Conservatives across the country were incensed last month when Tamar Shirinian, the former University of Tennessee professor fired for mocking Charlie Kirk’s death, settled her First Amendment lawsuit against the university for $1.9 million.
Yet, this was completely predictable; indeed, I predicted it in this very space. Here’s what I wrote about Charlie’s mockers back in December: “Dozens of … fired professors are suing to get their jobs back and/or be compensated by their institutions—and, if legal precedent holds, at least some are likely to succeed.”
The Shirinian case is of particular interest to me, partly because I’m a UT alum but mostly because I had the opportunity to speak with the campus’s Turning Point USA chapter shortly after the professor was fired. Her termination followed days of intense public backlash over a Facebook post she wrote in which she claimed that “the world is better off without [Kirk] in it.”
In fact, I was at UT on September 24, two weeks to the day after Charlie’s murder. I had originally been scheduled to speak on another topic, and my speech was almost canceled. At the last minute, organizers decided to go ahead with the event but asked me to focus my comments on Charlie’s legacy. I readily agreed, choosing to talk about something that was near and dear to Charlie’s heart—indeed, the very thing he gave his life for: freedom of speech.
As you can imagine, it was a rather intense meeting. The students were courteous and attentive but, understandably, angry. Many wanted professors like Shirinian to be terminated. The fact that she was right there on their own campus stoked their fury. They didn’t want to hear what I had to say: that she would probably either get her job back or receive some kind of financial settlement.
Why would I say that?
There are two issues here: one philosophical, the other legal. Philosophically, I find Shirinian’s comments—and those of the many others who mocked Charlie—to be morally repugnant. Like any decent person, I was appalled by them. More so than most, perhaps, because, like the students I spoke to in Knoxville, I greatly admired Charlie. Part of me wanted her fired, too, and I took no small amount of schadenfreude in her career’s demise.
And yet, that is exactly what the concept of free speech, as enshrined in the First Amendment to our Constitution, was designed to protect: speech that others find repugnant.
That is certainly what Charlie himself believed, what he fought valiantly for. He insisted that “the most disgusting speech should absolutely be protected” and reminded us, many times, that “free speech is not just saying what you want to say but having to hear things you don’t want to hear.”
It’s true that colleges and universities, despite purporting to embrace the same philosophy, have not always applied it evenly. Historically, they have tended to punish “offensive” conservative speech far more than the left-leaning variety and have generally gotten away with it—although there is at least one extremely important exception, which we’ll get to in a moment.
That brings us to the second issue: legality. The Constitution recognizes only two types of speech: protected and unprotected. The latter category is basically limited to defamation, incitement to violence, and terroristic threats—each of which, according to the courts, has a very high bar. Simply saying that a person deserved to die, or that the world is better off without him or her, is not the same as threatening to kill that person.
This is why I’ve argued that there is no such thing in this country as “hate speech.” Most so-called “hate speech”—saying ugly things about individuals or groups—is actually protected. (See Matal v. Tam, 2017.) Charlie clearly agreed, arguing that “‘hate speech’ should be completely and totally allowed in our country.”
I’ve heard people say things like, “Well, if I said something like what Shirinian said, I’d be fired from my job in a heartbeat.” Maybe so, and maybe you’d have grounds for a lawsuit. Or maybe not. In many states, private companies can hire and fire at will. But college and university professors must be held to a different standard, for two reasons.
The first is that most of them work for state institutions, and, insofar as the Bill of Rights is concerned, state governments are extensions of the federal government. According to the Fourteenth Amendment, a state cannot do something the Constitution expressly forbids. A private employer may, in some circumstances, punish individuals for protected speech. The government—whether federal, state, or local—may not.
This question has been thoroughly litigated. As I noted in December, the Supreme Court held in Garcetti v. Ceballos (2006) that public employees may be disciplined for speech made “pursuant to their duties.” Even though the Court expressly punted on whether this applied to professors, its decision has been used in several cases to justify disciplinary action against college faculty.
However, conservative UNC-Wilmington professor and Townhall columnist Mike Adams challenged that doctrine and won. In 2014, the Fourth Circuit Court of Appeals ruled that Adams could not be punished (in his case, denied a promotion) due to speech his institution found offensive. The same reasoning obviously applies to Shirinian and her ilk, provided their comments did not actually rise to the level of the exceptions mentioned above (Note that this argument might not apply to faculty at private institutions, which are not bound by the First Amendment. However, they may well be bound by their own written policies that guarantee certain freedoms.)
The other reason college faculty must be treated differently when it comes to speech is that, as members of a learned profession, their job is to say what they believe is true, even if no one likes it. Without that freedom—if no one ever challenged the accepted narrative—there could be absolutely no progress on any front. Because they are human, and biased, and sometimes morally suspect, some of what professors say will be wrong, perhaps even evil. They must be allowed to say it, anyway.
Colleges and universities may be able to regulate, to some extent, what faculty members say in the classroom. The American Association of University Professors’ famous 1940 Statement on Academic Freedom, to which most institutions still adhere, stipulates that college instructors “should be careful not to introduce into their teaching controversial matter which has no relation to their subject.” But when it comes to professors’ private speech, such as social media posts, and even semi-private speech, such as op-eds, regulation amounts to censorship and violates the First Amendment.
You might not like what Shirinian said. I get it. I don’t like it, either. You might even have celebrated a little bit when she got fired. I get that, too. Nevertheless, her legal victory was entirely predictable, based on both the letter and the spirit of the law.
Now we just have to make sure institutions are consistent in applying the same standard to conservatives when we say things they don’t like.
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