Academic Freedom’s Proxy Wars

This month the legal scholar Ilya Shapiro, hired to run the Center on the Constitution at Georgetown’s law school, announced in an op-ed that he was declining that post for fear of being set up for a “slow-motion firing.” Just before his original start date, in February, Shapiro had tweeted a criticism of the Biden administration for planning to appoint a “lesser black woman” to the U.S. Supreme Court rather than a candidate Shapiro considered more qualified. The tweet was racist and sexist, and it prompted campus protests and a university investigation that delayed Shapiro’s installation.

In time, Georgetown’s investigation absolved Shapiro, on the grounds that he was not yet an employee at the time of the tweet. Yet Shapiro concluded that he was a marked man, and that some other transgression would eventually be found to justify his ouster.

In the current climate, Shapiro’s fear that an incendiary tweet, even if not the explicit justification for punishment, might nonetheless precipitate his eventual dismissal, is not baseless. Highly public controversies over free speech on campus have, at least superficially, reinforced the prohibition against direct reprisals for expression. At public colleges, punishments for speech are mostly barred by the First Amendment. At private colleges, principled commitments to free expression and academic freedom ward off retaliation for writings and utterances. But because prohibitions on outright punishments for speech have remained relatively strong, institutions are resorting to indirect ways of penalizing offenders, relying on flimsy pretexts and sometimes invoking completely unrelated conduct by the targeted speaker. This sleight of hand allows colleges to sate demands for comeuppance and to constrain obstreperous faculty members, while technically avoiding speech-based reprisals that run afoul of law and policy, and may generate blowback from free-speech liberals.

Yet such proxy reprisals for speech are dangerous. They must be called out for what they are. They can have the same chilling effect as direct punishment, raising the perceived costs of voicing contestable viewpoints or heretical ideas. Principled institutional commitments to free speech and academic freedom demand guarding against proxy reprisals. They must not be allowed to serve as a workaround to punish speech that merits protection.

Several recent cases illustrate the tendency of university administrations to resort to proxy reprisals. At Princeton, the classics professor Joshua Katz was excoriated for a critique of campus activism in which he called a Black campus activist group a “terrorist organization.” The university, while reaffirming its commitment to free speech, condemned his comment but took no action against him, acknowledging that his right to express his opinion was protected. Nearly two years later, however, Katz, despite having tenure, was fired based on what the university said were new disclosures that he had failed to be forthcoming during an investigation into a sexual relationship with a student 15 years earlier, which had already resulted in a suspension. Although the university claimed that his firing was unrelated to his critique of campus activists, in fact, those incendiary comments were what triggered the new investigation into his past sexual behavior — strongly suggesting that, but for those comments, Katz would still be on the faculty.

Another proxy reprisal occurred at the University of Central Florida. After Charles Negy, an associate professor of psychology, tweeted about “black privilege,” the university began an investigation that found him to have violated several policies and regulations unrelated to the tweet, and fired him. Negy successfully challenged his dismissal, winning reinstatement when an arbitrator ruled that the firing was indeed motivated by his comments. Despite the outcome, the administration’s effort to fire him amounted to an effort to punish speech.

A somewhat different situation unfolded in 2021 at the University of North Carolina. After being re-elected unanimously to chair the Board of Governors of the University of North Carolina Press, the law professor Eric Muller — who had criticized the university’s defense of a Confederate statue on campus — was removed from that position by the University’s Board of Governors in an unprecedented departure from established procedures. The Board denied that Muller’s removal had anything to do with his comments, citing only a sudden wish to “change the membership on some of these boards more frequently.” In 2015 Muller’s UNC colleague, Gene R. Nichol, saw his Center on Poverty, Work and Opportunity shuttered in what was formally justified as the alleged ineffectiveness of the center’s work, but widely seen as a reprisal for Nichol’s own outspokenness on social-justice issues.

Proxy reprisals are familiar to those who study free speech worldwide. Authoritarians use them to imperil not just academic appointments but fundamental freedoms. The dissident Chinese artist Ai Weiwei was targeted with tax evasion and economic crimes. The Russian historian Yuri A. Dmitriev, who is responsible for seminal documentation of the Soviet gulags, is serving a 15-year jail sentence on specious charges of child pornography that were previously judged baseless.

Some American campuses harbor a strong impulse to find alternative means to punish those who cannot be targeted for their speech without falling afoul of legal or institutional principles. When a professor has said something racially offensive, there may be genuine concerns about whether they hold animus and can give students of color a fair shake. In other cases, universities may have doubts about whether a faculty members’ values are out of sync with the institution. External pressures — from students, faculty, donors, and politicians — can be crushing, with agitated stakeholders dismissive of the legal and principled rationales against punishing speech.

But proxy reprisals for speech are not the equivalent of hooking a mafia don on tax-evasion charges as a last resort because more serious crimes cannot be proved. When it comes to punishing speech, it is not a lack of evidence that stands in the way, but rather time-tested principles that hold that reprisals for expression muzzle not only an individual speaker, but all others who might contemplate saying something unorthodox.

When university officials find themselves inclined to impose proxy punishments for protected speech, they should pause. Of course, controversial speech must not inoculate faculty members from well-founded personnel actions that may affect them negatively. But when contested speech is followed by discipline or adverse consequences that are ostensibly unrelated, university officials need to honestly interrogate their own systems, motives, and decision-making processes to avoid being complicit in punishments that flout free-speech principles. They should ask themselves whether, but for the hot-button speech, the contemplated disciplinary action would still be afoot.

Refraining from proxy reprisals need not mean condoning deeply offensive speech. In a pluralistic society, we bear a responsibility to use language conscientiously, remaining mindful of how diverse audiences may react to what we say. Because of their powerful platforms, faculty members have an added duty of care to consider how their words may reverberate. But university leaders can reinforce these obligations through frank conversation and engagement with critics, rather than punishment. Such conversations can educate all parties about how free-speech protections can be reconciled with the exercise of voluntary restraint essential to enabling diverse types of people to inhabit the same campus peaceably.

Colleges rightly pride themselves as institutions that treasure free speech and open inquiry. That commitment demands a vigilant refusal to engage in proxy reprisals for speech.