Yesterday, the leadership of the University of California, Davis, publicly rejected calls for the termination of Joshua Clover, a professor whose years-old tweets about police officers drew condemnations from the university’s College Republicans, law enforcement officials, and members of the California State Assembly, who introduced a resolution in the state legislature calling for Clover’s termination.
Clover’s extramural comments were protected by the First Amendment, as my colleague Sarah McLaughlin explained in a letter from FIRE to UC Davis, and the university is legally barred from disciplining him for those comments.
Chancellor May’s letter to state legislator James Gallagher, who represents an adjacent district in the California State Assembly, reads, with emphasis added:
Dear Assemblymember Gallagher:
I am writing as a follow-up to my letter of March 4, 2019, regarding your concerns about the public statements made by Professor Joshua Clover that have been the subject of recent news reports. In response to the concerns voiced by you and other members of the community, I asked the campus’s academic personnel team to consider whether his statements could be subject to review under the University of California’s Faculty Code of Conduct (APM 015).
As you know, the UC Davis administration condemns the statements made by Professor Clover on Twitter in 2014 and in an interview published on September 17, 2015, and January 31, 2017. These statements do not reflect our institutional values. We respect and support law enforcement and believe that the UC Davis Police Department officers and staff and Chief Joe Farrow are critical partners with our entire academic community.
The university has carefully considered the matter and consulted with legal counsel for a formal opinion as to whether the statements made by Professor Clover may be subject to discipline or whether the statements are protected by the First Amendment of the United States Constitution and Article I, Section 2, of the California Constitution. Both the US and California constitutions protect the speech of public university employees if the speech addresses matters of public concern and the university’s interests as an employer do not outweigh the employees’ interest in speaking.
Professor Clover’s statements, although offensive and abhorrent, do not meet the legal requirement for “true threats” that might exempt them from First Amendment protection. UC Davis places a high value on civility in the academic community, but the desire to promote these values does not outweigh the rights of professors to express themselves on political issues, even if their expression is deeply repellent to members of our community and the public.
In addition to existing state and federal constitutional requirements, the university is subject to President Trump’s March 22, 2019, executive order directing federal agencies to take steps to ensure that institutions receiving federal research or education grants promote free inquiry in a manner consistent with applicable law, including the First Amendment. Failure to protect the First Amendment rights of university faculty could not only lead to legal consequences for violating the Constitution, but also could result in a loss of federal funding which is critical to the university’s research and teaching mission. Accordingly, the university will not proceed with review or investigation of concerns regarding Professor Clover’s public statements.
I understand this may not be the outcome you seek, but I appreciate your willingness to share your views on this matter with the university administration very much. I assure you we will continue our efforts to make the campus a productive working and learning environment in support of our mission to serve society through discovering and advancing knowledge.
Gary S. May
This is the correct result. By responding to protected speech it finds offensive by criticizing or condemning the remarks, the university has exercised the option available to it under the First Amendment. But the First Amendment forbids UC Davis, a state university, from terminating or disciplining a faculty member for extramural speech on a matter of public concern, and the First Amendment’s protection is not limited to civil, sober, or respectful speech.
Chancellor May’s letter also cautiously invokes the president’s recent executive order directing various federal agencies to draw up requirements concerning the protection of freedom of expression at universities and colleges. It’s not clear whether those as-yet unwritten requirements would apply to an isolated infringement of a faculty member’s First Amendment rights — as opposed to, for example, maintenance of a policy or some other form of systemic, continuous practice. Regardless of the executive order’s eventual impact or requirements, May is both wise and legally obligated to exercise caution consistent with the university’s First Amendment obligations.
Calls for UC Davis to terminate Clover — including those by legislators and law enforcement officials — are calls for UC Davis to violate well-established First Amendment jurisprudence. The university is right to reject them and deserves credit for publicly defending faculty members’ expressive rights.