Paul L. Caron

Tuesday, December 27, 2016

Volokh:  Punishment Of Tax Prof Nancy Shurtz Means The End Of Free Speech At The University of Oregon


Following up on my previous posts (links below);  Washington Post (The Volokh Conspiracy): At the University of Oregon, No More Free Speech for Professors on Subjects Such as Race, Religion, Sexual Orientation, by Eugene Volokh (UCLA):

Last week, the University of Oregon made clear to its faculty: If you say things about race, sexual orientation, sex, religion and so on that enough people find offensive, you could get suspended (and, following the logic of the analysis) even fired. This can happen even to tenured faculty members; even more clearly, it can happen to anyone else. It’s not limited to personal insults. It’s not limited to deliberate racism or bigotry. ...

This time it involved someone making herself up as a black man at a costume party (as it happens, doing so in order to try to send an antiracist message). But according to the university’s logic, a faculty member could be disciplined for displaying the Mohammed cartoons, if it caused enough of a furor. Or a faculty member could be disciplined for suggesting that homosexuality may be immoral or dangerous. Or for stating that biological males who view themselves as female should be viewed as men, not as women. Or for suggesting that there are, on average, biological differences in temperament or talents between men and women.

All such speech at the University of Oregon will risk your being suspended or perhaps even worse. Orthodoxy, enforced on threat of institutional punishment, is what the University of Oregon is now about. ...

[C]ontrary to the university’s explicit assurances in its free speech policy, the university report shows that “[t]he belief that an opinion is pernicious, false, and in any other way despicable, detestable, offensive or ‘just plain wrong’” would indeed be viewed as “grounds for its suppression.” Indeed, even the wearing of black makeup is being suppressed on the grounds that it’s seen as “despicable, detestable, offensive or ‘just plain wrong’” (the report stressed that “[a]lmost every student interviewed reported that they knew the costume was ‘not okay’”). The expression of overtly racially offensive opinions would be just as covered by the university report’s logic. ...

I just want to point out the university’s view that all its assurances of free speech just don’t apply to speech that causes sufficient disruption (even when the disruption stems from the debate that the university itself has fanned). That logic equally covers any controversial speech, even beyond speech touching matters such as race, religion, sexual orientation and the like.

It could apply to speech that interferes with the “efficiency of [the university’s] operations” — by upsetting students or faculty, or upsetting alumni and thus decreasing donations — if it’s seen as unpatriotic, or antiwar, or anti-environmentalist, or anti-animal rights, or sharply critical of one or another political party, or a vast range of other things. Of course, in practice this principle would only apply to speech that is disruptive and at the same time offensive to the university administration’s own political views or at least one department’s views. ...

I often hear various speech restrictions defended on the grounds that “harassment” isn’t protected speech. As then-Judge Samuel Alito noted, “There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.” (Saxe v. State Coll. Area School Dist. (3d Cir. 2001).) But beyond that, it’s important to understand how “harassment” has morphed into basically “any speech that the authorities view as offensive based on race, religion, sex, sexual orientation, gender identity, national origin, and so on.” Bans on “harassment” aren’t just bans on targeted, unwanted one-to-one speech (such as traditional telephone harassment) or even repeated speech about a particular person (though even such speech about people, I think, is constitutionally protected unless it falls into the exceptions for true threats or defamation).

Rather, they are attempts to suppress the expression of speech that is perceived as expressing certain political, social and religious viewpoints. Remember that when you hear about new attempts to ban harassment, for instance at lawyer social events.

Jonathan Turley (George Washington), Oregon Professor Causes Firestorm Over Black Face Costume Worn At Party Off-Campus:

Professor Nancy Shurtz does not appear eager to fight the suspension or assert free speech rights. She has been highly apologetic and has removed herself largely from the public debate. However, she would have a strong basis to challenge the action, though these cases can certainly prove unpredictable in court. It would certainly make for an interesting and potentially important free speech case.

Prior TaxProf Blog coverage:

Legal Education, Tax | Permalink


I find the Oregon Law School offensive. Can I sue them?

Posted by: mike livingston | Dec 27, 2016 4:15:04 AM

She'll win on the pleadings. This is such a clear win that I bet Oregon will come to her with their tails between their legs begging her not to litigate and to bring this out of the public view since their bullying tactics have failed and resulted in utter embarrassment.

Don't back down, Prof. Shurtz! Add to the already existing body of clear precedent condemning actions like Oregon's violating 1st amendment rights. Help put these fools, and similar fools at universities across America who seek to quell free speech , in their place.

Posted by: Anon | Dec 27, 2016 8:48:10 AM

As I have already noted elsewhere, Oregon has made offending others a strict liability offense – no mens rea required. It is hard to imagine a greater threat to robust academic discourse. If Nancy can be punished for calling attention to the disturbing lack of black males in the medical profession by dressing as a black male doctor for Halloween, simply because her method of doing so offends some members of her audience, then anyone can be punished for making any statement, regardless of merit, if his or her method of doing so gives offense to anyone. I see no defensible limiting principle to Oregon’s position. If a professor makes fun of Mohammed, off with his head! If she ridicules the idea of virgin birth, revoke tenure! The university’s position evidences cowardice, not principle.

Posted by: Theodore Seto | Dec 28, 2016 12:15:12 AM

There's an old saying--don't talk about race, sex, religion or politics in polite company.

Perhaps it would be more valuable if tax professors were to talk about things like repatriation of foreign earnings and regulation of REITs rather than wearing black face to parties?

Posted by: Wisdom | Dec 31, 2016 9:47:44 AM