A Sad Day for Free Speech

Court of Appeals Negates Free Speech Rights in Lee v. Yale Based on a Technicality

Readers who have been following my case against Yale know that I had launched the lawsuit so that my beloved alma mater would not lose its way, and because of its importance for academic freedom everywhere.  Academic free speech means that the public would not be deprived of the best available knowledge, be it purely intellectual or professional, especially when this knowledge could enhance society’s welfare and protection.

In the words of a foremost constitutional scholar:

So sorry to learn of this unjust outcome.  I just read the appellate court’s opinion and … I can say that its attempt to brush past your statutory claim of retaliation for your exercise of free speech on the basis that you were not an “employee” because you did not demand or receive payment for your academic services seems wholly unpersuasive.

Supreme Court precedent involving honoraria accepted by government employees in US v. NTEU (1995) deals with the converse situation and holds that receiving payment for one’s moonlighting speech doesn’t negate free speech protection; I would’ve thought the absence of payment makes your case stronger rather than weaker.

Nevertheless, the scholar believed this too subtle a basis for a certiorari petition to the U.S. Supreme Court—which may even be dangerous in our current climate, anyway.

It is disturbing to consider that this decision came down in spite of Yale stating on the record that nontenured faculty have no right to academic freedom.  When the connection between politics and my termination by Yale came up, the Trump-appointed judge on the panel even derided: “Yale is a hotbed of support for President Trump.  Did I miss that?”

My lawyer responded:

I don’t think we need to show that.  [The Yale faculty handbook] says that decisions on reappointment are subject to professional and scholarly judgment.  Here, no decision [exists] on behalf of Yale that it actually exercised professional and scholarly judgment in this case, because plaintiff alleges exactly the opposite.  Plaintiff alleges that Yale acted in bad faith … for pretextual reasons, and Yale retaliated against her….  Record is devoid of any concerns about her actual teaching.

Indeed, I had only the highest evaluations all seventeen years; colleagues remarked, to the end, that I helped elevate my department’s stature through my national and international activities (I was also the only member with University-wide reach).  This makes the decision all the more unfortunate, since a discovery process—whether I ultimately won the lawsuit or not—would have revealed the inner workings of academic institutions, of the factors that play into their decision-making on faculty appointments that become politically inconvenient.

There was a very odd quality to my experience: the chair of my department, who just two years earlier supported me in a “State of the Department” address and affirmed his commitment to free speech, suddenly stopped speaking to me.  The Yale president, who once publicly complimented me for my contributions to Yale’s Global Health Program, which I helped erect to its now nationally-renowned status almost from scratch (and taught the highest-ranking course that drew students from all over the country), also fell silent.  All this abruptly followed receiving a complaint from long-term Trump apologist Alan Dershowitz—and I would not be the first whose career this notorious lawyer derailed (no one seems to know why Dershowitz holds such sway over universities in their faculty decisions, but donations may give a clue).

Yale turned its own honor system on its head.  When I joined, medical faculty were 95 percent “voluntary”, because physicians had an earning potential no salary could match, and tenure was not needed to stay on indefinitely—indeed, in seventeen years I heard of no other voluntary faculty whom Yale has terminated against their will.  Now, approximately 85 percent are “voluntary”—the designation itself having begun a little over a decade ago, in part to pressure medical faculty into more controllable, “paid” positions.

However, as a social psychiatrist, I cannot help but remark on the fact that, whether of the Supreme Court or the Court of Appeals, decisions seem almost predictable by who has the most endowment and who may actually be “funding” the decision makers (look at Clarence Thomas or Sam Alito)—just as academic institutions no longer seem to be supporting their academicians as much as their donors (look at what happened to Beverly Gage).  And when a judge deviates from that expected course—as did the first judge on my Yale case, who was ruling in my favor—he is simply replaced.

All this is happening while University of Washington disinformation researchers are being sued, and a House Judiciary Committee chair is threatening to jail or to issue congressional subpoenas if they do not drop their research—a most shocking assault on academic freedom!  This means that researching in an area that displeases the political authorities may not only cost one’s career but personal freedom and safety, by drawing the attention of lawsuits, right-wing trolls, and stochastic terrorists.

My case, therefore, is far from personal. Or even unique.  A couple months ago, the Foundation for Individual Rights and Expression (FIRE) published “Scholars Under Fire: Attempts to Sanction Scholars from 2000 to 2022,” which showed: “the frequency of sanction attempts has dramatically increased since 2014, with 877 of 1,080, or 81 percent, of sanction attempts occurring during the past eight years.”  It is only going to accelerate.

There should be no mistake: my termination from Yale is all about the inconvenience of truth.  Academics and reporters are the first to be targeted in times of authoritarianism, because they bring light to truth.  Truth tellers are removed, even if one has to employ extraordinary deviations from procedure, as has happened in my case: the replacement of a judge who was ruling in my favor; the extremely unorthodox interpretation of “employment” the second judge used to dismiss my case; and the fixation on this technicality by the appellate court, over the larger issue of free speech, despite being at the federal level.  Obviously, no discovery process could be allowed, for then all the mechanisms for manipulating “official truth” would be revealed, not just in my case but in countless others.  We learn from this instance the extent to which current authoritarians are terrified of truth—and the reason why we must speak up all the more.