The First Amendment is apparently hard to understand

MOVING TO FRONT FROM OCTOBER 5--UPDATED WITH ADDITIONAL INFORMATION FROM PROFESSOR JUN

IHE had a brief item this morning about controversy over statements by philosopher Nathan Jun, who teaches at Midwestern State University.  (MSU is a public liberal arts college, in a smallish city in North Texas (about 100,000 people), on the border with Oklahoma.)   Jun did a riff on the remark attributed to Diderot that "Men will never be free until the last king is strangled with the entrails of the last priest," substituting police, capitalists and politicians for priests and kings.  This is clearly lawful expression, but it was bound not to play well in that part of America (probably it wouldn't play well outside of Hyde Park or Greenwich Village). 

The University initially pointed out that the First Amendment exists and protects Professor Jun from sanction by the university for his speech.  So far, so good.  But now the University President has taken to Facebook to assure her constituencies that they're looking into lawful options for punishing Professor Jun's speech.  Not so good.  I'm struck by the commenters on her Facebook post:  some think that hate speech is not protected by the First Amendment (it is, but Jun's statement doesn't meet any statutory definition of hate speech I've seen in those jurisdictions where it is not protected--though one could imagine that politicians would be thrilled to be a protected class for hate speech!); others think his statement constitutes unlawful threats or incitement to violence (it is neither, and it's not close).  (It's true Diderot's remarks preceded the French Revolution, but no one thinks they incited anyone to the violence that ensued!)

Besides the total ignorance of the First Amendment on display in the comments, what is more worrisome are the commenters who indicate that they won't be sending kids to MSU or are withdrawing their kids because of Professor Jun.   If the University wants to play hardball, then they will appeal to this kind of evidence to argue that Professor Jun's speech fails the Pickering balancing test that applies to speech by public employees.  Here's how I explained it in the context of the Salita case at Illinois:

In that case, a local school board fired a teacher who wrote a letter to the local newspaper criticizing the board’s management of district finances; the letter, it turned out, contained some factual inaccuracies as well. The Court sided with the teacher and against the board. In the crucial paragraph of the opinion, the Court stated:

"To the extent that the [lower court’s] opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court....At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."

....Note that in Pickering, the Court did not find that any of the school’s interests “in promoting the efficiency of the public services it performs through its employees” were really affected by the letter, even allowing that some of the statements in the letter were inaccurate. But it’s precisely the Pickering balancing test that a state university can invoke if it disciplines a teacher who demeans and disrespects his students in the classroom (or if the teacher harasses, sexually or otherwise, the students).

If the University wants to push the envelope, and the law, they will argue that Professor Jun's repeated provocative public statements are affecting the university's ability to recruit students and retain them (they'll point to the Facebook comments, and I'm sure the many e-mails the university has been getting)--that is, his speech interferes with the University's functions.  This is not a good argument, but one can hardly be confident that it might not prevail in the very conservative Fifth Circuit, where Texas is located.  If it did, it would be a disastrous precedent for the free speech rights of faculty at public universities.  

Recall that after the University of Illinois breached its contract with Salaita and violated his First Amendment rights, it cost more than a quarter-million dollars in legal fees for Professor Salaita to get a $600,000 settlement as "compensation" for 35 years of a lost academic career.  That is not a good precedent for academic freedom, to put it mildly.  Professor Jun already has a GoFundMe page to help with his existing legal costs; those will skyrocket if the University decides to play hardball.  Hopefully they will take the lawful course.

UPDATE (October 7):  Professor Jun asked me to share this statement, which sheds useful light on the context of the remarks that generated this attack on his First Amendment rights:

I am very grateful to Professor Leiter for discussing my case. The comment at the center of this controversy was a paraphrase a quotation (“Men are not free until the last king is strangled with the entrails of the last priest”) attributed to the famous French philosopher Denis Diderot (1713-1784). Written in response to a private post on a friend’s page, the comment was intended to be tongue-in-cheek and was clearly interpreted as such by the friend in question, with whom I frequently exchange over-the-top political banter and inside jokes of this sort. (Indeed, the comment was accompanied by an absurd video montage featuring police riots set to the tune of Andy Williams’ “It’s the Most Wonderful Time of the Year.”) My guess is that another individual with access to my friend’s Facebook page took offense and decided to disseminate it; at the time I posted it, however, I had no reason to think it would end up being shared publicly.

Although I leave it to readers to arrive at their own conclusions about this controversy and MSU’s handling of it, I would respectfully urge sympathetic colleagues to express their concerns to the university administration directly. Public statements of support and solidarity, as well as donations to my legal fund , will also be greatly appreciated. I am happy to answer questions and/or provide additional details concerning the broader context of the case; please feel free to contact me at (nathan [dot] jun [at] msutexas dot [edu]).