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Free Speech for Bad People

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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Dr. James Tracy is certainly a crank and also seems to be a terrible person. But Florida Atlantic University violated his academic freedom when it fired him from his tenured professorship in January, and he should win the lawsuit he’s just brought against the school.

Academic freedom isn’t absolute, but it certainly extends to a professor’s outside writing on topics of national importance. The stakes of his case are therefore high -- and not just for professors who (ahem) write about politics while still performing their day jobs as teachers and researchers.

The furor over Tracy began when he argued on his blog that the 2012 massacre at Sandy Hook Elementary in Newton, Connecticut, may never have occurred at all. Skipping over the labored reasoning, here’s his punchline: “While it sounds like an outrageous claim, one is left to inquire whether the Sandy Hook shooting ever took place -- at least in the way law enforcement authorities and the nation’s news media have described.”

This view amounts to a highly implausible conspiracy theory and qualifies Tracy as a crank. In support of his views, Tracy also challenged family members of Newtown victims to prove their murdered children had ever actually existed. That’s the part that makes him a bad person.

But neither of these should have gotten Tracy fired.

The university was smart enough to know this. It’s a public university and therefore subject to the First Amendment. So it doesn’t claim to have fired Tracy for the content of his views.

Instead, the school told Tracy he was being fired for failing to file forms that report on his outside activities and potential conflicts of interest. Most universities have such forms -- mine certainly does. They aren’t illegal.

But failure to fill out the forms shouldn’t be grounds for loss of tenured employment, for at least two reasons. 

First, non-filing of such forms is a relatively minor instance of failing to follow rules. It doesn’t impinge on the faculty member’s basic job. And it seems extremely likely that this was merely a pretext to fire Tracy for his mistaken views.

Second, it is far from clear that such forms can be required with respect to published work, especially by a public university subject to the First Amendment. Faculty conflicts of interest arise in connection with published work only if the conflict somehow misleads students or others.

What conflict, exactly, would lead to confusion around Tracy’s conspiracy theory? He is clearly sympathetic to gun rights. Imagine, worst-case scenario, that he was paid by some gun rights group to do the writing -- what then? There is no academic conflict that I can see, since Tracy clearly believes what he is writing. Disclosure would be valuable, but its absence wouldn’t seem to be a firing offense.

To be sure, academic freedom has some limits, and crank-ism might be one of them. Consider the case of Dr. John Mack, an eminent psychiatrist and professor at Harvard Medical School who died in 2004. Mack had won the Pulitzer Prize for his psycho-biography of T.E. Lawrence, a book I read with fascination as an eager teenager interested in the Middle East and what drew Westerners there.

In the early 1990s, Mack began to argue that psychiatrists should take seriously the claims of patients who reported having been abducted by aliens. Their claims, he argued, were comparable to other claims of childhood sexual abuse.

You might think this was an elaborate provocation intended to discredit childhood sex abuse claims, but it wasn’t. Mack really believed it. Harvard Medical School responded with an investigation. The committee concluded that it was “professionally irresponsible” to believe in alien abduction, and it criticized Mack’s methodology. But it didn’t strip Mack of his tenure.

If a professor is teaching demonstrable, factual falsehoods to students, that’s a problem, and such behavior could legitimately be sanctioned. But opinion, including radical opinion, is at the heart of academic freedom. It includes Tracy’s Newtown conspiracy.

So consider the following:

Disclosure: I write this column for Bloomberg View. I am a professor. I believe that professors should have the right to express their views in public formats without being sanctioned by their universities. Is that a conflict of interest? I don’t think so. And if I hadn’t included this disclosure I don’t think I should be fired. See what I mean?

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:
Susan Warren at susanwarren@bloomberg.net