'The First Amendment Protects Speech Even When It Is Rude and Offensive'

A few weeks ago, William Kirwan, president of Central Spirit, a student organization at Clemson University, had an email exchange with an administrator, Laura McMaster, in which he rejected her recommendation that the group participate in the school's annual Fall Organizations Fair, calling it "a colossal waste of time." When McMaster, Central Spirit's official adviser, tried to cajole/pressure Kirwan into reconsidering, he replied:

You want us to participate in a recruiting event that acquired us zero members last year and provides no achievable benefit to the organization, while costing us money (in the form of flyers, brochures, and promotional items) just because It will "look good" and because we'd be the only Big 7 organization to choose not to participate? Does Marty [Kern, McMaster's boss] know you were smoking crack in the office this afternoon? because that's the only semi-logical explanation I can glean. Let me tell you something, I'm not going to let you bully the organization into doing the things you want us to do or perceive as important when they take away our resources from being able to concentrate on our mission.

Kirwan sounds like a dick, doesn't he? Yet Kern, who was copied on the message, managed to outdo him through a kind of reverse judo that turned his weaknesses into an advantage. She informed Kirwan that "your language and tone is unacceptable" and asked him to meet her "asap." After Kirwan declined, Kern said that too was "unacceptable" and that she would hold the "meeting" without him. He egged her on:

Do what you want! There's no university policy in place that says I have to be respectful to anybody or grant them my time....

The point you want to make with me is that I should be respectful with you, when clearly you have a problem with an employee doing illegal drugs in the office* to which you turn a blind eye.

Six days later, Kirwan was charged with four violations of university regulations: disorderly conduct, harassment, computer misuse, and failure to comply with an official request. Kirwan contacted the Foundation for Individual Rights in Education (FIRE), which on Monday sent a letter to Clemson's president, James F. Barker, reminding him that public universities are required to respect freedom of speech. The university dropped the charges against Kirwan the next day, agreeing that "the First Amendment protects speech even when it is rude and offensive."

Defending campus hotheads against retaliation from touchy university administrators is a FIRE specialty.

[*Commenter Ken Shultz suggests this could be read as libelous, but in context it is clearly a reference to Kirwan's earlier jibe that McMaster must have been "smoking crack" to think she could change his mind.]

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  • ||

    "Six days later, Kirwan was charged with four violations of university regulations: disorderly conduct, harassment, computer misuse, and failure to comply with an official request."

    Having dispensed with that, there's the question of libel.

    It's not a clear case, but there's a hint of a possibility those communications may have been libelous--maybe the only possible violation he wasn't accused of!

    Seriously, if I threaten to tell your boss that you're on drugs if you don't do like I say--that maybe shouldn't be protected speech. Why not go after him for something he really might have done?

  • Kiwi Dave||

    Very much doubt there's a libel case here. As the Supreme Court made clear in Hustler Magazine v. Falwell, parody statements that are clearly not meant to be taken seriously are by definition not libellous and are protected by the First Amendment.

  • ||

    Doesn't libel require, you know, somebody else to have heard the offending speech? If I call you a pederast in a forest and no one else is there, does it make a suit?

  • WTF||

    He made the statement about the woman doing drugs to the other guy. That's all it takes.

  • WTF||

    But it also was pretty clear he was being satirical/facetious.

  • Astrid||

    Slander is generally spoken where as libel is generally in a more permeant form like writing. As the e-mails weren't intended for mass viewing but as a private exchange there really isn't a case here for libel.

  • ||

    The precise issue is publication of the alleged defamation.

    Btw, a couple of years ago, the Massachusetts Supreme Judicial Court held that the publication requirement can be satisfied by conduct.

  • Jeffersonian||

    And unless the email was truncated here, Kirwan never identified the employee that was supposedly doing illegal drugs. Who's to sue?

  • ||

    Actually, I think it is highly probable that one or more members of the administration is doing illegal drugs.

    Not because of any actual conduct on their part indicates such use, just because illegal drug use is so prevalent that any sizeable random sprinkling of individuals would have one or more users.

  • Numeromancer||

    Lawyer up, bud; you've just accused millions of people of *gasp* using drugs.

  • Astrid||

    Btw, a couple of years ago, the Massachusetts Supreme Judicial Court held that the publication requirement can be satisfied by conduct.

    Massachusetts being such a bastion of civil and economic freedoms and all.

  • Tim||

    More bastard than bastion that's for sure.

  • ||

    even if it was technically libelous, since it's a private email, there's no civil action possible

    no harm to reputation.

  • ||

    It's not such a private email anymore, now that it's been posted on Teh Intartubes.

  • Spartacus||

    It may not be a private email. Clemson is a state university...in Florida all emails sent on state university email accounts are assumed to be public records unless you can prove that they contain exempt material (which is not easy to do). I don't know how the laws are in SC, but any email sent to a public official (this includes administrators and faculty of public universities) should be assumed to be public unless you know for a fact otherwise.

    Oh yeah, and Kirwan is a dick. I hope his club does not have to have a faculty sponsor, because they may have some real trouble finding one.

  • ||

    The First Amendment protects speech especially when it is rude and offensive.

  • Joe M||

    Damn it Pro-Lib! You beat me by two minutes.

  • .||

    Not "especially."

    Congress shall make no law...abridging the freedom of speech, or of the press

    Somebody's opinion of the nature of the speech is immaterial.

  • ||

    Well, that's not entirely true. There's defamation, for instance, and there's always been an obscenity exception of some sort. But yeah, I'm mostly on board with that idea.

  • x,y||

    The point, I think, is that the express terms of the 1A have no bearing on the type of speech. The intent of the drafter, how those words were construed then, and how they have since been construed are different questions.

  • ||

    Not to mention that speech that is not offensive (or rude) to someone would not need to be protected. The sole purpose of the amendment is to protect speech that someone or other does not like.

  • .||

    No. No. No. It is neutral. It doesn't care if the speech offends or enlightens or just is. It says Congress cannot abridge your speech. Period. Any other interpretation opens up a wholly unnecessary and dangerous Pandora's Box of hair-splitting, obfuscation, sophistry.

  • Citizen Nothing||

    Hehehe.

    (K.S. - so obvious dickish hyperbole is now the grounds for libel?)

  • x,y||

    He's either a dick or someone who would be totally awesome to have a beer with. Good on him for not being bullied.

  • WTF||

    My thoughts exactly.

  • robc||

    or

    Why not "and". Im pretty sure its both.

  • x,y||

    Because I don't "hang out" with "dicks." No homo, as Dwayne Bowe would say.

  • ||

    I'm just a simple unfrozen caveman lawyer, but if there's one thing we can all agree on, it's that "colossal waste of" is an apt description for all parties in this case.

    I mean, I was frozen in a block of friggin' ice for millions of years, and I managed to make myself a productive member of society. Have any of these people ever held a real job in their lives?

  • ||

    Since when are lawyers considered productive? Other than by their billing, of course . . .

  • WTF||

    I could be more productive if it weren't for this damn blog!

  • The Gobbler||

    I have found a great many attorneys to be productive. I am grateful for their service and expertise.

  • Zeb||

    Useful and necessary, I would agree, but productive? What do they produce again?

  • WTF||

    Words. Lots of words. And papers. Documents.

    And - ultimately - if we're doing the job right, desired results for our clients.

  • Pendulum||

    Rule of law?

  • T||

    Wait, Captain Caveman got a law degree? Hanging out with hot babes and fighting crime not pay well or something?

  • ||

    It's an old SNL skit.

  • ||

    TO ALL THE COMMUNIST IN THE IG,FBI,CIA,AND U.S. Senators and the left wing media outlets ////Mmslim Barack Hussein Obama people have no idea of the extent to which they have to be gulled in order to be led." "The size of the lie is a definite factor in causing it to be believed, for the vast masses of the nation are in the depths of their hearts more easily deceived than they are consciously and intentionally bad. The primitive simplicity of their minds renders them a more easy prey to a big lie than a small one, for they themselves often tell little lies but would be ashamed to tell a big one." "All propaganda must be so popular and on such an intellectual level, that even the most stupid of those towards whom it is directed will understand it. Therefore, the intellectual level of the propaganda must be lower the larger the number of people who are to be influenced by it." "Through clever and constant application of propaganda, people can be made to see paradise as hell, and also the other way around, to consider the most wretched sort of life as paradise. //////"pelosi don't see much future for the Americans ... it's a decayed country. And they have their racial problem, and the problem of social HATRED ...obama feelings against Americanism are feelings of HATRED and deep repugnance ... everything about the behaviour of American society reveals that it's half LIES, and the other half RACIAL. How can one expect THE USA to hold TOGTHER.They include the angry left wing bloggers who spread vicious lies and half-truths about their political adversaries... Those lies are then repeated by the duplicitous left wing media outlets who “discuss” the nonsense on air as if it has merit� The media's justification is apparently “because it's out there”, truth be damned., GOD OPEN YOUR EYESTO ALL THE COMMUNIST IN THE IG,FBI,CIA,AND U.S. Senators and the left wing media outlets ////Mmslim Barack Hussein Obama people have no idea of the extent to which they have to be gulled in order to be led." "The size of the lie is a definite factor in causing it to be believed, for the vast masses of the nation are in the depths of their hearts more easily deceived than they are consciously and intentionally bad. The primitive simplicity of their minds renders them a more easy prey to a big lie than a small one, for they themselves often tell little lies but would be ashamed to tell a big one." "All propaganda must be so popular and on such an intellectual level, that even the most stupid of those towards whom it is directed will understand it. Therefore, the intellectual level of the propaganda must be lower the larger the number of people who are to be influenced by it." "Through clever and constant application of propaganda, people can be made to see paradise as hell, and also the other way around, to consider the most wretched sort of life as paradise. //////"pelosi don't see much future for the Americans ... it's a decayed country. And they have their racial problem, and the problem of social HATRED ...obama feelings against Americanism are feelings of HATRED and deep repugnance ... everything about the behaviour of American society reveals that it's half LIES, and the other half RACIAL. How can one expect THE USA to hold TOGTHER.They include the angry left wing bloggers who spread vicious lies and half-truths about their political adversaries... Those lies are then repeated by the duplicitous left wing media outlets who “discuss” the nonsense on air as if it has merit� The media's justification is apparently “because it's out there”, truth be damned., GOD OPEN YOUR EYES,INPEACH COMMUNIST Mmslim Barack Hussein Obama,TO THE WEAK-KNEED REPUBLICANS AND DEMOCRAT .THE COMMANDER REPOST THIS IF YOU AGREE TO THE WEAK-KNEED REPUBLICANS AND DEMOCRAT .THE COMMANDER REPOST THIS IF YOU AGREE

  • The Commander||

    GIVE ME A SECOND TO THINK ABOUT IT, WILL YOU?

  • Maverick||

    +?

  • The Gobbler||

    Now say that again while tap dancing. Go ahead. I dare ya.

  • ||

    You're either using too many drugs or not enough. I can't quite tell, but my guess would be "not nearly enough".

  • Citizen Nothing||

    We need gabe here to translate.

  • ||

    Feel better now?

  • ||

    Hello Lyndon LaRouche!

  • Tim||

    What's the frequency Kenneth?

  • Parker||

    I'm intrigued by what you say, and would like to receive your newsletter.

  • BakedPenguin||

    If you adjust your tinfoil hat, you should receive the broadcasts.

  • ||

    You know, if you just inserted a few blank lines to make paragraphs or something like them lazy guys like me might be inclined to try to read what you post.

  • Warty||

    CHEMTRAILS

  • ||

    Sounds like you smoked too much crack in your office, mister.

  • Rabbit Scribe||

    Mm... slim Barack Hussein Obama.

  • Frankyb||

    OMG! So - Much - Truths. Can't. Take. More. Head. EXPLODE! BWAAA !

  • Tim||

    It's all so clear to me now, I've wasted my life...

  • ||

    I think I know why your name is ABUSE.

  • RM||

    Jawohl, herr kommandant!

  • ||

    From the article:

    "Kirwan sounds like a dick, doesn't he?"

    No. No, he doesn't.

  • WTF||

    Agreed.

  • guy in the back row||

    Me too!

  • ||

    I think he does, if you follow the link to all the original emails. He really ratchets up the confrontation pretty quickly. OTOH, the last 2 emails in the exchange indicate there's some past history there, so maybe if I knew the full context he would seem less dickish.

  • ||

    I didn't follow the links. But this dust up illustrates something I see too much of. He stated his position clearly and bluntly, worse, he DISAGREED ! and said so. So when all else fails, criticize his "language and tone". Bah. Too much finger wagging today about civility, when someone doesnt' get their way. Tough.

  • highnumber||

    There is a difference between stating something bluntly and being a dick. He was being a dick. Luckily the kid has some time to work on his communication skills before he hits the real world.

    All that said, of course he has the right to be a dick. The administrator also had the right to call him on being a dick. Disciplinary actions, though - too far.

  • Dick||

    I disagree.

  • highnumber||

    of course

  • ||

    Unfortunately, this "kid" is 28 years old.

  • ||

    I don't think so either. He got tired of this woman trying to con his organization into doing something.

  • WTF||

    OK, following the link and reading the entire exchange, he did come off as a little bit of a dick, having some kind of chip on his shoulder - unless, of course, there is some history there we don't know about.

    Still gotta love the fact that he's not cow towing (or towing the lion) (or cow tipping) to the university admins, and calling it like he sees it. His job is to run that organization and do what is in its best interest. He sees this event as a waste of his time and resources. In fact, he sees the whole exchange with these people as a waste of his time, and he let them know that.

    Seems to me that university admin types tend to be extremely thin-skinned.

    At the very least, it's entertaining.

  • veelin||

    Cow tipping is a popular activity at Clemson, of course.

  • Slut Bunwalla||

    I think there might be something of a history--if not personal, at least policy-wise. This bit from the last of Kernan's e-mails sheds some light:

    BTW, I certainly appreciate the word-for-word talking points memo you gave athletic department when we decided to explore moving under their purview. It makes me warm in all kids of places to read, verbatim, your words coming from other people's e-mail accounts.
  • Slut Bunwalla||

    Er, Kirwan, not Kernan. WTF.

  • glee fan||

    At what point do they all start singing at each other and finally make up?

  • ||

    First someone has to throw on some red vinyl superhero drag to save their gay BFF. Then the healing can truly begin.

  • skr||

    I really wish I had no idea what you are talking about but that would probably mean I wouldn't have a GF either.

  • ||

    Glee is the worst show ever made.

  • rccallahan||

    Kudos to this student for standing up to an administration who is obviously abusing their power. I wish more college students were this empowered about their individual rights.

  • Bluto||

    TOGA! TOGA!

  • Jeff P||

    This is the plot to Revenge of the Nerds IV...

  • ||

    Slow news day?

  • ||

    Stop spoofing me!!!

  • RM||

    Jawohl, herr kommandant!

  • ||

    SRSLY! I MEEN IT!

  • Kat||

    I'm not gonna lie, I found this hilarious. ::golf clap::

  • ||

    Not gonna read the whole email string, but if he told her once, politely, that they weren't going to participate because it got them no new members last time, and she. . . just. . . wouldn't. . . fucking. . . let it go, then

    No, he wasn't being a dick at all.

  • highnumber||

    Not gonna read the whole email string, but if he...

    What a fun game! Why do you offer your opinion on what you imagine the email exchange was?

  • Maverick||

    Dick . . .

  • highnumber||

    brilliant.

  • ||

    He never told her politely at all. He went ballistic on her from his very first response. Maybe you should read the email string before you comment.

  • Death Panelist||

    If he's planning on making it a habit to talk frankly and sans deference to god-like university administrators, he might want to think about getting out of academia altogether.

  • ||

    If he's planning on making it a habit to talk frankly and sans deference ..

    he's my kind of guy.

  • ||

    Indeed.

  • veelin||

    As a SC emigre, I think this is the finest news to come from the Palmetto State in quite some time.

  • ||

    "There's no university policy in place that says I have to be respectful to anybody"

    Well, there's gonna be.

  • Kolohe||

    They have made a lot of changes for the Fall and expect to have the largest numbers ever. They are expecting over 250 organizations to be involved including community partners. If you and your directors decide not to do it, I would put together a rationale as this is one of the times you can show that you support student government events. In addition you would be the ONLY one of the Big 7 organizations not represented-just something to think about. If done right this is a great recruiting mechanism. It's not often you get to see 4000+ students at once. This could be a great project for Summer. I think she would have a blast. Just thought I would share my thoughts. Let me know what you decide after you talk to you directors.

    Yeah, this type of thing is practically stereotypical college administration wishy washy pusilanimous B.S.

    Kirwan may very well be a bit of of dick, but those are the only people who get things done in that environment.

  • alan||

    Kirwan may very well be a bit of of dick, but those are the only people who get things done in that environment.

    ++

  • Spartacus||

    As someone who has spent the last 20+ years in that environment...

    No. No they don't. They DO end up bitter and isolated, and wonder why they are not asked to participate in anything important anymore.

  • ¢||

    it is clearly a reference to Kirwan's earlier jibe

    That's no mere "reference." It's a pro-level callback that risks its WTF?...Oh! entirely on the audience. The kid's a prodigy.

  • Kolohe||

    Although, in these situtations, the Student Affairs type position that Kern is in normally has unilateral discretion to replace the head of a student organization if they see fit (and then it becomes a matter of the politics of how popular the dismissed leader actually was in that organization to see if it sticks)

    That's is what Kern should have done, rather than trumped up student code of conduct charges.

  • ||

    Personally, I don't like the idea of a school administrator replacing the head of a student organization at all. Why should school administrators be able to dictate any action by a student club?

  • Spartacus||

    Because the university will ultimately be liable for their actions, that's why.

    Really, there's no need for the administrator to replace him. At most places, any organization that receives funding has to have a faculty advisor. I think they are going to have a lot of trouble finding one as long as this guy remains their president. There will be a student coup, no administrators needed.

  • IceTrey||

    They also probably receive money from the school and use school facilities.

  • Abdul||

    Here's the organization's mission statement: "To promote and maintain the traditionally high degree of interest and school spirit that exists towards the intercollegiate athletic program at Clemson University. To communicate with students and the Athletic Department in furthering the development of the athletic program at Clemson University, consistent with the policies of Central Spirit. To encourage and provide students with a vehicle for the development of the skills of leadership and human understanding."

    Protected speech? Sure. Promoting "human understanding"? Not so much.

  • ||

    Apply that standard to Kern and McMasters. If you are a university administrator, be the bigger person or get a life.

  • ||

    Promoting "human understanding"? Not so much.

    Oh, I dunno. I think the administrators had a very good understanding of his position and opinions by the time he was done with them.

  • ||

    I think Kirwan is displaying exemplary leadership skills in facing down a university employer overstepping her bounds.

  • ||

    "employee" not "employer"
    d'oh

  • ||

    Making the administration back down and quit trampling on the First Amendment takes considerable leadership skills.

  • ||

    Kern and McMaster should find a new line of work. What horrible attitudes.

    Sure, Kirwan could have been more polite. However, Kern and McMaster's actions smack of umpire Joe West's actions yesterday in the White Sox game. Too many people in too many positions of authority are too thin skinned.

  • alan||

    Protected speech? Sure. Promoting "human understanding"? Not so much.

    Disagree. Humans are pack animals. Given that it was ultimately the administration that rolled on its back to expose its soft belly this Kirwan guy provided invaluable insight to the actual instead of the professed nature of the human condition.

  • ||

    The weird thing about this is that the university officials apparently thought that the student was like an employee to be ordered around, and the student organization a branch of the university.

    Where I am, a student organization is basically a private club. All they have to do is register to use campus space for meetings. They are in no way obliged to participate in campus club fairs if they don't feel like it, although I guess the administrators feel it's somehow their mission to cajole the clubs into doing so. My guess is that McMaster had a bit too much "team spirit", and a mistaken sense of authority.

  • Kolohe||

    Many student orgs - and almost defintely one that is called "part of the 'Big 7'" - get a pot of money from the university (which is derived from 'Student Actitivies Fees')

  • Kurt||

    Wait a minute - somebody tell me whether Central Spirit is a right-wing organization or a left-wing organization, so I can figure out whose side to take.

  • seanrude||

    Based on the name, I would have guessed some sort of Up With People type goody two-shoes group, but the kid running it seems like too much of a dick to be involved in something like that.

    I mean that as a compliment

  • ||

    he rejected her recommendation that the group participate in the school's annual Fall Organizations Fair, calling it "a colossal waste of time."

    A+

  • ||

    So once again, college academia proves that it's the home of speech-restricting, knuckle-draggers who tout the lofty ideals of reason and freedom of thought - except when they're the ones being challenged.

    In other words, nothing new here.

  • ||

    Good thing this didn't happen at Houston Community College...

  • anarch||

    Nice.

  • ||

    "To promote and maintain the traditionally high degree of interest and school spirit that exists towards the intercollegiate athletic program at Clemson University. To communicate with students and the Athletic Department in furthering the development of the athletic program at Clemson University, consistent with the policies of Central Spirit. To encourage and provide students with a vehicle for the development of the skills of leadership and human understanding."

    They're fucking cheerleaders (and not in the good way); this whole organization sounds like a colossal waste of time. If those kids had anything on the ball, they'd be out on the quad, smoking dope and throwing frisbees.

  • ||

    Amen.

  • ||

    ... and fucking cheerleaders.

  • ||

    Indeed, this kid is a huge dick who got way too bent out of shape over a suggestion that his retarded cheerleading organization participate in some meaningless event. That being said, he shouldn't be kicked out of a state university.

  • Ivy League Dick||

    He should be forced to stay.

  • ||

    104 Comments about an article over a spat between some douchebag college kid and a bored administrator?

    You guys must be going through some kind of outrage withdrawl...

  • ||

    ...sometimes the specific is the universal.

  • Maverick||

    Dick . . .

  • ||

    Dan T. is not entertained.

  • ||

    STOP SPOOFING ME GUYS! SERIOUSLY!!!

  • ||

    I know, right? Dammit. Really.

  • MicroNomics||

    I have to laugh. His email was mild compared to what I have seen with flame-copy everybody-pissing contest-wars between faculty.

  • anarch, invoking Walter Block||

    Word.

  • ||

    Bored on a Thursday night, I stumbled across this thanks to a friend via facebook. I'll let the call on whether or not I'm a dick up to the people that know me, but I wanted to provide a few extras on this story.

    First, I resigned from my position as president yesterday, effective June 10th. I'd rather not have to worry about vindictive administrators as I go about my days on campus. I turned over the reigns to people less likely to make waves in the interest of letting them have their way and complete the grab for power they've made at me since I was elected.

    Second, I probably was acting like a dick, but I'm an Econ Major and have a personal zero tolerance policy for bullshit. Fact is, there were times when it took me eight or nine separate e-mails to decline things from campus life, and even then, I would still get e-mails from McMaster asking me to reconsider.

    Third - Yes, there was history, and this was mostly events coming to a head. Nearly immediately upon taking office I tried to move my organization to a new structure that would make it so we no longer reported to campus life, and this apparently upset the apple cart of individuals that had carved out their own nice little fiefdoms.

    Last- Marty Kern is a woman.

  • ||

    "I turned over the reigns to people less likely to make waves in the interest of letting them have their way and complete the grab for power they've made at me since I was elected."

    Ah yes, the immense power wielded by the president of a school spirit club. How many assassination attempts were there?

    Dude, you were being a complete dick. The best way to get what you want from a dumbass administrative bureaucracy is to be quick and unemotional. You could have just declined to participate. You didn't have to explain why or voice your opinions of her intelligence. But I don't have to tell you any of this, you're living with the consequences of your actions.

  • He's Not a Dick||

    "Dude, you were being a complete dick."

    Your opinion. The context about the history apparently went right by you. Didn't you see the part about it taking him 8-9 separate e-mails to decline things in the past?

  • ||

    Failure to comply with an official request? Why would you have to comply with a request? If you must comply with a request, then it ain't a request...

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