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Federal appeals court issues ruling that could have ‘glacial’ implications for free speech


“My friends in the majority…have developed a new ‘bad man’ theory of the law: identify the bad man; he loses. The majority’s threadbare analysis willfully abandons both our precedent and the facts in search of its desired result.”


A ruling by the Fourth Circuit U.S. Court of Appeals against a professor who criticized his school’s woke policies has some free speech advocates warning that the decision could chill free speech for university faculty.

Quick Facts

The 2-1 panel decision was handed down last week in the case of Porter v. Board of Trustees of North Carolina State University. Stephen Porter, who teaches statistics and data analysis at NC State, has expressed his belief numerous times that the school’s focus on diversity has led to its “abandoning rigorous methodological analysis in favor of results-driven work aimed at furthering a highly dogmatic view of ‘diversity,’ ‘equity,’ and ‘inclusion.’”

From 2016 to 2018 Porter criticized such views three times after which NC State removed him from a degree program, citing a “lack of collegiality.” Porter filed suit and, after losing at the district court level, appealed his case leading to its adjudication at the Fourth Circuit appeals court.

Writing for the majority, Judge Stephanie Thacker wrote that two of the instances were not protected speech and that Porter was acting in his role as an employee. The majority claimed that though the other instance, Porter’s blog post entitled “ASHE Has Become a Woke Joke,” was protected speech, Porter did not show that his protected speech resulted in his punishment, thus dismissing his complaint.

The majority were hit with a scathing dissent from fellow Judge Julius Richardson, who argued that all three instances were protected speech and resulted in punishment from NC State.

“While ‘civil’ discourse is often the best antidote to a coarsening culture, civility’s dictates ‘may also be used as a censoring mechanism to drain and dilute dissenting voices,’” he wrote. “For those who disagree with Stephen Porter’s message, he might indeed sound like an unpleasant agitator, disturbing the peace. But transgressions of tone tend to ring loudest when we disagree with the speaker’s views.”

He continued,

“Our job, however, is not to appraise the value of Porter’s speech or his personal virtue. It’s to take the facts as alleged in the complaint, read them in a light most favorable to Porter, and then decide whether he’s plausibly stated a claim for relief…So Porter’s claims ought to survive, and the district court’s contrary decision ought to be reversed. This is not a close call. My friends in the majority apparently seek to return to the days of Justice [Oliver Wendall] Holmes. But only for certain plaintiffs. In doing so, they have developed a new ‘bad man’ theory of the law: identify the bad man; he loses. The majority’s threadbare analysis willfully abandons both our precedent and the facts in search of its desired result. Even for a Holmesian, that cynicism breaks new ground.”

The ruling also received criticism from free speech proponents. George Washington University Law School Professor Jonathan Turley wrote, “The panel decision runs against the grain of various prior decisions of the Supreme Court,” adding, “Judge Thacker simply ignored elements of the record to support the university’s actions against this dissenting colleague.”

Turley cautioned,

“If this decision stands ‘uncollegiality’ will become the new code for retaliating against dissenters on faculties. Indeed, likability and collegiality were long denounced as excuses for rejecting (or poorly evaluating) female and minority candidates…Thacker’s ruling…would effectively gut both free speech and academic freedom protections for dissenting faculty. It is not just chilling, it is glacial in its implications for higher education.”

This was the second decision in the last two months by the Fourth Circuit that jeopardizes free speech on university campuses. On May 31, in another 2-1 decision, the court ruled that Virginia Tech University’s “bias response teams” are constitutional. The bias response teams respond to any complaints made by anonymous students due to speech by another student. One student was reported for calling former men’s Olympic decathlon champion “Bruce” Jenner as opposed to the now transgender’s adopted name of “Caitlyn.”

The bias response teams are able to punish students, as the police department is one of the members. Three other appellate courts have ruled that bias response teams are unconstitutional.

Dissenting Judge Harvie Wilkinson argued, “…telling students ‘You should stop saying biased things or else we might need to reeducate you’ is no benevolent attempt at persuasion.”

The reality is that wokeism in all of its manifestations cannot survive if it is subject to debate. It is morally repugnant and logically inconsistent. That’s why those who seek to further its reach and to prevent anyone from being offended are forced to intimidate dissenters into silence, rather than try to outwit them.

The Constitution protects the right of Americans to speak their views even if the overwhelming leftist majority in academia detests those views. The Fourth Circuit’s decisions are in conflict with the Constitution and with Supreme Court precedent.

There is a lesson to be learned for Christians in all of this, however. While those who wish to censor the truth will do so no matter what, how we say things does matter and could sway others to our side, or at least get them to respect, and therefore consider, our views. Ephesians 4:14-16 states,

“As a result, we are no longer to be children, tossed here and there by waves and carried about by every wind of doctrine, by the trickery of men, by craftiness in deceitful scheming; but speaking the truth in love, we are to grow up in all aspects into Him who is the head, even Christ,from whom the whole body, being fitted and held together by what every joint supplies, according to the proper working of each individual part, causes the growth of the body for the building up of itself in love.”

God’s Word calls us to speak the truth in love, not to be hateful, mocking, or profane. We speak the truth to the benefit of those who hear us, not to crush them. Christians must boldly speak the truth but always do so with a kind heart.

Ready to dive deeper into the intersection of faith and policy? Head over to our Theology of Politics series page where we’ve published several long-form pieces that will help Christians navigate where their faith should direct them on political issues.

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