I recently argued that the contretemps between the University of Illinois and Professor Steven Salaita should not be turned into a First Amendment battle, but instead treated just as a matter of ordinary contract. In this SeeThru.edu post, my good friend Neal McCluskey contends that where public institutions are involved, hiring or firing decisions where speech is involved must implicate the constitution’s protection for freedom of speech.

Neal’s argument is based on this proposition: “We cannot allow government institutions to favor one person’s speech over another, which it would do in choosing which professors to hire.” Because such institutions can’t possibly hire all who apply, there must be some favoritism. If an opening in an English department, say, elicits 50 applications, most from radical feminists or Marxists but a few from non-political or even libertarian scholars, some point of view is necessarily going to lose out. I think that the First Amendment should be reserved for cases where government affirmatively tries to stop people from speaking for punishing them for having done so in ways the rulers don’t like. The First Amendment shouldn’t be understood to mean that no government employee or person seeking government employee can ever suffer adverse consequences due to something he said or wrote.

I agree completely with Neal that we could and should cut this Gordian Knot by getting government out of the education business. Until that time, however, I think it entirely fitting for public colleges to specify in the employment contract that speech or writings that go beyond the pale of civilized discourse, or are for any other reason inappropriate in the classroom, can be subject to penalties up to termination. If a professor goes off on tangential rants in class, for example, that can be grounds for sanctions. We should leave such matters to judges and juries applying common law standards. Faculty members would have to be mindful of the possibility of breach of contract if they go “too far” but schools would have to be similarly mindful if they determine to mete out punishment. Professorial speech isn’t so infinitely valuable that it deserves “iron dome” protection under the First Amendment.