“Although these remarks were offensive, punishing them risks embracing the same censorial logic that conservatives have spent years fighting. Given the routine censorship aimed at the right, some may welcome these penalties as overdue symmetry. But the principles conservatives invoke when their own speech is targeted apply just as forcefully here. Offensive speech is still protected unless it crosses the narrow legal thresholds of defamation, incitement, or true threats—standards these remarks do not appear to meet. Ignoring that fact erodes the very protections conservatives depend on.”

There are two issues commingled here — the first which Ms. Harris is absolutely right on, and a second more obscured one which I respectfully suggest that she’s missing.

She’s absolutely right that we can’t censor the speech of others if we wish to retain credibility in complaining about ourselves being censored. A similar issue led John Adams, then a Boston lawyer, to defend the soldiers involved in the Boston Massacre. Adams asked how the Patriots could complain about being denied rights that they were unwilling to extend to the soldiers, then on trial for murder.

Hence Adams served as their defense counsel, winning what essentially amounted to acquittals — from Boston juries. It wasn’t popular then and is little spoken of now, but Adams thought that it was the right thing to do. Arguably it was.

Likewise defending the right of the Loony Left to spew its leftism is the right thing to do today. I am reminded of what Milton said about truth being stronger than falsehood, and the truth of it being only 11° in Boston this morning, two weeks before winter even begins, is considerably stronger than the falsehood of the Global Warming hysteria.

But there is a big difference between expressing an unpopular opinion and, well, being an A-hole. In polite society, it’s called “civility.” In the military, it’s called “conduct unbecoming.” And in academia, it’s called “moral turpitude.”

Yes, “moral turpitude” — one of the three legitimate reasons for firing a tenured professor, the other two being lack of need and financial exigency.

Moral turpitude is generally defined as an act or behavior that gravely violates the sentiment or accepted standard of the community and one needs to remember that this does not have to be something that is illegal, i.e. violates the criminal law and is punishable by incarceration. Plagiarism gravely violates the accepted standards of the academic community but comes under the “fair use” exception to copyright and hence is technically “legal.”

There are other conducts that violate the accepted standards of the academic community but which aren’t illegal — sleeping with your students comes to immediate mind. And to be clear, I mean sleeping with a student that you are currently grading or otherwise supervising — and yes, I know it happens, I’ve had to deal with the consequences of it.

A few years later, the same faculty member did the same thing with another student, this time it coming apart with the off-campus newspapers reporting on a lawsuit instead of my having to deal with a mental health crisis on the far side of midnight — as that was settled out of court, I never did find out exactly how much it cost UMass.

Both women were in their mid 20s — there were no criminal laws broken (that I know of).

My point is that the legal standard of “defamation, incitement, or true threats” really don’t apply here because they are criminal exceptions, they constitute exceptions to a First Amendment which itself doesn’t apply to employee speech in the first place. Public employers can and do regulate the speech of their employees — the extent to which they can do this is a really complicated legal quagmire, but the basic principle is that the state has a different relationship with an employee than with a citizen.

In other words, while the First Amendment protects student speech, it does not protect faculty speech, particularly classroom or course-related speech. And hence there is no need for an exception to an amendment which doesn’t apply in the first place — faculty free speech rights come from a combination of institutional policies and the institution’s concern about its reputation.

And we come back to moral turpitude and the accepted standards of the academic community. We come to the distinction between content of speech and means of expression and I believe this is the point that Ms. Harris is missing.

An example: I consider Rep. Ilhani Omar (D-Somalia) to be an unindicted felon, but if (heaven forbid) she were to be assassinated, none of us would tolerate faculty celebrating that in their classrooms. I suspect she’d consider this offensive (she’s actually D-MN), but it’s also clearly within the accepted standards, and I’d never say something like this in class, it’d be unprofessional and thus inappropriate.

Perhaps “unprofessional” is the best word here — celebrating an assassination is unprofessional conduct and if said in the classroom (as some people did), absolutely should be grounds for termination. And has nothing to do with either free speech or academic freedom.

The mistake we have made over the past 50 years is permitting the left to comingle content and means of expression and while we need to protect their freedom of content, we also need to express themselves within socially acceptable means.

After all, they can’t go downtown and spray paint their speech on the side of buildings, can they?!?