Not So Fast With The Private Surveillance

A revealing–no pun intended–reaction to news of Steven Salaita’s troubles at the University of Illinois was that he was only paying the price for having his social media speech monitored (or surveilled) by his employer. As the argument goes, all employers monitor social media; we should all accept the consequences–in our places and zones of employment–of our public speech being monitored by our employers in non-workspace settings; Salaita’s employer did just that; he should deal with the consequences.

In an earlier post, I noted some of the adverse implications of such a situation for academics. But it is problematic for all workers, precisely because of the not-so-benign assumptions smuggled into its premises. First, it  uncritically accepts employer surveillance, not just of work spaces but of speech zones elsewhere as well–the restriction to social media networks is a red herring. This premise suggests we have no expectations of privacy–0r vastly lowered ones–in public spaces; but we clearly do, as our reactions to rude eavesdroppers at our restaurant table or street-corner conversations would suggest. Rather than meekly rolling back the boundaries of acceptable private surveillance to include more speech zones, this debate offers us an opportunity to inspect and examine where and how–and to what end–we consent to having our communications monitored by our employers.

Second, what does it mean to allow the content of our non-work space speech used against us in work space decisions such as hiring and firing? It means introducing an element of critical control and scrutiny into a domain where we expect to speak freely, to permit a regulation of speech by an entity as powerful, if not more, than governmental ones. No legal strictures would be required for chilling effects to be produced; the mere fear of the denial of livelihood would be enough. (Unsurprisingly, political activism of all stripes becomes easier when means of livelihood are not at stake; not for nothing is the tenured radical’s freedom so often lampooned by his critics.) The paucity of First Amendment restrictions on private employers is well-known; permitting their expansion, just because the technical means enable it, is to concede defeat all too quickly. Moreover, to permit it in a zone where the technical means permit it is to open the door to more extensive surveillance provided the technical means can be made available. This is to lose the argument at precisely the wrong point. After all, why not just micro-chip all from birth so as to permit future employers make the most informed decisions regarding suitability?

This reaction–the surveillance is in place, it is inevitable–is also depressingly indicative of the acceptance of an asymmetric surveillance; there is no talk of increasing employer–or chief executive–transparency to accompany this rollback of privacy safeguards. And lastly, as always there is the most appalling suggestion of all, more indicative of a civilizational  decline than anything else: when it comes to doing business, to making money, all concerned enter a morality-free zone of sorts; no imperative larger or more grand than an increase in profits need animate anyone’s actions.

Steven Salaita and Academic Freedom in Academic and ‘Non-Academic’ Spaces

Steven Salaita might have thought he was headed for a new faculty position: the University of Illinois had made him a job offer, he had accepted, and resigned his position at Virginia Tech. But not so fast: the Chancellor of the university rescinded the offer, apparently because of Salaita’s aggressively vocal presence on Twitter, where he has sent out more than a few angry 140-character blasts directed at Israel’s current policies in Gaza.

The defenses of the Chancellor’s decision follow rather predictable trajectories: one, curiously adopted by Cary Nelson, former president of the AAUP and unstinting champion of academic freedom, is that Salaita’s public speech shows evidence of incivility and uncollegiality, which should be appropriate considerations in hiring and firing decisions; that they show evidence of his inability to ensure his students’ appropriate treatment in his classrooms, presumably because those with ‘pro-Israel’ views would feel threatened that they would not be treated on par with others; that Salaita would have done better to restrict his pronouncements to peer-reviewed academic journals. The second, related to the first, is that Salaita, not being protected by the First Amendment, is subject to the same regulation of his speech that all those who are acted on by private, non-governmental actors are; if you speak in public, you should expect to pay the ‘consequences’ for it.

Academic freedom, in these viewpoints, becomes bogus; there are no special freedoms that accrue to those engaged in teaching and research in universities; or if they do, they are, as Nelson suggests, only to be found in teaching and research in specifically academic forums. When faculty step out of those restricted domains, they leave their academic freedom behind. You are free to teach what you want; you are free to research what you want; you are not free to say and write what you want ‘outside.’

Some of Nelson’s concerns are addressed by my colleague Justin Steinberg, who in an email to Chancellor Wise protesting Salaita’s ‘dehiring’ wrote: :

Tweets are like (self-made) bumper stickers that one might put on one’s car; they do not reveal anything about how one comports oneself in face-to-face discourse or in the classroom. Just as it would be wholly inappropriate to rescind a job offer based on the perceived tastelessness or stridency of the bumper stickers that bedeck one’s car, it is equally inappropriate to do so on account of the tone of one’s social media posts.

As Amardeep Singh notes in his thorough examination of Salaita’s online record, Twitter is an inherently limited medium; it all too easily facilitates reductive understandings of the points made in its confines. Because it is so physically limited, it often encourages polemical excess: your tweet will soon scroll off your followers’ timelines; there are so many tweets; better to pack as much gunpowder as possible into your volley. Further, if Nelson’s guidelines to faculty hiring were to be taken seriously, with so much public speech taking place on social media, an increasing number of conversations could come in for scrutiny, increasing the likelihood that we may be indicted all too easily for incivility. The net result would be to self-censor online speech. Whatever Twitter’s faults, it offers a new medium of discourse, and it would be unfortunate if those using it were to censor themselves.

And why stop at social media? Any polemical remark made anywhere becomes grist for the mill; a conservative professor expressing his unvarnished–but overheard–opinions about the decline of the American family at a colleague’s dinner party should not be allowed into classrooms where single mothers might be taking classes. The ridiculousness of this situation should be apparent. All over the American university system, many professors with radically diverse political and ethical views teach, conduct research and supervise students; are we to now vet their speech in all and any fora so that we may judge whether they are able to provide safe spaces for their students? Or are we rather to trust them to be able to comport themselves in learning environments, which almost invariably feature diverse political opinions and leanings? As we seem to do more often than not. To set aside certain topics and not others as toxic to the touch will rely, rather unsurprisingly, on making untenable distinctions between them and others on which rather pungent opinions are expressed as a matter of course. (With probability one, Twitter’s archives may be searched to find evidence that academics have expressed such views on all manner of topics; have they all been restricted from coming into contact with various student demographics?)

Nelson is also relying on an incoherent distinction between academic and non-academic spheres of speech, with the former only present in conventional fora such as journals. Au contraire; an academic’s intellectual productions are not so easily demarcated. I consider my writing here to be an important component of my academic role; it helps me think aloud in different shape, manner, and form than the confines of monographs and journals, and thus, helps inform them as well. (Material written here has, for instance, found its way into my latest book.) I sometimes ruminate on my teaching experiences here, and sometimes think aloud about my syllabi. This blog is not a peer-reviewed space, but it no less academic for that. Social media is where a great deal of information-sharing and discussion takes place; it offers a modern form of the salon, with different avenues and modes of participation available. To suggest that this is not an academic space of learning and its dissemination is to turn a willfully blind eye to its structures and usage.

The university is supposed to provide a haven for untrammeled inquiry; to provide spaces within which teachers, researchers, and students may explore many avenues of intellectual exploration, with these not restricted by conventional niceties; we expect to have our mental spaces rearranged within its confines. Academic freedom is supposed to safeguard these modes and methods of learning and teaching. And that learning and teaching will take many different forms and modes; to insist that academic freedom will only be offered in some fora and not others is to say that academic freedom is to be restricted, and only made available in safely restricted ways. That is, it is to be rendered meaningless.

The New York State Assembly is First Amendment-Illiterate

Earlier this morning, on both my Facebook and Twitter pages, I wondered aloud

Is the Empire State particularly hostile to academic freedom? Is it particularly illiterate about the First Amendment?

The reason for this slightly despairing query? Read this and despair for free speech:

The New York State Assembly is currently considering a bill (A.8392) to prohibit colleges and universities in New York State from using State funding to support employees’ participation in academic organizations that have supported boycotts against any nation or its universities. Colleges or universities that violate this act would lose all state funding. This bill (S.6438) has already passed the State Senate, with major support from both parties.   

If you’ve been reading the news at all recently, you know this is in retaliation for the following:

The executive body of the American Studies Association (ASA), the nation’s oldest and largest association of scholars of American culture and history…endorsed a boycott of Israeli academic institutions, calling them complicit in a “multi-tiered system of oppression that has denied Palestinians their basic rights.”….

The resolution to shun Israeli academic institutions was approved unanimously by the 20-member national council, which has urged the ASA’s 5,000 members to adopt it as policy.

Unsurprisingly, the ASA resolution has sparked a great deal of commentary. For instance, Cary Nelson–former president of the American Association of University Professors–wrote a critical response, and Corey Robin has written a series of posts defending it and the associated BDS movement.

So far, so good: academics make some speech, other academics respond with more speech. But then, along comes this bill. It’s problematic in several ways, as Michelle Goldberg points out:

But if the ASA boycott might violate academic freedom, the anti-boycott law definitely does. This is the state punishing scholars for taking a political stance. It’s almost certainly unconstitutional. As Dima Khalidi of the Center for Constitutional Rights and Palestine Solidarity Legal Support writes, “Courts have been very clear that the denial of funding, where motivated by a desire to suppress speech, is prohibited by the First Amendment.”

And it is likely to be counterproductive for very interesting reasons:

Beyond the First Amendment, the bill raises another, fascinating legal issue. It includes three exceptions: boycotting a country is OK when it’s designated as a state sponsor of terrorism, when the boycott is connected to a labor dispute, or “for the purpose of protesting unlawful discriminatory practices as determined by the laws, rules or regulations of this state.” Israel, of course, engages in a number of discriminatory practices towards the Palestinians that wouldn’t pass muster with New York civil rights law. That’s why it’s being boycotted in the first place! So while the law should be tossed in its entirety, a lawsuit focused just on the third point could be immensely clarifying, essentially putting the reality of the Occupation on trial. Were that to happen, New York State would have ended up doing the BDS movement a great favor.

Who would have standing to file a lawsuit challenging the law on the grounds Goldberg suggests? As an example, Corey Robin notes:

Any faculty member at CUNY who is denied travel money to the ASA — on the grounds that it is an organization that boycotts.

A First Amendment challenge to this bill is not going to be hard to make, and what is more, no judge that has read the US Constitution should let this bill stand.

Which brings me to the point of this post.

State legislature bills are not drafted by idiots; their drafting committees almost certainly include lawyers who presumably have taken the obligatory class on the US Constitution that is required of all first-year law students. Those drafters, and the bill’s supporters in the legislative houses, must know such a bill will not pass constitutional muster. Why then, do they attempt to pass such legislation?

The answer is dispiriting. To posture, to preen and strut and show off your allegiance to a political cause–not free speech!–, to rally the faithful, to pander to those who would care little for constitutional niceties that get in the way of their political objectives.

Seeking to impress such a constituency strikes me as a depressingly low political benchmark to set for oneself.