Free Speech: UNL Incident Highlights University Speech Issues, Challenges


An aerial view of the city campus at the University of Nebraska–Lincoln looking out from the student union. (University Communication Photography)
By 
Scott Stewart
The Daily Record

Displaying a middle finger is so mundane that it has its own emoji.

Yet the vulgar gesture, along with some derogatory language, sparked a political firestorm at the University of Nebraska–Lincoln, igniting a debate over freedom of expression that lingers nearly two years later.

The result has been condemna­tion by national advocacy groups, challenges to university policies and political pressure to further pro­tect conservative values at UNL.

Academic freedom, which is the idea that students and faculty have the right to free inquiry within their area of academic expertise, is also threatened, affecting the univer­sity’s learning environment and its ability to retain and recruit faculty.

“This whole thing is kind of a worrisome development,” said John Bender, a UNL journalism professor and president-elect of the Academic Freedom Coalition of Nebraska. “Is it a crisis? Are we having our free­dom dramatically eroded? Not at this point.”

The incident that made headlines took place Aug. 25, 2017, when sophomore Kaitlyn Mullen set up a table on behalf of Turning Point USA, a conservative student orga­nization whose website displays the slogan “Winning America’s Culture War” Mullen was seeking to recruit members to Turning Point’s UNL chapter, which at that point wasn’t an officially recognized student group.

Courtney Lawton, a graduate student at the time, joined a hand­ful of other protesters who gathered a few feet from Mullen’s table by the student union. At one point, Mullen went out from behind the table to film Lawton, who flipped her off and called her a “neo-fascist Becky” who “wants to destroy pub­lic schools.”

Merriam-Webster says ‘Becky’ is an epithet for “a white woman who is ignorant of both her privi­lege and her prejudice,” popular­ized by Beyoncé’s 2016 album “Lemonade,” but it also carries a sexual connotation dating back to the 1848 novel “Vanity Fair.”

The university investigated the incident, and administration even­tually removed Lawton as a lec­turer, citing security concerns. The university paid her stipend and then didn’t renew her contract, although Lawton was able to graduate last summer.

“They got rid of me for my po­litical speech,” Lawton said. “I was made to feel unwelcome on cam­pus – on my own campus – as a re­searcher and a student.”

For Mullen, the incident brought a national conversation about cam­pus culture to Nebraska, a red state where such disputes can fly under the radar.

“It started the conversation in the State of Nebraska that this is happening here, and it’s not just happening at Berkeley, it’s hap­pening in Nebraska,” Mullen told The Chronicle of Higher Education and National Public Radio’s This American Life, which collaborated on an in-depth look at the incident and its aftermath.

Since then, Mullen has told the Omaha World-Herald that the blowback was “a lot to handle” and that she wants to be a regular stu­dent. Mullen did not reply to The Daily Record’s social media mes­sages requesting an interview.

Amanda Gailey, an associate pro­fessor of English who participated in the protest, said in an interview that the question should not be whether people like what Lawton did. She compared the university’s decision not to retain Lawton to de­cisions made in the McCarthy era, when hundreds of academics were purged from U.S. universities, and said Nebraska politicians want to see how much they can get away with when it comes to ousting dis­senters.

“That student absolutely has the right to be out tabling for Turning Point USA, and people absolutely have a right to oppose her,” Gailey said. “There are obviously lines that can be crossed, if they were threat­ening or destroying her stuff or something like that, but that’s what free speech is about, right? It’s you say one thing, and I say I disagree.”

Gailey said she’s been targeted by public records requests from state lawmakers, and she said she often reminds colleagues to be care­ful with their personal conversa­tions at the university.

“This has had a chilling effect on campus,” Gailey said, adding about academic freedom that “it’s easy to get distracted by approval or disap­proval of individual actions and al­low that to be what destroys a situ­ation that’s really for the betterment of everyone.”

The Lawton-Mullen incident shows the complexity of free ex­pression on public university cam­puses, as well as the ripple effects choices have on academic freedom and the intellectual culture of post­secondary institutions.

By bypassing standard procedure related to teaching contract renew­als, as well as the reason given for removing Lawton from the class­room, the American Association of University Professors censured UNL for “serious departures from AAUP’s principles and standards of academic freedom.” 

An AAUP investigation found that it is “impossible not to see the heavy hand of political pressure” in the decision to remove Lawton from the classroom.

Bender said the university’s pre­carious economic situation is being exploited for political leverage, and he said there is a chance faculty will be asked to limit what’s taught – as well as restrict what they say and do outside the classroom.

“The concern is that by trying to establish some sort of code or set of guidelines, it’s going to control what people are saying outside of the classroom, what they’re doing outside of the classroom and what they’re doing on their own, not as agents of the university,” Bender said. “That, I think, gets into some really serious First Amendment conflicts.”

Kevin Hanrahan, president of the Faculty Senate, said a faculty code of conduct might be devel­oped this summer. He said such a policy would clarify when faculty members are acting as university employees and when they’re acting as citizens.

Hanrahan said faculty members are concerned about the erosion of academic freedom, but he said the Lawton-Mullen incident split opinions. He said some believe the administration didn’t do enough, while others felt it went too far. A UNL spokesperson said university administrators were unavailable for an interview.

“These things sort of flare up, and there’s concern that we’ll be target­ed for these controversies, and that targeting will result in policies that are meant to, if you will, punish fac­ulty that behave in a way that some legislature doesn’t think is appro­priate,” said Hanrahan, who is also an associate professor of music. 

Ultimately, Mullen wasn’t pre­vented from expressing herself, Hanrahan said. He said the Turning Points USA table was set up in an area reserved for registered student organizations. That resulted in a call to campus police, but Mullen’s table wasn’t shut down for violating the policy.

“Kaitlyn Mullen went look­ing for a fight, and she found one, and that needs to be remembered,” Hanrahan said. “You had a young woman who refused to comply with university policy who suffered no consequence, where there was a graduate student who used bad lan­guage and a gesture who was essen­tially fired.”

Even so, Lawton said she’s been unable to find a Nebraska attorney who wants to take on her case, es­pecially on contingency.

“The reason for that is because of squeamishness about the middle finger,” Lawton said.

University administration and the Board of Regents have established a policy on freedom of expression, which was adopted in 2018 follow­ing the Lawton-Mullen incident but before a legislative proposal ad­vanced to require such policies.

The Academic Freedom Coalition of Nebraska (AFCON) claims that the policy is “utterly in­consistent with academic freedom” and is used to restrict free expres­sion. 

“The AAUP warns faculty to avoid matters unrelated to the cur­riculum, especially when such mat­ters are controversial,” the group said in a statement issued last year on the policy. “The Regents policy, in contrast, warns faculty to avoid controversial matters, because such matters are not part of the curricu­lum.”

The university reacts to issues and will give into external pressure, said David Moshman, a founder and the immediate past president of AFCON. He said UNL has a student code of conduct that’s been flagged by the Foundation for Individual Rights in Education as not aligning with the First Amendment.

“That’s an example of just an ongoing problem that most people don’t know about,” Moshman said, adding that he doesn’t view the Lawton-Mullen incident as a turn­ing point. “I don’t think anything has dramatically changed.”

Moshman said the student code requires instructors to punish of­fensive speech, which creates an academic freedom issue because it could create a Catch-22 for a facul­ty member who might violate a stu­dent’s academic freedom if they in­tervene, but they might be charged with allowing hateful speech if they don’t intervene.

“That’s where students lose out – when faculty feel like they can’t exercise their own professional judgment, they have to protect themselves,” Moshman said.

Eric Berger, associate dean and professor at the University of Nebraska College of Law, said free expression cases involving univer­sities are murky because they of­ten reflect competing interests but there’s not a legal doctrine to pro­vide guidance.

Berger said the U.S. Supreme Court has carved out doctrines for K-12 public schools, prisons, public employees and other particular ap­plications of the First Amendment, but it hasn’t done so for public uni­versities.

“So it’s not clear exactly how they’re treated,” Berger said. “We can make intelligent guesses from the cases that the Supreme Court has decided, but there’s not a lot of cases that we can point to and say, ‘Well, that’s what the law is.’”

While free speech and academic freedom are analytically distinct, they’re clearly connected. Berger said there’s disagreement about what falls under academic freedom, but he said it’s best to think of aca­demic freedom as creating some obligations on faculty while giving them some additional protections in their area of expertise.

“At a university, it’s essential that we discuss ideas and debate ideas vigorously,” Berger said. “I also feel like, as a university, part of our role should be trying to teach stu­dents to debate ideas respectfully, too.”

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