Hateful speech and the high cost of freedom of speech.
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.