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December 5, 2017 11:31 am

The First Amendment Doesn’t Protect Hate Speech at Rutgers

avatar by Ari L. Maas

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President Robert Barchi of Rutgers University in New Jersey. Photo: Rutgers University.

If Rutgers University President Robert Barchi wants to defend recent antisemitic speech from his professors by hiding behind the skirts of the First Amendment, he may want to bone up on his knowledge of constitutional law.

In recent weeks, Rutgers University has once again been placed in the national spotlight by revelations that several of its professors have made antisemitic comments in public forums. President Barchi defended the professors’ rights to make these comments by saying that these “things … are covered by [their] First Amendment right to free speech.”

But President Barchi is mistaken on what the First Amendment actually protects.

The First Amendment restricts the ability of Congress to make a law abridging the freedom of speech. By way of the 14th Amendment, the First Amendment applies to state governments.

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Generally, private employees are not protected from discipline from their employers for their speech. Public employees, such as Rutgers professors, are placed into a special category and do receive some First Amendment protection with respect to their employers. However, according to a 2006 Supreme Court decision, to receive this protection, the employee must satisfy a three-part test to determine if the speech is in fact protected.

First, government employees must be speaking as private citizens. Second, the government employee must be speaking on a matter of public concern. And thirdly, one must weigh whether the government employer’s interest in efficiently fulfilling its public services is greater than the employee’s interest in speaking freely.

I find it hard to believe that Food Science professor Michael Chikindas’ antisemitic Facebook post of Naziesque Jewish caricatures (among others) would be considered a matter of “public concern.” And even if one could argue that it is, Rutgers could easily argue that its mission to provide education to a diverse student body severely outweighs the professor’s interest in making highly offensive comments.

President Barchi’s misunderstanding of the First Amendment is further highlighted by his comments at a town hall meeting, where he stated that “a swastika on the side of a building on campus” would not be a violation of the First Amendment. It doesn’t take a constitutional scholar to see that a swastika on a public university building is not protected free speech.

In fact, depending on the how the swastika was placed on “the side of a building on campus” (e.g. graffiti) and what the intent was in placing it, it is a violation of numerous criminal laws, including New Jersey’s hate crime laws — and it is definitely not protected First Amendment speech.

Rutgers may choose not to discipline professor Michael Chikindas for his numerous antisemitic, homophobic and misogynistic social media posts. That is their prerogative. But to do so by claiming that the speech is protected under the First Amendment, is wrong, misguided and an insult to our Founding Fathers — and every man and women who has given their life defending this very important freedom.

Ari L. Maas is a 2005 alumnus of Rutgers University School of Engineering with a degree in Civil Engineering. He has a J.D. from New York Law School, a Masters of Public Policy Degree from Princeton University’s Woodrow Wilson School and is a licensed attorney in both New York and New Jersey.

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