I have a question.
Of course you do.
You know that dude James Tracy?
The Florida Atlantic University professor who's a crazy conspiracy theorist? The dude who thinks that mass shootings like Sandy Hook were faked by the government? The dude who sent a certified letter to the parents of a murdered child demanding proof that the child had ever existed? Yeah. I know of him.
So I see that FAU fired him.
Yes. In December they sent him a notice of intent to fire him, with a ten-day window to respond. They claim he didn't respond. So on January 5 they sent him a letter firing him.
Can they do that?
Can who do what?
Stop being so obtuse. Can FAU fire James Tracy?
The question's way too vague. Can they fire him for what, under what?
Why are you so damned pedantic? Can they fire him for being a sicko grieving-parent-abusing whacko-conspiracy-theorist? Or is that some sort of First Amendment violation?
Okay. That's easier. I was worried you were asking me whether the termination violated FAU's collective bargaining agreement with its professors.
Oh! Good point. Did it? Can you read the CBA and tell me?
I would rather stick needles in my eyes. But, since CBAs for educators and law enforcement are generally designed to insulate them from any consequences for their actions, I would not be the least bit surprised if Professor Tracy has a decent argument that he was wrongfully terminated under the CBA. But I'm not going to research it for you.
Ok. But what about the First Amendment? Um . . . I have an embarrassing question.
Imagine my shock. What?
This dude on Twitter was saying that the First Amendment is irrelevant because it says "Congress shall make no law" and FAU isn't Congress.
Yes, that's the "let's pretend the last 100 years don't exist" argument. He's wrong.
The First Amendment by its plain language only restricted Congress. Section 1 of the Fourteenth Amendment, ratified after the Civil War, says "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Beginning in the 1920s, the Supreme Court held that the Fourteenth Amendment necessarily applied the strictures of most of the Bill of Rights to the states, because those rights were necessary among the "liberties" protected by the due process clause of Section 1 of the Fourteenth Amendment. That process is called incorporation, and the rule that applies it is the incorporation doctrine. The Supreme Court "incorporated" the First Amendment in 1925, finding that free speech was one of the fundamental liberties protected from state infringement by the due process clause of the Fourteenth Amendment. Now most (but not all) of the rights in the Bill of Rights have been applied to the states under the doctrine.
So, Twitter dude's argument lost 90 years ago.
So, does James Tracy have a First Amendment right not to be fired from Florida Atlantic University for his speech?
That's not helpful.
It's a complicated doctrine, because FAU is wearing two hats: the hat of a state actor (fully restrained by the First Amendment), and the hat of an employer (not fully restrained by the First Amendment). The government has much more freedom to fire people for speech while wearing its employer hat than it has to punish people while wearing its government hat.
I discussed the issue at length in 2013, if you want cites and quotes.
In brief: when the government fires an employee for speech, courts go through a multi-step doctrine. First, they ask whether the speech was on a matter of public concern. If it wasn't — if the speech was about some petty internal squabble not of interest to the public — the First Amendment doesn't prevent the firing at all. If the speech in question is on a matter of public concern, courts engage in an alarmingly touchy-feely balancing test, weighing the government employer's interest in an orderly and efficient workplace against the speech rights of the employee. Courts take into account things like whether the speech restriction is content-based (that is, whether it censors some viewpoints but not others), the circumstances of the speech, the strength of the employee's interest in the speech, whether the speech genuinely disrupts discipline and order and interferes with workplace relationships, and so forth.
Wow. How can a government employee tell how that balancing act is going to come out?
Excellent question. They can't. But the cases allow some broad generalizations. Courts will give very substantial weight to a government employee's speech outside of work on outside public issues (as opposed to, say, speech attacking coworkers or supervisors), and will require a very substantial showing of resulting workplace disruption to allow discipline based on it. Courts will give public employers much more freedom to regulate workplace speech (by, for instance, banning pornography in the workplace) and more freedom to punish speech that threatens workplace harmony by attacking supervisors, coworkers, or "customers" (like, for instance, a teacher's blog insulting her students.)
And that ain't all. It gets more complicated.
Well, there's a doctrine under which a government employer can fire you for your speech, without using the balancing test, if your speech was "pursuant to official duties." In other words, if the speech is part of your job, you're not protected by the First Amendment. That's called the Garcetti doctrine, after the Supreme Court case that announced it.
Wait a minute. Doesn't that mean a university could fire a professor if they didn't like what the professor taught?
Sounds like it, doesn't it? Fortunately, the Garcetti court didn't resolve whether the doctrine applies to universities, and one federal appeals court has already held that it doesn't.
But if James Tracy makes a First Amendment claim against FAU, the court may not reach any of these questions.
Well, FAU claims they didn't fire Tracy for being one of America's most prominent public lunatics. They say they fired him because he refused to turn in conflict-of-interest forms listing his outside activities (like blogging and speaking), gave inconsistent statements about whether he used FAU resources for those activities, and didn't respond to requests to remedy the problem.
So is Tracy out of luck?
No, but it makes his case harder.
First, a court isn't obligated to accept FAU's claims about the reasons Tracy was fired. Tracy could argue that FAU's offered reasons were pretextual — that the real reason was his unpopular speech. Tracy might do that, for instance, by showing that other professors weren't fired for not turning in their forms, or that FAU only became concerned about the forms once public outcry about Tracy reached a recent crescendo. Tracy doesn't have to prove that his speech was the only reason he was fired; he only has to prove that it was a "substantial" or "motivating" factor in the decision. If he can make that showing and prove that FAU was actually substantially motivated by his speech (and he's got pretty good circumstantial evidence of that, I think), then a court would have to go through the balancing test described above.
(Of course, since FAU has fully committed to the we're-not-firing-him-for-speech argument, it would be much harder for them to argue that Tracy's speech was also so disruptive of the university that it justified his termination.)
Second, I suppose that Tracy could argue that FAU's conflict-of-interest-form requirement itself violates the First Amendment — that it's a violation of his free speech rights to require him to disclose and describe his outside speech about matters of public interest. In his favor, he's got the fact that courts will probably protect speech of instructors in a university environment more vigorously than any other public employee speech. But the conflict-of-interest form requirement is content-neutral (that is, it doesn't say anything like "disclose all Republican affiliations" or "explain all psychotic blogs you write") and directed towards something in which FAU has a legitimate interest. I'd be interested to see how someone fleshes that argument out.
Don't you think it's good that they fired him?
My heart says yes, but my head says no.
He seems to be a truly awful human being, or a truly disturbed one. It's hard for me to comprehend how anyone can rely on his instruction on any topic when he holds such bizarre conspiracy-theory views.
But American state universities will suppress viewpoints they don't like in a hot second if you let them. I believe in very strong barriers against them doing so, which necessary protects some evil people, just as the First Amendment protects evil speech by people who aren't professors. Also, I think that you can generally count on schools to find a pretext to fire professors for unpopular speech if you let them. That doesn't mean that professors should be able to insulate genuine misconduct by uttering unpopular speech, but it does mean that we should scrutinize academic firings very carefully when they occur in the context of public outcries about disfavored speech.
Last 5 posts by Ken White
- Hate Speech Debate on More Perfect Live - September 5th, 2017
- Popehat Goes To The Opera: Un ballo in maschera - August 19th, 2017
- Department of Justice Uses Search Warrant To Get Data On Visitors to Anti-Trump Site - August 14th, 2017
- America At The End of All Hypotheticals - August 14th, 2017
- Lawsplainer: Why John Oliver Is Anti-Diversity Now - August 11th, 2017