At Texas Tech University, an assistant professor named Jairo Fúnez-Flores was recently suspended over a series of strongly worded tweets protesting Israel. The most vitriolic: “Fuck Israel and everyone who rationalizes the genocide of Palestinians.” That’s protected extramural speech, but Texas Tech claims the temporary suspension is justified while it investigates whether Fúnez-Flores made similar comments in the classroom. Meanwhile, at the University of California at Berkeley, an Israeli lawyer named Ran Bar-Yoshafat was prevented from giving an invited talk after protesters, chanting “Intifada! Intifada!,” rioted, smashing windows and a door.
None of this is new. Well before the war in Gaza, no topic more reliably triggered campus conflicts than Israel and Palestine, and no topic more routinely resulted in the abrogation of speech rights central to academic freedom. Two especially salient controversies: In 2014, Steven Salaita, a scholar of Native American studies, had a job offer rescinded by the University of Illinois over aggressive tweets protesting Israeli treatment of Palestinians (for instance, “At this point, if Netanyahu appeared on TV with a necklace made from the teeth of Palestinian children, would anybody be surprised?”). In 2010, a group of student protesters attempted to prevent Michael Oren, then the Israeli ambassador to the United States, from giving a talk at the University of California at Irvine. Then as now, the pattern of speech suppression is asymmetrical — firings and suspensions on the one side, disruptions and heckler’s vetoes on the other. While it is worse, professionally, to be fired than to be shouted down, today’s fragile environment for academic freedom is as much the result of the normalization of the heckler’s veto as of the fear of administrative reprisal.
According to the administrators who punished them, both Salaita and Fúnez-Flores are guilty of speech that is “hateful, antisemitic, and unacceptable,” in Texas Tech’s official characterization of Fúnez-Flores’s tweets. Whether the statement “Fuck Israel” is antisemitic is a matter of judgment; what is not a matter of judgment, though, is whether it is protected by academic freedom as normally conceived. It is. As Keith Whittington of the Academic Freedom Alliance wrote to Texas Tech’s president, Lawrence Schovanec, “The university’s actions represent an egregious violation of the principles of freedom of expression and due process to which Texas Tech University has contractually committed itself and to which it is constitutionally required to adhere.”
Tweets like Salaita’s and Fúnez-Flores’s are undeniably intemperate. It is probable that identical political sentiments less vitriolically expressed would not have gotten them in trouble. But when it comes to extramural faculty speech, an uncouth manner shouldn’t matter — and when it comes to speech protected by the First Amendment, it can’t matter. To this point, the law professors Erwin Chemerinsky and Howard Gillman in their book Free Speech on Campus quote Justice John Marshall Harlan’s majority decision in Cohen v. California (1971), which ruled that one Paul Robert Cohen was within his rights to wear a jacket emblazoned with “Fuck the Draft” in a courthouse: “Verbal tumult, discord, and even offensive utterance” are “necessary side effects of the broader enduring values which the process of open debate permits us to achieve.”
It was not always obvious that this was so, either with respect to academic freedom or the First Amendment. The American Association of University Professors’ 1915 founding document on academic freedom enjoined “dignity, courtesy, and temperateness of language"; its 1940 Statement of Principles on Academic Freedom likewise encouraged faculty members, when speaking as citizens, to “exercise appropriate restraint” and to “show respect for the opinions of others.” But in 1970, the AAUP added a footnote to the “appropriate restraint” section meant to loosen any shackles it might appear to impose: “Administration should remember that teachers are citizens and should be accorded the freedom of citizens.” After 1971, professors have in theory as much a right to offend when speaking extramurally as Paul Robert Cohen.
