based on political speech protected by the First Amendment. If Rutgers’ acts are based on something other than Allred’s protected speech, Rutgers must make clear that students and faculty members will not be detained and suspended based on hyperbolic, political speech. If, instead, Rutgers’ acts are based on protected, political speech, it is legally obligated to desist from its current path, reinstate Allred posthaste, and reassure its community that students and professors will not be detained, investigated, or suspended for protected political speech.
FIRE will continue to monitor the situation and hopes that Rutgers discontinues its chilling conduct.