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Free Speech Ought to Be Costly


Washington. -- Could Leonard Jeffries be right? He is the racist and anti-Semite who until last year headed the black-studies department of the City College of New York. He was removed from that post after he delivered a speech in which he talked of an anti-black "conspiracy, planned and plotted and programmed out of Hollywood" by "people called Greenberg and Weisberg and Trigliani."

Mr. Jeffries didn't lose his tenured professorship, and he kept his $70,000 salary. But that didn't stop him from suing the college and recovering $400,000 for the violation of his First Amendment rights.

At first, the verdict seems outrageous. Further reflection, however, brings discomfort. Is it possible to condemn the Jeffries decision and also condemn the various unpalatable "speech codes" that have been imposed on university campuses in the attempt to mandate racial civility?

Why is it OK to discipline Mr. Jeffries but not, say, the Penn student who called some noisy African-American sorority sisters "water buffaloes?" One wants to be principled about this. The issue obviously shouldn't turn on whose water buffalo has been gored. If you are like me, you would also like to discover what lawyers call a "bright-line rule" that would resolve each and every case. When it comes to the First Amendment, clear rules eliminate the uncertainty that can "chill" expression.

But the most conspicuous bright-line rule favors Mr. Jeffries. It is the doctrine of "unconstitutional conditions," which says simply that the government cannot deny any benefit (e.g. a job or a college education) to anyone because of his or her speech. After all, the state can't directly prohibit unpopular views by, say, throwing socialists in jail. Why should it be able to discourage those views indirectly, by taking away various state-provided goodies?

Under this principle, the Jeffries case is a no-brainer. It makes no difference that he kept his professorship. He was still denied a benefit (the department chair) by an organ of the state (City College) on the basis of something he said (his speech).

QED. He wins.

I doubt that it's possible to plausibly protest the Jeffries verdict without somehow rejecting this familiar mode of First Amendment thinking. That is all right, though, because it should be rejected. It is a mistake, as a matter of principle as well as pragmatism.

Certainly the First Amendment can't mean that speech should never be penalized because of its content. Speech is penalized all the time, in the private sector. If I concluded next week's TRB column with a ringing call for the return of Pol Pot in Cambodia, I would, rightly, lose my job. That wouldn't be unconstitutional. Is the administration of a university so different?

The judge in the Jeffries case ruled that the professor's speech was "part of a debate that has broad and extremely significant implications for American society" -- a debate on "possible reform of the educational curriculum." Well, if the debate is so important, why can't Mr. Jeffries be judged by his employer on the basis of his contribution?

Only a crabbed notion of liberty holds that speech should never be attended by penalties. In a free society, after all, speech is both self-expression and the inspiration of action. Ideas are allowed to change things. But at some point, if this is to happen, the ideas must be judged. One way we do this is through elections, the purpose of which is precisely to punish people -- losing candidates -- for their ideas and beliefs. But are candidates the only ones?

The courts, at times, seem to think so. In an unbroken string of opinions, the Supreme Court has ruled it unconstitutional to fire a government employee because of his or her party affiliation. With a few grudging exceptions, patronage has simply been prohibited. "A state job is valuable," the court notes -- surely we can't penalize somebody for his political beliefs by taking it away.

But what about the the possibility that some government workers are actually inspired in their work by their beliefs -- that they are eager to work for a Democrat because they, too, are Democrats? The court's answer has been to declare, "It is doubtful that the mere difference of political persuasion motivates poor performance" by government workers.

Thus, beliefs are protected by draining them of any consequence. Democrat, Republican, anti-Semite. These things are "vital," we're told, part of a "critical dialogue." They lie "at the heart of the First Amendment." But hey, they aren't important enough to affect anybody's work. They are a sort of private religion, separated from the world.

The alternative is to say that the Constitution protects both the right of Americans to have political ideas and their right to try to put those ideas into effect, to have them judged by the democratic institutions of government. Let Democrats fire Republicans, if they want. Let Republicans fire Democrats. Let winning environmentalist candidates choose environmentalists to implement their policies.

And if the elected governor of New York chooses university trustees who aren't bigots, permit them to choose people who aren't bigots to run the universities. Pay Leonard Jeffries the respect of taking his ideas seriously.

TRB is a column of The New Republic, written by Mickey Kaus.

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