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Friday, October 20, 2023

A narrower post in reply

In reply to Paul's response to my post on Jemma DeCristo, mostly to say that my focus was narrower than Paul's, so he raises issues I did not think about when writing this morning:

1) My post was focused on First Amendment protections and whether DeCristo crossed a line into constitutionally unprotected speech that other people did not. I did not think about or suggest anything about general reprehensibility and whether DeCristo's tweet was "worse" or more risible than Russell Rickford's. I probably would agree with Paul's taxonomy. My point was only that none of it (in my view) qualifies as either incitement or true threats; nothing broader than that.

2) I used "many people" as a placeholder--I saw about 4-5 random people saying it was unprotected, plus Cohn. I wanted to engage with Cohn but did not want to link to all the random people. I will refrain from such placeholders in the future.

3) I am glad to see that FIRE has been consistent in protecting so-called lefty speech in this context. I am not surprised. Although I gave that group a hard about certain issues culture-wars issues where I thought its silence was telling, it generally takes a consistent position on free speech. I continue to depart from FIRE on "canceling" and whether and how it is fair game for private actors such as law firms to impose consequences on students.

4) I gave no thought to what department sanctions would be fair game. If the speech is constitutionally protected (as I think it is) and the school wants to adhere to academic freedom norms for extra-mural speech, I presume that to be the end of the inquiry. She could be fired or at least removed as an adviser under a Pickering analysis. But schools according that extra academic-freedom protection for extra-mural speech usually do not reach that step. Or if they do (e.g., Amy Wax) they change working conditions in response to speech (e.g., no more required course or no more work as an adviser) on the view that the speech means her engagement with some students unavoidably changes (and renders hostile or discriminatory) the educational conditions for those students. Perhaps DeCristo meets that--showing herself to be an idiot who cannot be trusted to perform a task such as undergrad adviser, certainly for Jewish students.

Removing DeCristo as an adviser or taking her out of required classes raises similar concerns to Penn's decision to remove Wax from required classes--the school says it cannot sanction her in response to her speech, but materially changes the terms of her employment. Maybe that is appropriate--it balances the professor's speech interests against the Title VI/Title IX concerns from speech indicating discriminatory intent.

Posted by Howard Wasserman on October 20, 2023 at 05:38 PM in Howard Wasserman | Permalink


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