Oakton Community College sent a former professor a cease-and-desist letter in May because he made a reference to a May Day riot in an email mentioning the school’s retiring president, Peg Lee, as The College Fix noted last month.
After the Foundation for Individual Rights in Education warned the school it was grossly wrong in accusing Chester Kulis – then involved in a “grievance arbitration” with the school – of making a “true threat” against Lee, Oakton refused to back down.
Now FIRE has responded with a full letter rejecting the school’s legal rationales, in particular Oakton’s reference to the “fire in a crowded theater” analogy for suppressing speech:
As we point out in our July 16 letter, courts require that a statement be objectively threatening to a reasonable person in order to lose First Amendment protection. The mere reference to a historical event like the Haymarket Riot can’t reasonably be taken as a threat. If that were the case, then the Haymarket Martyrs’ Monument, designated a National Historic Landmark, would be equally threatening, as FIRE’s Ari Cohn noted last month. …
We also couldn’t help pointing out that OCC cites Schenck v. United States and Justice Holmes’ infamous “fire in a crowded theater” quote to support its argument. Not only is Schenck not a true threat case, but it is an obsolete precursor to the modern incitement standard and permitted the wartime suppression of expression that would nowadays be protected political speech.
What was that “wartime suppression”? The federal government was trying to stop a Socialist Party of America official from “writing and distributing a pamphlet that expressed his opposition to the draft during World War I.” Under the Espionage Act.
That’s right – Oakton’s lawyers are relying on a Supreme Court case that was essentially overruled by 1969’s Brandenburg ruling, which said the government can only punish speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
They apparently think that it’s appropriate to use the Espionage Act to crack down on peaceful political speech. Kulis’s exhortation to fellow faculty to “remember the Haymarket riot” when they think about Peg Lee is probably one of the tamer things said about a college president by faculty.
As FIRE says:
By doubling down on its seriously wrongheaded interpretation of the First Amendment, OCC has signaled to all of its faculty that it’s willing to take exactly the same unconstitutional action against them. If OCC has any sense, it will get itself on the right side of the law, and fast.
Read FIRE’s post and response letter.
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