Last week the University of Tennessee launched an “investigation” of law professor Glenn Reynolds for tweeting out “run them down” in response to scenes of rioters threatening motorists on Charlotte interstates. Twitter suspended his account briefly, and USA Today sidelined his column for a month. For his part, Reynolds has explained himself and apologized repeatedly, noting that he should have written motorists should “keep driving” to protect themselves from violence. But regardless of the wording, the investigation threatened Reynolds’s First Amendment rights:
His tweet – as written – is constitutionally-protected speech, full stop. As the Supreme Court noted in Watts v. United States, “The language of the political arena . . . is often vituperative, abusive, and inexact.” The Watts case involved a young man who claimed that if he was drafted and made to carry a rifle, then “the first man I want to get in my sights is L. B. J.” The Court found seemingly violent “hyperbole” is constitutionally protected.
Reynolds was speaking as a private citizen on a matter of public concern. His speech constituted neither a true threat nor incitement to violence. State officials are free to condemn his speech, they are not free to punish that speech.
Yesterday, the university did the right thing, announcing that the matter was closed and that the tweet itself was protected by the First Amendment:
Following Professor Glenn Reynolds’s tweet and my public response last week, I began an investigation that included an examination of the facts, policies in the university’s Faculty Handbook, and the law. I discussed the situation with Professor Reynolds, university leadership, and General Counsel. I also sought feedback from College of Law students, staff, faculty, the Alumni Council and Dean’s Circle, and other UT Law alumni. As a lawyer and a law school dean, I know that gathering information and upholding the principles of due process are absolutely necessary in a situation like this.
In short, no disciplinary action will be taken against Professor Reynolds. The tweet was an exercise of his First Amendment rights. Nevertheless, the tweet offended many members of our community and beyond, and I understand the hurt and frustration they feel.
Unlike many public universities, the University of Tennessee is known for protecting free speech. It was unwise to commence an investigation in the first place, but UT reached the right resolution very quickly. On his blog, Glenn is being quite gracious to the university. While he certainly knows his First Amendment rights, he also knows that many other schools would have handled things quite differently — punishing him, damaging his career, then daring him to seek redress in the courts. Having worked with professors who’ve been forced down that road, I know that it can be exhausting.
So this Saturday I’ll be rooting for UT in its showdown with Georgia with a clear conscience. Good ole Rocky Top:
