Hate­ful speech and the high cost of free­dom of speech.

The Denver Post - - NEWS -

There is no doubt that the hard-fought 2016 pres­i­den­tial elec­tion con­test, and the nasty rhetoric from the pres­i­dent-elect and oth­ers, has led to in­creased in­stances of and fo­cus on hate crimes and hate­ful speech across the land.

In Den­ver this week, the poi­soned at­mos­phere be­came even more nox­ious thanks to a Face­book post from an in­di­vid­ual one would think would know bet­ter: a Univer­sity of Colorado School of Medicine fac­ulty mem­ber and pe­di­atric anes­the­si­ol­o­gist.

We bring it up not to fan the flames of pub­lic out­rage — although we share that out­rage. Rather, we’d like to of­fer a word or two of cau­tion, and to make an ap­peal for calmer minds.

Yes, it was racist and ab­hor­rent — and just plain stupid — for Dr. Michelle Her­ren to say of First Lady Michelle Obama: “Mon­key face and poor ebonic English!!! There! I feel bet­ter and am still not racist!!! Just call­ing it like it is!”

Her­ren was swiftly ter­mi­nated by the Univer­sity of Colorado, and Fri­day af­ter­noon Den­ver Health re­leased a state­ment say­ing Her­ren had vol­un­teered to end her em­ploy­ment there as well.

But be­fore we cel­e­brate Her­ren’s loss as a win for com­mon de­cency, let’s take a mo­ment to mourn the other cost.

Pub­lic sham­ing of vi­ral so­cial me­dia posts has be­come the new “chill­ing ef­fect” of free speech that li­bel and defama­tion law­suits were be­fore the na­tion’s high­est courts spoke and set strong prece­dents pro­tect­ing all types of speech — in­clud­ing burn­ing the Amer­i­can flag.

The ar­gu­ment for Her­ren’s ter­mi­na­tion ex­ists within case law. Pub­lic em­ploy­ees, un­like pri­vate work­ers, fall un­der a dif­fer­ent set of free speech rules that con­tinue to evolve.

As Steven Zans­berg, a First Amend­ment at­tor­ney in Den­ver, who is also the pres­i­dent of the Colorado Free­dom of In­for­ma­tion Coali­tion, tells us: “Pub­lic em­ploy­ees do not re­lin­quish their First Amend­ment right to ex­press their views on mat­ters of pub­lic con­cern, so govern­ment em­ploy­ers must tread lightly be­fore pun­ish- ing such speech.”

How­ever, Zans­berg notes that “govern­ment em­ploy­ers may take ap­pro­pri­ate em­ploy­ment ac­tions against em­ploy­ees whose speech, ex­pres­sive con­duct, or other con­sti­tu­tion­ally pro­tected ac­tiv­i­ties is shown to ‘un­der­mine the mis­sion of the pub­lic em­ployer.’ “

One can see how the doc­tor’s dis­gust­ing and ridicu­lous re­marks (af­ter all, the first lady is ob­vi­ously beau­ti­ful and elo­quent) could trans­late into an un­ten­able po­si­tion for the med­i­cal school. Should stu­dents not wish to take her classes, how is the pub­lic served by keep­ing her on the staff ?

Her role at Den­ver Health is trick­ier. Had they sought to ter­mi­nate her, of­fi­cials there would have had to ar­gue Her­ren’s com­ments made her un­able to per­form her med­i­cal du­ties at Chil­dren’s Health, a po­si­tion they over­see. But noth­ing Her­ren said about the first lady sug­gests she would ex­er­cise poor judg­ment in her role as an anes­the­si­ol­o­gist.

But shouldn’t aca­demic and med­i­cal pro­fes­sion­als and stu­dents be able to han­dle con­trary views? Even those they find ab­hor­rent?

Like all of our free­doms, the free­dom of speech has a cost. That cost is that peo­ple like Her­ren can have their soap­box on Face­book, or the Ku Klux Klan can march down Main Street, and those who are protest­ing the Dakota Ac­cess Pipe­line can burn the very sym­bol of the free­dom they are ex­er­cis­ing.

We can con­demn these ac­tions in no un­cer­tain terms and still re­spect that the right to do them is one we cher­ish and will not un­der­mine in mo­ments of dis­gust and anger. Her­ren los­ing her liveli­hood may feel like jus­tice now, but it’s a slip­pery slope we hope doesn’t start to cas­cade.

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