He’s wrong, and as a “prominent lawyer” he surely knows it. What’s his game here?
Whatever the answer, it makes me laugh to see a dopey left-wing canard like “hate speech” being used against someone for pushing radical-left propaganda like “free Palestine from the river to the sea.” Maybe the chairman’s using the term for that reason, because he thinks it might help campus lefties grasp why Hill’s comments were “problematic,” to borrow another liberal buzzword. Either that or he’s using the phrase to try to teach them a lesson, showing them how “hate speech” prohibitions can be used as a sword against them too, not just their enemies, and should therefore be avoided.
Nah, I’m probably giving him too much credit.
[University chairman] Patrick O’Connor called Hill’s remarks, which cost him his position as a commentator on CNN, “lamentable” and “disgusting.”
“It should be made clear that no one at Temple is happy with his comments,” said O’Connor, a prominent Philadelphia lawyer. “Free speech is one thing. Hate speech is entirely different.”…
“I’m not happy. The board’s not happy. The administration’s not happy. People wanted to fire him right away,” O’Connor said. “We’re going to look at what remedies we have.”…
If Hill worked in private industry, O’Connor said, he and others would have moved to “fire him immediately.” O’Connor said he had instructed Temple’s legal staff to explore its options in response to Hill’s remarks.
If you missed the uproar over Hill’s comments at the UN, read John’s post from Thursday afternoon for background. CNN fired Hill as a contributor in the aftermath under pressure from outraged righties. (Because, let’s face it, among American politics’ activist classes, opposition to a Final Solution to the Israel question lies mostly on the right.) CNN’s a private organization and can do what it wants but Temple is stuck twice over: They’re a public university and Hill has tenure. Even if they found a way to solve the second problem, there’s probably no way around the First Amendment jurisprudence here.
In fact, it was just eight months ago that we covered another prominent case of a public school looking to fire a professor whose rhetorical farts had embarrassed the institution. Remember Randa Jarrar? She greeted the news that Barbara Bush had died by tweeting, “I’m happy the witch is dead. Can’t wait for the rest of her family to fall to their demise the way 1.5 million iraqis have.” The public backlash sent the administration at her school, Fresno State, scrambling for ways to fire her but within a week they had given up on the possibility. That’s because the law as developed by federal courts strongly favors professors’ speech rights. Ken White wrote a quick-and-dirty explainer at the time which I’m going to make even quicker and dirtier via selective excerpting:
The first stage of the analysis is a question: was the public employee speaking on a matter of public interest?…
The second stage of the analysis is another question: was the government employee acting as a private citizen, or as part of their job duties?…
The third stage of the analysis involves a balancing test: the interest of the public employee against the interest of the public employer in promoting the efficient delivery of public services.
Hill was speaking on a matter of public interest, a point in his favor in the First Amendment analysis. Whether he was speaking as a private citizen or as part of his duties as a professor is more ambiguous, as it’s unclear to what extent his job at Temple might have helped land him a speaking slot before the UN. Obviously, though, he wasn’t speaking in a classroom or even on campus, and I note that the introduction he was given before his speech never mentions Temple or the fact that he’s a professor. He’s described as an American citizen, a journalist who contributes to CNN, and someone who’s just recently returned from Palestine. He’d have a strong case that he was acting as a private citizen, another point in his favor. And White notes in his post that the Ninth Circuit held not long ago that professors at public universities enjoy special First Amendment protection in this area even if the speech that got them in trouble was delivered in the course of their job duties. It’d be the Third Circuit, not the Ninth, that would hear any case involving Hill but that reasoning could influence them.
The third factor is the tricky one relative to the other two, as it looks at how disruptive the speech was to the school’s educational mission. You can slice that up in different ways, but when push comes to shove how much disruption has Hill’s speech caused on campus? I’ve seen no reports of mass protests. (It’s farcical to think of an American campus reacting harshly to someone for being too radically anti-Israel.) Clearly some of the trustees are pissed off, but pissed-off trustees aren’t going to affect the daily pedagogy. I’d be surprised if any modern court has ever ruled for a school and against a professor on “disruption” grounds, frankly, since doing so would create a perverse incentive for a professor’s critics to be disruptive. If pro-Israel protesters shut down campus for a day, would that be enough of a heckler’s veto to justify firing Hill? Or would they need to shut it down for a week?
In fact, if the Temple administration tried to boot Hill or even to investigate him, that could land them in trouble. The free-speech advocacy group FIRE noted the following in its letter to Fresno State on Jarrar’s behalf earlier this year:
Between tenure and First Amendment protections that lean heavily in their favor, professors at public schools are effectively unfireable for the batsh*t things they say. Something for America’s public universities to consider, perhaps, before instituting “there’s no such thing as ‘too woke’” as one of their de facto hiring guidelines.
One thing you won’t find in any of this legal hash is the idea that “hate speech” is some magical exception to the usual First Amendment analysis. That’s because … “hate speech” doesn’t exist in any doctrinal way in American law, no matter how much liberals wish it did. (Well, usually.) It’s a left-wing catchphrase used to signal progressive virtue, not something judges look at in deciding cases. So what on earth is Temple’s chairman talking about here?
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