BY JOHN K. WILSON
Last year, after DePaul philosophy professor Jason Hill published an anti-Palestinian article that drew protests, I wrote a post titled “In Defense of Jason Hill and His Critics” in which I noted that Hill should not be punished for his offensive right-wing views–but also pointing out that Hill, in fact, hadn’t been punished and even those protesting his ideas did not call for his dismissal.
On April 20, Hill filed a lawsuit against DePaul University, Provost Salma Ghanem, and Scott Paeth, the President of the DePaul Faculty Council, accusing them of defamation and discrimination.
Hill’s lawsuit claims that Ghanem is guilty for declaring: “I am deeply saddened that Professor Hill used his right to academic freedom and free speech to disparage one group over another.”
Paeth led a resolution in the Faculty Council claiming that Hill “distorts facts,” “promotes racism,” and “advocates for war crimes and ethnic cleansing.” DePaul “failed to follow those procedures” and “completely subverted those procedures” by allowing people at DePaul to “publicly affirm Dr. Hill’s guilt….”
In this bizarre interpretation, Hill argues that DePaul violated his rights by not trying to punish him and instead engaging in counterspeech to criticize his ideas. Hill is demanding that DePaul censor his critics: “DePaul also allowed students to hold massive demonstrations against him” and “distributed thousands of leaflets with his picture on them calling him a racist, a xenophobe, a sexist….”
Hill also complains that he only had to teach two classes in Fall 2019, with 8 and 12 students because students have boycotted his classes.
Hill also makes a bizarre contention that he is the victim of discrimination because he is a black gay man who has “departed from the opinion defendants have deemed permissible and acceptable for someone of his race and sexual orientation.” It would be a strange argument in any lawsuit, but it’s especially strange when made against DePaul, which has fired at least two other professors, both white, for their controversial opinions about Israel and Palestine.
The lawsuit claims that there was “explicit censorship of Dr. Hill’s future speech” because one section of the original Faculty Council resolution urged Hill to “refrain from abusing his freedom.”
Hill also claims without evidence that “DePaul has encouraged such threats” of physical violence against Hill from anonymous persons.
Hill claims a breach of contract against DePaul because it has violated AAUP guidelines against “institutional censorship or discipline.” But there has been no censorship or discipline against Hill.
Hill claims defamation because people at DePaul have criticized his views, “thus willfully and maliciously causing national and even international harm to Dr. Hill’s reputation.” In reality, Hill had no reputation worth speaking of, national or international, and he has certainly enhanced his reputation on the far right by playing the victim card.
A third count, of “Intentional Interference with Prospective Economic Advantage” (yes, the massive economic prospects of a philosophy professor) was filed because “neither the President nor the Board of Trustees, nor any of its members has ever ‘reversed’ or even expressed any disagreement or dissent from the Faculty Council resolution….”
This is a ridiculous lawsuit, one that demands vast censorship by DePaul of Hill’s critics. In reality, DePaul responded exactly the way a college ought to: It allowed students, faculty, and administrators to express their views and protected Hill’s right to do the same. If a lawsuit like this could succeed, it would force colleges to engage in massive censorship of anyone offended by hearing criticism they don’t like. Hill’s preposterous legal claims would be comical if the demand for repression of intellectual freedom wasn’t so dangerous.
Yes, counter-speech should be a valid defense against many charges. As Justice Brandeis famously said, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.”
However, there are still laws on the books against libel and slander — and defamation — which cannot be considered mere counter-speech. While I agree with John K. Wilson that many aspects of Jason Hill’s lawsuit seem “ridiculous,” there are a few that seem to me to be potentially actionable — let a judge or jury decide.
Defamation law can pose a serious threat to free speech if every case where someone objects to being criticized is allowed to go to court. “Let a judge or jury decide” has a tremendous chilling effect and an enormous expense (both for the people being sued and the taxpayers who fund the court system). Why should we encourage and subsidize censorship by letting people sue every time they’re offended by someone’s criticism?
It may be sad but, as they say, “anyone can sue anyone over anything.” Like it or not, that’s “the American way.” Fortunately, most “nuisance suits” without merit are tossed out before going to trial. (I say this as a victim of such a nuisance suit, which was eventually thrown out after 18 months — once a judge actually looked at the documents. Fortunately, I worked for a state university and received free legal assistance through the state Attorney General’s office.)
If you want to change that aspect of American jurisprudence, then why not lobby for major changes in the system? Until then, people CAN “sue every time they’re offended by someone’s criticism.” BTW, as someone who studied Philosophical Logic and Rhetoric, I’m well aware of all the argumentative tricks like exaggeration and subtle word choice to make one’s position seem more dire or catastrophic: “SERIOUS threat,” “EVERY case where someone [merely] OBJECTS…,” “TREMENDOUS chilling effect,” “ENORMOUS expense,” etc.
Semantics aside, what John K. Wilson is objecting to is the current state of affairs in the legal system. Prof. Hill’s lawsuit is not going to measurably change extant laws and policies. Depending on the specifics of how those laws might be changed, I might even support such a reform measure.
Putting aside the legal merits of Hill’s suit, I’d be interested to hear more about how you square your position on the propriety of the DePaul Faculty Council resolution with your position on the “statement denouncing [Steven] Thrasher’s views” (while defending his right to academic freedom) by Northwestern administrators in the Thrasher commencement controversy: https://academeblog.org/2019/05/28/in-defense-of-steven-thrasher/ . Is it that (1) the Hill op-ed crossed a content-based line that Thrasher did not cross or (2) that there is some material difference between official denunciations by university administrators, on the one hand, and university faculty governance bodies, on the other? Or some other distinction?
Mark–there are some critical differences. 1) Thrasher is not suing Northwestern administrators for criticizing him, as Hill is. If Thrasher filed such a lawsuit, I would also call it ridiculous. 2) The Thrasher case is primarily about NYU requiring prior review of student speech and declaring that it would ban such statements like Thrasher’s supporting BDS. The Northwestern part of it is very minor. 3) Northwestern administrators did indicate that they would seek to keep political statements out of commencement ceremonies, which is an alarming approach that didn’t exist in the Hill case at DePaul. 4) Thrasher is untenured, whereas Hill has tenure, so I think there is greater concern about condemnation from administrators in his case. 5) I do prefer statements by Faculty Councils rather than administrators, because I think Faculty Councils have greater scholarly expertise while having no real power to do anything to a professor, unlike administrators. So counterspeech by Faculty Councils seems more appropriate to me than condemnations by the administration. 6) I never actually endorsed the Faculty Council resolution and I probably would have voted against it, out of concern about the possible chilling effect. Personally, I do see a difference in content between Thrasher endorsing BDS and Hill’s extreme attacks on Palestinians, but I don’t think there is a difference in the academic freedom protections they deserve.
Appreciate the response! These are all fair points with which I largely agree (with the possible exception of (5), at least in the context of DePaul, given that its Faculty Council plays a role in designing, interpreting the rules governing, and staffing the faculty disciplinary process). Thanks again.