Balkinization  

Thursday, August 14, 2014

Lubet on Free Speech and Salaita

Andrew Koppelman

My friend and colleague Steven Lubet has just published a short piece in the Chicago Tribune concerning the controversy over the University of Illinois's decision not to hire Prof. Steven Salaita:


Free speech and U. of I.'s Steven Salaita

Steven Lubet

Controversial scholar Steven Salaita ­ who has been most benignly described as "deeply critical of Israel" ­ has been fired or "non-hired" by the University of Illinois, depending on which news source you believe. In either case, it appears Salaita's numerous tweets, which have included venomous comments about Israelis and Jews, played a role in his job loss. Thus, he is either an avatar of academic freedom or the victim of his own extremism, again depending on your point of reference. Needless to say, the situation is not quite that simple. There are actually three distinct principles involved, and they do not necessarily lead to a single neat conclusion.
 
To understand the Salaita contretemps, we must separately consider academics, law and politics.

Salaita's strongest case can be made in the name of academic freedom. Ever since the McCarthy era, when professors were required to sign loyalty oaths as a condition of employment, it has been an article of faith among scholars that political considerations should play no role in academic appointments. It was therefore predictable that the Association of American University Professors would issue a statement defending Salaita's right to tweet his "views without fear of retaliation, even where such views are expressed in a manner that others might find offensive or repugnant." I am among those who find Salaita's tweets loathsome and incendiary, and not merely outspoken ­ more on that below ­ but, like nearly all academics, I do not think his political opinions should affect his job security at his university.

Salaita's legal position, however, is weaker than his academic freedom claims. According to press reports, Salaita's appointment had never been endorsed by the University of Illinois at Urbana-Champaign chancellor, Phyllis Wise, who has declined to submit his name to the board of trustees for official approval. Wise has great discretion when it comes to hiring professors ­ as opposed to firing them ­ and there is no rule that prevents her from considering Salaita's history of vulgar and intemperate outbursts. That may seem like a technicality, but law is technical by its very nature. Whatever he might have been told during the hiring process, it is virtually certain that Salaita was informed in writing that no appointment was final without the approval of the chancellor and trustees.

To date, both Salaita and the university have maintained absolute silence about the case. It would be unusual for a university to comment publicly on a personnel matter, but such reserve is uncharacteristic of Salaita, who has never been known for reticence. This strongly suggests that a deal is in the works, probably involving a buyout and mutual covenants of confidentiality and non-disparagement. Whatever his appeals to scholarly high ground, Salaita's legal position is shaky. So don't be surprised if he accepts the money and cuts his losses.

That brings us to the political dimension, where Salaita's position is weakest of all. Many of Salaita's supporters have been unfortunately eager to obscure the true nature of his tweets, usually by calling him a passionate supporter of Palestinian rights who reacted strongly to recent events in Gaza. That does not begin to tell the whole story. Salaita's demeaning comments about Israelis and Jews predate the current fighting, and they go far beyond the bounds of civil, or even passionate, discourse. For example, Salaita celebrated the kidnapping (and subsequent murder) of three Israeli teenagers and proudly called for more such crimes to be committed: "You may be too refined to say it, but I'm not: I wish all the (expletive) West Bank settlers would go missing." He once retweeted a vile suggestion that journalist Jeffrey Goldberg ought to get "the pointy end of a shiv."

Salaita also traffics in anti-Semitism, having tweeted: "Zionists: transforming 'anti-semitism' from something horrible into something honorable since 1948." It should go without saying that racism ­ toward any group, for any reason ­ is never honorable, despite Salaita's own indulgence of bigotry. Even bigots, of course, are entitled to academic freedom, but Salaita's supporters have been regrettably disingenuous. A committee of the Illinois AAUP, for example, argued that Salaita had merely made "an impassioned plea to end the violence currently taking place in the Middle East." This is manifestly untrue. Salaita has not called for an end to violence against Israelis. Quite the contrary, he has reveled in it.

I worked with the American Civil Liberties Union on the Nazis-in-Skokie case in the 1970s, and I would gladly do so again. It is always rewarding to defend free speech, but it is also important to be candid about the speech we are defending ­ which is why the ACLU never soft-pedaled the Nazis as merely passionate critics of international banking.

Some of Salaita's tweets have been inexcusably violent and racist. That may not disqualify him from teaching college students, but let's not be naive about his hateful message.

Steven Lubet is a law professor at Northwestern University. His most recent book is "John Brown's Spy: The Adventurous Life and Tragic Confession of John E. Cook."

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