Double Standards on Free Speech

If you are a progressive professor, your university will let you keep teaching, even if you say things that reflect extreme hostility to members of a particular race and gender. You can say we should “kill and castrate all white men, and feed their corpses to pigs,” call for the death of Republican senators and engage in full-blown doxxing. Such remarks will be defended as academic freedom, and no one will seriously expect you to lose your job for them.

Yet it is considered controversial for a university to allow a conservative professor to keep teaching after making far milder remarks that draw criticism. That is what recently happened at Indiana University over remarks by a professor at its business school, Eric Rasmusen. His remarks about racial and sexual issues on social media — such as saying that most geniuses are men — were denounced by his university provost, who announced restrictions on his teaching and grading, but refused to fire him. The provost’s refusal to fire the professor was then widely denounced by progressives.

The provost recognized that the First Amendment forebade firing Professor Rasmusen for his speech, and quite sensibly did not attempt to fire him:

We cannot, nor would we, fire Professor Rasmusen for his posts as a private citizen, as vile and stupid as they are, because the First Amendment of the United States Constitution forbids us to do so. That is not a close call.

Instead, the University took other steps to discipline Rasmusen. Specifically, the Provost announced that he will be removed from any required classes, and his classes will be graded blindly, to prevent any possible bias against minorities or women:

  • No student will be forced to take a class from Professor Rasmusen. The Kelley School will provide alternatives to Professor Rasmusen’s classes;
  • Professor Rasmusen will use double-blind grading on assignments; if there are components of grading that cannot be subject to a double-blind procedure, the Kelley School will have another faculty member ensure that the grades are not subject to Professor Rasmusen’s prejudices.

But these restrictions on Rasmusen appear to violate the First Amendment, although far less than firing him would. They single him out for tangible negative consequences based on his speech. And they do so without any evidence that he has ever discriminated against students in his classes or in grading.

As law professor Josh Blackman observes, “There are no allegations (as far as I can tell) that students in Rasmusen’s classes complained about his behavior in the classroom. Furthermore, the fairness of Rasmusen’s grading was never called into question.”

Thus, it looks as if Rasmusen’s free-speech rights have been violated by the restrictions on his teaching imposed in response to his speech.

Far more offensive speech by professors has been ruled protected by the First Amendment — and the professors involved were protected not just against being fired, but also against having their teaching singled out for special restrictions because of their speech.

For example, a professor’s racially derogatory speech was ruled protected by a federal appeals court in Levin v. Harleston (1992). A professor at the City University of New York published “denigrating comments concerning the intelligence and social characteristics of blacks.” In response, CUNY “created an ‘alternative’ section of Philosophy 101 for those of Levin’s students who might want to transfer out of his class.” The judges found that the creation of this “shadow” class violated the First Amendment.

Those who want Rasmusen fired claim he is “unsuited for academia” because of his odd beliefs on certain issues, even though those issues aren’t the focus of his teaching and publications. But Rasmusen is a productive scholar whose publications have been found useful by both academics and scholars. Law professors, economists, and think-tank employees have cited his publications many times, in discussing economics and the law. For example, when I was a lawyer at a Washington think-tank, I cited his writings in a scholarly paper, a blog post, and a court brief, in discussing lawsuit abuse, how to make legal services more affordable, abuses of power by state attorneys general, and state regulation of the practice of law.

The usefulness of Professor Rasmusen’s writings contrasts sharply with the uselessness of the typical academic article. The typical “scholarly” article by an academic is read by only ten people, and cited by absolutely no one. Many “scholarly” articles just regurgitate left-wing talking points or even dangerous, debunked myths. Some “scholarly” articles imbue nonsensical jargon with an air of false authority through a process of “idea laundering.”

The uselessness and obscurity of most academic articles speak ill of our universities because it is not difficult to write an article that other people find interesting and useful. When I worked at a think-tank, I had less time for scholarly pursuits than the typical academic. That’s because I had to devote time to things like arguing court cases. One example was when I obtained a federal appeals court ruling declaring that agency records are subject to the Freedom of Information Act even when they are stored in a private email account.

But I still had enough time left over to write articles that contributed insights to the scholarly community. For example, my law review article about the Supreme Court’s Bong Hits 4 Jesus decision has been cited dozens of times in law reviews, by leading law professors and other academics. The reason most academic articles are not similarly cited is that they contribute no new ideas and virtually nothing to the store of human knowledge.

Hans Bader

Hans Bader

Hans Bader is a senior attorney at the Competitive Enterprise Institute.

6 thoughts on “Double Standards on Free Speech

  1. True, but there still is the question of the value of academic scholarship.

    It is not what one’s peers think of one’s scholarship, but the value those paying the bills place in it. Do people outside the academy find it useful enough to pay for it? Is the public willing to pay for it, either directly or through their taxes?

    Bottom line is who is going to pay for it all, and that’s being missed in academia today. Faculty are only paid because people outside academia are willing to pay them, or pay for them. Faculty research needs to be relevant to those paying the bills….

  2. One quibble: The number of citations of a scholarly work is hardly a measure of its contribution or utility to academic progress. Consider some of the best known and oft cited folks whose work has helped produce the ideological narrowness and rigidity of the past few decades: Judith Butler, Edward Said, Catharine MacKinnon – and a great many others. The frequency with which they were and still are mentioned is a large part of the problem.

  3. What a wonderful compliment, Mr. Bader! It is always gratifying to a professor to find that his academic work is useful to somebody. Professor Ramseyer and I wrote another article which I think is a good example of how scholars can be helpful by taking a complicated practical law issue and explaining it to the public. I think we have the most engaging article ever on Section 382 of the Internal Revenue Code, though, admittedly, that’s not a high hurdle. I wish it were required reading for anyone, including deans and provosts, who wanted to criticize me on the Internet:

    “Can the Treasury Exempt Companies It Owns from Taxes? The $45 Billion General Motors Loss Carryforward Rule” (with J. Mark Ramseyer), The Cato Papers on Public Policy, Vol. I, Article 1, pp. 1-54 (2011) edited by Jeffrey Miron, A corporation that buys property does not thereby acquire the right to reduce its corporate income tax by deducting the seller’s past years’ losses against its own future income. The tax code contains express provisions to rule out various complex ways of doing that, so as to prevent assets from being purchased for the sake of the net operating loss carryovers. After the government joined private parties in purchasing most of General Motors’s property, the Secretary of the Treasury issued “the EESA Notices” which said that the usual tax rules would not apply and the purchasers could deduct $45 billion from their future corporate income, a tax asset worth an estimated $16 billion. The notice gave no justification for the exception, except that the TARP act gives the Secretary authority to do what is “necessary or appropriate to carry out the purposes of EESA.” This paper argues that there is no legal or economic justification for the EESA Notices, even aside from the issue of whether the government should have bought the GM property. The scant notice paid to the large wealth transfer of the EESA Notices shows the danger of allowing this kind of tax ruling, especially in comparison to the widespread criticism of the government purchase itself, an action which may well have a much smaller cost given that the government’s previous loans to GM were already sunk. .

  4. I was with Bader until he got to the snide shots at academic scholarship. This is all too typical of attitudes on the right. Try bringing those attitudes to the faculty job market — to an interview — you will naturally be out of the running fast. Yet self-styled conservatives seem to be very bitter about their absence on the faculty. Could a big part of it be the chip on their shoulder, plus their contemptuousness for the academy?

      1. No?

        I think ‘The usefulness of Professor Rasmusen’s writings contrasts sharply with the uselessness of the typical academic article. The typical “scholarly” article by an academic’ would make hinder any effort on the part of Mr. Bader to find employment in academia.

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