Does the First Amendment Protect Incendiary Tweets?

The controversy over California State University at Fresno creative writing professor Randa Jarrar’s incendiary tweets about the recently departed former First Lady Barbara Bush has given me an unexpected opportunity: the chance to put an assignment from my first year of law school to good use.

So I thought it couldn’t hurt to tackle the case of the acid-tongued Professor Jarrar from a lawyer’s perspective. As a matter of binding judicial precedent, was her posthumous anti-Bush bombshell protected by the First Amendment? In a nutshell: yes, it is…but a fifty-year-old Supreme Court case leaves open the slightest of possibilities that a court could rule the other way—however wrongheaded such a ruling would be.

Private Citizen and Public Concern

The U.S. Supreme Court has long held that individuals don’t check their First Amendment right to free speech at the door when they go to work for the government. In the 1983 case of Connick v. Myers (which involved the former district attorney of New Orleans—who, interestingly enough, also happens to be the father of musician and actor Harry Connick Jr.), the Supreme Court declared: “A state cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.” In the 2006 case of Garcetti v. Ceballos, the court held that “the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.”

Yet in Garcetti, the court also acknowledged that this freedom isn’t completely unlimited, since public employee speech can sometimes “contravene governmental policies or impair the proper performance of governmental functions.” In other words, government agencies, like private ones, need to be able to regulate and control their employees’ speech on the job in order to accomplish their institutional missions successfully.

Therefore, the court’s majority opinion in Garcetti added an extra prong to the test—first established in the 1968 case of Pickering v. Board of Education—that courts previously used to determine whether a government employee’s speech is protected by the First Amendment. A court hearing a public employee free speech case must first determine whether the employee was speaking as a citizen or “pursuant to their official duties” (the criterion added by Garcetti). The court must then consider whether the employee was addressing a matter of public concern (the factor originally established by Pickering).

If the answer to either of these questions is no, then the court will rule that the speech in controversy was not protected by the First Amendment and will uphold the penalty. There, the case will end.

The Garcetti decision also preserved the third and final prong of the Pickering analysis. In cases where the employees were (a) speaking as private citizens and (b) addressing matters of public concern, courts must “arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” This “Pickering balancing test” (if you’ll forgive the legalese) is, of course, the trickiest and most potentially subjective part of the inquiry.

(Let me pause here to note quickly that as a public—i.e., government-owned-and-operated—university, Fresno State is entirely bound by the U.S. Constitution, including, of course, the First Amendment.)

Jarrar: Citizen or Professor?

So was Randa Jarrar speaking as a citizen when she put Barbara Bush on blast, or was she speaking as a creative writing professor? The president of the university, Joseph I. Castro, answered this question up front, in a public statement tweeted in the teeth of the firestorm: “Her statements were made as a private citizen, not as a representative of Fresno State.” This conclusion makes sense, since Jarrar made the inflammatory remarks in a series of tweets, not during class time or office hours, not while communicating with students, and not in the process of fulfilling any of her other employment duties. So Professor Jarrar should easily pass the first part of the test.

Was she addressing a matter of public concern? This question practically answers itself. Of course the issue of whether a former First Lady “was a generous and smart and amazing racist who, along with her husband, raised a war criminal” (as Jarrar originally tweeted) is a matter of public concern, regardless of whether one agrees with this vitriolic indictment of the late Mrs. Bush. The personal character and public policy influence—such as it was—of a political figure like the wife of the president of the United States obviously “relat[es] to [a] matter of political, social, or other concern to the community,” which is how the Supreme Court defined matters of public concern in Connick v. Myers.

The Connick Court also provided some [somewhat] helpful guidance for future generations of judges, lawyers, and stressed-out law students: “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” The fact that Professor Jarrar chose to speak ill of the deceased former First Lady on a public platform like Twitter, rather than in the classroom or any other far more limited academic forum, reinforces the conclusion that she was indeed tackling an issue of public concern.

So if Fresno State’s administrators continue their declared investigation into Professor Jarrar’s tweets, and conclude it by firing or otherwise punishing her, she will have ample First Amendment grounds—not to mention the perks of academic tenure—on which to challenge that discipline in court. Perhaps she could even benefit from the help of my former employer, the Foundation for Individual Rights in Education (FIRE), which has already spoken out against Fresno State for threatening Jarrar with potential discipline. (FIRE has an illustrious record of defending the First Amendment rights and other civil liberties of people who find themselves in the professor’s very predicament—regardless of their ideological orientation.)

The Pickering Balancing Test

If things do come to that sorry pass, how will the court probably rule in light of the final prong of the government-employee free speech inquiry: the Pickering balancing test? How could a court strike a proper balance between Randa Jarrar’s interest in being free to speak on matters of public concern—however scurrilously—and the Fresno State administration’s interest in educating its students efficiently and effectively?

Precedent suggests that a court would likely side with Professor Jarrar in the end—and my view is that, as a matter of First Amendment law, it certainly should do so. Speaking to the Fresno Bee, Fresno State president Joseph Castro commented, “This was beyond free speech. This was disrespectful.” Disrespectful it certainly was—but as a coalition of free speech advocacy organizations (including FIRE) reminded Mr. Castro in a recent letter, “Jarrar’s expression is not ‘beyond free speech’ simply because it was disrespectful.”

In theory, a case could be made that the Fresno State administration, and not Professor Jarrar, should pass the balancing test. I wouldn’t put it entirely past some lower courts to hold that public universities have a legitimate need to discipline faculty members for hurling such vituperative condemnations at a just-deceased figure like a former First Lady of the United States. A judge might conclude that the public outrage (much of it hypocritical—more on that later) triggered by Jarrar’s tweets risks fomenting disharmony both on and off campus that could disrupt classroom teaching and hamper both the university’s and Jarrar’s own efforts to educate the student body.

Yet such a ruling probably wouldn’t survive the inevitable appeal to higher courts—and indeed, it shouldn’t. As the aforementioned free speech coalition’s letter made clear, courts have already come down on the pro-free-speech side in similar long-standing First Amendment cases. For instance, in the 1975 case of Adamian v. Jacobsen, the Ninth Circuit Court of Appeals (which encompasses California, and therefore Fresno State, within its jurisdiction) held that:

the desire to maintain a sedate academic environment, to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint, is not an interest sufficiently compelling, however, to justify limitations on a teacher’s freedom to express himself on political issues in vigorous, argumentative, unmeasured, and even distinctly unpleasant terms. Only where expressive behavior involves substantial disorder or invasion of the rights of others may it be regulated by the state. Self-restraint and respect for all opinions, however desirable and necessary in strictly scholarly writing and discussion, cannot be demanded on pain of dismissal once the professor crosses the concededly fine line from academic instruction as a teacher to political agitation as a citizen—even on the campus itself.

Similarly, seven years later, in the case of Peacock v. Duval, the same Ninth Circuit Court of Appeals stated: “Although we recognize the necessity for the efficient functioning of a public university, such efficiency cannot be purchased at the expense of stifling free and unhindered debate on fundamental educational issues.” Although that case concerned a medical school professor who criticized the way the school allocated payments for services delivered by its clinical departments, the court still recognized the indispensability of free speech in academia, even in cases where the speaker expresses himself in an offensive manner. Other similar cases abound, from 2001’s Bauer v. Sampson and Hardy v. Jefferson Community College, to 1999’s Mendocino Environmental Center v. Mendocino County, all the way back to 1957’s Sweezy v. New Hampshire (the last two of which noted that even mere investigations by government institutions into individuals’ exercise of their free speech rights can violate the First Amendment).

As for the U.S. Supreme Court, I think it highly unlikely that it would ultimately side with Fresno State’s administration if a lawsuit on this matter should reach the nation’s highest bench. In the 2011 case of Snyder v. Phelps, the court ruled in favor of the vile Westboro Baptist Church’s right to picket outside the funerals of American soldiers killed in combat. Just last year, in the case of Matal v. Tam, the court unanimously reaffirmed its previous holdings that there is no “hate speech exception” to the First Amendment right to free speech.

Support for the First Amendment’s broad conception and protection of freedom of speech is one of those constitutional issues that actually unites the current justices across the ideological spectrum, at least for the most part. It seems doubtful that Chief Justice John Roberts’s Supreme Court would apply the Pickering balancing test in a manner that would chill professors’ ability to express themselves as freely as possible on such political issues—even if they go about it as obnoxiously as Randa Jarrar did in this case. As the U.S. Supreme Court explained in the 1972 case of Healy v. James: “The precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. … State colleges and universities are not enclaves immune from the sweep of the First Amendment.”

Beware the Backfire

A public university cannot punish a professor’s expression of her views simply because it sows discord on campus or in society at large. Nor can it do so simply because the offending speech is hurtful or disparaging to those on the receiving end of it or their sympathizers. As FIRE’s Adam Steinbaugh has pointed out, in the event that the courts upheld such a penalty, “the law of public employee speech would institutionalize the heckler’s veto; all it would take to remove a professor’s expression from constitutional protection is enough outrage. Clearly the First Amendment does not permit this result, and courts have so held.”

Courts have been entirely right to rule accordingly, because institutionalizing the heckler’s veto would endanger everyone’s free speech rights in the end. No one political worldview has a monopoly on offensiveness; every ideology or movement encompasses at least some viewpoints that are unpopular enough with their detractors to be considered intolerable by the latter. To leave public university administrations or any other government institutions free to punish any utterance that causes a public outcry would make a great deal of speech across the whole political spectrum vulnerable to censorship. Liberals, conservatives, libertarians, socialists, centrists—all would potentially be fair game for muzzling by the authorities, so long as enough of a given speaker’s critics were willing to react with outrage.

Indeed, the case of Randa Jarrar is instructive partly because of the political orientation of Jarrar herself: an Arab-American writer and professor known for her stridently left-wing opinions on political and social issues. The fact that someone of her background is facing a career-threatening investigation for hurling calumnies at a conservative public figure like Barbara Bush should serve as a warning to all modern left-liberal advocates of ideas such as prohibiting hate speech. Ultimately, such arguments for censorship are always hypocritical; their proponents never want—or expect—their own viewpoints, or those with which they sympathize, to be silenced. It’s the “Free speech for me, but not for thee” tendency decried by the late writer Nat Hentoff at its finest. Unfortunately, it seems not to occur to these censorship apologists that two—indeed, many—can play at that game, and that their own efforts can all too easily backfire on them.

Such is especially the case in a politically polarized and culturally balkanized society like the modern United States. Want to censor hateful speech—be it racist, sexist, homophobic, nativist, or what have you—at your university? Beware! The resulting speech code could easily be used by white students to file complaints against black students for using terms like “white trash” in their presence. Think twice before demanding that the administration gag critiques of Islam in your student body or on your faculty, or before “disinviting” controversial speakers like Ayaan Hirsi Ali from campus. The very same logic that leads you to seek to shut down criticism of Islam can just as easily be used to silence criticism of Israel—as the University of California Board of Regents seemed to contemplate doing in 2016 when it issued a report stating that “Anti-Zionism and other forms of discrimination have no place at the University of California.”

Aside from its First Amendment implications, the moral of the sorry story of Randa Jarrar is that no single political movement has the corner on the censorship market. The impulse to muzzle speech one doesn’t like straddles the ideological spectrum, with the result that those who seek to dish it out can just as easily end up eating it at any time—and vice versa. The Jarrar controversy deserves to go down in history as a cautionary tale not only of the commonly known dangers of censorship but also of its potential to blow up in its own advocates’ faces.

Born in Toronto, Canada and raised in Montreal, Akil Alleyne is a 2008 graduate of Princeton University and a 2013 graduate of the Benjamin N. Cardozo School of Law in New York City, where his major areas of study were constitutional and international law. He most recently worked for the Foundation for Individual Rights in Education, a nonprofit organization that advocates for the civil liberties of free speech, freedom of religion and association, and due process.

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