The limits of free speech

0:01Noel King:Ellie Fisher is a study in contradictions. She's a 26-year-old Black woman with liberal politics and a law degree from Texas Tech. She founds the school's first chapter of the NAACP. She leads voter registration drives. She brings exciting candidates to campus like Beto O 'Rourke. Her parents in California were skeptical she'd like Texas, but Ellie? To everyone's surprise, becomes sort of an adopted Texan. She has a wardrobe full of cowgirl accoutrement and becomes a staunch supporter of the Second Amendment. If you're going to law school at Texas Tech like Ellie is, if you want to have a social life, you have to be friends with the conservatives.

0:42And it's not particularly difficult for Ellie because the conservatives, they love her.

0:46Noel King:Then on the day Charlie Kirk was murdered, a law professor accused Ellie of an over-exuberant response. And what followed was a free speech nightmare. Ahead on Today Explained from Vox. You just found out your sales team is at risk of missing quota. Don't panic. Just ask Rippling AI. Since it's built on your real-time people and business data, Rippling AI can pull metrics from Rippling and Salesforce into a meeting-ready dashboard showing quota attainment, headcount plan, and monthly revenue to quota by region. In seconds, you'll see exactly what's behind your quota risk and fix it before it's missed.

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2:28Today! Today Explained!

2:33Noel King:Ben Wofford is a freelance writer. He wrote about Ellie Fisher's free speech fight for The New Yorker. Ellie is a law clinic student. Ellie dreams of being a public defender. And the clinic she works for at Texas Tech is called the Criminal Defense Clinic. So Ellie is working in this clinic on the day that Charlie Kirk is assassinated. And as she walks to her clinic work desk, she passes the first of three offices that are going to become the center of this controversy. The first is a professor named Joe Stevens, and she steps into his door and she tells him that Charlie Kirk has been shot. She asks if he's heard the news and he seems tired.

3:16And Stevens says, don't do that, you know, sort of not now and gently chides her. and she moves along to the next office after about 45 seconds. The next office, about two doors down, is the office of her supervisor, her mentor, and the other important character in this story, Patrick Metz. Metz is a longtime professor at the clinic, and Pat is in his office with two other law students who are energetic and celebrating a big milestone that two other women in the room have just come back from their first day in court. And what happens in this room becomes sort of the center of this hurricane that is going to be the subject of six, seven, eight different varying accounts, sort of like Rashomon, of what goes on in this room.

4:07But what's agreed on is that for about three to five minutes, there's a brief discussion about the news. One of the other law students isn't aware who Kirk is and says, well, who's Charlie Kirk? Metz, who is a liberal, says, well, he's a racist, he's a misogynist, and he's a no good, you know, he's just sort of a no good guy. Overhearing the noise next door is a professor named Terry Morgison, who is the director of the family law program in the clinic. And she addresses the room in sort of a chastising tone and says, tells the room, Trump just said that he's died and leaves and goes back to her office.

4:50That's the only interaction they have with Terry. And after a minute or two more, perhaps, of conversation, Ellie leaves Metz's office and continues down the hall to the third and final stop in this small clinic, which is the conference room. And in the conference room are about five to ten fellow law students from the criminal clinic who are all gathering and talking about this event. And they sit around the table and they start talking about Charlie Kirk. The conservatives in this conversation would later say, Ellie didn't raise her voice. Nobody raised her voice. It was constructive dialogue generally.

5:25People voiced their opinions. The liberals said variously that they thought Kirk was a racist. And the conservatives said variously that they were sad and that they mourned him and that this was a terrible thing. Ellie pipes up to say that she thinks that Kirk was a racist. At one point, a student remembers her saying she thinks he was a Nazi. She's using sort of hyperbolic rhetoric. But the conversation is civil and courteous, according to the conservative students. So in the next days, it emerges that there has been a complaint. It's not clear from who. the next week on Monday Ellie comes to school and is told in an email that she needs to meet with staff at the clinic because there's an incident that they don't describe they want to discuss an incident that happened last week then in a private meeting she learns for the first time that there's been an allegation that's been raised that she is accused of announcing Charlie Kirk's death in, quote, an over-exuberant manner, and that there is an investigation going on informally to look into these charges, but they're alerting her that someone has brought forward a complaint.

6:40Terry Morgerson, who, remember, is the family law professor next door to Metz, approaches Dwight McDonald, who is Metz's number two, and tells him that she heard Ellie coming down the hallway and celebrating Charlie Kirk's death. This is the word that's going to be used over and over again, that she witnessed Ellie celebrating or using a celebratory tone. And the second of two key allegations is that while she was celebrating, she announced while marching down the hallway, they shot the motherfucker. This is sort of the central quote that's, you know, marshaled as evidence to show that there was some kind of celebration going on.

7:23Noel King:Okay, so this is an incredibly dramatic chain of events, a chain of events that seems singular. But you write in your piece, what happened here is not that singular. In fact, in the state of Texas, in higher education, you're seeing a similar trend when it comes to students and speech. So in the background of what's going on in Ellie's case are big sweeping changes to the higher education system in Texas and dozens of other states in the U.S. And these are efforts to wrest public universities away from what are thought to be liberal influences or woke ideology. And these are bills that have been passed in more than 20 states.

8:11It's about almost half of states that chip away in some fundamental sense at the fundamental ideas of what a university is and how university protects free speech, whether that's eliminating certain academic departments that are thought to be sort of too left aligned, whether it's banning certain topics from being taught at all in the classroom or even being written about by students, or drastically weakening the types of faculty protections that make the university a place of the free exchange of ideas, which is just a fundamental ingredient of First Amendment rights and academic freedoms. And so about half of students in the United States go to one of these schools.

8:47And these changes swept through Texas starting in 2022 through a series of legislative initiatives led by the lieutenant governor and governor of Texas, Greg Abbott. And he put someone in charge to pass these initiatives to change Texas public universities. And the person he put in charge of this sweeping change was a Texas state senator named Brandon Creighton, who was the chair of the Higher Education Committee. And he passes a series of bills. The most important of these is a bill called SB37, which drastically weakens these protections for academic freedom and gives a stakeholder in university politics called the Board of Regents, which are political appointees, unusual powers to regulate, if they want to, the curriculum of schools and to regulate campus protests and to do all sorts of things that typically political appointees in the university system do.

9:42don't get. And so this was a sweeping change in Texas, but it was actually just a prelude to the most sweeping change, perhaps of all, which is that in the aftermath of these big bills that get passed to overhaul higher education, Texas Republicans do something that hasn't really been done before at scale. Previously in other states, in attempts to pass reforms of higher education to make them less left-leaning, they would run into the problem of deans and university presidents and university chancellors who would follow the law but weren't going along with the, you know, weren't there for the party.

10:21I mean, they weren't drinking the Kool-Aid of, you know, a more political agenda to change universities and make them reflect the way that the people who pass these bills, political elected officials, would want because they have values of academic freedom. And so what happens in Texas is, I wouldn't call it a purge, but what follows in Texas to solve this problem is a large number of chancellors and presidents at the largest universities in Texas get reappointed and slotted in are the very Republican legislators from the statehouse that passed these bills. And at Texas Tech, the chancellor is replaced by one of these officials, none other than the chief architect of the policy overhaul himself, Brandon Creighton, is now the chancellor of Texas Tech.

11:10Noel King:Okay, so this is what's happening in the background in Texas when Ellie Fisher and her professor Patrick Metz are accused of inappropriately celebrating Charlie Kirk's death. What happens to Professor Metz and to Ellie Fisher? How does this play out? Just like Ellie was hauled in for questioning, Metz is called to meet with the dean of the law school who angrily accuses him of conducting this celebration. And Metz is shocked and stuttering. He's 75 years old and doesn't quite know what he's being accused of. Metz asks what's going to happen. And the dean pulls out a resignation letter that's already been written and dated and stamped and says that the solution to this problem is that we're going to have you resign.

12:00And Metz feels like at the end of his career, he doesn't have much choice, even though he's tenured. Tenure is supposed to be a protection for professors in this moment to be able to express their ideas, even ideas we don't agree with. But to get around tenure, the dean produces a letter of resignation that he's drafted for Metz and tells Metz to sign it. And feeling pressured, Metz does so.

12:27meanwhile the school continues its investigation of ellie fisher and about two or three months later the investigation sort of indicts her you know finds the equivalent of probable cause and they bring her before the honor council which is a big deal in law school um this isn't just like a slap on the wrist an honor council charge will follow you for the rest of your legal career and can impugn your integrity with judges. And she now has to defend herself from these charges before the Honor Council. And at this Honor Council hearing, which is quite dramatic, all the characters from this story are brought to testify in the school's account of Ellie celebrating in these three places in the clinic.

13:10And almost as soon as the Honor Council begins, the school's story starts to fall apart very quickly. The sort of most shocking or surprising thing of this honor council is that Terry Morgeson is then asked what she heard or saw Ellie Fisher do and is pressed on her acclaim that Ellie marched through the hallway saying they shot the motherfucker. And she takes it back and says, you know, I'm no longer certain that she really said this thing. So the school's case is really on thin ice. And a month later, the honor council hands down its ruling. It acquits Ellie in Pat Metz's office, but it finds her guilty, essentially, of being, quote, loud, happy and celebratory and therefore caused certain people in the clinic to become uncomfortable and disrupted the workings of the clinic.

14:03And so Ellie almost immediately, shortly after, files a First Amendment retaliation lawsuit. Within 24 hours after filing the lawsuit, the law school sends Ellie Fisher's file to the State Bar of Texas saying something extraordinary. not only telling the state bar about this investigation, which would be typical and expected, but further recommending that Ellie Fisher be rejected from her admission to the Texas bar. This is extremely rare. It's so rare that there aren't even any real good statistics about when it ever happens. And Texas Tech takes this extraordinary step of telling the state bar officials of Texas that even if Ellie Fisher passes the bar exam, which she's studying for, it's a grueling exam, that even if she passes, she should be denied her law license.

14:58So it's really an event that is just truly shocking. I mean, you know, shocking is not an overstatement. So Ellie is in a precarious position. She's allowed to graduate and she begins studying for the bar exam. And while she's studying for the bar exam, as if this isn't stressful enough, The federal district court hearing her case dismisses her First Amendment lawsuit using a doctrine called qualified immunity, which is typically a doctrine that's used to protect government officials from accused civil rights abuses. And so she's lost her First Amendment suit and she's waiting to see what the state bar is going to do.

15:39If they rule against her and reject her application to study law, it would be potentially a watershed moment in American law. In my reporting, I found great research by Berkeley Law School that looked at cases of state bars rejecting students like this, which are rare, going all the way back to 1909, and found almost no cases ever of any time when a student was rejected from the bar the ability to be a lawyer strictly and solely because of political opinions expressed that would otherwise be protected under the First Amendment. So Ellie might be one of the first or maybe even the first law student to be rejected from the bar on that basis.

16:24And we won't know what they decide until next week. I talked to Ellie last night. She's applying to jobs to be a public defender. She's got numerous job offers. She's ready to be hired. She's waiting for her bar exam results. And she's waiting to hear what the state bar is going to do and whether they're going to let her start this career serving indigent clients. in the state of Texas and serving them before courts of law.

16:55Noel King:That was Ben Wofford. He wrote about Ellie Fisher for The New Yorker. Coming up, the worst climate for free speech, some say, in many years.

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20:38You're listening to Today Explains. Is it Today Explain or Chai Explains? Explain. Explain. I'm Greg Lukianoff. I am the president and CEO of the Foundation for Individual Rights and Expression. All right.

20:53Noel King:So in the first half of our show, we heard about a young woman at Texas Tech, a law student who was penalized because the university said that after Charlie Kirk was killed, she made statements that seemed over exuberant. She seemed too happy about it. She disputes this. It's a big old mess. Let me ask you broadly, how would you describe the kind of status of free speech on campus these days? The status of free speech is in great peril, both on and off campus. I've been doing this for 25 years, and it's about as bad as I've ever seen it. Honestly, when it comes to the Charlie Kirk backlash cases, we saw about 90 of them.

21:33We were involved in the one in Texas as well. But 90 cases, it's a remarkably high number. But off campus, we saw even worse cases, even just involving Charlie Kirk. Free speech, social media, political rage, employment decisions, all colliding in the aftermath of Charlie Kirk's murder. People from all walks of life losing their jobs because of these vile posts on social media. Conservative activists, Republican lawmakers, and even a doxing website are flagging the comments in what critics say is a campaign to punish those posters. We saw an ex-cop go to jail for 37 days just for forwarding a Trump meme in response to a request to go to a candlelight vigil for Charlie Kirk.

22:15Oh. It's not good.

22:16Noel King:We're not in good shape here. No. Okay, so let's go beyond college campuses. If you look at the last two years, which I'm sure you have, we've done so many episodes about this. There was Jimmy Kimmel. Jimmy Kimmel's fate at ABC is up in the air after the network indefinitely suspended the late night host over his comments about the murder of Charlie Kirk. You can call that free speech or not. He was fired for lack of talent. You know, there's CNN being banned from the White House. The president said the ban on CNN, MSNOW and Politico is effective immediately and warned that other outlets would soon follow.

22:49They purposely write negative news, and they do that because they want to try and diminish the Republicans and a Republican administration.

23:00Noel King:There's student protesters who are protesting what's going on in Gaza. Universities are rolling out new rules as they prepare for more protests over the Israel-Hamas war. This has evolved way further than it has because of the free speech. I've talked to a few kids here, my friends. I was like, oh, I didn't know you were supporting Palestine. And they're like, no, I just saw all the arrests and think this is crazy. It really does seem like we're at a moment where so many different types of people claim that their speech is being restricted in so many different types of ways. What is happening in the country?

23:34My worry is I'm very much a small L liberal. I come from an old ACLU background. That's where I interned in law school. I went to law school to do First Amendment law. I hyper specialize in it. This is my passion my whole life. But for most of my 25-year career, you could rely on a sort of civil libertarian aspect of the left and a libertarian aspect of the right that would often agree on almost nothing except for things like freedom of speech. And right now, I think we've become all culture war all the time, and we have more of a progressive left and a more of a populist right. The only way that you show you believe in freedom of speech is by saying, I hate that guy, but I think you should have freedom of speech.