Free Speech

Babson College Adjunct Professor & Administrator Fired for Facebook Post

Asheen Phansey's was responding to President Trump's threat to bomb Iranian cultural sites.

|The Volokh Conspiracy |

The Foundation for Individual Rights in Education is quite right, I think, to criticize Babson College's reaction:

The professor's post was a response to President Trump's tweeted threat to target 52 Iranian sites, including cultural sites — a threat that drew criticism and eventual disavowal following commentary that the threat, if carried out, would constitute a war crime….

It strains credulity to read Phansey's post as sincerely advocating violence. In political rhetoric, figurative and hyperbolic language have been familiar tools for centuries, and Phansey's post is quite obviously a criticism — not endorsement — of threats of violence, mixed with snark about American culture.

For argument's sake, even after stripping Phansey's post of its obvious intent, it still does not amount to unprotected speech. As we explained in a letter FIRE sent to Babson president Stephen Spinelli this afternoon, Phansey's post simply cannot be characterized as either a "true threat" or "incitement," which are not considered protected speech:

First, because the statement does not purport to commit Phansey to any action, it cannot amount to "a serious expression of an intent to commit an act of unlawful violence[.]" Virginia v. Black, 538 U.S. at 359. Second, the "particular … group of individuals" identified in Phansey's post—the Kardashians and Mall of America—reveal the sardonic tone, depriving the post of the "serious" nature necessary to remove it from its default status as protected speech.

Second, Phansey's post is better analyzed under the incitement standard, as it (if read literally, and deprived of its context) purports to call upon Iran to issue a threat to attack particular American cultural institutions in response to President Trump's threat. Yet even if the post had sincerely encouraged Iran to attack the United States, "mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment." Claiborne Hardware Co., 458 U.S. at 927 (emphasis in original). To amount to incitement, the speech would not only advocate unlawful force, but must also be "likely to incite or produce" imminent lawless action. Brandenburg, 395 U.S. at 447. Simply put, there is no reasonable likelihood that Phansey's private post to his Facebook friends would lead to Iran threatening to bomb the Kardashians' residence.

And while Babson College is a private institution, and thus not bound by the First Amendment, it does promise its faculty and students that Babson College will respect their freedom of expression. We know that from its faculty handbook, which adopts the AAUP's 1940 Statement of Principles, under which extramural statements such as these are insufficient to justify terminating faculty members. We also know it from other statements in its student policies, on its website, and from our experience in defending conservative students who faced punishment for celebrating Trump's 2016 election. In that case, Babson ultimately protected freedom of expression. But not this time.

While some might prefer that faculty and students speak only in sober, considered tones, freedom of expression embraces "the right to criticize public men and measures—and that means not only informed and responsible criticism, but the freedom to speak foolishly and without moderation." It certainly embraces a right to criticize our President.

Babson's process-free departure from its stated commitments threatens to do far more damage to its reputation than a momentary social media storm ever could. To save its good name, the college should reinstate Phansey immediately.

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  1. Dumb maneuver shows that the higher education craziness hits all sides (though one usually gets it worse as there is a clear ideological tilt in academia that you would have to have your head in the sand to deny). Hopefully principled people call for the college to rehire and grant backpay to the prof.

    Prof Volokh what are your thoughts on this?: https://www.politico.com/f/?id=0000016f-8dbd-dcf7-a96f-cdbd7ffa0000
    Although I too think the SPLC is a fundraising scheme to fleece gullible white liberal baby boomers by over inflating “hate”, I dont see any merit whatsoever in Brimelow’s legal arguments (even if I otherwise that the NYT and others slander those who dissent from perceived orthodoxies)

    1. I doubt Courts would find defamation in the precise (mis)application of political/ideological labels, even ones with heavy baggage.

    2. The clear ideological tilt in academia is that our strongest schools are operated in, by, and for the liberal-libertarian mainstream, while campuses that conservatives control and attend tend to be fourth-tier (or unranked), nonsense-teaching yahoo factories that suppress science and warp history to flatter cllnger dogma.

      Conservatives whine about the market verdict in this regard.

  2. What sorts of non-criminal, non-libelous extramural utterances (different for intramural ones?) has FIRE deemed acceptual grounds for dismissal or other sanctions? Have there been any, or are they near absolutist when it comes to arguably offensive but legally permissible comments/conduct? What about the Karenga case at Oberlin? James Tracy at Florida Atlantic University? (Would answers change if no credible possibility that remark was meant to be satiric?)

    1. Don’t forget Ward Churchill.

      1. Ward Churchill published BS with a straight face as “legitimate” academic research and history.

      2. Churchill screwed himself by drawing attention with his “little Eichmanns” comment, but it was his lies on his resume and academic fraud that ultimately justified his firing.

        1. Given the way the case turned out, the Ward Churchill case amounts to a witch hunt that accidentally found a witch.

          1. Not found a witch, but found a warlock, or would that be a Ward-lock?

            As I recall, the hunt started because his claims did not match what his cited sources actually documented, kinda like Michael Bellesiles at about the same timeframe. Saying it was a witch hunt … not as I recall.

    2. James Tracy at Florida Atlantic University? public school

  3. Thanks for the information, EV.

  4. If EV thinks threats against a foreign countries and threats against the country you’re in and work for are so similar Ashley or whatever his name is should be let off the hook maybe he should also agree that they should let Trump off the hook for this whole impeachment and Russian collusion business since the entire logic revolves around Trump supposedly doing things with foreign resources that Dems certainly did with domestic resources…and foreign resources

    1. Everything turns on Trump. All Trump, All Time, All Ways.

    2. If EV thinks threats against a foreign countries and threats against the country you’re in and work for are so similar

      EV probably thinks that no intelligent person arguing in good faith could claim that Phansey made any threats.

      1. Let’s have Drumpf tell the Iranians they could blow up Holyweird or Nasty Pelosi’s house and see if the Dems agree with your statement.

        1. Angry counterfactual land is no place to live.

          1. Actually, real estate there appears to be surprisingly reasonable.

    3. It must be frustrating to go through life knowing that nobody takes your input seriously.

      Try commenting without the partisan stupidity, please.

  5. Ayatollah Khomeini (b 24 Sep 1902 — d 3 June 1989) is dead.

    Ali Khamenei is the current Supreme Leader of Iran (b 19 Apr 1939 – not dead yet) who took the office in 1989. There is dispute whether he holds the title Ayatollah.

    Ayatollah Khomeini (b 24 Sep 1902 — d 3 June 1989) is dead.
    Ali Khamenei is the current Supreme Leader of Iran (b 19 Apr 1939 – not dead yet) who took the office in 1989. There is dispute whether he holds the title Ayatollah.

    Asheen Pansey
    In retaliation, Ayatollah Khomeini should tweet a list of 52 sites of beloved American cultural heritage that he would bomb.
    Um … Mall of America? … Kardashian residence?

    Uh, no, that’s not a serious threat to me. Although Zombie Ayatollah Khomeini versus The Kardashians would make a great horror movie (maybe The Asylum would be interested).

  6. I come to the conclusion only twits tweet.

    1. Perhaps, but the person under discussion did not put their post on Twitter.

  7. Professor, I think Babson College did the right thing here. Why?

    The timing of the tweet (against the backdrop of active conflict btwn US/Iran), the fact that the US has been hit with recent terror attacks, and that the Mall of America is a high-value terror target. Not to mention Phansey decides to name an American citizen as a potential target of retaliation (jokingly or not). Ms. Kardashian has small children. Really? And you let that one go just because he works in academia…? Professor, with all due respect (I truly mean that), it doesn’t work that way. Out here in the real world of private industry, people get fired for that.

    The sarcasm of his post is irrelevant here. There are times and place where satire is appropriate. This was emphatically not one of those times. Babson College made a correct decision to jettison a staff member who brought needless controversy and dishonor to their institution, IMO.

    1. Free Speech isn’t about appropriate speech only. (Though I’m less hardcore about private institutions and free speech than some on here).

      Anyhow, embracing the circling the wagons instinct is silly – it has nothing to do with safety; just tribalism.

      1. Sarcastr0, out here in the hinterlands of the real world, there is a saying: Free speech does not mean free of consequence.

        1. Yeah – that’s why I added my second line. Your dudgeon about appropriateness is needless anti-freedom of speech.

          1. Sarcastr0, it was completely inappropriate for the Professor to name a private citizen, a mother with young children. If you think that is somehow Ok, you’re a part of the problem here.

            1. It’s completely inappropriate to name a private citizen? why, exactly?

    2. You should worry about the sweeping breadth of the “appropriate times” exception to free speech. First of all, satire is protected speech, full stop. There is no such thing as inappropriate times for satire. There could scarcely be a better-timed joke about America’s dumbest cultural achievements than in the brewing midst of an actual cultural war!

      Second, the context here is the US at heightened risk due to military engagements the US had with a foreign actor. Your exception amounts to: If the US government engages in conflict, it cannot be criticized until sufficient time has passed, and sufficient here means something like it is not longer the case that the US has “recent[ly]” been hit with a terror attack, and the Mall of America is no longer a “high-value terror target”. Under those circumstances, the people who control Americans’ right to discuss conflict are: (1) the US government (who decides when and how it engages in conflict) and (2) terrorists (who decide when and how they engage in attacks, and who their preferred “high-value terror target[s]” are. Protection from the former is precisely why we have a First Amendment in the first place. Delegation to the latter is surrender.

      1. Oddly enough this is exactly the logic used to justify Trump’s impeachment. Do you share similar concerns there?

      2. From the article, And while Babson College is a private institution, and thus not bound by the First Amendment, it does promise its faculty and students that Babson College will respect their freedom of expression.

        The Professor will now own the consequences of his words.

        1. He’s Director of Sustainability at Babson, IOW administrative hire not professorship (tenured or not). Although I’m sure the college also has a personal conduct rule (most private institutions have them) that would apply to this situation were he a professor especially an untenured professor.

          1. He’s identified as an adjunct professor. Do you not know what that means?

    3. It wasn’t a tweet. It was a Facebook post shared with friends.

    4. There are times and place where satire is appropriate. This was emphatically not one of those times.

      Your satire of a really dumb authoritarian is amusing.

      1. Yeah David….How about trying to make a cogent argument on why this professor should be retained for his ill-considered social media posting. The bottom line is that there is no first amendment issue here, and this gentlemen has learned that free speech does not equal speech free of consequences.

        Seriously, listing Kardashian, a mother with small children as a cultural target? Even in jest, this is beyond the pale.

        1. Free speech is an American value that goes beyond the Constitutional ambit.

          It is allowable, maybe even appropriate, for an institution to speak via disassociation with certain points of view. But this one is making a mountain out of a molehill.

        2. The Kardashians, as public figures, have made themselves targets for satire by their own efforts, no matter how (too) many children they have. Motherhood is not a shield from commentary.

          1. Rip, don’t be a dope. This dolt was 100% wrong, and now he is paying the price for that. Hopefully, the lesson sinks in, and he is a little more circumspect the next time.

            1. This dolt was around 10% wrong. He deserves some consequences for not knowing how to read the room, and to work on his timing.

        3. How about trying to make a cogent argument on why this professor should be retained for his ill-considered social media posting.

          I could do that, but FIRE already did, so I’ll just quote them: “Babson is legally and morally bound to uphold the commitments it has made. This principle extends to private institutions’ commitments to academic freedom and freedom of expression.”

          Seriously, listing Kardashian, a mother with small children as a cultural target? Even in jest, this is beyond the pale.

          Only to stupid people.

    5. I’m less worried about his firing based on the fact that he was NOT a professor at Babson. He was the Director of Sustainability. His actions reflect directly on the College and his department in a different manner than “just another college professor.”

  8. Phansey’s threats, whether “true threats” or not, certainly contributed to the tensions between Iran and the US, and Phansey is at least partly responsible for the shooting down of the Ukrainian airliner as a result.

    1. Don’t be a dumbass.

    2. Are you insane?

  9. Great comment thread!

  10. Just curious, why didn’t Twitter ban this person for advocating, however satirically, violence?

    1. Because he didn’t advocate violence?

      And if he did, and should be banned, why shouldn’t Trump also be banned?

      1. “He didn’t advocate violence”….

        No, he simply suggested Iran should post about bombing the Mall of America. He advocated OTHERS should advocate violence, such as bombing a large civilian shopping establishment. Others have been banned from Twitter for similar or much lesser offenses

        As for Trump, many many others have suggested he should be banned from Twitter. I’d suggest you look to Twitter’s reasons why he hasn’t been banned.

    2. Personally I am OK with leaving the twits on Twitter.

      Phansey’s comment refs Ayatollah Khomeini who has been dead since 1989.
      Is Khomeini in a position to take target suggestion from Phansey?
      How they hell is this toss-off thoughtless comment (typical of twits tweeting) a true threat of imminent death or grievous bodily harm deserving a reaction (other than telling Phansey and everyone else to calm down).
      Jeez, the continued existence of Iranian General Qassem Soleimani was a detriment to Phansey whether he realised it or not.

      (Oh, Asheen Phansey, thank you sir for a remember of why I did not, do not, will never have a Twitter account.

      1. Oh, well, he posted on Facebook. That changes … very little in my criticism.

    3. Twitter usually doesn’t delete Facebook users.

    4. Because he wasn’t on Twitter?

    5. “Just curious, why didn’t Twitter ban this person for advocating, however satirically, violence?”

      Because he was on Facebook, not Twitter, when he advocated humor with great clumsiosity.

  11. The War on Jokes is more dangerous than any armed conflict in my lifetime. We will all survive World War 3. But if we lose the War on Jokes, what’s the point?

    1. Without hyperbolic comments the Reason commentariat would be dull indeed.

  12. Facebook is getting strict day by day and other thing they do is play with our Data. One other thing you can try is use random chat website to talk to people. Here is a article which lists all random chat websites.
    https://tunnel2tech.com/5-best-websites-to-chat-with-strangers-online.html

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