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Volokh Conspiracy

Extramural Speech at Auburn


Auburn University is currently struggling to stick to its principles on free expression. Hopefully they will get it right in the end, but it shouldn't be this hard.

Jesse Goldberg was hired as an adjunct to teach English classes starting this Fall at Auburn. His area of scholarly expertise, as he characterizes it, is in Black studies and critical prison studies. Unsurprisingly, he has thoughts about our current situation after the killing of George Floyd, the resurgence of the Black Lives Matter movement, and high-profile incidents of violence both by and against the police. Those thoughts included a tweet saying "F*ck every single cop. Every single one," and denouncing police as the violent agents of capital. (Alas his remarks were amplified by Donald Trump Jr. who warned that the "egg heads" are "gunning for middle America.")

One need not agree with either the substance or the style of Goldberg's tweet to recognize that this is a commonplace example of free expression on social media. Such speech is constitutionally protected against governmental suppression or sanction. It is also well within the bounds of what the American Association of University Professors has long characterized as "extramural speech" protected by principles of academic freedom.

I have written elsewhere that such private political speech should probably not be thought of as the kind of speech directly implicated by principles of academic freedom (which are primarily concerned with scholarly teaching and research), but it should nonetheless be protected from university sanctions as a prophylactic measure to preserve freedom of thought and discussion on college campuses.

This is a prime example of why. Goldberg's teaching and scholarship are closely connected to the substantive content of his tweet. Hopefully he expresses himself differently in those contexts, but seeking to punish him for the ideas conveyed by his tweet would inevitably have consequences for the arguments that professors think they can safely make in the classroom or in their scholarship. Free scholarly inquiry at Auburn would be damaged if the university caved in to the American president's son and took action against an instructor for his public political speech. It is all the more alarming that a state legislator who sits on the education committee would publicly demand that Goldberg be "fired before the sun sets today!"

Political speech in the public square is often crude, passionate, and mistaken, but life in a democracy is sometimes messy and we should strive to tolerate our fellow citizens' coarsely expressed political opinions. Universities in particular should model such tolerance precisely because universities are important sites for public debate about matters of general concern.

College campuses would be less interesting, less useful, less democratic places if college administrators sought to punish members of the campus community for saying things in public that offend alumni, donors, and local politicians. College administrators have a duty to tell such offended members of the community, both on and off campus, that universities are places where people of many different political and social views come together to examine and debate ideas. If no one is offended by anything anyone says on a college campus, then it is probably a pretty lifeless campus.

So far the Auburn administrators are not performing their duty very well. The university should have issued a simple statement noting that no individual member of the campus community speaks for the university as a whole or as an institution, but all the members of the campus community are given the right to speak their mind about matters of public concern and using the language and rhetoric that they think are most appropriate to the task. It did not do so.

Instead, Auburn told Breitbart that this was an example of "hate speech" and released a statement:

As stated earlier this week, Mr. Goldberg's comments on social media are inexcusable and completely antithetical to the Auburn Creed. Higher education is built upon the premise of the free expression of ideas and academic dialogue, but Auburn has not and will never support views that exclude or disrespect others, including hateful speech that degrades law enforcement professionals. Mr. Goldberg was hired on a temporary, non-tenure-track assignment.

Auburn said it was "considering options available to the university" about what to do about the fact that someone said something wrong on the Internet.

Unfortunately, because Goldberg is off the tenure track, he is particularly vulnerable to university reprisal. Tenure and tenure-track faculty can often ride out such public controversies, but contingent faculty are all-too-often terminated, sometimes in the middle of the semester, even though their speech is equally protected by the principles to which universities have committed themselves. Fortunately, FIRE, an exemplary civil liberties organization, has reminded Auburn of the relevant principles in this case and the chilling effect that public consideration of "options" can have on the intellectual climate of a college campus.

The specifics of Auburn's statement are also worth noticing. It is no accident that Auburn officials were quick to denounce Goldberg's tweet as "hate speech." The "hate speech is not free speech" crowd should once again pay attention to how that sentiment can and will be used. If you think that only the "right people" will be sanctioned by hate speech policies, you have not been paying attention.

Auburn also adds the institutionally specific notion that Goldberg's tweet was "antithetical to the Auburn Creed." There is such a thing. You can read it here. It is . . . interesting. It is also in some tension with the core mission of a university to foster the fearless pursuit of the truth. There are plenty of folks who would like to see secular universities adopt creedal commitments. As Josh Blackman noted the other day in the context of Ohio State's desire that faculty pledge themselves to "Buckeye values," even nebulous, feel-good value statements can be converted into political litmus tests. Universities should not be in the business of requiring and enforcing such political pledges. They certainly should not be threatening to take action against instructors who say something at odds with the value statements that university administrators have endorsed.