Thursday, the United States Court of Appeals for the Ninth Circuit issued an important college free speech decision in a case that pits a college harassment policy against a professor’s racially insensitive comments. (H/t to Professor Volokh who has thorough coverage here, here, here, and here.)
Rodriguez v. Maricopa County Community College involves a professor who sent three racially charged emails on a college-wide listserv. A group of employees who were offended by the emails sued the college under Equal Protection and Title VII theories, claiming it failed to take adquate steps to protect them from the professor’s harassment. In the plaintiffs’ eyes, the college should have used its anti-harassment policy to silence the professor’s speech and impose punishment on him. The college administration condemned the emails, but did not punish the professor, saying disciplinary action against him “could seriously undermine [the college's] ability to promote true academic freedom.” The trial court found that the college officials’ actions did not merit qualified immunity, which means that if the plaintiff employees prevailed they could collect money damages from the officials’ pocketbooks.
The Ninth Circuit reversed and found that the officials deserved qualified immunity because the Equal Protection clause of the Fourteenth Amendment did not give the employees a right to be free from offensive speech on a college campus. In analyzing the claims, the Ninth Circuit flatly rejected the plaintiffs’ argument that the college may silence the professor based on the offensiveness of his speech.
Plaintiffs no doubt feel demeaned by Kehowski’s speech, as his very thesis can be understood to be that they are less than equal. But that highlights the problem with plaintiffs’ suit. Their objection to Kehowski’s speech is based entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive. [. . .] “There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.” [. . .]
Indeed, precisely because Kehowski’s ideas fall outside the mainstream, his words sparked intense debate: Colleagues emailed responses, and Kehowski replied; some voiced opinions in the editorial pages of the local paper; the administration issued a press release; and, in the best tradition of higher learning, students protested. The Constitution embraces such a heated exchange of views, even (perhaps especially) when they concern sensitive topics like race, where the risk of conflict and insult is high. [. . .] Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched. [ . . .] The right to provoke, offend and shock lies at the core of the First Amendment.
This is particularly so on college campuses. Intellectual advancement has traditionally progressed through discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular. Colleges and universities—sheltered from the currents of popular opinion by tradition, geography, tenure and monetary endowments—have historically fostered that exchange. But that role in our society will not survive if certain points of view may be declared beyond the pale. “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” [. . .] We have therefore said that “[t]he desire to maintain a sedate academic environment . . . [does not] justify limitations on a teacher’s freedom to express himself on political issues in vigorous, argumentative, unmeasured, and even distinctly unpleasant terms.”
That passage would only be better if accompanied by the final movement of Beethoven’s 9th Symphony (“Ode to Joy”). Yet it gets better. In responding to the plaintiffs’ argument that the college should have shut down the listserv as a means of communication:
[L]isteners who are offended by the ideas being discussed certainly are not entitled to shut down an entire forum simply because they object to what some people are saying. Such a rule would contravene the First Amendment’s hostility towards laws that “confer broad powers of censorship, in the form of a ‘heckler’s veto,’ upon any opponent of” certain points of view. [. . .] Because some people take umbrage at a great many ideas, very soon no one would be able to say much of anything at all.
The court concluded with this:
It’s easy enough to assert that Kehowski’s ideas contribute nothing to academic debate, and that the expression of his point of view does more harm than good. But the First Amendment doesn’t allow us to weigh the pros and cons of certain types of speech. Those offended by Kehowski’s ideas should engage him in debate or hit the “delete” button when they receive his emails. They may not invoke the power of the government to shut him up.
If these passages are any indication, the Rodriguez ruling may bode well for Jonathan Lopez, whose First Amendment challenge to the Los Angeles Community College District harassment policy is pending now before the Ninth Circuit (ADF represents Mr. Lopez).
