Brian Leiter Explores the Constitutional Issues at Stake in Salaita v. University of Illinois
Now that the University of Illinois has affirmed its illegal decision to revoke the offer of a tenured position to Prof. Steven Salaita, I want to here explore in some more detail the constitutional issues at stake in the litigation that is likely to follow.
Public universities, like all state agencies, are subject to the U.S. Constitution, including the First Amendment, which protects freedom of speech. One of the basics of the American law of free speech is that the government can almost never suppress or punish speech because of its content. (There are some very narrow exceptions: e.g., child pornography, speech that poses a risk of immediate violence ["fighting words".) Speech on matters of public concern -- such as the Israeli attack on Gaza -- is almost always protected by the First Amendment.
One important aspect of the First Amendment protection for expression is that government cannot (generally) base a hiring decision on the speaker's political viewpoint. (There are exception for certain kinds of political appointees [e.g., Cabinet members], as well as institution-specific exceptions, e.g., the military.) Wagner v. Jones, a recent case, offers a good illustration.