Subramanian Swamy, Free Speech at Harvard, and the First Amendment to the Constitution of the United States

There has been debate over the past few days regarding the decision of Harvard University to cancel two summer courses taught by Subramanian Swamy. Earlier this year, Janata Party President, Dr. Swamy wrote a highly-charged column in which he called for disenfranchising Muslims in India who did not “acknowledge that their ancestors were Hindu.” He also called for the destruction of hundreds of mosques across the country.

The Harvard amendment to exclude Dr. Swamy’s course was proposed by Comparative Religion Professor, Diana Eck, who noted that there was “a distinction between unpopular and unwelcome political views.” From the resulting vote, it was clear that a majority of Harvard’s Faculty of Arts and Sciences viewed Dr. Swamy as unwelcome in their institution.

In response to the decision, a column in The Hindu put forward the opinion that Harvard should have stood by Dr. Swamy’s right to freedom of speech:

“Freedom of speech is probably the most sacred constitutional guarantee of all, and the true test of this sacred right is when someone uttering morally repugnant thoughts exercises it. The U.S. courts have long held that in times like these, there is a need to swallow hard and understand that, in a free society, any restriction on speech or expression must be taken under very serious consideration and pass some very stringent tests regarding public safety, and clear and present danger.”

If you parse the text written by a Harvard-educated lawyer carefully, you will note that Dr. Swamy’s right to express his opinion as enshrined in the First Amendment of the US Constitution is alluded to; and the underlying premise, while not directly stated is that Harvard has denied Dr. Swamy this right by removing his classes from their roster.

Any such assumption is incorrect. Harvard did not infringe upon Dr. Swamy’s “freedom of speech” as guaranteed by the First Amendment.

First, let us take a look at the First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

As stated in a report presented to Congress, the First Amendment has been interpreted as not only applying to Congress “but to all branches of the federal government, and to all branches of state and local government.”

It should be noted that the right to exert free speech does not immediately prevent the right of another party to react to it. The First Amendment gives me the right to say what I want about my employer. It does not protect me from the consequences of my action: termination of employment and further litigation for divulging company secrets. Just because I can tell my wife whatever is on my mind, doesn’t mean that she can’t approach a court of law for divorce proceedings.

One might argue that these situations constitute personal matters. However, the First Amendment cannot always be involved when it involves public servants either. The Supreme Court has ruled that the matter on which free speech is exerted must be a public concern and that “on a matter of purely private concern, the employee’s First Amendment interest must give way, as it does in speech cases.”

Finally, although there is rigorous debate over the boundaries of academic freedom, recent cases have indicated that First Amendment protection is not universally applicable even to professors at publicly funded institutions. The most notable example of a tenured professor coming under flak for his comments is that of Ward Churchill who compared victims of 9/11 to Nazis. The University of Colorado where he worked initially declined to fire Churchill citing First Amendment protection. Churchill was fired later for an unrelated charge of “academic misconduct” after which he sued his former employers for violation of his First Amendment Rights. A lower court awarded Churchill one dollar in restitution. An appeals court ruled that the University of Colorado was immune from his lawsuit. In other related cases, courts have ruled that while academic freedom is a “special concern” of the First Amendment, protections (or lack thereof) offered to any one citizen must be offered to others.

With these considerations in mind, note that Dr. Swamy was a temporary teacher at a private institution who was requested to teach two courses. He was not prevented from writing his column. He was not prevented from espousing his views. He was not terminated from a position which he held as a permanent faculty-member. Faculty members of a private university convened and voted to remove his two courses from consideration. In reality, had Dr. Swamy been a permanent faculty employee of the university, he would not as easily been dismissed, but that is the reality of the academic world.

Further, the decision to not recall Dr. Swamy does not immediately cast aspersion on free speech in America. In 2007, Columbia University invited Iran’s President Mahmoud Ahmadinejad, widely-detested in the US for his views on Israel to speak in New York. That was a decision made by another private university. Some disagreed with it. In 2010, Rev Terry Jones was never legally barred from his hateful speeches on Islam or his threats though they could’ve been construed to incite violence.

In China, you can get in trouble for criticizing the government, in Palestine for questioning Israel, and in Saudi Arabia for pretty much anything. Even in many liberal countries of Europe, questioning the historical authenticity of the Holocaust, will land you in jail for a few years.

In my opinion, viewpoints that do not pose an immediate threat to citizens should be allowed to be voiced even if they are reprehensible, so that they can be exposed.

In any case, the crux of the matter is that whether or not the decision was harsh and that it should have gone the other way can be debated, but an argument cannot be made that the decision was unlawful.

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5 thoughts on “Subramanian Swamy, Free Speech at Harvard, and the First Amendment to the Constitution of the United States

  1. In any case, a university has the right to pick and choose what course it would like to offer and no constitution or government need interfere with that decision.

    • Then ask harvard to pay taxes. Once it is a not for profit institution the law changes, constitution and government can interfere. The only thing is harvard has 40 billion dollar in its chest, political clout and get 40 million dollars from saudi arabia, which has excellent human rights records.

  2. This is a ridiculous peice trying to defend the nuts of harvard. The harvard cannot extend its premises to India. It is one thing if swamy wrote on crimson, but to strech the campus to India is definite violation of freedom of speech. Swamy wrote this article as politician of India. Harvard laws are clear that non tenure faculty can do part time professions and do not need harvard permission. Swamy did not use harvard in the article. The article was written in response to god damn terrorist performing jihadis. On the other hand same nuts of harvard have advocated for tariq ramadana who has called for jihad in afghan, kashmir etc. Please do proper research before writng british raj style articles.The economic faculty did not have objection.Only 51% of faculty attended the meeting, swamy was not given a chance to present, 3/4 of them did not have any clue

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