Freedom of Screech

Even living in the relative isolation of a sailboat with spotty internet in the Bahamas, we couldn’t escape hearing about the comments made by Fresno State Professor Randa Jarrar following the death of former first lady Barbara Bush. No need to repeat those comments here since they are quite well publicized in the major media. The reaction to Professor Jarrar’s statements by her employer and defenders exemplify what has become a popular, but grossly incorrect interpretation of “freedom of speech” as set forth in the Constitution. It again also highlights the complete ineptitude of a university President in dealing with this kind of behavior from an employee, despite a growing number of recent spectacular failures from which to learn. There are two points we’d like to make about this situation:

First, both the media and free speech activists have created a bastardized interpretation of the First  Amendment that reads something like this:” Every person within the United States has a right to say/write whatever they want, in any place or circumstance, without fear of breaking a law or suffering any penalty because of what they said/wrote”. What’s worse, many employers, university Presidents, and politicians use this definition as if it were the real one because they know it is what has been force-fed into the heads of their employees/students/constituents. The actual words of the First Amendment to the Constitution are quite different:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The key difference, which seems to be always left out of the bastardized translation, lies in the first five words – Congress shall make no law… The very clear meaning is that the federal government cannot abridge free speech (or religion or the press). That’s it. It does not say an employer, university President, or even a state government¹ cannot abridge free speech, it only references the Congress of the federal government. This distinction is best exemplified in professional sports, and magnificently so in the NFL. All the players who took a knee to the National Anthem proclaimed, among other things, their right to do so under the First Amendment. However, if any of those same players bad-mouth a referee during the game, their team is penalized, the player is ejected and then usually fined. Have you ever heard a player assert his First Amendment rights in this scenario? Of course not. The NFL can make all the rules it wants restricting the speech of its employees because the actual wording of the First Amendment does not prohibit them from doing so. It only prohibits Congress from doing so. The irony in this example is that all the players are well aware of the rules about bad-mouthing a referee and they know and accept the consequences if they violate those rules. The NFL currently has no rule or penalty against protesting the National Anthem before a game. Should they decide to create one for next season, it will not be a violation of the First Amendment and players can be penalized/fined for kneeling just the same as if they committed a foul on the field. This same concept applies to Universities and their employees. All Universities have codes of conduct for their students and faculty. A student can be expelled or a faculty member fired if they violate those codes. There is no recourse found in the First Amendment because it does not apply in this context. Fresno State University President Joseph Castro responded this week by saying, in part, there is a need to “…continue to role-model leadership while upholding the First Amendment rights”. What?? Fresno State makes and enforces its own rules of conduct for its employees. Mr. Castro’s “investigation” and subsequent action should center around determining if Professor Jarrar’s comments violated one of those rules of conduct. And if so, the university then should decide what the penalty will be. It has nothing to do with the First Amendment. Referencing the First Amendment in his statement either exposes his own ignorance of its content or reveals an intent to obfuscate, perhaps in hope that the problem will just goes away after a short time. His statement also appears, in part, to simply be a copy/paste of the words from other university Presidents who’ve recently found themselves in similar circumstances.

Secondly, some of the public reaction to Professor Jarrar’s comments, particularly from other university professors, is that she is an “outlier” or “extremist” and not representative of the views of any group or political party. Therefore, she should not be taken seriously, and any continued news coverage of her is absurd and of no consequence. There are plenty of recent examples of Twitter and Facebook gutter-snipes who write this sort of provocative stuff to try and make a name for themselves. Professor Jarrar is not in that category however, as much as some would like to place her there. Unlike the common social media extremist, she is a professional educator, and by her own proclamation one of the highest paid educators in the country. She highlighted her salary and the fact that she is a tenured professor in her rant against Ms. Bush, seemingly to add legitimacy to her words and express glee in her own untouchability. By doing this, she also securely connected herself and her comments to her employment at Fresno State, and therefore was clearly not speaking exclusively in the role of a “private citizen”. There is a golden opportunity here for a university President to both educate us all as to the limits of the First Amendment and to set a standard of conduct for university faculty members. It may still happen, but we’re not holding our breath.

¹ Some state Constitutions also have clauses preventing that state’s Congress from creating state laws abridging free speech. In 1925, the Supreme Court set the precedent that the 1st Amendment applied to state laws, in addition to federal laws, by way of the Due Process Clause of the 14th Amendment. Even so, private employers can still create their own rules of conduct for employees that are entirely independent of the 1st Amendment.