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FIRE Responds Regarding Condemnation vs. Censorship

Apr 15, 2008
By .
Politics & Current Events

Earlier today I disagreed at length with a comment by The FIRE's Adam Kissel regarding a case at Colorado College and whether official condemnation should be considered "punishment" for the purposes of free speech analysis. Adam has responded quite graciously and at length here. I think his response does an excellent and useful job in clarifying some of the terms used in the free speech discussion, and offers some clarity that I did not.

I believe we're in agreement on the issue of condemnation as punishment. There remains the issue of official "censure" or "reprimand" or "letter in the file" as a sanction, and whether such measures rise to constitutional dimensions. I think that the cases I cited cast, at least, doubt on the proposition that an official censure or letter in the file, absent an officially imposed corresponding punishment, rises to the level of a constitutional violation. Hans Bader suggests that I overstated the uniformity of the caselaw in this regard, and given his background, I'll definitely look at his cases as soon as I'm spending a bit less time trying to stop toddlers from hurling themselves into the Pacific this week.

Adam Kissel and my co-blogger Patrick both suggest that a "letter in the file" or censure can have a devastating impact on a student's prospects for jobs or graduate school. I have no doubt that is true. But is that a basis for distinguishing what is legally cognizable punishment and what is not? After all, in the age of Google, I suspect that a university president's public condemnation can have grave consequences as well. I'll think about it some more.

I appreciate Adam Kissel's thoughtful response.

Last 5 posts by Ken

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4 Comments

  1. Patrick  •  Apr 15, 2008 @3:05 pm

    Ken as you know I don't feel this to be a legally cognizable anything. I merely think it's morally wrong. Mr. Bader may feel it to be something worthy of litigation, but I don't.

    I don't say that to disparage or disagree with you, but simply because I'm afraid that the one or two lawyers of personal acquaintance who read this blog might take away the impression that I believe a private university's asshattery is a violation of the First Amendment.

  2. Ken  •  Apr 15, 2008 @3:11 pm

    I know you understand state action and do not think this instance is legally cognizable. But since we were analyzing Colorado College's asshattery as if it were governed by the First Amendment — on the theory that universities should try to meet that standard, and be called out when they do not — I understood you to be suggesting before that if a state actor did this it should be considered legally cognizable punishment. My apologies if I got it wrong.

  3. Patrick  •  Apr 15, 2008 @3:21 pm

    Well Ken, in that event, let's suppose this had been a federal agency placing a reprimand in an employee's file concerning the employee's publication of matters unrelated to his employment, a reprimand which would be seen by other federal agencies reviewing the file for determination of whether to hire this person. Let's suppose the employee had published this silly newspaper on his own time, and it wound up in his file in a form accessible to other government agencies without considering federal privacy laws. Let's suppose, when you were an AUSA, that Justice had reprimanded you and made the reprimand accessible to other agencies looking to hire you over something you'd written on this blog that had nothing to do with your job.

    Whaddya think, hoss? Assuming you really wanted to transfer to another agency, would that be a problem for you? And by problem, I mean litigation.

  4. Jesse  •  Apr 15, 2008 @3:37 pm

    Damn it. As an alum of the Colorado College, I now feel like I have to write a letter to my retarded dean ….

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