The Legal side of David Guth’s threats

Law-ScaleAndHammerIf you read this blog (boy howdy, is that a dumb-ass opening or what? Of course you read this blog, or, well, you wouldn’t have read that) then you are aware that we’re not fans of David Guth, the KU professor currently enjoying an unscheduled, but paid, vacation for calling for the death of NRA members’ kids. (Of course, if he got what he wanted, it might be an own goal: while some woolly-headed professors were Red Diaper Babies, weren’t most of them rebellious teenage kids of NRA-member parents at one time?). Our comments on Guth are here, and the follow up noting his suspension here.

If you have been reading (ah, much better wording) this blog, you also know we’re fans of defense attorney and lawblogger Ken White at Popehat, a group legal blog. Ken, who objected mildly to our attempts to characterize his politics last time, has written a considered pair of posts on Professor Guth’s situation from a legal point of view. It surprises us not a jot that on the issue of rights, where the good counselor is a better absolutist than we are, he comes down firmly on the side of Guth’s right to say what he said, and the University’s inability (legally speaking) to discipline him for such protected speech. An excerpt:

It’s not clear if Professor Guth intends to invoke God to wish harm on the children of the leadership of the NRA, or the children of all its members, or the children of everyone who disagrees with him. It strikes me as an emotional tweet by an unserious person, perhaps not a good subject for deep analysis.

It is right and fit that Professor Guth experience social consequences, which will include widespread condemnation, shunning, ridicule, contempt, some students avoiding his classes, some colleagues avoiding him, and a loss of reputation and credibility that may or may not strike you as proportionate. Those consequences represent the free speech and free association of others, exercised in the marketplace of ideas.

We’re glad to have been a participant in “widespread condemnation, shunning, ridicule, contempt,” and let’s not ever forget the contumely. We spend a lot of time lacing up opur contumely cleats around here so we can leave contumacious little pock-marks on various professors and other engines of twaddle.

The more difficult question is whether he can, or should, experience government-imposed consequences in the form of his state school disciplining him. On that issue he is differently situated than a private employee.

As I’ve discussed recently, government employees in general and professors in particular enjoy protection from firing over speech that private employees don’t. Some argue that this is objectionable because it represents special rights for government employees. I maintain that it is better seen as a limit on government power.

Guth’s tweet is on an issue of public concern. It’s made by a professor, in a context where the interest in free expression is at its maximum. It’s difficult to see how KU could have an interest in discipline or harmony that overcomes the free expression rights here, as repulsive as the expression is…. Unless KU can make a very strong showing that this impedes discipline and harmony in an environment where unbalanced political rhetoric is commonplace, it shouldn’t be able to discipline him.

In the second post, Ken, first, sticks up for First Amendment absolutism (a clear and principled position consistent with many earlier posts) and then goes on to examine what he calls “Professor Guth’s pretense and parsing.” An excerpt, taken after he documents some truly PhD-level weaseling and trimming on Guth’s part:

Moreover, though Professor Guth tries to walk it back saying he meant “it ought to be the people who believe that guns are so precious that it’s worth spilling blood over” who should be harmed, that’s not what he said either. He said “let it be YOUR sons and daughters.” He suggested the children should suffer for the political positions of their parents. But, under scrutiny, he’s too much of a moral coward to (1) apologize for fiery rhetoric or (2) say that he really meant it. So he parses, weakly and unconvincingly.

The core of Professor Guth’s rhetorical flourish — “next time it should be the children of the people who support this position who suffer” — is familiar. … As long as I’ve been a lawyer, and before, I’ve heard it in discussions of the statutory and constitutional rights of people accused of crimes (“People who support letting this guy go should find out what it’s like to have their child murdered”).

Would Professor Guth support his own rhetoric, carried to other issues?

Thing1_and_thing2We think both of these posts are individually well worth reading, to understand both the legal environment and the principles at stake when we oppose Guth’s malicious venting.  So we say Read The Whole Thing™, but since there are two Things, we give them Seussian labels:

Thing One

Thing Two

You may not be interested in courts or law, but one is reminded of Trotsky’s famous bon mot about the Revolution. In today’s world, lawyers, judges and the decisions they have rendered shape everything from the products we use to our interactions with others — soa certain degree of knowledge is self-preservative. You will be smarter about the law from spending some time with Ken and his fellow bloggers at Popehat.

1 thought on “The Legal side of David Guth’s threats

  1. Aesop

    Popehat’s comments on Asshat notwithstanding, salivating over the expressly wished-for deaths of some 3M NRA members’ children would, I suspect, cross well over the line ( about 3M times) into what SCOTUS would reasonably consider “fighting words” which, by 9-0 decision, enjoy no free speech protections.

    Guth absolutely has the right to be the douchebag he is for saying it, and has the right to repeat it at his leisure. Hopefully he does so outside the next NRA convention, esp. if I can get the popcorn concession.
    What he doesn’t have, is the uninfringeable right to enjoy a government paycheck as an employee and representative of the state of KS. The good citizens of that state, or their designated representatives, declining to enable Guth’s continued forays into Tourette’s and poor impulse control is both permissable, and commendable.

    If a stint in the private sector occasions Guth some pause to consider what happens when he shoots his mouth off in public (the irony therein is elegant), that’s not an unconstitutional infringement, it’s common sense slapping Guth in the back of the head.

    Which hopefully foreshadows the other 3M slaps in the back of the head he can look forward to, as he walks the streets in search of a new patron.

    As such a talentless hack that he’s teaching journalism, and that ignominy itself not low enough, but also doing so far from the hallowed halls of Columbia, perhaps he might look into a career digging ditches. I’m pretty sure no one will give a damn what he says then, and given his proclivities, having a handy shovel on his person for self defense wouldn’t be a bad idea.

    Popehat is also overlooking the salutory benefits of friendly fire in this instance: dollars to donuts Guth’s logorrheic exploits have put him crossways with some wholly unconstitutional campus hate speech code of conduct, so whether they break it off in his hindquarters, or said code explodes in flames while smoke comes out of the administration’s ears, it’s a win either way.

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