I suppose I’ll get into trouble by defending the right to free speech of someone who likes Trump, especially if he’s John C. Eastman, one of Trump’s former lawyers who spoke at the infamous January 6 pre-siege Trump rally. But what I’m really defending here, as the Foundation for Individual Rights in Education (FIRE) did, is not misguided Republican thinking but freedom of speech. In particular, I’m defending someone who spoke at that rally but did not incite violence and had no history of doing so. That’s free speech, and yet he was fired from a public university for it—after he was first exonerated by the university but then further attacked by online mobs. But remember, what good is free speech if we don’t allow it for our political opponents?
Click on the screenshot to read FIRE’s press release:
According to the letter that FIRE wrote to the the University of Colorado at Boulder (“UCB”; see below for letter), Eastman, then a visiting professor at UCB, spoke for 3 minutes at the January 6 rally. This is a transcript of his talk:
Sorry, I had to say that. Look, we’ve got petitions pending before the Supreme Court that identify—in chapter and verse—the number of times state election officials ignored or violated a state law in order to put Vice President Biden over the finish line. We know there was fraud— traditional fraud—that occurred. We know that dead people voted. But we now know, because we caught it live last time in real time, how the machines contributed to that fraud. And let me as simply as I can explain it.
You know, the old way was to have a bunch of ballots sitting in a box under the floor, and when you needed more, you pull them out in the dark of night. They put those ballots in a secret folder and the machines, sitting there waiting until they know how many they need. And then the machine after the close of polls, we now know who’s voted, and we know who hasn’t. And I can now—in that machine— match those unvoted ballots with an unvoted voter and put them together in the machine. And how do we know that happened last night in real time? You saw when it got to 99 percent of the vote total and then it stopped. The percentage stopped, but the votes didn’t stop. What happened—and you don’t see this on Fox or any of those stations—but the data shows that the denominator: How many ballots remained to be counted? How else do you figure out the percentage that you have? How many remain to be counted? That number started moving up. That means they were unloading the ballots from that secret folder, matching ‘em to the unvoted voter, and voila! we have enough votes to barely get over the finish line. We saw it happen in real time last night, and it happened on November 3rd as well. And all we are demanding of Vice President Pence is this afternoon at one o’clock, he let the legislatures of the state look into this so we get to the bottom of it, and the American people know whether we have control of the direction of our government or not. We no longer live in a self-governing Republic if we can’t get the answer to this question. This is bigger than President Trump. It is the very essence of our republican form of government and it has to be done. And anybody that is not willing to stand up to do it does not deserve to be in the office. It is that simple.
So we have a claim that the election was rigged and the results may have been wrong. Stupid? Yes, in view of the many audits that confirmed no fraud. A lie? Probably not: I suspect Eastman believed it. Incitement? No way: he’s not calling for “taking back the government” or “fighting”, but calling for Pence (who didn’t have that power) to ask the legislatures to audit the votes.
Yes, Eastman’s claims are ridiculous and partisan, but perfectly legal under the First Amendment. There is no incitement of violence with predictable results, which isn’t free speech (see below). And, as FIRE says, “the First Amendment is clear: A public university cannot cancel a professor’s courses, withdraw his role in organizing campus discussions, and preemptively decline to renew his contract because of public anger over his extramural discussion.” Of course, UCB is a public university.
But it went ahead and violated the First Amendment.
Initially, the mob demanded that UCB punish Eastman for his role and his remarks. He was defended by the school’s chancellor who said that “the university will not censor a faculty member’s political statements or initiate disciplinary action because it disapproves of them.”
But then public ire grew (sound familiar?), and so UCB thought twice. As FIRE reports:
. . . professor Daniel Jacobson, Director of the Benson Center at CU Boulder, where Eastman is a Visiting Scholar in Conservative Thought and Policy, stated that the center “defends the right of its scholars to express unpopular opinions within the limits of the law,” and acknowledged that Eastman “did not call for the violence that occurred after the event, and his speech is protected by the First Amendment.”
On Jan. 10, as public anger over the violence at the Capitol and election rhetoric mounted, Eastman was notified by Jacobson that his classes were cancelled, his responsibilities were rescinded, and his contract would not be renewed. He was forbidden to engage in outreach on behalf of the Benson Center or use campus resources for those purposes, lest he be charged with “insubordination.”
The reasoning? “Terrible press,” the school’s “reputation,” and pressure from “supporters” of the Benson Center, wrote Jacobson.
CU Boulder has asserted that the College of Arts and Sciences typically requires 15 students for undergraduate classes and that Eastman’s courses did not meet that threshold. But FIRE has not been able to locate a policy to that effect and the university’s course registration database reveals dozens of courses in which there are currently fewer than 15 students enrolled. In fact, the university advertises its small class sizes, which it says “can vary from lectures of 200 or more students to smaller classes of 10-20 students.”
“Terrible press” and public pressure are not reasons to fire anybody from a public university.
FIRE wrote a 12-page letter to UCB Chancellor Philip DiStefano saying that their actions violated the First Amendment. It also outlined the legal qualifications for speech to constitute unprotected incitement:
Expression advocating “the use of force or of law violation” amounts to unprotected incitement only where it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Accordingly, the speech must (1) “specifically advocate for listeners to take unlawful action”; (2) be “directed to inciting or producing imminent lawless action”; and (3) be “likely to incite or produce such action.”
Eastman’s speech don’t meet any of those three criteria. Misguided and biased as he was, he cannot be and should not have been punished by UCB, even as a visiting professor. The school should reinstate his job and, if they don’t he has a good case for a lawsuit.
Eastman, by the way, was a tenured professor of law and former dean at the Chapman University School of Law, but had to leave that private university after controversy about his speech at the rally. Now they’re trying to make him leave UCB as well.