Using Free Speech to Stifle Free Speech

BY DAVID MOSHMAN

TPUSA_table

A Turning Point USA booth outside the University of Nebraska–Lincoln student union on August 29, 2017. Photo by Julian Tirtadjaja, courtesy of the Daily Nebraskan.

People often use their freedom of speech to disrupt the speech of others, especially on college campuses in recent years. Of course people have a right to protest, provided they are sufficiently quiet, brief, or distant so as not to prevent the speaker from being heard.

On August 25, University of Nebraska–Lincoln sophomore Kaitlyn Mullen set up a literature table outside the student union to promote Turning Point USA, a libertarian/conservative campus-based organization. TPUSA proclaims its support for free speech but maintains Professor Watchlist, a blacklist of professors who have expressed leftist ideas, in or out of class.

Before long, there were people demonstrating against TPUSA. One English professor held a sign asking to be placed on the blacklist. She was close enough to be seen by anyone approaching the table but not close enough to inhibit anyone from looking at the literature or engaging Mullen.

Five other protesters were more aggressive, sometimes in concert. At least two engaged in extended hostile chants about TPUSA from close by, sometimes as little as a meter away. One repeatedly denounced Mullen as a neo-fascist (a label she rejects) and, at one point, flipped her off. She was eventually reduced to tears and says the two nearby protesters, although they stopped chanting, mocked her for crying.

Were the protesters so loud, close, and abusive that they hindered Mullen’s ability to talk with students interested in her literature? Did they violate Mullen’s freedom of speech?  Did some potentially interested students pass on by to avoid a nasty situation rather than talk with the beleaguered student at the table and run the risk of being targeted by protesters as another young fascist?

If these were all students, even the most aggressive of the protesters might be protected by the First Amendment. Rather than scrutinize the student code of conduct for potential violations, it might be better for university authorities to announce that they are disappointed with the behavior of the protesters and explain why students should do their best to engage in civil argumentation.

But one of the most aggressive protesters was a graduate student in English who also served as a lecturer. UNL may reasonably require its employees to treat its students respectfully, and may especially expect teachers to actively encourage and promote students’ intellectual freedom, at least for students in their classes.

Over the next few days the encounter received extensive publicity. UNL was denounced and threatened by many, including donors and government officials. Faced with a public relations crisis and financial threats, UNL initiated a secret administrative process that resulted in a decision to satisfy Nebraskans by removing the lecturer from the classroom but to appease faculty concerns about academic freedom by claiming this was for security reasons, not disciplinary reasons.

But this is highly problematic. There is no violation of academic freedom if one removes a teacher from a classroom for academic reasons on the basis of a decision made through normal academic processes. If the English department, in which the lecturer was already teaching, had determined that this incident, given her history, showed her academically unfit to teach, there would be no threat to academic freedom.

But UNL claimed its decision was not based on academic considerations such as quality of teaching or fairness to students; it was a decision to yield to external pressures. In that case, the stakes expand. For UNL’s selection of instructors to be compromised by external pressures undermines the fundamental academic integrity of the university as a place where academic determinations are made on academic grounds.

In the present case, moreover, the threats were relatively minimal. This sends a strong message to those who object to UNL curricula or faculty: It doesn’t take much to get UNL to compromise its academic freedom. It doesn’t require death threats, which could result in criminal charges. You just need to briefly spew a bunch of nasty stuff or threaten the budget. This is a heckler’s veto gone wild.

The issues in this complex case include free speech for students and teachers in and out of the classroom, the scope and justification of academic freedom, and the academic integrity of the university. In my new article, “Academic Freedom as the Freedom to do Academic Work,” written before all this and just published in the AAUP Journal of Academic Freedom, I have tried to coordinate these considerations and more to provide a general account of academic freedom.

Guest blogger David Moshman is Professor Emeritus of Educational Psychology at the University of Nebraska–Lincoln and past president of the UNL AAUP chapter, the ACLU of Nebraska, and the Academic Freedom Coalition of Nebraska. The author of Liberty and Learning: Academic Freedom for Teachers and Students, he blogs on intellectual freedom in education for the Huffington Post.


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4 thoughts on “Using Free Speech to Stifle Free Speech

  1. I think this example displays why it’s wrong to believe in the narrow philosophy that “Academic freedom is defined as the freedom to do academic work.”

    Moshman argues, “one of the most aggressive protesters was a graduate student in English who also served as a lecturer. UNL may reasonably require its employees to treat its students respectfully.” No, they can’t, not outside the classroom. Do campus employees have to inquire if every person they meet is a student before they’re allowed to be disrespectful? And “disrespect” is not always bad. A “respect” requirement is a bad idea within the classroom because it’s a vague and broad term, but it’s especially dangerous to require of employees 24/7, even in their private lives.

    Moshman added, “If the English department, in which the lecturer was already teaching, had determined that this incident, given her history, showed her academically unfit to teach, there would be no threat to academic freedom.” I think that’s wrong. Punishing a teacher for her extramural utterances, that have nothing to do with her teaching or academic work, is fundamentally a threat to academic freedom. And faculty can violate the academic freedom of other faculty.

    Moshman and I are on the same side here because the administration threatened academic freedom, not the faculty. But I think academic freedom should have an intrinsic, objective meaning, and not be dependent on who engages in the repression of it.

    • I usually agree with John K. Wilson on matters of free speech and academic freedom and think we are not as far apart in the present case as it may initially seem. But the facts of this case are complex and still emerging. Let me focus for now on the most general issue: In my JAF article (see final paragraph of the post) I define academic freedom as “the freedom to do academic work.” Is this, as Wilson suggests, too “narrow”?

      One key argument of my JAF article is that students and teachers at all levels of education are engaged in academic work and require the freedom to do that work, which I label “academic freedom.” So in this respect my conception of academic freedom is quite broad. One of the reviewers for JAF wrote that my article offers “the best rationale I’ve encountered for the notion of ‘student academic freedom.’”

      But my conception of academic freedom is indeed narrower than that of Wilson (and of AAUP) in that I see public speech as a democratic right of all people, not a special right of professors. I fully support the right of professors to speak publicly without fear for their jobs but I see this as a general right of all employees, not a special right of those who have academic freedom.

      • I’m pleased that David Moshman advocates a broader sense of academic freedom than most, one that encompasses students. But the problem with “freedom to do academic work” is that it is too narrow and too restricted. Too narrow because freedom of non-academic work (such as extramural utterances) has been part of the AAUP’s definition of academic freedom for more than a century. And too restricted because the freedom to do academic work is usually limited by academic standards, which is a very high standard that shouldn’t apply to many situations (personal opinions, speakers being invited to campus, etc.).

        I agree that the right to speak without fear of firing should be a general right of all employees. But that doesn’t mean it can’t also be a part of academic freedom. I disagree with the idea that academic freedom only refers to special rights that no one outside academia can have. Instead, what makes academia special is the special commitment to what should be general freedoms, not the commitment to a special set of freedoms only found in academia.

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