For months the administrative authorities at the University of South Florida (USF) have been poised to fire Sami Al-Arian, an associate professor of computer science and engineering, for disrupting campus life.
Al-Arian has very publicly resisted, alleging that his First Amendment rights are being threatened.
USF authorities see matters quite differently. They maintain that an organization at USF founded and headed by Al-Arian raised money for the Islamic Jihad, and that a research institute he directed at USF was a front for international terrorists.
They point out that the current head of Islamic Jihad and the brother of its former head both worked under Al-Arian at his institute and that the professor may have used his connections to get visas for terrorists. The university said that his inflammatory speech, which unapologetically extols violence, could not be tolerated after Sept. 11.
As the case begins to wind through the courts, it is unclear how many judges will be convinced by Al-Arian's claim. It might be expected that those whose legal thinking is in the liberal tradition of the distinguished early 20th century jurist Oliver Wendell Holmes Jr. would take Al-Arian's side.
Holmes wrote almost 900 opinions in his 30 years on the U.S. Supreme Court and what is often called the greatest work of American legal scholarship, "The Common Law." Of more relevance here, Holmes was among the handful of the court's most uncompromising partisans of civil liberties. In fact, he spoke to many issues at the core of the Al-Arian case as he championed individual freedom against what he saw as steadily growing state and institutional power.
Because of this, some might too readily conclude that Holmes, who spent 50 years on the bench working to extend the protection of the law in areas of free speech and the rights of employees, would be easily persuaded. It is more likely, however, that he would reject Al-Arian's contention that there are constitutional issues to consider in his case.
Al-Arian has stated on numerous occasions that his public speech - "Let us damn America! Let us damn Israel! Let us damn them and their allies until death!" - was merely an idle expression of his ideas and not meant to move people to action.
Holmes understood, however, that this could not be so when he wrote, "Every idea is an incitement. It offers itself for belief and if believed, is acted on . . .
It is important as well for us to consider the fact that University of South Florida authorities are not trying to put Al-Arian in jail, nor even suggesting that he be deported. The revocation of tenure is not the equivalent of criminal punishment.
What the university administrators do think is that by giving employment to and raising money for terrorists, Al-Arian has not acted responsibly, and as a result has forfeited his right to a permanent academic appointment.
An early and sometimes forgotten legal decision by Holmes speaks to this point. Writing for the Supreme Judicial Court of Massachusetts with regard to a police officer removed from the force for engaging in partisan politics, Holmes clearly stated:
"The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional rights of free speech, as well as of idleness, by the implied terms of the contract."
Applied to this case, restrictions can be placed on the behavior of university faculty members, just as they can be placed on everyone else. First Amendment rights have limits. Liberty is not license and academic freedom is not academic license.
Over the years, the courts have left little doubt that not all speech is protected. Surely, "death to Israel" is not.
Holmes' most familiar ruling on the legal boundaries of free speech is what is known as the "clear and present danger" test. Writing for a unanimous Supreme Court in Schenck v. United States, he left little doubt that Congress had the power to forbid certain speech and publication. Freedom of speech is not absolute under the law. Someone can legitimately be punished for falsely crying "fire" in a theater, thus causing panic.
The courts have never backed away from the principle that it is not a violation of constitutional law to punish speech that poses this "clear and present danger." There is no question that individual rights can be subordinated to the paramount interest of the survival of the community.
In a number of other decisions, Holmes added that the First Amendment "was not intended to give immunity for every possible use of language."
In Frohwerk v. United States, Holmes added: "We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counseling of a murder within the jurisdiction of Congress would be an unconstitutional interference of free speech."
To make sure he was fully understood, Holmes reiterated these ideas in his dissent in the Abrams decision when he wrote: "The United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that will bring forthwith certain substantive evils that the United States constitutionally may seek to prevent." In short,
Finally, in an opinion written by Justice Louis Brandeis, with which Holmes was the only Supreme Court justice to concur, the argument was put forth that although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the state from serious injury, political, economic, or moral.
The argument that to fire Al-Arian would be to curtail his protected free speech is likely not one that would stand up before Holmes, who was also an outspoken opponent of speech used for malicious purposes. Central to Holmes' beliefs and decisions was the idea that the law was founded on a policy of avoiding unjustified harm. He viewed with disfavor all speech that had the conscious purpose of being dangerous and injurious.
Holmes acknowledged that "the life of the law has not been logic; it has been experience," but his numerous written opinions on First Amendment rights strongly suggest what he would have to say regarding the controversy at the University of South Florida.
While there are risks in denying speech that can harm, there can be greater risks in permitting it. There are obvious and compelling reasons why institutions have a right to maintain order, or why disturbing the peace is not a constitutional right.
The Supreme Court famously ruled in 1942 that "there are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problems." These include, said the court, "insulting or fighting words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."
"It has been well-observed," the court said, "that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."
There are no First Amendment issues here.
LIONEL LEWIS is an emeritus professor, Department of Sociology and the College of Arts and Sciences, at the University at Buffalo.