Free Speech

FIRE Letter About the UCLA Letter from Birmingham Jail Controversy

|The Volokh Conspiracy |

From the FIRE letter:

We are concerned that UCLA may have departed from its commitment to academic freedom and its obligations under the First Amendment by investigating university lecturer Lt. Col. W. Ajax Peris for vocalizing a racial slur in reading aloud from Martin Luther King, Jr.'s "Letter from a Birmingham Jail." …

Peris' reading of Martin Luther King, Jr.'s "Letter from a Birmingham Jail" is unequivocally protected by fundamental principles of academic freedom and the First Amendment. If UCLA does not intend to initiate a formal investigation, it should publicly clarify as much in order to mitigate the possibility of a chilling effect. If it has mounted such an investigation, it must abandon it….

Courts have long recognized that the First Amendment's protection of freedom of speech is closely intertwined with academic freedom. Universities "occupy a special niche in our constitutional tradition," and "academic freedom" is an area "in which government should be extremely reticent to tread." As the Supreme Court has explained:

"Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern to the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom."

To be sure, in Garcetti v. Ceballos, the Supreme Court upheld the power of non-academic government employers to regulate their employees' speech that is pursuant to their employment duties. The Garcetti court, however, reserved the question of "whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching." As Justice Souter's opinion stressed, that ruling should not be read to "imperil First Amendment protection of academic freedom in public colleges and universities," which freedom encompasses "the teaching of a public university professor." Accordingly, the United States Court of Appeals for the Ninth Circuit—the decisions of which are binding on the University of California—has expressly recognized that expression "related to scholarship or teaching" falls outside of Garcetti. {Demers v. Austin, 746 F.3d 402, 406 (9th Cir. 2014). Other courts have reached similar conclusions. See, e.g., Adams v. Trs. of the Univ. of N.C.-Wilmington, 640 F.3d 550, 562 (4th Cir. 2011) (Garcetti does not apply in the "academic context of a public university") ….}

The whole letter is much worth reading. (This is the incident I wrote about here.)

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  1. ML King Jr. was Black, wasn’t he?

    It’d seem to me if he — a Black Minister — used the slur, he did it for a reason, and that reason would include the reader reading it.

    1. ML King Jr. was Black, wasn’t he?

      Can’t get anything past you.

  2. “We are concerned that UCLA may have departed from its commitment to academic freedom”

    If UCLA has any such commitment they certainly haven’t made it apparent in any of their words or actions.

    1. Public,
      I think that the reference is to the 1,837,934 yearly situations where someone says something at UCLA and there is no consequence at all. The fact that this particular dreadful situation makes national news is that, generally speaking, UCLA does not overreact to teachers or administrators making controversial or challenging statements, or to students saying controversial things.
      Therefore, deplorable actions like going after this professor are indeed a departure. [Note: Departures that should be widely publicized and criticized when they do occur, of course.]

      The fact that the 99.99+% of “pro-academic freedom” situations do not get reported to you (or anyone else) is because people don’t go around posting on Facebook, “My First Amendment Professor said ‘bitch’ in a discussion of Fighting Words, . . . and no one objected, or raised an eyebrow, and it was fine with me as well.”

      File all of those situations under Dog Bites Man. They are blessedly common and unremarkable and it’s no surprise at all that you do not hear of those anecdotes.

      1. “I think that the reference is to the 1,837,934 yearly situations where someone says something at UCLA and there is no consequence at all”

        Kudos. Always good to have a diverse and inclusive denominator.

      2. I think that the reference is to the 1,837,934 yearly situations where someone says something at UCLA and there is no consequence at all.

        You mean, like the interactions between cops and black Americans where the latter are not killed or otherwise subject to any sort of undue abuse.

  3. It’s just an inquiry based on students complaints, right? I mean, they can’t even be sure of what happened without an inquiry…And to deal with it informally-to have some administrator just say ‘oh, on the face that’s nothing objectionable’-that would seem to be a process problem…

    1. And to deal with it informally-to have some administrator just say ‘oh, on the face that’s nothing objectionable’-that would seem to be a process problem…

      Student: Our professor read MLK’s “Letter from a Birmingham Jail” in class.

      Chief Anti-Bias Officer: “Oh, on the face that’s nothing objectionable.”

      What’s the problem?

  4. The response will be “here’s a quarter call someone who cares”. The woke/cancel culture of mob ruled academia could care less. Every decision of the woke social-justice warrior world is about the feelings of the moment and if someone/anyone could conceivably object or be offended. Facts. logic, consistency, reason are irrelevant once they have the scent of blood.

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