I have followed with interest the discussions regarding hateful tweets concerning Barbara Bush by a Fresno State college professor.  As expected the President of the College declined to do anything.  College presidents across the nation are not exactly distinguishing themselves with displays of courage and leadership no matter how embarrassing the conduct of their staff or students.  If you expect them to take a stand don’t wait outside in the rain.  You will expire of pneumonia before they take any definitive action.  Today a college presidency is more about public relations and fundraising than leadership.  Not sure “President” is a descriptive term for their role anymore.

 

Now to the tweets and the Constitution.

 

The first question is simple.  Was this a freedom of speech issue?  The First Amendment, as interpreted by the Supreme Court, provides that no action of the government may “abridge freedom of speech.”  Nothing was done to her by the government.  Could there have been?

 

She is an employee of a public university that operates with public funding. It was something of a cop out to maintain she did this privately. There is no doubt she was speaking as a college professor.  She knows she is speaking as an employee of the college and even brags about the six-figure salary she is paid from the public treasury.  She even adds that tenure makes her untouchable.  She, therefore, according to her lights, can say what she wants to say, no matter how vulgar or hateful.  It is striking that she has so little regard for the hard-working people who pay the highest state taxes in the nation, people trying to make ends meet and feed their families, so she can lounge around lobbing F bombs.

 

Were Fresno State to proceed against her, because of its public status, it would constitute state action and, therefore, the protections of the First Amendment apply.

 

The next question is how far does the First Amendment go in protecting her as a public employee?

 

In 1892 the famous jurist Oliver Wendel Holmes, in addressing whether the speech of public employees could be restricted without violating the First Amendment said, “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.  There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well of idleness, by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him.”

 

Holmes was a great legal mind, but his view, did not prevail.  Over the next century, the Supreme court sought to find a balance between the interests of the public employer in promoting the efficiency of the public services it performs through its employees and the interests of the employee as a citizen. Generally, they upheld the right of the employee to speak out on matters of public interest.

 

In 1983, a little over a hundred years after Holmes pronouncement, in the case of Connick v Myers, the court upheld an employer’s right to dismiss an employee who engaged in speech activity that interfered with the operation of the public office.  But emphasized the speech activity did not rise to a matter of public concern. The case involved a deputy district attorney who was fired for attempting to organize a group of employees to complain about work assignments.  Justice White wrote, “When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the [First Amendment].”

 

He went on the state that the “…. balance requires full consideration of the government’s interest in the effective and efficient fulfillment of its responsibilities to the public.”

 

This line of cases reached its fulfillment in Rankin v. McPhersonin 1987 which has similarities to the present situation.  In that case, A clerical employee was fired for remarking after hearing of the attempted assassination of President Reagan, “if they go for him again, I hope they get him.”

 

Justice Marshall wrote the opinion of the court. In a close 5 to 4 ruling, the court held that the employee’s remarks were protected.  The majority determined the remark did concern a matter of public concern and in balancing the interests of the state in the “effective functioning” of the office against the employee’s interest in free expression, they came down on the side of the free expression. However, they found it important that this was a single off-hand comment to a co-worker.   Not sure what we heard from the professor was a single off-hand comment.

 

Justice Scalia wrote for the four justices who dissented from the ruling.  He said, “no law enforcement agency is required by the First Amendment to permit one of its employees to ride with the cops and cheer for the robbers.”

 

One further consideration in this area has not gotten a lot of discussion.  California has a mini “Hatch Act.”  A Hatch act prohibits active political campaigning by public employees under certain circumstances, especially while on duty.  The Supreme court has repeatedly upheld Hatch Act prosecutions.

 

Do we really believe that this is a private expression, that these same sentiments and worse have not been propounded in a classroom to a captive audience of public college students?

If so, (and it would be easy to find out and prove if there was a sincere interest on the part of the college administration to prevent such reprehensible conduct), the courts might not be so solicitous of her expressions.

 

 

The second major issue involves the evident encouragement and actual threats of violence the woman made. The leading case in the area comes from the Brandenburg case decided in 1969.   Brandenburg was a Klan leader who inartfully encouraged his followers to use guns to exact what he termed, “revengeance.”  I must say, from what I read, the college professor’s language skills appear to be about on a par with Mr. Brandenburg.

 

In Brandenburg, the court revised rules from a half century of supreme court decisions to form what is known as the Brandenburg rule.  It states that government may not suppress speech unless the speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

 

There doesn’t appear to be an incitement to “imminent” lawless action by the professor. The timing is ambiguous.  Beyond that one has difficulty over the “likely” element.  After all, can we really imagine this disgusting woman waddling out in front of an army of insurrectionists marching forward to spark a revolution? The only entity one can imagine being in actual danger would be a Dunkin’ Donuts shop along the way.

 

One of the underlying values of the First Amendment is to allow the venting of even the most awful expressions of the lowest of society.  The utterances of this person are on a level with Louis Farrakhan, the Klan, and the virulent anti-Semitism of the Fascist regimes of World War II.  Their raw expressions are protected by the First Amendment.  The difference is this person’s hateful racist comments emerge from behind the protective curtain of a public university.