Horowitz Offends the Right Not to Speak
by Ari Armstrong, February 23, 2004
It is wrong for politicians to use laws or political policies to influence what people say, either independently or as part of an organization, such as a university. It is also wrong for politicians to force people to fund speech with which those people disagree. Tax funding of education automatically involves political interference in education, and it automatically involves violating the free-speech rights of tax payers who disapprove of particular ideas advocated within subsidized educational establishments.
A couple of writers have nailed this point perfectly. In a February 15 article in Capitalism Magazine, Onkar Ghate notes, "Four members of [Ward Churchill's] department have expressed 'unconditional support' for his 'freedom of expression and First Amendment rights'." Meanwhile, "Colorado Gov. Bill Owens has called for Churchill's resignation..." However, "Both solutions are incompatible with free speech...." Here is Ghate's central argument: "Freedom of speech is an individual's right to express ideas without coercive interference from the government. Free speech does protect an individual who voices unpopular ideas from governmental force, but it does not require that other citizens support him. If an individual wants others to finance the expression of his ideas, he must seek their voluntary agreement. To force another person to support ideas he opposes violates his freedom of speech."
Neal McCluskey echoed this idea in his February 21 article for Cato, arguing that "freedom requires that no one be forced to support another person's speech." Unfortunately, rather than call for the complete separation of school and state, as Ghate does, McCluskey advocates vouchers for college, which does not eliminate the violation of taxpayers' rights. (This sort of advocacy of statist policies has become all too common at the supposedly free-market Cato Institute, a group that also advocates forced savings controlled by the national government.)
Unfortunately, David Horowitz, the conservative, self-proclaimed champion of academic freedom who spoke at CU on February 14, invoked the First Amendment only to argue that Churchill cannot be fired for his writings. Horowitz's position (which he has related in the Rocky Mountain News and elsewhere) is that Churchill should not be fired for his essay, though he should be fired if he is found to have falsely claimed to be an American Indian and if he was hired or promoted because of that. At the talk, Horowitz did not acknowledge that the right of free speech entails the right not to support speech one finds offensive.
Horowitz said flatly that "Ward Churchill should not be fired" for his "evil" article, because he has First Amendment rights. A "university cannot fire anybody for making a speech they don't like off campus," he said. Horowitz elaborated his view in response to a question from the audience. He said Churchill's position at the university "is a free-speech issue" precisely because it involves a "state university." Horowitz said you can't fire somebody for his or her political commentary. He said that, for example, a government employee could not be fired for making a political speech on a street corner outside of office hours. Similarly, Churchill "wrote an opinion piece on the internet."
In a free market, an employer has the right to fire an employee for any reason whatsoever, unless the employer and employee explicitly agree to an employment contract. Then, obviously the terms by which an employee may be fired are determined by the terms of a contract.
Horowitz's argument is that government employees -- and these include employees of state-funded universities -- have special employment protections based on the fact that the job is established by the government. There is some merit to his argument. For example, we wouldn't want some DMV bureaucrat to get fired just because he or she attended an off-hours event for the "wrong" political party.
The obvious answer is that professors ought not be government employees. If they weren't, the government would have nothing to do with what they say. But this is not the answer Horowitz favors. Instead, his motivation seems to be to use the power of the state to advocate "conservative" ideas rather than liberal ones. He explicitly called on tax-subsidized colleges to hire more conservative professors. Similarly, he has advocated spending more federal tax dollars on K-12 education, of course as conservatives think best.
Horowitz's position is consistent with the general neo-conservative framework. The neo-conservatives support free markets in only a loose sense; they are perfectly happy with a large welfare state and significant state controls on enterprise. They are not overly concerned with individual rights, which helps explain why Horowitz did not mention the rights of tax payers not to fund offensive speech.
Horowitz's position, then, is fundamentally wrong. It also falls apart in the details.
Obviously, the speech of government employees is often restricted when they are on the job. For example, government school teachers may not attempt to persuade students to adopt particular religious beliefs. Indeed, if a teacher tried to do that, the ACLU would run the teacher out of a job quicker than you could say "First Amendment."
So then the question becomes, was Churchill's essay part of his job? I think it's obvious that it was. The essay states, "Churchill is a Professor of Ethnic Studies."
During the course of his talk, Horowitz argued that professors work only a few hours per week. But, a member of the audience responded, obviously academics work outside of normal office hours, and we all know this to be true. Universities don't pay professors just to sit in class and hold office hours. Universities pay professors to "publish or perish," especially at big schools like CU.
What about the matter of standards? McCluskey seems to agree with Horowitz on this point. McCluskey argues that "academic free-inquiry requires that no idea or opinion be off-limits, and because government cannot discriminate between one person's speech and another's."
Similarly, Michael Huemer, a soon-to-be tenured philosophy professor at CU, argued in a recent letter to Colorado Daily: "Although I do not believe a tenured professor should be -- nor, legally, can be -- dismissed because of the content of his political statements, Professor Churchill should be condemned in the strongest terms. Churchill's remarks are not merely 'insensitive,' 'unpopular,' or even 'wrong.' They are evil."
While generally I agree with Huemer's take on the matter, I think there are some cases in which a professor is rightly fired for the "content of his political statements." Otherwise, tax-subsidized universities couldn't have any standards whatsoever. They would have to hire a Nobel physicist on the same grounds as a guy who argues that pink-spotted monkeys live in the core of the Moon. Content obviously counts for something. It is true, though, that at a certain point the debate over which standards are appropriate at a tax-funded institution is intractable, precisely because of the tax funding.
The important truth that Huemer is referencing is that academic freedom rightly allows professors to make very unpopular statements. I have no quarrel with that. It is indeed imperative that unpopular views -- especially unpopular views -- get a hearing in the academic community. (I've met many professors whom I admire who advocate radical and wildly unpopular free-market views.)
Still, some "content" is so ludicrous on its face that it should not be tolerated in any academic setting, even a tax-funded one. Here are some examples. Any professor should be fired for claiming any of the following: slavery is morally virtuous, 2+2=5, all people of a certain ethnicity deserve to be killed, the earth is flat, violent rape is good, the U.S. government never sent a ship to the moon, the Nazis never systematically killed Jews, or the Sun revolves around the Earth. (I am here discounting quirky semantic usages and the playing of devil's advocate.)
I have heard the argument that, so long as any argument is offered for a position, that position is protected by tenure. For example, somebody could go on for pages and pages, even books and books, as to why all people of a certain ethnicity allegedly deserve to be killed. Nevertheless, any professor who made such an argument should be fired, obviously.
Arguably, Churchill's essay is so devoid of merit that he should be fired because of that. Other serious allegations about Churchill's work have been raised, and if any one of them is found to have merit, he should be fired for that reason.
The February 21 Rocky Mountain News summed up these allegations in an editorial. First, "Churchill repeatedly and explicitly, in speeches, essays and books, supports and encourages violence against the state and against categories of people he associates with oppression." Second, "Churchill's scholarly treatment of several issues -- including an epidemic among Mandans and other Indians in 1837, and the contents and effect of the 1887 General Allotment Act -- amounts to fabrication." Third, "Churchill has plagiarized from other authors on more than one occasion. Fourth, "Churchill has misrepresented his ethnicity, which in turn has benefitted his career." Again, the News lists these as allegations that should be examined (and I skipped the News's fifth point).
Churchill's contract of employment does not say that he may never be fired no matter what. Instead, it says that he may be fired for particular reasons, one of which is a failure to uphold minimal professional standards. I would argue that his essay that sympathizes with Islamic terrorists and compares victims of terrorism to Nazis is, by itself, ample evidence that Churchill has failed to uphold professional standards. If any of the other allegations the News lists are proved, then Churchill should automatically be fired.
Another point may be raised concerning Churchill's tenure, though. It is generally recognized that a contract that violates the rights of a third party is null and void. Churchill's contract with CU violated and continues to violate the rights of every tax payer who finds Churchill's views reprehensible and who does not wish to finance the propagation of those views. Therefore, Churchill's contract for employment is arguably invalid.
At some point, tenure itself should become a subject for debate. Tenure strikes me as serving a good purpose -- protecting well-reasoned but unpopular views. However, I've heard the argument that tenure also protects laziness and sloppy work.
Clearly the way tenure is granted should be tweaked. Churchill should never have been hired by CU in the first place, much less granted tenure. As a February 16 article in the News by Berny Morson and Charlie Brennan reports, "A high-ranking University of Colorado official urged a faculty appointment for Ward Churchill in 1990, despite questions about his academic credentials. Less than a year later, Churchill landed a coveted tenured faculty position, bypassing the rigorous, six-year academic review that normally precedes tenure, according to CU documents." And this is a guy who doesn't have a Ph.D. and who holds a Masters in an area unrelated to his current position.
While such matters are important, the core problem with Ward Churchill is that he is subsidized by tax dollars. Colleges should want to stop taking tax subsidies in exchange for independence from the legislature. And that would obviously help the legislature curb its spending and let people keep more of the money they earn, to donate to the college of their choice, if they wish.
But I am not optimistic that the correct position will be adopted anytime soon, as both lefties and righties oppose it. (To his credit, John Andrews, former Republican President of Colorado's Senate, argued in the Denver Post that tax subsidies to colleges should be cut off.) On February 18, I sent the following letter:
"Dear [Democratic] Senator [Ron] Tupa, I read in the [Rocky Mountain] News today that, when it comes to colleges, you agree with the sentiment, 'Legislature, butt out.' I eagerly await your bill to strip higher education of all tax dollars so that our universities can be truly independent of the legislature. Sincerely, Ari Armstrong"
Senator Tupa encouraged me not to hold my breath.
* * *
Is the First Amendment Absolute?
I want to address a couple of related issues. One is the common argument that the right of free speech may be limited, and thus, arguably, Churchill may be hushed. That argument is totally wrong. Properly understood, the First Amendment, and more generally the right of free speech, is absolute, within the context of property rights. Dropping that context is what allows both the right and the left to violate free speech, often in the name of free speech.
Here are some common examples.
You have a right to place an ad in the paper (if its editors are willing) advocating your views. You do not have a right to place an ad in the paper asking somebody to kill your spouse (either for free or for hire). Why not? Obviously, murder is a violation of a person's right in his or her own body. Limiting speech that incites crime against a person or property is not a violation of the right of free speech -- there is no right to urge others to commit violent crimes. This does not represent an infringement of the right of free speech: it is a proper recognition of property rights and the fundamental right to life.
Churchill obviously has made statements sympathetic to terrorists. However, there is no evidence that he has advocated committing specific crimes against specific people. Thus, while his statements are horrific and immoral, they are properly legal. That is, Churchill has a right to praise Islamic terrorists and insult the victims of mass murder.
What about crying "fire" in a movie theater? Obviously, if there is a fire, you have every right to shout "fire" (and arguably a moral, though probably not a legal, obligation to do so). Otherwise, if you shout "fire" when there is no fire, you are violating the rights of the theater owner and of the audience. So there's no right to do that. (The exception is if the theater owner and the audience agreed to let you yell "fire.")
The case of national defense is trickier, but it follows the same lines. If, by revealing vital, secret information, you would risk the lives of innocent people, that is arguably a violation of property rights, and thus you have no right to reveal the information.
Libel and slander are a matter of debate within libertarian circles. Some argue that a person has a right in his or her reputation, and therefore there is no legal right to libel or slander somebody. Others argue that a reputation is a subjective phenomenon, and thus libel and slander are not properly legal matters. I am tentatively fine with the idea of outlawing libel and slander, so long as the bar is set very high for proving a statement is both willfully false (or false due to the grossest negligence) and damaging. Regardless, the case for outlawing libel and slander must rest on property rights.
So, again, the right of free speech is absolute, within the context of property rights. If Churchill is to be fired, it should not be because his right of free speech is not absolute. Rather, it should be because his right of free speech does not entail a right to be hired by CU.
* * *
Would Firing Churchill Make Him a Martyr?
In a February 15 column, Thomas Sowell correctly argues, "Freedom of speech does not imply a right to an audience. Otherwise the audience would have no right to its own freedom. Editors, movie producers, speakers' bureaus and other intermediaries have every right to decide what they will and will not present to their audiences."
Sowell concludes, "The combination of tenure and academic self-governance is unique -- and explains much of the atmosphere of self-indulgence and irresponsibility on campus, of which Professor Ward Churchill is just one extreme example. Re-thinking confused notions of 'academic freedom' is far more important than firing Professor Churchill and thereby turning a jackass into a martyr."
However, tenure contracts are not absolute. They specify conditions.
Furthermore, this argument about turning Churchill into a martyr is without merit. In its ideal sense, a "martyr" is somebody who is wrongly persecuted, and whose persecution inspires allies to take action. I suppose there is a degraded sense of the term by which the "martyr" could be fundamentally evil. For example, if a Klansman had been properly convicted in the old South for killing an innocent black person, the Klansman might have become a "martyr" to other Klansmen. Is that an argument for failing to convict?
Churchill should be fired, and if that increases his status among nihilists, worshipers of death, and haters of America, then so be it. The job of CU is to fire somebody who deserves to be fired, and our job is to demand that CU do so. If Churchill becomes a "martyr," that only morally condemns those who view him as such.
Besides, not many people think much of Churchill. Even his defenders usually preface their remarks by saying something like, "Well, I know Churchill is irresponsible and perverse, BUT..." Once the circus leaves town, Churchill will find that his supporters consist mostly of a few crackpots.
If some other college in some other state wants to hire Churchill, it's welcome to him! If Churchill continues to make money spreading his deceitful and hateful propaganda, so be it, so long as he doesn't speak as a representative of CU or take my tax money to do it.