Response to Thrawn Rickle 94

Unpopular Speech – A Limited Response to Dr. Williscroft

Arvin Tseng 

Editor’s Note: Dr. Williscroft wrote New Jersey Prof Urges Fragging of U.S. Officers as an information/opinion piece, not as an opening argument in a point/counterpoint debate. He did not know that the following response would be written when he wrote and submitted his article. His rejoinder to this response will be presented in next month’s issue.

There are essentially two questions regarding Professor Daly’s speech: is it protected under the Constitution? If it is, should it be protected?

Neither question is easy to answer. Our right to free speech is protected by the First Amendment, and the Supreme Court is the final authority (at least in the legal realm) of what the First Amendment says. Even if we do not agree with the Supreme Court, or think its interpretation to be wrong or stupid, their interpretation is the law of the land. The only way around that is to either change the Constitution so that they are no longer the arbiters of it, or to convince five Justices of the Supreme Court that the previous interpretation is wrong. But a prosecutor can’t simply look at one of their decisions and say, well, I don’t think the Constitution says that, and go on his merry way, even if the trial court agrees with him. Clear and relevant Supreme Court precedent must be followed by every court.

However, to my knowledge, the Supreme Court has never decided a case exactly like the one before us. If Professor Daly were simply a citizen, the leading case regarding this type of speech would be Brandenburg v. Ohio, 395 U.S. 444 (1969). In Brandenburg, a leader of the KKK was convicted under an Ohio statute that made it illegal to advocate “the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” The Supreme Court overturned the conviction, saying that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. . . . ‘[T]he mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.’” Id. at 447-48 (internal citations omitted).

Thus, the Supreme Court set out what has become known as the Brandenburg test. In order for speech to be punishable (i.e. not protected by the Constitution) because it incites illegal action, it must be “directed to inciting or producing imminent lawless action” and it must be “likely to incite or produce such action.” Was Professor Daly’s e-mail directed to inciting or producing the imminent fragging of superior officers (i.e. was it his intention that soldiers would heed his call and begin killing their superiors)? If it was, was it likely to incite such action (i.e. were soldiers likely to do this based on his words)? I submit the answer to the latter question is no, and I strongly suspect the answer to the first question is no as well. If both elements of the test are not met, then a private citizen cannot be punished under incitement doctrine for his speech.

However, Professor Daly arguably was not speaking only as a private citizen. It is possible that he was speaking as a professor as well. As a professor, he is an employee. Private employers are not bound by the First Amendment, and usually have a right to fire employees regardless of whether their speech is protected or not. But Professor Daly is a public employee. His employer is the government. When the government is acting as an employer, it is treated somewhere between a private employer and the sovereign power. Here a case called Connick v. Myers, 461 U.S. 138 (1983) comes into play. The government may not fire its employees for speech that is on a matter of public concern, if the damage caused by the speech to the efficiency of the government agency’s operation does not outweigh the value of the speech to the employee and the public. However, if the matter is not of public concern or the damage caused is greater than the worth of the speech, then the government may fire the employee. These are of course rather inexact inquiries.

There is likely no question that the subject of Professor Daly’s speech is a matter of public concern. The question would be whether the efficiency of the agency’s operation (the college) was outweighed by the value of the speech. While the school has apparently been inundated with calls and emails, there is no sign that it’s had to cancel classes, or that it’s been unable to fulfill its educational goals. And Professor Daly’s speech certainly has value, even if it is just exposing the “wrong” view.

Yet another wrinkle exists: Courts sometimes treat educators differently than other government employees. So it’s possible they might devise some other as yet unknown test. However, in Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967), (a case that held that mere membership in the Communist Party was not a good enough reason to not hire someone as a professor) the Court stated:

“Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. ‘The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ The classroom is peculiarly the ‘marketplace of ideas.’ The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’

“The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” (internal citations omitted)

So while the Supreme Court has never directly addressed the current situation, the quote above gives an idea of how it feels about stifling speech in the classroom. So it’s likely (but not certain) that Professor Daly’s speech is protected.

But even if it were unrpotected, we must ask the thornier question: should it be protected? This is, after all, a war. Should people be allowed to state that peace will not come until soldiers murder their commanding officers? As much as I disagree with Professor Daly’s speech, I think the answer is yes, they must be allowed to say these things. This does not mean that the community should not also speak out against Professor Daly. His remarks can and should be condemned. But bad speech is fought with good speech, not the removal of bad speech.

In my mind, what makes America stand out from other countries, what makes us great, is that we allow all views to be aired, and then let the public decide for itself. We give ground on this principle when we believe the harms of free speech outweigh the benefits (e.g. if there will not be time for “good” speech to be heard, and the consequences of “bad” speech are too dire), but we should give grudgingly.

For example: I am for the legalization of gay marriage. I have taken this position after reading both sides, examining all the viewpoints I could find, and considering them in accordance with my own values and sense of fairness. So I am comfortable with my position and can defend it. However, say one side of the debate had been censored, because certain groups felt that it corrupted my mind to hear the opposing viewpoint. If I knew that such censorship had taken place, I could never take a confident position. If I did not know, then I would be making decisions without all available facts. And we’ve seen what trouble that can get us into.

We will never have perfect information, and many views expressed will have no tangible impact (i.e. if we outlawed tomorrow the mention of pink elephants, no one would really be hurt (drunk people would just have to see something else)). Some views might even have negative impact (e.g. I’ve listened to what the KKK has to say, and I don’t think it says anything helpful— though whether impact is negative is of course subjective). But we get as close as possible to perfect information by allowing as much speech as we can. And since we can’t always tell what will have tangible or positive impact, we let everything go, unless there are other paramount concerns. And here, unless we are truly and reasonably afraid that Professor Daly’s e-mail will result in dead officers, he should not be censored.

What of the fact that Professor Daly is a teacher, and not just some guy? The question, in my mind, is what message we want to send to our college-aged students? Do we say, we have carefully filtered out all the bad viewpoints, and will only expose you to good ones? Or do we say, you are an adult now. Here are all the viewpoints we know of. You should also seek more on your own. And then make up your own mind.

And the fact that Professor Daly is in a position of authority, such that students may feel pressured to conform or suffer a bad grade? If Professor Daly were grading down students who disagreed with him politically, this would be an abuse of authority. If Professor Daly were spreading his views when he was supposed to be teaching, this could be dereliction of duty. But recognize that this is independent of his views. If, for example, Professor Smith, a decorated veteran, were to give lower grades to pacifists simply because they don’t believe in violence, this too would be an abuse of authority. If Professor Smith used his class time to urge people to attend the Young Americans for Freedom event, this too could be a dereliction of duty.

And we do not have enough information to condemn or condone anything Professor Daly has done in this realm. We have no evidence that he gave lower grades to those who attended or wanted to attend the YAF event. Nor do we have any evidence that professors are not allowed to use a few minutes of class time to urge their students to attend or not attend an event. If urging students to boycott amounts to open politicizing, so does urging students to attend. If this is not okay, then neither would it be okay for a professor to even mention that a non class-related event is taking place, as mentioning some necessarily means not mentioning others, and that, too, is advocating for one side. I, for one, am not ready to attend a school as restrictive as that.

So Professor Daly should be condemned and denounced. But he should not be censored. And, had he not resigned, he should not have been fired.