Since academia is a great consumer of silly First Amendment hypotheticals, it’s only fair that it’s also a muscular producer of them. American universities churn out First Amendment test cases by the dozen. Today, though, prepare for disappointment: our hypothetical is banal in every way, from the fatuity of its characters to the obviousness of its answer.
Steven Shaviro, a Yale graduate and professor of English at Wayne State University, describes himself on Twitter as “Stealth assassin from the clouds. Science fiction. Music video. Alfred North Whitehead. Kitsch Marxist. Sex negative.” He is exactly what it says on the bottle; he is just like you would expect from someone who would talk like that. This week he’s infamous, in a desultory agitating-the-agitated sort of way, for needy and contrived praise of the murder of wrongthinkers.
Shaviro, a tenured Tantalus grasping for the sweet fruit of someone even momentarily paying attention to him, has thoughts about the recent debacle at Stanford Law School. Well, doesn't everyone? But Shaviro doesn’t want to vomit several thousand words at you until you cry uncle, like a thoughtful blogger. He aspires to edginess.
In case you can’t read that, Shaviro says “Although I do not advocate violating federal and state criminal codes, I think it is far more admirable to kill a racist, homophobic, or transphobic speaker than it is to shout them down.” In the column of reason, Shaviro argues that shouting down assholes is self-indulgent and probably plays into the hands of the people who invite them and gives them what they want politically and socially. In the column of being an unserious dipshit, Shaviro wants to decide who lives and who dies based on how he feels about their speech and draws an analogy to the assassination of Symon Petliura, who was not famed for being transphobic or being invited to things by the Federalist Society but for being an actual Supreme Commander of the Ukrainian People’s Army and the President of its WWI-era republic and possibly being responsible for pogroms of tens of thousands of Jews (though historians disagree). To be fair to Shaviro, people saying things he doesn’t like has always felt like a pogrom to him.
Wayne State University President M. Roy Wilson, confined by his role in this morality play, reacted by suspending Prof. Shaviro:
Dear campus community,
This morning, I was made aware of a social media post by a Wayne State University professor in our Department of English.
The post stated that rather than "shouting down" those with whom we disagree, one would be justified to commit murder to silence them. We have on many occasions defended the right of free speech guaranteed by the First Amendment to the U.S. Constitution, but we feel this post far exceeds the bounds of reasonable or protected speech. It is, at best, morally reprehensible and, at worst, criminal.
We have referred this to law enforcement agencies for further review and investigation. Pending their review, we have suspended the professor with pay, effective immediately.
This is nonsense.
Preliminaries first. Wayne State University is a public university. It is therefore bound by the First Amendment. You don’t like that? Congratulations, nobody cares. Therefore the standard of what speech Wayne State must tolerate is not, as President Wilson suggests, the bounds of “reasonable” speech. The standard is what is protected by the First Amendment. The First Amendment absolutely protects advocating the moral, philosophical, and social propriety of violence and lawbreaking, so long as the speech is not intended and likely to cause imminent lawless action:
These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As wesaid in Noto v. United States, 367 U. S. 290, 367 U. S. 297-298 (1961), "the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action."
This is not a close call. This has been clear law for longer than I’ve been alive, and I’m old. Shaviro’s speech was not a “true threat,” as no reasonable person could interpret it as a statement of intent to do harm to someone. It was not incitement, because it was not intended or likely to cause imminent lawless action. There’s no plausible interpretation that makes it outside the First Amendment or, as President Wilson suggests, a crime. Shaviro is actually far more cautious than he needs to be, expressly saying he’s not advocating breaking the law and only talking about what is “admirable.”
Can I imagine a scenario transforming it into incitement? Sure. Imagine a crowd of comp-lit majors carrying baseball bats has assembled just outside the speech of someone they’re upset about. Where can we go for guidance on what to do, one cries. Oh look, says another. There’s the stealth-assassin-from-the-clouds guy. He’s as sensible as anyone we listen to. Let’s ask him. They do, and Shaviro says “it’s morally admirable that you kill that guy in there. I would do it but I hurt my leg deconstructing music videos." And the crowd roars in approval and marches through the adjacent door. That’s incitement because it’s intended and likely to cause imminent lawless action.
Professor Shaviro is an English professor at a public university. Arguably it’s his role to say stupid, morally reprehensible things reflecting a mindset completely divorced from the reality of normal people. But President Wilson is a public university president. It’s not his role to make people stupider, to mislead them about fundamental academic and First Amendment principles. Yet, perhaps caught up in the moment, he has. This is foolish. Just as Shaviro correctly points out that shouting down speakers self-indulgently advances their cause, so to does a public school “suspending” and “reporting” a professor for clearly protected speech make the professor into a notable First Amendment martyr rather than a dipshit of little importance.
Watch the incandescently outraged reaction to this story. Note carefully how critics of “cancel culture,” critics of “political correctness,” opponents of shouting down, and self-styled free speech champions proclaim that Shaviro should be fired and possibly prosecuted. They’re not dumb. They know the law or could look it up in twenty seconds. They don’t care. They’re hypocrites. Or, to be kinder, they exist in humanity’s default state: they want speech they like protected and speech they hate punished.
Like I said, this hypothetical is tiresome. But it could lead to interesting arguments. For instance: what’s Wayne State’s proper role here? Should it just say “the professor’s words are his own views and are protected by the First Amendment?” Should it, like Stanford Law School Dean Jenny Martinez suggested recently, avoid diving into the substance of the dispute and taking a moral stand? Or this this a correct place for the school to take a stand and call out Shaviro for being morally loathsome, because “kill invited speakers at universities whose speech you don’t like” is antithetical to the nature of a university? I favor a response that tells the truth to the community — that teaches correctly that the speech is protected — while also condemning sentiments that are hostile to the nature of learning, like Shaviro’s unserious praise of murder of wrongthinkers. This remains a question of controversy, unlike the question of whether Shaviro’s speech is protected, which is only controversial to idiots.
First Edit: Here’s something else that’s worthwhile discussing: how should serious journalists approach this story? Is it acceptable to print, without analysis, President Wilson’s statement that this “far exceeds” “protected speech”? Or should a journalist consult their own training and education, and perhaps some sort of expert, in reporting that statemen to the public?
Second Edit: A commenter makes a very good point — there’s a plausible, but not strong, argument under which Shaviro might face employment consequences consistent with the First Amendment. Recall, as I described here, that the First Amendment analysis is different when the government is wearing its employer hat rather than its sovereign hat. If Wayne State could show sufficiently that Professor Shaviro’s speech caused disruption and impeded teaching, it might be able to prevail on an argument that it’s allowed to discipline him. But two points. First, that’s absolutely not what President Wilson was suggesting, though he may try to retcon it. Wilson was suggesting the speech was criminal and “far outside” First Amendment protection, which it just ain’t. Second, it would be an exceptionally hard case for Wayne State, because a professor voicing opinions on their private account would represent the strongest possible First Amendment interests, and he qualified it as not advocating lawbreaking and talking about morality, and the school would need very strong evidence of disruption. But check out this post if you want a refresher on how the analysis — called the Pickering test — works.
Third Edit: By the way, watch for people who sympathize not with freedom of speech but with Shaviro’s core sentiment that wrongthinkers should be murdered. Watch for people to object not to the university violating his rights by suspending him, but for people furious that anyone is calling him out or criticizing him.
Fourth Edit: Welcome to an oddly large number of visitors from Mark Steyn’s site. Please be advised this post may include several pronouns. Larger words here may be looked up on any reputable online dictionary.
Thank you for shedding light on a situation that is already generating a lot of heat.
Since you did not ask, here is the statement that I would have put out if I were Wayne State University President M. Roy Wilson:
Professor Shaviro is a stupid person who said a stupid thing. His endorsement of murder rather than shouting down disfavored speakers is morally repugnant. Shouting down disfavored speakers is not permitted in our community. Killing a human being for making disfavored statements is murder.
We do not believe that any student should have to take a course from Professor Shaviro. Accordingly, I have arranged for alternative professors to teach each of his courses. Consistent with the First Amendment, we cannot take adverse job action against Professor Shaviro, but we can act to protect our students from being required to submit to his judgment on any issue, including grades.
A student may choose to continue to attend a course as taught by Professor Shaviro.
Funny, if my title and name were "President Wilson" I would be extra wary of being the guy arguing that someone's heated rhetoric was unprotected speech.
Nominative determinism at work once again I suppose.