Posted by David Kopel:
The First Amendment Defense of Ward Churchill:
Many academics and commentators continue to make the bald assertions
that:
1. The CU Regents' investigation of Ward Churchill violates his
First Amendment rights, and
2. Because of point 1, nothing that is brought forward during the
investigation--even material brought forward by private citizens,
rather than by the investigators--can be used against Churchill.
I have two challenges for people who persist in making these
assertions:
1. Please explain why the investigation is a violation of the First
Amendment, notwithstanding the Supreme Court case Waters v. Churchill,
which allows a government employer to fire an employee because the
employee speech harms the employer's ability to carry out its mission,
as I discussed in a previous [1]post. Note that the question of
whether the fully-developed facts of the Ward Churchill case would
support firing Ward Churchill under the standards of the Waters case
is distinct from whether the CU Regents can investigate whether such
facts exist. Explain why mere investigation is prohibited by existing
First Amendment doctrine as elucidated by Waters.
2. Hypothesize that the Waters case does not exist, and rather that
the pretend First Amendment of Churchill's defenders is the real First
Amendment. Please explain why, even assuming that the investigation of
Ward Churchill is improper, no fact discovered during that
investigation can be used to fire Churchill. In particular, remember
that "fruit of the poisonous tree" is criminal law doctrine for the
exclusion of certain evidence, but does not apply to labor law or
First Amendment law.
Imagine that a particular employee at a factory makes a speech, off
the job, and says "All workers in town, especially at the factory that
employees me, should be unionized." The employer decides to
investigate the worker. The employer's investigation discovers that
the employee has been producing defective products, making violent
threats against female employees, and has committed many other acts
which are plainly fireable offenses.
So the company fires the employee. He brings a lawsuit, and complains
that the real reason he was fired was because of his legally-protected
speech.
My understanding of the law--and I invite people with greater
expertise to explain why I'm wrong--is that the issue of retaliatory
discharge is a jury question. For example, the fired employee might
show that the employer has consistently tolerated and promoted
employees who make violent threats against women; thus, the jury might
conclude that firing the lone employee because of his threats was
merely a pretext, and that the real reason for the firing was because
of the speech. If so, the jury would rule in favor of the employee.
Hypothetically, Ward Churchill might be able to show a jury that CU
tolerates academic fraud, violent threats, encouraging the violent
overthrow of the U.S. government, and other violations of University
rules. Thus, Churchill might win his lawsuit, by convincing the jury
that his discharge was motivated by speech, rather than by his
misconduct.
Alternatively, a jury might credit the testimony of CU President Betsy
Hoffman that she would never allow any professor to be disciplined
because of his speech.
It's all a jury question, isn't it? I don't doubt that Churchill's
attorney David Lane would allege that Churchill's (hypothetical)
firing was retalition for his speech. I don't need a summary of the
various facts that Lane might marshall, or of the various rebuttal
facts that CU might present. What I'm asking for is how the heck
Churchill's defenders can assert as a matter of law that nothing in
the Churchill investigation can be used as a basis for firing him?
Precisely what is the legal basis of their alleged exclusionary rule,
if we hypothesize that the investigation of Churchill violates the
First Amendment?
If people want to argue that "true First Amendment values" or "the
spirit of the First Amendment" create some kind of immunity for
Churchill, they're free to so argue. But I'd like to know if there's a
serious argument, based on First Amendment doctrine as it actually
exists in March 2005, which proves as a matter of law that the
investigation of Ward Churchill is improper (notwithstanding Waters v.
Churchill) or that, even if the investigation of Churchill is
improper, nothing from that investigation can be used against
Churchill.
References
1. http://volokh.com/archives/archive_2005_02_27-2005_03_05.shtml#1109610226
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