Free-speech zone?

Photographer: Sean Gallup/Getty Images

A Valuable Lesson in Protected Speech

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Here’s the issue in a real free-speech case just decided by the U.S. Court of Appeals for the Ninth Circuit: Can someone be refused a teaching certification because of his otherwise protected social or political views? The answer sounds like it should be no, doesn’t it?

Now let me frame the exact same case differently: Should a state have to grant teaching certification to someone who says sex with children should be legalized and that there's no point in trying to mainstream disabled students? It doesn't sound like the answer should be yes, right?

Behold the beauty, and the challenge, of First Amendment law. Not only are the questions hard, but it's also hard to say what the right questions really are.

So what did the court do? If you like the common-sense concrete, you'll be pleased to know that the Ninth Circuit decision crafted a new doctrine for student certification cases, and held that the University of Hawaii could block Mark Oyama from becoming a teacher.

If you're a free-speech absolutist, you're going to be unhappy with the result, which allows expressing protected beliefs to block a person from public employment. And you may think that the protection of sacred cows has won out over freedom of expression.

The facts are like something from an insensitively written law school exam. Oyama has a degree in math from the California Institute of Technology, one of the best colleges in the world, and a master's degree in physics from the University of Hawaii. Academically, he has the knowledge to teach public school in Hawaii.

But during the course required to certify teachers, Oyama encountered the concern of his instructors. In a class on educational psychology, he wrote in an essay that "I think that online child predation should be legal, and find it ridiculous that one could be arrested for comments they make on the Internet."

Of course mere comments can't get you arrested, but Oyama wasn't done. He added: "I even think real life child predation should be legal," provided it is consensual. He went on to say the age of consent should be "either 0, or whatever age a child is when puberty begins."

When it came to disability, Oyama wrote in the relevant course that if a student's disability "is sufficiently severe and not of a physical nature … there is little benefit to inclusion for the disabled student" in a normal class. And he also said many disabilities weren't scientifically real, but were "the crude opinions of psychologists and psychiatrists."

To be clear, all of Oyama's expressed views would be entitled to the highest level of First Amendment protection if said in an ordinary context. The state could not arrest or otherwise penalize him for saying or thinking them.

When the university refused Oyama his teacher certification, it told him honestly that "the views you have expressed … were deemed not in alignment with standards set" by the relevant state agencies. There was no psychological profile predicting his future behavior; the university relied on Oyama's own words to make the judgment.

The Ninth Circuit held that neither the precedents governing student speech nor a government employee's speech applied, because Oyama wasn't just a regular student but was also seeking certification, yet he also wasn't yet a government employee. Looking to precedents developed by other courts in the context of certification programs, the Ninth Circuit also said the state's rules had to be directly related to defined, established professional standards, as well as narrowly tailored to fit that goal.

Doctrinally and practically, this approach was commonsensical and appealing. People's views can be reasonably strong -- though not infallible -- predictors of their future actions. In context, Oyama's teachers thought he was a little off, and when it comes to certifying schoolteachers, that should count for a lot. It's not like the state refused to certify Oyama because he was a Republican or a Democrat, or because he disagreed with the Common Core.

If you agree with this analysis, you'll probably also agree that the First Amendment is a bad fit for most evaluative processes. Imagine Oyama thought the world was flat. That's a protected belief, but one that doesn't work well for a teacher. His objectionable views were all closely connected to the future performance of his job. The best the Constitution can do is make sure the disqualification isn't for something extraneous to the job -- more or less what the Ninth Circuit decided.

But there's another view here, too: that Oyama was targeted by politically correct state officials for espousing heterodox views on salient political issues. Concern about authority figures' sexual abuse of minors is one of the hallmarks of our time. Oyama was going against a widely held and strictly controlled orthodoxy when he said that children could consent to sex. Ditto for his anti-mainstreaming views on disability.

That Oyama holds these views doesn't mean he will act on them. Maybe he just wanted to shake up the teachers in his courses. Free speech is supposed to protect quirky people with outsider views from state sanction.

Oyama's case is therefore a Rorschach test for whether you're a free-speech situationist or a free-speech absolutist. Either way, you're fine: We need both kinds to make our constitutional world work right.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Brooke Sample at bsample1@bloomberg.net