Here we go again. Another day, another ridiculous free-speech controversy. This time it involves a far-left professor at Fresno State University, Randa Jarrar. In the hours after Barbara Bush’s death, Jarrar tweeted that Bush was a “generous and smart and amazing racist who, along with her husband, raised a war criminal,” adding “F*** outta here with your nice words.” Then, when the inevitable backlash built, she doubled down, taunting her critics with her tenured status, calling Bush a “witch,” and pranking readers by sharing Arizona State University’s crisis hotline.
All-in-all, it was a reprehensible display, a grotesque example of the most stereotypically unhinged radical professor doing her dead-level best to provoke outrage in the name of, what? Social justice? Public awareness of the Iraq War? Who knows? Who cares?
Whatever its content, though, it was free speech. The constitutional analysis here is pretty darn simple. Under relevant law, a public employee enjoys First Amendment protection when she can show her speech “addressed ‘matters of public concern.’” Then, if her speech passes that test, her interest “in commenting upon matters of public concern” must outweigh “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
As a practical matter, once a professor can establish they’re speaking on a matter of public concern, the second part of the legal test is easy to pass. The Supreme Court has long held that academic freedom is essential to American culture:
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.”
Let’s apply the law to the facts. When Jarrar spoke about Bush’s death, she was absolutely speaking on a matter of public concern. The passing of the former first lady was national news. And so far there is no evidence that Jarrar’s tweetstorm has done anything more than cause the school a public-relations headache. It hasn’t interfered in any meaningful way with the delivery of the relevant “public service”: a college education at Fresno State.
If you truly hate the offensive speech in question — if you truly believe it’s hurtful — why share it far and wide? Why amplify the offensive voice?
Posting the Arizona State crisis hotline is a different matter, but for the university to take strong action based on that prank, it would have to present evidence of actual disruptions to services Arizona State’s services. So far, we don’t have that evidence.
So, this is a simple matter: The president of the university, Joseph Castro, should condemn Jarrar’s speech while at the same time unequivocally defending the First Amendment. But unfortunately, Castro has gone another route, announcing that he would open an investigation, and declaring, “This was beyond free speech. This was disrespectful.”
There is, of course, no “respectfulness” caveat in the First Amendment.
We’re reaching a disturbing point in American discourse where increasingly both sides of the national debate (it’s not the Left that’s driving the firestorm against Jarrar) are looking for ways to justify and rationalize censorship and suppression of offensive views. If the censorship comes through a public employer or government entity, then the Twitterati transforms into a squad of hapless law students, hunting through the results of hasty Google searches to find just the right exceptions to the relevant First Amendment jurisprudence — exceptions that allow for the infamous phrase, “I believe in free speech, but . . .”
If the suppression comes through private employers, then it’s easier to justify. From the left — “Sure, The Atlantic can fire a conservative.” From the right — “Get those damn football players off their knees.” Both sides eagerly obliterate the culture of free speech in the quest to cleanse the marketplace of ideas we don’t like.
But culture drives law, and law drives culture. Every time that we refuse to tolerate offensive expression, we incentivize the culture of crocodile tears. We motivate government officials to expand state power over speech until the silencing exceptions swallow the free-speech rule. California’s recent efforts to compel crisis-pregnancy centers to advertise for free or low-cost abortions represents what happens when the people, to borrow my friend Greg Lukianoff’s excellent phrase, “unlearn liberty.” Periodic conservative efforts to expel radical professors from the academy demonstrate the pernicious effects of a “fight fire with fire” mentality. In both cases, a culture of coercion triumphs and liberty loses.
Here’s an alternative: Leave the trolls alone. Let the radicals rant. Then, rebut the bad speech with better speech, or — sometimes better yet — rebut it with silence. Does anyone really care what Randa Jarrar thinks of Barbara Bush? Or is she now mainly useful as a foil, as clickbait, as the latest pawn in the culture war? I think we know the answer.
If you truly hate the offensive speech in question — if you truly believe it’s hurtful — why share it far and wide? Why amplify the offensive voice? Arguably, the worst rebuke for a troll, the worst punishment for the self-promoting radical, is indifference. I have my own standard for engaging bad ideas — First, I wait. I ask myself: Are these ideas gaining traction? Do they threaten to make a material difference in the marketplace of ideas? If the answer is yes, then I engage. If the answer is no, I let the offensive speech die a natural death.
But killing an idea through censorship? That’s not what free people do.