Wisconsin Supreme Court To Determine If Professor’s Ousting Violated Free Speech

Case hinges on protection of unpopular speech vs. decency

Marquette University / @marquetteu Facebook

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The Wisconsin Supreme Court is expected to rule in the coming months on McAdams v. Marquette, a case that pits a suspended university professor against his employer over core issues of free speech.

Suspended political science professor John McAdams aims to have the state supreme court, which heard the case April 19, return him to the classroom and allow him to collect damages for being disciplined over a blog post he wrote. His defense has maintained he was suspended as a result of the university's opposition to particular speech. Marquette University, a private Catholic university in Milwaukee, has argued it followed the agreed upon disciplinary process outlined in the professor's employment contract and has said his behavior was indecent.

McAdams was indefinitely suspended in 2014 after he made a post on his personal blog condemning a graduate student instructor for silencing debate on gay rights. That instructor, Cheryl Abbate, told a student that supporting a restriction on the "rights and liberties of individuals"—opposing same-sex marriage—would be offensive to someone who is homosexual.

"In this class homophobic comments, racist comments, and sexist comments will not be tolerated. If you don't like that you are more than free to drop the class," she told the student, according to a brief filed in the case.

McAdams, after hearing a recording of the discussion, took no position on same-sex marriage but on his blog, condemned what he saw as an attack on academic freedom. Before he posted his thoughts, McAdams contacted Abbate to ask for her side of the story. "Marquette is less and less a real university," he wrote. "And when gay marriage cannot be discussed, certainly not a Catholic university."

The condemnation from McAdams itself, the university argued, was not the problem. A committee of his peers unanimously agreed, however, that he acted unprofessionally by opening a graduate student up to public criticism. The committee determined it right to suspend McAdams without pay for two semesters because in his blog post, he linked to Abbate's contact information. The contact information was posted on a publicly available webpage. University president Michael Lovell exceeded the two-semester suspension recommendation, ordering McAdams apologize or effectively be fired. The professor, defending what he saw as his right to speak out against injustices, refused to do so.

Rick Esenberg, arguing for McAdams as general counsel for the libertarian Wisconsin Institute for Law & Liberty (WILL), said that defending McAdams served a public interest, for his post concerned an important topic: "the ability of college instructors to restrain student speech based on point of view."

WILL cited Marquette Faculty Statutes, which declared that while Marquette has the authority to discipline faculty for discretionary cause, in no case "shall discretionary cause be interpreted so as to impair the full and free enjoyment of legitimate personal or academic freedoms of thought, doctrine, discourse, association, advocacy, or action," Marquette Faculty Statutes state.

The institute argued that after Marquette failed to find a specific rule that McAdams broke, the school's Faculty Hearing Committee had to create limitations to his free speech rights to justify disciplining him. The faculty report explained that a professor's speech could be limited by his "responsibilities" and "special obligations"—responsibilities and obligations WILL argued the university only determined after the fact.

Esenberg argued that this process is no protection of free speech for college professors. "When you give someone academic freedom and promise freedom of speech, that's a protection of unpopular speech," Esenberg said. "Because nobody will do anything to you if what you say is popular."

The Foundation for Individual Rights in Education, a law firm focused on free-speech rights on college campuses, similarly deemed Marquette's defense of academic freedom lacking. "How may a faculty member ‘engage in intellectual debate without fear of censorship or retaliation' if, by naming the opponent of an opposing view, he or she risks sanction?" the group wrote in a brief on the case.

Marquette claims the content of McAdams's argument in his blog post is besides the point. In an infographic titled "This Is About Decency: McAdams vs. Marquette," the university argues the inclusion of Abbate's contact information in the post led to her receiving "100+" harassing emails and vile attacks.

Esenberg disputed the 100-plus number and Marquette's argument that McAdams was guilty of "doxing," a term used to describe the practice of "publicly identify[ing] or publish[ing] private information about (someone) especially as a form of punishment or revenge."

"Marquette's description of what happened is extremely misleading," Esenberg told the Washington Free Beacon. "What he did was he put a link to her blog. She had a publicly available webpage where she posted her writing," he said.

Esenberg explained the doxing descriptor was inaccurate in the case because "if you had clicked that link and gone to that page to read her article, it would have taken just a few more clicks and you would find where on the page she put her contact information."

Ralph Weber, general counsel for Marquette in the case, rejected Esenberg's argument when asked about the doxing claim by the Free Beacon. Weber referred to findings in the faculty report, which concluded McAdams "linked to [Abbate's] website with her contact information on it in order to make it easier for readers to find that information" and intentionally used her name and a link to her contact information "in order to expose her to negative comments."

"That is doxing," Weber said.

Weber, adding to Marquette's "indecent" argument, also said McAdams portrayed the student instructor learning her craft inappropriately. He said McAdams described Abbate  as a "fellow faculty instructor" to justify painting a target on her back before a hostile internet audience.

Esenberg, however, said Marquette put Abbate in a position of authority–one subject to criticism–as a teacher at a university students pay $40,000 a year to attend.

WILL argues the value of free speech in academia is high enough that it should not be limited by indirect consequences, such as a teacher receiving emails from "jerks."

"It's possible for jerks to read something and act like jerks. But that can't be a limiting principle on free speech or academic freedom because that would mean we could never, ever talk about anything," Esenberg said.

Esenberg expressed fear that at some point professors or others might feel an obligation to censor themselves or only speak anonymously in case someone might respond with an anonymous, disgusting email.

"You would never know what you could say at that point," he said.

A decision on the case is expected by the end of June or early July.

Conor Beck

Conor Beck   Email Conor | Full Bio | RSS
Conor Beck is a Media Analyst for the WFB. He's previously written for The College Fix, Life News, and was a Student Free Press Association Fellow for The Weekly Standard. He graduated from Rice University in 2017.

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