Many academics and commentators continue to make the bald assertions that:
1. The CU Regents’ investigation of Ward Churchill violates his First Amendment rights, and
2. Because of point 1, nothing that is brought forward during the investigation–even material brought forward by private citizens, rather than by the investigators–can be used against Churchill.
I have two challenges for people who persist in making these assertions:
1. Please explain why the investigation is a violation of the First Amendment, notwithstanding the Supreme Court case Waters v. Churchill, which allows a government employer to fire an employee because the employee speech harms the employer’s ability to carry out its mission, as I discussed in a previous post. Note that the question of whether the fully-developed facts of the Ward Churchill case would support firing Ward Churchill under the standards of the Waters case is distinct from whether the CU Regents can investigate whether such facts exist. Explain why mere investigation is prohibited by existing First Amendment doctrine as elucidated by Waters.
2. Hypothesize that the Waters case does not exist, and rather that the pretend First Amendment of Churchill’s defenders is the real First Amendment. Please explain why, even assuming that the investigation of Ward Churchill is improper, no fact discovered during that investigation can be used to fire Churchill. In particular, remember that “fruit of the poisonous tree” is criminal law doctrine for the exclusion of certain evidence, but does not apply to labor law or First Amendment law.
Imagine that a particular employee at a factory makes a speech, off the job, and says “All workers in town, especially at the factory that employees me, should be unionized.” The employer decides to investigate the worker. The employer’s investigation discovers that the employee has been producing defective products, making violent threats against female employees, and has committed many other acts which are plainly fireable offenses.
So the company fires the employee. He brings a lawsuit, and complains that the real reason he was fired was because of his legally-protected speech.
My understanding of the law–and I invite people with greater expertise to explain why I’m wrong–is that the issue of retaliatory discharge is a jury question. For example, the fired employee might show that the employer has consistently tolerated and promoted employees who make violent threats against women; thus, the jury might conclude that firing the lone employee because of his threats was merely a pretext, and that the real reason for the firing was because of the speech. If so, the jury would rule in favor of the employee.
Hypothetically, Ward Churchill might be able to show a jury that CU tolerates academic fraud, violent threats, encouraging the violent overthrow of the U.S. government, and other violations of University rules. Thus, Churchill might win his lawsuit, by convincing the jury that his discharge was motivated by speech, rather than by his misconduct.
Alternatively, a jury might credit the testimony of CU President Betsy Hoffman that she would never allow any professor to be disciplined because of his speech.
It’s all a jury question, isn’t it? I don’t doubt that Churchill’s attorney David Lane would allege that Churchill’s (hypothetical) firing was retalition for his speech. I don’t need a summary of the various facts that Lane might marshall, or of the various rebuttal facts that CU might present. What I’m asking for is how the heck Churchill’s defenders can assert as a matter of law that nothing in the Churchill investigation can be used as a basis for firing him? Precisely what is the legal basis of their alleged exclusionary rule, if we hypothesize that the investigation of Churchill violates the First Amendment?
If people want to argue that “true First Amendment values” or “the spirit of the First Amendment” create some kind of immunity for Churchill, they’re free to so argue. But I’d like to know if there’s a serious argument, based on First Amendment doctrine as it actually exists in March 2005, which proves as a matter of law that the investigation of Ward Churchill is improper (notwithstanding Waters v. Churchill) or that, even if the investigation of Churchill is improper, nothing from that investigation can be used against Churchill.
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