FIRE to Fresno State: The First Amendment Doesn’t Have a ‘Disrespectful’ Exception

The Foundation for Individual Rights in Education (FIRE) argued yesterday that Fresno State cannot constitutionally penalize Professor Randa Jarrar for her crude tweets about the death of former First Lady Barbara Bush.

“Barbara Bush was a generous and smart and amazing racist who, along with her husband, raised a war criminal. F**k outta here with your nice words,” Jarrar tweeted earlier this week. In a separate tweet, Jarrar said that the news made her “happy” because Barbara Bush’s death likely made George W. Bush upset. Additionally, Jarrar may have clogged a mental health crisis hotline when she jokingly tweeted the hotline’s number out to her critics, pretending that it was her personal number.

On Thursday, the Foundation for Individual Rights in Education partnered with several civil rights organizations to request that Fresno State drop their investigation into Jarrar.

Today, a coalition of civil liberties organizations — the ACLU of Northern California, Defending Rights & Dissent, Electronic Frontier Foundation, Foundation for Individual Rights in Education, National Coalition Against Censorship, PEN America, Project Censored, and the Thomas Jefferson Center for the Protection of Free Expression — sent a letter to Castro reminding him that there is no First Amendment exception for “disrespectful” speech. We explain in the letter, as FIRE did yesterday, that the First Amendment restricts the disciplinary consequences that a public university — a government actor bound by the First Amendment — may impose on a professor for speech expressed in her private capacity on matters of public concern, which undoubtedly include the Bush family and the Iraq War.

In the letter sent to Fresno State President Joseph Castro, FIRE criticized Castro for his response to the controversy. FIRE fears that Castro, who told the Fresno Bee that Jarrar’s conduct went “beyond free speech,” will violate Professor Jarrar’s First Amendment rights to free expression as a government employee.

As a government employee, FIRE maintains that it would be unconstitutional for Fresno State to discipline or fire Jarrar for her tweets. FIRE cited a 1983 Supreme Court decision that concluded that government employees cannot be disciplined for engaging in speech.

The law is well-established that employees of government institutions like [a public university] retain a First Amendment right to speak as private citizens on matters of public concern and may not be disciplined or retaliated against for their constitutionally protected expression unless the government employer demonstrates that the expression hindered “the effective and efficient fulfillment of its responsibilities to the public.”