Tightening Up the First Amendment

Glen Newey

A few weeks ago, the University of Illinois at Urbana-Champaign rescinded its offer of tenure to a professor of English then working at Virginia Tech. Steven Salaita was offered a post as professor of American Indian studies, subject to the formality of confirmation by the university's board of trustees. Before the board met, the university's chancellor, Phyllis Wise, wrote to Salaita revoking the appointment: the board was, she said, unlikely to approve tenure, so the proposal to appoint would not be put to them. Since then, a large number of academics have signed petitions condemning UIUC's decision and undertaking to boycott the university.

Salaita had published tweets critical of Israel. Some of the tweets are certainly robust. Those to which UIUC seem to have taken exception include:

Zionists, take responsibility: if your dream of an ethnocratic Israel is worth the murder of children, just fucking own it already.

If Netanyahu appeared on TV with a necklace made from the teeth of Palestinian children, would anybody be surprised.

Only Israel can murder around 300 children in the span of a few weeks and insist that it is the victim.

Both Wise, who says that UIUC remains 'absolutely' committed to academic freedom, and the former American college lecturers' union president Cary Nelson, allege that Salaita's tweets were 'uncivil'. Nelson said he did 'not know of another search committee that had to confront a case where the subject matter of academic publications overlaps with a loathsome and foul-mouthed presence in social media'.

It's a good question what freedom of speech protects. Is it who gets to speak, what they say, or when or how they say it? Paul Robert Cohen was arrested in 1968 for wearing a jacket bearing the legend 'Fuck the draft'. He would presumably have avoided arrest had the jacket said 'I strongly disapprove of conscription'; but it's hard to believe that that makes the same political statement. The Supreme Court overturned the conviction, citing Cohen's first amendment rights. Content – what is said – should indeed get strong protection. But the very indissolubility of content and expression can be exploited by those who seek to marginalise views on the plea of etiquette. To insist that the content itself, as with the paraphrase of Cohen's slogan, can neutrally be inserted into public debate is to set oneself up as a custodian of meanings – as who can judge of synonymy, a move in a power game. Polysemy is always threatening to the authoritarian mind.

A lot of people, even some of my friends, routinely cuss on social media. Would Salaita, a Palestinian, have found himself in the same predicament had he been tweeting in similar terms about Hamas? Although a public university, UIUC depends heavily on private philanthropy, corporate donations and industrial contracts to top up its fee income. This may help explain the otherwise odd fact that a university, committed as Wise says to free intellectual inquiry, has decided that the first amendment needs to be tightened up.


  • 26 August 2014 at 6:42pm
    Mona Williams says:
    As it so often does, the genteel defense of actual savagery wins out over any foul-mouthed opposition to it. Wise has stated that she wants students of any political persuasion or ethnic background to feel comfortable in their professor’s classroom. The hypothetical feelings of students, however, has not yet qualified as a legal concept employable in the breaking of contracts.

    • 27 August 2014 at 8:13pm
      ander says: @ Mona Williams
      It is doubtful a neo-nazi student would feel particularly comfortable in a classroom in which professor presents the savagery of Adolf Hitler. By the same token, why should a likudnik feel comfortable in a classroom where a Prof. Salaita presents the bestiality of the Netanyahu falange? Like so many Americans, Wise, unthinkingly, substitutes political correctness and appearances for righteousness.

  • 26 August 2014 at 6:51pm
    suetonius says:
    Well, I think there are several things going on here, and none of them really have to do with the first amendment. The first amendment wouldn't protect Salaita even if he was already hired, it only applies to government action. Even academic freedom wouldn't really protect him if this language was used in a class, unless it was relevant to that class. People (in most states) can be fired for their views. Only four states protect offsite language. And none of this has to do with being hired in the first place. This isn't any different, legally, from Salaita posting photos of himself doing bong hits on Facebook, which almost certainly would have cost him the job.
    I say this as an academic at an institution very like UIUC, who has served on many hiring committees. There are plenty of rules about what you can do, and ask - this isn't on the list. And not that I'm defending UIUC, but criticism of this action should focus on the right thing, which isn't the first amendment.

    • 27 August 2014 at 12:09pm
      Harry Stopes says: @ suetonius
      "This isn’t any different, legally, from Salaita posting photos of himself doing bong hits on Facebook."
      Really? I'm no Cypress Hill fan, but I'm fairly sure doing hits from the bong is illegal, unlike criticising Israel (or even swearing while doing so).

  • 27 August 2014 at 9:12am
    Glen Newey says:
    Well, the First Amendment explicitly applies to acts by Congress. But as you'll know the Bill of Rights is incorporated into state law via the Fourteenth Amendment. I'm no lawyer, but since UIUC is a state university, and employees of such bodies count as public employees, it is not clear to me that Salaita wouldn't have grounds for recovery against Illinois if the hiring letter sent to him has contractual standing and the rescission of the job offer followed his exercise of his FA rights. Admittedly FA case law has focused on statutes, federal or state, that are thought to have infringed it, as in the Citizens United case, and it's not obvious what that might be in the Salaita case. Beyond the legal question, though, there is simply the incongruity of an institution devoted to freedom of thought and expression penalising somebody for having exercised them.

  • 27 August 2014 at 3:14pm
    ander says:
    There is some confusion here. As everyone knows, First Amendment protects "free speech". But, as AIPAC teaches, criticizing Israel is no free speech, but an illness born of anti-Semitism. Thus, being something other than speech, it doesn't fall under the First Amendment.

    It worked similarly in the Soviet Union, where anyone criticizing "the best system possible" was obviously mad, and thus subject to vigorous psychiatric treatment.

    The University apparatchik who took the initiative of revoking Salaita's appointment did everyone a favour, and potentially saved some young minds from contamination by something that wasn't even speech.

    Ande Rychter

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