In my new book, The Indispensable Right: Free Speech in an Age of Rage, and a recent academic work, I discuss a new rationale being used by administrators to punish free speech: threatening academic collegiality or campus tranquility. I was discussing the Fourth Circuit case of Porter v. Board of Trustees of North Carolina State University, which was unfortunately not reviewed by the Supreme Court. Now, as feared, it is being replicated by the Sixth Circuit in Gruber v. Tenn. Tech. Bd. of Trustees. The result is a new and serious threat to free speech in higher education to curtail speech where it would be “likely to cause disruption” or undermine the “fostering [of] a collegial educational environment.”
The Porter case involved the targeting of a conservative faculty member who opposed diversity views. Given the purging of conservative professors from faculties and the intolerance on our campuses, the use of collegiality to justify disciplinary action is likely to fall more heavily on the dwindling number of conservatives.
However, Gruber involved professors who spoke out against a conservative colleague. As previously addressed by Keith Whittington, the case involved Professor Andrew Donadio, who serves as the faculty advisor for the local chapter of Turning Point USA at Tennessee Tech University.
Donadio was attacked by Professor Julia Gruber and Instructor Andrew Smith who hold strikingly anti-free speech views that are evident in the flyers that they put up around campus denouncing the “hate and hypocrisy” of “Professor Donadio and Turning Point USA.” In addition to saying that his views are “not welcome at Tennessee Tech,” they declared that there should be “no unity with racists” and that “hate speech is not free speech.”
Gruber and Smith are only the latest examples of academics who reject free speech rights for others, but still demand that their own views be protected. Fortunately for them, the free speech community supports free speech regardless of its inherent merits or the hypocrisy of speakers.
Provost Lori Bruce disciplined Gruber and Smith under Policy 600, requiring faculty members “to conduct themselves fairly, honestly, in good faith, and in accordance with the highest ethical and professional standards.”
As with Porter, the use of a lack of collegiality has long been used against those with unpopular views. I previously wrote:
“The lack of collegiality and professionalism has long been shibboleth for those have sought to block minorities and women from appointments. Many objected to the claims of ‘lack of collegiality’ and bad ‘temperament’ raised against figures like Justice Sotomayor when she was nominated for the Court. Indeed, the American Association of University Professors has stressed that collegiality is often a coded or biased basis for discrimination. It cautioned against this use since, “[i]n the heat of making important academic decisions regarding hiring, promotion, and tenure, it would be easy to confuse collegiality with the expectation that a faculty member display ‘enthusiasm,’ or evince ‘a constructive attitude’ that ‘will foster harmony.’” Indeed, collegiality is commonly defined as being “cooperative,” a virtue that is hard to display when you are a dissenting voice on a matter of intense and passionate debate with your colleagues.”
Nevertheless, Sixth Circuit Judges Richard Griffin, Helene White, and Eric Murphy upheld the lower court decision supporting the university:
When deciding whether the plaintiff engaged in protected activity, we first determine whether the action constitutes speech on a matter of public concern, and if it does, we apply the “Pickering balancing test” to determine whether the plaintiff’s interest in commenting outweighs the defendant’s interest as an employer in promoting the efficiency of the public services it performs through its employees. The balancing test considers the manner, time, and place of the expressive action, and the pertinent considerations include whether the action (1) impairs discipline by superiors or harmony among coworkers, (2) negatively affects close working relationships for which personal loyalty and confidence are necessary, (3) impedes performance of the speaker’s duties or interferes with the employer’s regular operations, and (4) undermines the employer’s mission….
TTU does not dispute that the district court properly concluded that the plaintiffs’ speech was a matter of public concern. Even so, as the district also properly concluded, the plaintiffs’ distribution of the flyers was not protected speech because their speech interest was outweighed by TTU’s interest in preventing a disruption to its pedagogical and collegial environment….
At the outset, the “manner” of the plaintiffs’ speech decreased its expressive value and increased TTU’s operational interests. Plaintiffs did not speak in the classroom or through scholarship, where professors’ “rights to academic freedom and freedom of expression are paramount.”
Nor is this a simple case of one professor raising a race-related issue with another or expressing disagreement with a group’s ideology, perhaps one-on-one or in a more private setting. Instead, the plaintiffs posted flyers in an academic building at a time they knew students would be on campus for class and posted an additional flyer the next day. Those flyers were highly likely to cause disruption, and they did so in several ways.
Specifically, the flyers identified Donadio as a “racist college professor” and branded members of Turning Point USA as “racist students.” They stated in bold text that the professor and group’s “hate & hypocrisy are not welcome at Tennessee Tech.” The dissemination of “disrespectful, demeaning, insulting, and rude” messages targeting a colleague and students—regardless of whether some accusations may have had basis in fact—to the entire university community undoubtably threatened to disrupt TTU’s learning environment and academic mission.
For one, flyers that publicly attack a colleague as racist and threaten that the colleague is on the anonymous author’s “list” certainly “impairs … harmony among co-workers.” {Plaintiffs protest that they did not interact with Donadio professionally, so there was no harmony to impair. But even if the professors did not work closely together, they were nonetheless colleagues on TTU’s faculty, and it was not unreasonable for Bruce to conclude that on-campus and public accusations of racism—even between colleagues who did not work together—could cause disruption of the university’s operations.}
Perhaps more critically, by attacking students, the flyers threatened the core of TTU’s educational “mission” and undermined the plaintiffs’ ability to perform their teaching “duties.” The flyers insinuated that, like Donadio, all students who were members of Turning Point USA were racist. The accusations harmed these students’ educations.
For example, one Turning Point USA member, having been deemed a racist, missed class because of the fallout. In addition, the accusations affected the plaintiffs’ effectiveness in the classroom. Students in the club, or those considering joining the club, who were taking courses with Gruber and Smith might reasonably fear the potential treatment they would receive in class due to differing political views. This case is thus factually distinguishable from cases like Pickering, where a teacher was disciplined for writing a letter to a local newspaper criticizing the school district that was “in no way directed towards any person with whom [the teacher] would normally be in contact in the course of his daily work as a teacher.” And most basically, TTU has ‘an interest in fostering a collegial educational environment.’ Permitting professors to circulate flyers with personal attacks on colleagues and students undoubtably undermines that interest.
To be sure, the flyers were quickly collected and affected only a handful of students and professors. But evidence of widespread disruption is not necessary: it was reasonable for Bruce to believe that, had the flyers remained posted, they could have caused far greater disruption.
Lastly, the “place” of the plaintiffs’ speech undermines their interests even further. Even if they did not undertake this speech pursuant to their official duties, they also did not engage in it away from campus as private citizens. Rather than make their claims on their personal Facebook pages or in a local newspaper, they chose to use TTU’s own property as the billboard for their speech. But public employers have greater interest in regulating speech “at the office” (or here on campus) than they do away from the public employers’ property. Indeed, the conclusion that the First Amendment protected the plaintiffs’ speech would mean that TTU remained powerless to remove the flyers off of its property. So this case raises no concern that TTU sought to “leverage” its employment relationship with the plaintiffs to regulate their speech “outside” the context of its university functions.
All told, the Pickering balancing test weighs against the plaintiffs’ speech being protected. The flyers, which attacked a professor and student organization and stated that they were not welcome on campus, created a reasonable threat of disrupting TTU’s academic mission and is the type of speech that a learning institution has a strong interest in preventing. Under the Pickering balancing test, TTU’s interest in preventing a potential disruption to its pedagogical and collegial environment outweighed the plaintiffs’ interest in distributing the flyers. Thus, the plaintiffs’ speech was not protected, foreclosing their First Amendment retaliation claim.
The allowance for censorship and sanctions for speech “likely to cause disruption” would gut free speech protections on campus. The court suggests that the ability of the university to crack down on the speech was magnified by the fact that others might be particularly interested in their views or exposed to them. It is enough that it threatened the tranquility of campus and the collegiality of the faculty.
This week we discussed an analogous position at Harvard where Lawrence Bobo, the Dean of Social Science, rejected views of free speech as a “blank check” and said that criticizing university leaders like himself or school policies are now viewed as “outside the bounds of acceptable professional conduct.”
The refusal of the Court to take the Porter decision was crushing for many of us in the free speech community and academia. Hopefully, Gruber will receive a more favorable review in light of the expanding threat to free speech to “foster a collegial educational environment.”
Libel, workplace harassment and terrorizing others are matters of fact, not opinion. The Courts ruled wisely.
It is tiresome to see Professor Turley defend a sola-scriptura, fundamentalist view with the 1A which is diametrically opposite to his views on Sacred Scriptures. This is why I wont be buying his book.
The Founding Fathers created the United States based on the premise that people were religious and moral. Given Turley is not religious, and a moral relativist (eg. he supports polygamy ), he ignores the mindset that the Founding Fathers had. Professor Turley’s views aid and abet the Left (DNC) and Right (GOP) in the US who lack a religious spine and moral compass. Turley’s daily complaints regarding the rage of Americans is disingenuous. They were to be expected. All of our current societal problems are due to ejecting God from the public square and rejecting morality.
Bring back the 10 Commandments in the public square. Move to Gaza if you cant tolerate it.
“Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”
– John Adams
Estovir-agree. Sounds like these professors committed libel. They seemed to go past any reasonable bounds. The attacked professor accused of being racist should immediately file suite for slander and/or libel.
“he ignores the mindset that the Founding Fathers had”
Yea, we do that a lot. Because half of them were jack asses, and the other half just haven’t been exposed yet.
You want them to tell you how to live from the grave, good on ya.
Wonder what they woulda thought about thousands of lives ruined by pedophiles in robes.
Turley “supports polygamy”
That is a scurrilous smear.
The Brown case was about the state compelling a particular, religious code of morality. Turley argued (successfully) that government has no business enforcing “morality laws.”
Incidentally, Biblical heroes such Abraham, Israel, Judah, Gideon, Samson, David, and Solomon had multiple wives.
“Bring back the 10 Commandments in the public square. Move to Gaza if you cant tolerate it.”
A government-enforced code of morality, complete with “suggestions” if one doesn’t like it.
How very Medieval of you.
Oops. Forgot to sign in.
This should also apply to morality and ethics clauses that were once mainstay in faculty policy. You can’t be a pedophile, you can’t be an emotionally disturbed activist and teach our kids your social poison.
News flash for Republican Women:
Last week, the Southern Baptist Convention is trying to make IVF (In Vitro Fertilization) equal to abortion in Christianity, morality and legally.
This is curious turn of events. In just the last few years the Southern Baptist Convention literally purged female clergy leaders from many of their Baptist churches. Essentially turning over power to men to control most Baptist churches.
Prior to this, Republicans in Congress opposed allowing IVF excess-fetuses (already being thrown into trash dumpsters) from being used for Stem Cell Research.
So Republicans (for years) supported allowing IVF excess-fetuses to be thrown in the trash instead of saving lives and possibly curing cancer, Type 1 Diabetes, Parkinson’s Disease and other terrible health ailments.
Probably the most powerful supporter of the Southern Baptist Convention, Mike Johnson (Speaker of the House of Representatives), also opposed U.S. Supreme Court rulings like “Lawrence v. Texas” in 2003.
Even Republican men might want to know this: “Lawrence v. Texas” was about “sodomy” laws, not just for homosexuals but for straight married couples.
Sodomy laws, which Mike Johnson supported as recently as 2003, make it a crime (a felony in some states) for a wife to perform oral sex on her husband since it doesn’t result in a baby. It was also a crime (or felony) in some states for a boyfriend and girlfriend to live together unmarried in the same home. Sodomy laws also oppose birth control for women, since sex is exclusively for baby-making.
This is not small government Conservatism, this is “theocratic” governing (opposite of religious freedom) – this is today’s Republican Party!
EVERY word a steaming turd^^^^
Well the are Baptists after all. We methodists keep our distance from them.
Methodists are Baptists that drink…
I am a Republican in Texas and we still eat pussy and get our dick’s sucked.
Sorry, fearmonger!
The globalist plan is to turn our universities into havens for illegal immigrants, and centers of disruption for the rest of society. The main goal now is to create a zombie hive mind of hatred for the US and our culture by destroying the First Amendment, and by attacking the tolerance and entrepreneurship of the middle class. They want a society composed of billionaires, illegals, and economic slaves.
I don’t believe this plan will work in the long run, but it’s being pushed hard in the run-up to the November election.
A quick peruse of the comments shows most if not all of those “trolling” this blog didn’t even bother to read the article, and the ones who did apparently didn’t understand it.
This particular article is important because it silences the critics of Turley who try to label him a conservative or MAGA supporter.
The reason I follow Jonathan Turley is his passion and commitment for our most sacred right, Free Speech. I capitalize it because its that important.
Un this article Turley is defending the Free Speech protections of some pretty foul, obnoxious and hypocritical liberals who are using their free speech to condemn another faculty member who happens to be conservative, as a racist. These people posted flyers all over campus denouncing this professor and stating he isn’t welcome on campus (in their view).
So this is a prime example of a true defender of Free Speech standing up for the principal and not the politics.
Unfortunately most of those in here are lost on politics and not the principal.
I don’t know where they are going to come from, but somehow this country needs more men and women of vision like Jonathan Turley who are able to rise above politics and personalities and stand behind the principals of freedom that are the core of our democratic republic and what allows us to be in here this morning stating pretty much anything we want. Because we have Freedom of Speech, unlike North Korea or China where every word you say online may be used against you by the govt.
The scary part is, America is starting to get that way, more and more people from both sides of the political spectrum are pushing for restrictions on speech for speech “they don’t like”. Conservatives cry foul left and right now as liberal colleges and universities as well as liberal politicians push for more and more restrictions on speech, but ignore the same thing when their own side is doing it.
Conservatives attempt to pass laws to stop people from flag burning, or should a football player take a respectful “knee” to protest the flag during the anthem they call for them to be fired, fined, punished, etc.
They talk about free speech when the liberals are censoring, but when speech they don’t like pops up they’re more than ready to censor it.
This article therefore is an essential one and I wish more people would actually read it and “get it” because it shows the stark contrast between someone who just talks about free speech protections when “the other side is censoring” and someone who actually stands for free speech regardless of “which side” is doing the censoring.
These liberals posting these flyers were foul, completely out of line and hateful. But they have the right to say it. And others have the right to not read it or to respond to it with their own free speech. But what professor Turley is saying, what everyone needs to be saying, … is no one has the right to tell them they can’t say it.
Free speech is the principal. We need Americans now willing to stop pandering to politics and stand up for the principal.
You’re right.
I follow Turley for the same reasons.
This case is the “one” that comes as close to crossing the line of free speech vs crying “fire” in a crowded theater as it gets.
100% agree that they had the right to say the foul things that they did, BUT did they have the right to post it on property which they do not own? This one was a toughie. It’ll be interesting to see if it’s appealed for en banc rehearing. It may yet wind up on SCOTUS docket at some point.
Chris, I agree with your comment, but how far do we have to go in supporting liberals right to scream at conservatives while conservatives have no voice at all on campus?
If you have 1000 liberals on the faculty and 10 conservatives and the liberals are trying to ban the 10 conservatives I see that as a problem.
@hullbobby
The problem with your question is it demonstrates how you just can’t separate the politics from the principal.
How far? As far as we have to to protect Free Speech. That’s how far.
Someone committed to freedom of speech would never ask that question. They’d already know the answer.
@hullbobby
And don’t think I don’t see your point, I agree that “right now” the liberals are overwhelming on the campuses and universities with their censorship.
Conservatives are in the minority right now in these institutions and elsewhere and the liberals are the ones doing the oppressing when it comes to conservative viewpoints.
But we need to stand up and fight for the principal, not the politics.
I am old enough to remember a time not too far back when under the Bush\Cheney regime liberals feared and cowed. Conservatives were actively attempting to ban free speech, protests, flag burning, and right after 911 there was a fear among liberals that conservatives would arrest anyone who didn’t favor Bush’s retaliation plans.
When they started talking about the war critics who warned of “quagmire” were shouted down and called unpatriotic and traitors. Anyone not jumping on the “lets go murder a million Iraqi’s because they’re arabs and look like the guys on 911….” was labeled a traitor. The night of Bush’s speech, “either for us or against us” liberals in congress were afraid to speak up. Bush was Fuhrer and they’d throw anyone out of the congress who didn’t vote “yay”. At least that was the fear and word spreading, and that was what was being openly discussed on the main stream news.
This is why its so important to not focus on the politics and keep steadfast on the principal.
Free speech is the issue, and when you can stand up and protect the speech of someone you hate, and who’s speech ,makes your blood curdle, like Professor Turley routinely does and did in this article, THEN and only then will you be standing up for the principal, and not the politics.
HullBobby,
People with principles do not scream at others, nor do they try to ban them, or censor them.
I think that is what Chis is saying.
Hello Upstate–thank you for spelling principle correctly. I am fascinated with the overall lack of discussion (in comments herein) regarding longstanding “time, place, manner” restrictions that are part and parcel of First Amendment jurisprudence. Surely this matter could have been better handled at the university level.
Lin,
I responded to your comment on the second page concerning a debate between the two parties.
I also said, “In a civilized society, what you propose would be able to occur.
However, at some point America has lost the civilized part.”
I would apply we have lost our principles as well. When did this happen, why did it happen, where will this lead us are all questions I have.
The degeneration of the nuclear family? The rise of wanton hedonism? The disregard for traditional norms? The internet? Social media? Some vast conspiracy of our enemies both external and internal to fundamentally change the social fabric of America? The rise of communism and one party rule?
And how to stop it?
The day we attributed letters in place of speaking words ended free speech, even when the words were said by the very people they were said to offend.
If illegal aliens can kill Americans, then it’s only fair that Americans can kill illegal aliens. The fear of becoming dead will stop them from coming here to kill 12-year old girls.
Idiot
Diversity [dogma] (i.e. color judgment, class bigotry), including: racism, sexism, ageism (e.g. life deemed unworthy of life or nonviable) , albinophobia (“Rainbow” ideology), etc. #HateLovesAbortion
So, now each university will have a department of PRAVDA to insure the correct thinking of the populace.
Since when have the Russians ever been committed to any principle? Yet they expect others to be?
Turley should use the term “Tribal” to replace the false labels of “Conservative” or “Liberal”.
Yes the opposing “tribal” view of college professors should also be protected Freedom of Speech, but don’t call them Conservatives! Conservatives are nearly extinct in the United States.
Labels are also grossly misleading: George W. Bush was socially-conservative, but fiscally-liberal and constitutionally-liberal (the anti-originalist view). By today’s standards, Bill Clinton was socially-liberal but fiscally-conservative. Clinton the last president to leave office with a balanced-budget.
We have tribes, not Conservatives!
Clinton the last president to leave office with a balanced-budget.
Presidents don’t balance the budget
[American] Conservative: Declaration and Constitution, or generally a philosophy of moderation. Social conservatives preceded modern conservatives, are now labeled as progressive (i.e. [unqualified] monotonic) or liberal (i.e. divergent) including the old [secular] religions (i.e. behavioral philosophy or model) that celebrated human rites, sodomy, sadomasochism, pedophilia, friendship with “benefits”, Diversity, redistributive change, etc, at the twilight fringe (“emanations from the penumbra”).
Democrats are FASCISTS…and prove it EVERY DAY!
Fascism – a governing model of authoritarian/corporate consensus, following a path to socialism: (e.g. Democrazi), often accompanied with Diversity (e.g. ethnic Spring, racism), human rites, redistributive change, and secular religion (e.g. ethics or mortality’s relativistic cousin).
I prefer a TOTAL ban on Federal aid going to colleges
Defund Democrats
guyventner said: “I prefer a TOTAL ban on Federal aid going to colleges
Defund Democrats”
I tend to agree, but you are thinking way too small. Defund and defang anti-constitutional Statists no matter what animal icon they have pinned to their lapels. Extricate the insidious tentacles of the Federal government from each and every cranny and niche that was intended to be shielded from it by the 10th Amendment (which really does nothing more than succinctly codify the pre-existing premise that the powers of the Federal government are strictly limited to those specified in the first three Articles). Do that, and private entities can do as they damned please in regulating the speech and behavior of their employees and customers, subject to any valid contractual limits in force.
free speech isn’t blocking other people freedoms!
Reality check: There are virtually “0” Conservatives in Congress. There are virtually “0” originalists (those that support constitutional due process and constitutional precedent) on the U.S. Supreme Court.
Real Conservatives like George Will, Alan Simpson, Dave Brat and others have pointed out there are virtually “0” Conservatives in Congress today.
Don’t confuse xenophobia and tribalism with Conservatism! Don’t confuse Mike Johnson’s big government “theocratic” views with Conservatism! It’s “Team Sports” nothing more!
I didn’t know who David Brat was, and I just found out he defeated Eric Cantor in a House district state election while Cantor was House (R) majority leader.
Funny how just the type of people we need the news often hides away in a dark corner never to be heard from.
Well, this put Bobo in a difficult position.
Nah! He either ignore it, or spin it as . . . something.
Free speech is a blank check. Otherwise, it would be limited speech just as a completed check is limited by the amount indicated on its face. The antidote to hate speech is love speech. Too many professors are closet tyrants who see their speech as the only protected species of speech. Hate speech must be free speech no matter who utters it or, for that matterm, who hears it.
“Is elemininating Putin worth whatever consequences, if any, might result?”
No.
Look at the spastic idiot, ukraine boy, back with another brilliant suggestion.
If Biden wins, and the democrats control both houses of Congress, they will:
Abolish the filibuster and then
Add 2 blue states
Add 4 democrat Senators
Pack the Supreme Court
Pass any law they want
They are already Fascists full control the LAW and Economy. Wall Street is now 100% Democrat
Why not bite the bullet and launch missiles at Putin’s known location? Is elemininating Putin worth whatever consequences, if any, might result? Who knows: there might be dancing in the streets of Russia, like there was when Prigozhin staged his little coup.
Steaming turd^^^^^
The Russians might counter attack and launch their own missiles on Biden. And then it escalates into full out WWIII and possible nuclear exchange killing millions.
why do you think China gave Bidens and Democrats million if not billions? For the WEST to DESTROY itself
Let the Ukrainians do it with their Neptune missiles. Putin wanted to kill Zelensky, so it’s only
fair that Zelensky kill Putin.
Steaming turd^^^^^
Yes, in a “Ding, dong, the witch is dead” sort of way.
do you accept the same principle against the US and West?