The flyer stated in part:
“This racist college professor thought it would be a great idea to help start a Tennessee Tech chapter for this national hate group, where racist students can unite to harass, threaten, intimidate, and terrorize persons of color, feminists, liberals, and the like, especially [sic] their teachers. Their organization created a national “Professor Watchlist” to harass and intimidate progressive educators, including many women, African-American, and Muslim professors…
Professor Donadio and Turning Point USA. You are on our list. Your hate & hypocrisy are not welcome at Tennessee Tech. No Unity With Racists. Hate Speech Is Not Free Speech.”
After a complaint was filed by Donadio, campus police identified the professors from security footage. The flyer’s reference to being on a list was viewed as threatening and the professors were also found to be in violation of two express policies, First, they are required to “conduct themselves fairly, honestly, in good faith and in accordance with the highest ethical and professional standards.” Second, they are required to create “an environment that promotes academic freedom, diversity, fair treatment and respect for all faculty, staff, students and the general public.”
It is hard to defend the conduct of Smith and Gruber, who clearly sought to harass a colleague for his political views. They embody the intolerance for opposing views that is destroying higher education and free speech. Turning Point is a recognized student group on campus that Smith and Gruber were seeking to demonize and label a racist. The obvious intent is to make it more difficult for students and faculty to support the group.
However, this was also an act of free speech. They are entitled to speak out against a colleague and they insist that the flyer’s reference to the list was meant to model the listing by Turning Point. I do not see the reference as a credible threat.
My second concern is that the faculty policies are so generally and ambiguously written that they can be used arbitrarily or capriciously.
That leaves us in a muddle. The actions of Smith and Gruber were in my view reprehensible in labeling a colleague as a racist who engages in hate speech. It was unfair and unsupported. If it were true, Smith and Gruber could have filed a complaint with the university. They could also have written or spoken against his views rather than anonymously spread rumors or allegations. They lacked the integrity or the courage to do either.
Instead, they sought to trigger a campus backlash against a colleague. It is difficult therefore to accept their effort to claim victim status after they sought to harass Donadio because he applauded too loudly and holds views that they oppose.
I believe that the conduct of Smith and Gruber are worthy of condemnation and a possible official reprimand. I would not support termination or stripping them of tenure. Repeated conduct could warrant greater punishment. This is a close question for me frankly since there are free speech values at stake on both sides. The issue for me is the effort to harass and defame a colleague in this type of campaign. They also sought to label a student group as racist without making any formal complaint or offer any evidence to support that charge.
One course could be for Donadio to seek civil liability for defamation but that avenue would present serious challenges. Donadio is a public official and a public figure due to his county position and his public advocacy.
The standard for defamation for public figures and officials in the United States is the product of a decision over 50 years ago in New York Times v. Sullivan. Ironically, this is precisely the environment in which the opinion was written. The case came out of the highly divisive period of the civil rights movement. The New York Times had run an advertisement referring to abuses of civil rights marchers and the arrest of Martin Luther King Jr. seven times. The Montgomery Public Safety commissioner, L. B. Sullivan, sued for defamation and won under Alabama law. He was awarded $500,000 — a huge judgment for the time. Sullivan’s lawsuit was one of a number of civil actions brought under state laws that targeted Northern media covering the violence against freedom marchers. The judgments represented a viable threat to both media and average citizens in criticizing our politicians.
The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures.
It would be difficult to sue Smith and Gruber over claims that Donadio is a racist since that can be viewed as opinion and thus protected speech. Tort liability for the statements in the flyer would contravene core free speech rights.
Of course, Smith and Gruber were clearly trying to harass and silence Donadio (as well as students who are members of this group) but they are not the measure of free speech principles. They are the test of free speech principles. We often have to protect the speech of individuals like Smith and Gruber who little tolerance or respect for either the free speech or academic freedom rights of others.