Supreme Court reaffirms our First Amendment right to be offensive idiots

Last updated on 06/23/2017

The decision was unanimous. The Washington Post’s Eugene Volokh has the analysis here. Kennedy, Ginsburg, Sotomayor and Elena Kagan’s concurring opinion reads as if written specifically in response to the UO administration’s discipline of law school professor Nancy Shurtz:

The Government may not insulate a law from charges of viewpoint discrimination by tying censorship to the reaction of the speaker’s audience. The Court has suggested that viewpoint discrimination occurs when the government intends to suppress a speaker’s beliefs … but viewpoint discrimination need not take that form in every instance. The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing.

I’m no lawyer, but this language doesn’t seem to give any support for the November 30th 2016 report from the UO General Counsel’s attorneys, concluding that the First Amendment did not protect Professor Shurtz, because she had engaged in speech that a particular audience thought offensive:

… In evaluating the event in light of the University’s policies against discrimination, it is important to outline the outcomes and impacts following the event, upon both the attendees as well as the student body. As stated previously, different guests had differing personal perspectives, so the range of responses varied accordingly. One point that was clear, at least before the event, was that most of the attendees knew Shurtz (setting aside the family members and plus-ones), had an appreciation for or understanding of her personality and her general intentions, and held her in esteem.

All the students interviewed made it very clear that the impacts of the event and the costume extend far beyond those students and individuals who were in attendance, and that the resulting environment at the school has been very negative and contentious. …

VII. CONCLUSION

Based on the interviews conducted and our review and analysis of the information obtained during this investigation, we conclude:

1. That Nancy Shurtz’s wearing of the costume at the stated event constitutes a violation of the University’s policies against discrimination. We further find that the actions constitute Discriminatory Harassment under those policies.

2. That the actual disruption and harm to the University resulting from Nancy Shurtz’s wearing of the costume at the stated event are significant enough to outweigh Nancy Shurtz’s interests in academic freedom and free speech.

Respectfully Submitted, Edwin A. Harnden Shayda Z. Le Barran Liebman LLP

UO Matters Post author | 06/20/2017

The First Amendmendment is far from irrelevant – for employees of public universities. See http://www.chronicle.com/article/For-Faculty-Free-Speech-the/141951#sthash.yp1b5ITv.dpuf

In the past two years, however, the tide appears to have turned. Two recent decisions by federal appellate courts explicitly hold that the Garcetti standard does not apply in faculty-free-speech cases. In 2011, in Adams v. Trustees of the University of North Carolina-Wilmington, a faculty member accused university officials of discriminating against him by denying his application for promotion after he expressed opposition to various university policies and positions in radio and television commentaries and a highly critical book. The court rejected the university’s effort to dismiss the lawsuit on Garcetti grounds, holding that “Garcetti would not apply in the academic context of a public university as represented by the facts of this case.”

Just a few weeks ago, in Demers v. Austin, another federal appellate court reached the same conclusion in a carefully reasoned decision allowing a professor at Washington State University to proceed with a retaliation claim after he distributed a pamphlet and a book manuscript advocating an academic-reorganization plan opposed by university administrators. Once again the holding was unequivocal: “We conclude that Garcetti does not—indeed, consistent with the First Amendment, cannot—apply to teaching and academic writing that are performed ‘pursuant to the official duties’ of a teacher and professor. We hold that academic employee speech not covered by Garcetti is protected under the First Amendment, using the analysis established in Pickering.”

These rulings are presumably why UO’s passive-aggressive investigators said “We do not find that Shurtz’s statements were made pursuant to her official duties.” Please read the report and the decisions before making further comments on this issue.

4 Comments

Dog 06/20/2017

Good job UOmatters

We at the UO are so insular and smug that we often don’t act like an
external world of accountability actually exists. Your excerpt
from the Supreme Court makes it quite clear that Prof. Shurtz, despite her ill-conceived approach, is still protected by the first amendment because stupidity does qualify for this protection.

Salty 06/20/2017

“Supreme Court reaffirms our First Amendment right to be offensive idiots”
Fucking-A they did!

just different 06/20/2017

I’m no lawyer either, but the Barran Liebman analysis said that Shurtz was acting as a public employee and not as a private citizen, which is a well-supported fact. So the First Amendment–as opposed to university policies of academic freedom and free speech–is completely irrelevant.

- UO Matters Post author | 06/20/2017
  
  The First Amendmendment is far from irrelevant – for employees of public universities. See http://www.chronicle.com/article/For-Faculty-Free-Speech-the/141951#sthash.yp1b5ITv.dpuf
  
  In the past two years, however, the tide appears to have turned. Two recent decisions by federal appellate courts explicitly hold that the Garcetti standard does not apply in faculty-free-speech cases. In 2011, in Adams v. Trustees of the University of North Carolina-Wilmington, a faculty member accused university officials of discriminating against him by denying his application for promotion after he expressed opposition to various university policies and positions in radio and television commentaries and a highly critical book. The court rejected the university’s effort to dismiss the lawsuit on Garcetti grounds, holding that “Garcetti would not apply in the academic context of a public university as represented by the facts of this case.”
  
  Just a few weeks ago, in Demers v. Austin, another federal appellate court reached the same conclusion in a carefully reasoned decision allowing a professor at Washington State University to proceed with a retaliation claim after he distributed a pamphlet and a book manuscript advocating an academic-reorganization plan opposed by university administrators. Once again the holding was unequivocal: “We conclude that Garcetti does not—indeed, consistent with the First Amendment, cannot—apply to teaching and academic writing that are performed ‘pursuant to the official duties’ of a teacher and professor. We hold that academic employee speech not covered by Garcetti is protected under the First Amendment, using the analysis established in Pickering.”
  
  These rulings are presumably why UO’s passive-aggressive investigators said “We do not find that Shurtz’s statements were made pursuant to her official duties.” Please read the report and the decisions before making further comments on this issue.

Supreme Court reaffirms our First Amendment right to be offensive idiots

4 Comments

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