Progressive journalists have a message for you: Free expression is for them, not for you — and not for conservative bloggers and academics.
Left-leaning journalists like Margaret Carlson are angry that the Wisconsin Supreme Court ruled in favor of a conservative professor whose academic freedom rights were violated by Marquette University. It effectively fired him for a blog post that criticized an instructor for trying to squelch criticism of same-sex marriage. Critics of the court’s decision cite the fact that members of the public sent nasty emails to the instructor after Professor John McAdams posted his blog post.
But you don’t lose your free speech because other people are nasty. Free speech gives you the right to criticize someone for doing something controversial or wrong, even if others who agree with your criticism insult or threaten the person you criticized. It’s not your fault that other people misbehaved.
Blog posts that criticize someone are protected under the Supreme Court’s decisions in Brandenburg v. Ohio, 395 U.S. 444 (1969) and Hess v. Indiana, 414 U.S. 105 (1973), even if some outraged readers send offensive or threatening emails as a result. Even speech that triggers illegal acts by third parties, such as threats, remains protected by the First Amendment unless the speaker intended to incite a violation of the law that is both imminent and likely.
For example, in Hess v. Indiana (1973), the Supreme Court found that Hess’s words did not fall outside the First Amendment, even though (unlike Professor McAdams) he did advocate lawlessness, because his speech “amounted to nothing more than advocacy of illegal action at some indefinite future time,” and therefore did not meet the imminence requirement. There is not a shred of evidence that Professor McAdams intended to cause any violence through his blog post. And his employment contract guaranteed him a right to academic freedom, which protected his free speech rights in this context.
It is hypocritical of any left-wing journalist to justify censorship based on nasty emails in response to speech. Left-leaning journalists themselves knowingly cause far more nasty messages through their slanted “news” coverage than conservative bloggers ever will.
When the Center for Individual Rights filed a lawsuit over the University of Michigan’s undergraduate admissions policy, which was later declared unconstitutional by the Supreme Court in a 6-to-3 vote, it received at least 500 threatening emails. Although it proved unlawful racial discrimination against white and Asian applicants in Gratz v. Bollinger, CIR and its clients were the subject of unremitting negative press coverage, such as a vitriolic personal attack on the lead plaintiff, Jennifer Gratz, by the Washington Post’s Colbert King. Not surprisingly, such press coverage led to threats, but no one has ever suggested that journalists’ free speech and free press rights should have been curbed to prevent such threats.
Prominent conservatives sometimes receive death threats after being covered in the media. For example, 16-year-old Parkland shooting survivor Kyle Kashuv, a conservative supporter of Second Amendment rights, gets “a lot of death threats.”
Yet left-wing journalists have the chutzpah to claim that McAdams should have been punished for his free speech simply because readers of his blog post allegedly sent threatening messages to the instructor he criticized. If that standard were applied to their own press coverage, they could be punished for writing op-eds and news articles about people who are later threatened by members of the public, and their own stories and editorials could be censored to prevent threats. People subjected to negative press coverage often receive threatening messages from members of the public as a result. So for journalists like Carlson to take this position is an ideological double standard. They would never tolerate their own speech being restricted just because a reader reacts to what they write by making threats.
Carlson also accuses McAdams of “doxing,” saying that McAdams “opened” the progressive instructor “up to the Wild West of the internet by linking to her personal information so others could hate on her.” This, too, is a double standard, because journalists routinely link to the web pages of people they write about, in the version of their article available on the Internet.
For example, syndicated columnist George Will’s May 2013 column about the Obama Education Department’s investigation of the University of Montana not only quoted me, but also linked to my web page at the Competitive Enterprise Institute, which contained my personal information, such as my phone number and email address. Readers used that information to send me both friendly and hostile messages. It was perfectly appropriate for Will to link to my web page, which enabled people to get my side of the story. (Journalists have also linked to my personal information in less sympathetic articles quoting me.)
By contrast, progressive media outlets such as CNN have repeatedly “doxed” both ordinary citizens — non-public figures — and conservative activists and officials, in ways that were wholly gratuitous and served no useful journalistic purpose, sometimes leading to lost jobs or damaged reputations on the part of those who were doxxed, or threats against them (sometimes cases of mistaken identity — such as when a journalist intended to incite public hostility towards one citizen, but mistakenly targeted another, unrelated person instead).
The Wisconsin Supreme Court’s decision in McAdams v. Marquette University was the correct one. Nothing McAdams said was as rude as comments that other courts have found to be protected by the First Amendment nonetheless — such as a professor writing publicly that he wanted to create a “permanent shit list” of college officials, “a two-ton slate of polished granite which I hope to someday drop [on the college president’s] head.” See Bauer v. Sampson, 261 F.3d 775 (9th Cir. 2001). If the First Amendment can protect left-wing professors’ uncivil rantings making light of violence, it can surely protect a conservative professor’s civil blog post. And the professor’s employment contract can quite properly secure his right to academic freedom when it includes provisions doing so. See Silva v. University of New Hampshire, 888 F.Supp. 293 (D.N.H. 1994) (professor’s speech protected by both AAUP collective bargaining agreement and First Amendment).
Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law.