Free Speech Trumps Civility

Steven Salaita’s yearlong fight against the University of Illinois got longer Thursday, when a judge said his civil lawsuit could proceed to trial. While trying to predict the outcome of any case based on a preliminary judgment is futile, the decision is favorable to Salaita in many ways and establishes the possibility that the university violated both the First Amendment and contract law when it revoked his job offer last August.

“Given the serious ramifications of my termination from a tenured professorship to a wide range of people,” Salaita said in a statement, “I am happy to move forward with this suit in the hope that restrictions on academic freedom, free speech and shared governance will not become further entrenched because of [the university’s behavior].”

Salaita lost his tenured position in American Indian studies program at the University of Illinois at Urbana-Champaign just weeks before the start of classes last year, after his anti-Israel tweets made headlines. In his suit against the university -- to include Urbana-Champaign Chancellor Phyllis Wise (who announced Thursday that she is stepping down), the Board of Trustees for the University System of Illinois and the John Doe donors whom he claims interfered in his job offer -- Salaita alleges various wrongdoings: First Amendment violations, breach of contract, tortious interference, intentional infliction of emotional distress and spoliation of evidence.

While Judge Harry D. Leinenweber of the U.S. District Court for the Northern District of Illinois threw out the latter claims, he found a significant evidence of possible free speech and contract violations -- the two charges that have been central to the Salaita debate all along.

At a time when a number of academics have faced harsh criticism and calls for their dismissal over comments they have made on social media, the judge suggested that the First Amendment protects such comments made by public university faculty -- even if the comments might not be viewed as demonstrating civility.

Freedom of Speech

Leinenweber in his decision took on the university’s claim that Salaita was not fired because of his constitutionally protected speech and that even if he was, the university’s interest in providing a safe and disruption-free learning environment outweighs Salaita’s free speech interest under the 1968 U.S. Supreme Court case Pickering v. Board of Education. In that case, the court ruled that public schools are in violation of the First Amendment when they fire a teacher for speaking out on matters of public concern.

Leinenweber wrote that there’s not yet enough known about the Salaita's case to apply a Pickering balance test between educational and free speech interests. But he said there are immediately apparent similarities between Salaita’s case and that of 1971's Cohen v. California, in which the Supreme Court ruled that a public display of profanity is not on its own a criminal offense. (The case involved a young man who wore a jacket saying “Fuck the draft” in the corridor of a local courthouse.)

“The university’s attempt to draw a line between the profanity and incivility in [Salaita’s] tweets and the views those tweets presented is unavailing; the Supreme Court did not draw such a line when it found Cohen’s [jacket] protected by the First Amendment,” Leinenweber wrote. Quoting the Cohen ruling, he said, "We cannot indulge the facile assumption that one can forbid particular words without also running the substantial risk of suppressing ideas in the process."

Referring to Salaita’s social media profile, Leinenweber added, “The contents were certainly a matter of public concern, and the topic of Israeli-Palestinian relations often brings passionate emotions to the surface. Under these circumstances, it would be nearly impossible to separate the tone of tweets on this issue with the content and views they express.”

Breach of Contract

Regarding breach of contract, Leinenweber rejected the university’s argument that it did not yet have a binding contract with Salaita, since the Board of Trustees hadn’t yet signed off on his appointment.

“If the court accept the university’s argument, the entire American academic hiring process as it now operates would cease to exist,” the judge wrote in his decision, “because no professor would resign a tenure [sic] position, move states and start teaching at a new college based on an ‘offer’ that was absolutely meaningless until after the semester already started.”

In Salaita’s case in particular, Leinenweber said, “Nothing about the actual offer, nor the mode of acceptance, indicates that no contract would be formed until after the board’s approval.” He also offered various facts and scenarios suggesting that the university had an active agreement with Salaita. For example, he said, if Salaita had no binding agreement with the university, what would have prevented him from using its relocation funds and deciding at the last minute to teach elsewhere? And if the dean who appointed Salaita had no actual authority to do so, as the university has argued, “the university would have been confused as to why 120 [other new] professors showed up to work when no one with actual authority had offered them a job,” the judge said.

Salaita’s claims of conspiracy and violations of procedural due process also survived the decision. His tortious interference claim against the John Doe donors did not. Regarding that claim, Leinenweber said the donors were merely exercising their own free speech in expressing their distaste for Salaita and possibly threatening to pull their donations.

“The First Amendment is a two-way street,” Leinenweber said.

Robin Kaler, a spokeswoman for Illinois, said via email that the university was “gratified that [Leinenweber’s] ruling today dismissed four of the nine counts filed by Dr. Salaita.”

She added, “While Dr. Salaita has the right to continue his lawsuit, a much narrower version of the case will proceed.”

While the ruling is favorable to Salaita, Michael Leroy, a professor of labor and employment relations and law at Urbana-Champaign who’s studied the outcomes of free speech cases involving university professors, said there’s no telling how a trial might proceed. First, pretrial opinions are always more favorable to the plaintiff, Leroy said. Second, the judge’s ruling relies curiously on the 1971 Cohen decision while ignoring several more recent free speech cases involving public employees.

“What strikes me is that this case does not deal with any employer or educational setting,” Leroy said. “[Cohen] is sort of an unpredictable reference because most of these cases now are decided under public employment law cases, like the [2006 U.S. Supreme Court case Garcetti v. Ceballos].” In the Garcetti case, the court held that statements employees make pursuant to their official duties are not protected by the First Amendment.

“A lot has changed since [Cohen],” Leroy added.

Robert O’Neil, former president of the University of Virginia and a free speech scholar, said he agreed with the judge’s finding that a contract existed, and that its terms were “unambiguous.” Likewise, he said he agreed with the notion that the dean did have authority to offer Salaita a binding agreement.

O’Neil also seemed to find the Cohen reference more suitable, at least at this point in the case.

“Basic precedents like Cohen and Pickering (which established First Amendment protection for public employees) govern this part of the case and at least suffice to get it to a jury or judge sitting without a jury,” O’Neil said via email. That’s “enough to state a constitutional free speech claim even if not dispositive on the merits, which comes later.”