This has been a tough year for tenure and academic freedom.

As far as we know, Amy Wax (University of Pennsylvania, law) has been chastised for racist comments in op-eds and podcasts (and potentially within the law school community). As far as we know, Maura Finkelstein (Muhlenberg College, anthropology) was fired for social media activity denigrating Israel and Zionists. And as far as we know, Joe Gow (University of Wisconsin–La Crosse, communications, former administration) was fired from both his chancellorship and tenured faculty position for publicly airing porn he made with his wife.

(I say “as far as we know” because years of teaching employment law have led me to believe that workplace disputes are like icebergs: what’s on the surface is only about 10 percent of the whole.)

Now, some people will respond to these three very different incidents by saying, “This is not like the others. I agree with some of these negative employment outcomes, but not all.”

That’s an understandable perspective, but it’s not mine. It’s also not the point of view I’m interested in right now.

Other people will respond to these three very different incidents by saying, “All of these results are OK, even if for different reasons.”

I hope I don’t work for any of these people. Nor is this perspective the one that interests me now.

A third group of people will respond to these three very different incidents by saying, “All of these results were wrong. Regardless of my feelings about the content and manner of their speech, neither Amy Wax nor Maura Finkelstein nor Joe Gow should have suffered the employment consequences that were visited upon them.”

These people – the absolutists of extramural discourse – are the ones I want to talk about.

Look, I got it. I spent almost a decade studying at University of Chicago. I took First Amendment law with Geoffrey Stone. Free speech absolutism—its intellectual underpinnings and the closest it comes to living in American academia—is what I grew up with. I’m instinctively drawn to it.

But despite my strong sympathy for free speech absolutism, I have always struggled with its academic counterpart: extramural absolutism. And as the Wax/Finkelstein/Gow incidents suggest, extramural discourse is increasingly straining tenured professors. (Not always, however, as proliferating forbids critical race theory remind us.)

It has long former Policy of the American Association of University Professors that while tenured professors may be disciplined or terminated for their intramural speech—what they say and do in their professional capacity—they generally cannot be punished for their extramural speech and conduct. Furthermore, this approximation of extramural absolutism is not only supported by the AAUP. It is practically an article of faith among academics, many of whom implicitly or explicitly state that abandoning extramural absolutism is equivalent to abandoning academic freedom, and perhaps even equivalent to abandoning the academic (or democratic) enterprise itself.

Again, my instincts are to support free speech absolutism of any kind. But as someone who studied MANDATEand as someone who teaches employment law, I want to point out that we academics claim a privilege that is nothing short of astounding.

Among Americans who are lucky enough to have a stable job, only those who are classified as employee they are guaranteed basic things like a minimum wage, a non-discriminatory work environment or job security if they take sick leave.

Among those lucky enough to be classified as employees, most are considered at will. This means they can be fired without notice and without pay in lieu of notice for good reason, wrong reason, or no reason at all… any reason except an illegal reason. Your boss could come in tomorrow and fire you because it’s a day that ends in Y. Provided this really it is reason for your termination (rather than, say, because you’re black), what your boss did was perfectly legal.

Of those who are spared the vagaries of at-will employment, only public employees are entitled to any constitutional protection against workplace punishment for their speech. Now, to be perfectly clear, the constitutional speech rights of United States government workers are a no-brainer. The Supreme Court whittled these rights down to virtual nothingness in a 2006 decision called Garcetti v. Ceballosand subsequent jurisprudence tightened the noose. But virtual nothingness is still more than zerowhich is how we can best describe the constitutional speech rights of private sector employees even when they are not subject to the at-will rule. (Those private sector employees have some statutory protections for workplace speech, but such protections are patchy and increasingly under attack.)

These are the workplace realities that advocates of extramural absolutism must face. Personally, I don’t think I did a very good job.

That’s partly because we don’t appreciate how important a privilege we’re asking for. Extramural absolutism does not refer to the right to pursue any line of inquiry or any subject and teaching method you see fit. I could get behind that in a millisecond. (And anyway, this is intramural absolutism.)

Extramural absolutism also means the right to post anything on social media, do anything (non-criminal and non-criminal) and say anything in interviews, op-eds and meetings. Extramural absolutism means having those freedoms regardless of the connection between your discourse and any academic expertise you have developed. And extramural absolutism involves telling a country full of people who—assuming they even qualify as employees—can be fired instantly for no reason, and who can be punished or fired for what they say and do anywhere, that you are sui generis.

You may indeed be sui generis—us it could be – but we need to articulate better reasons than “because academic freedom”. Otherwise, we won’t get anyone outside academia (perhaps not even anyone in academia) to help us when extramural discourse is under attack.

Some advocates of extramural absolutism recognized this need and worked to articulate those better reasons. (This “Academy” article provides an excellent summary.)

For example, proponents have argued that extramural absolutism creates trust between faculty as employees and universities as employers: if universities do not protect faculty citizen speech, those faculty will not believe they truly have professional free speech. Proponents also argued that their approach prevents unfair dismissals. Instead of firing an economist for his objectionable views on economics, a university could use his social media posts to fire him for his views on history. And proponents have argued that extramural absolutism helps promote disciplinary parity. COVID has complicated matters, but until recently it was easy to believe that academics in the humanities and social sciences were more likely to attract administrative, political and public ire and would therefore need more coverage than a general engagement versus extramural. absolutism.

I do not agree with any of these explanations or similar ones that have been made. They explain why, as a functional problem, extramural absolutism is necessary in academia. But I worry that even these more nuanced defenses fall short in three ways.

In the first place, as we have already observed, they do not fully recognize the extent of the privilege we claim. We’re not just asking for a little more latitude than the average worker: we’re asking for a level of job security that’s highly unusual in American society and a level of expressive freedom that’s unmatched.

Second, these explanations do not fully recognize the uniqueness of the privilege we claim and what our claim says about how we academics see ourselves in relation to the rest of society. No other kind of worker – employed or not, willing or not, public sector or not – comes close to claiming (much less having) the right to speak freely on any subject in any context, without have repercussions at work. Not doctors, not lawyers, not accountants, not electricians, not retail workers, not line cooks. By claiming this unique privilege, we academics signal a belief in our own essentiality and who is or who is not essential societal reproduction is another area of ​​thought that has been profoundly complicated by COVID.

Above all, though, I worry that even the most nuanced defenses of extramural absolutism fail to recognize that the reason we must adopt an absolutist position is the impossibility—not the undesirability—of adopting a more moderate one.

We cannot easily say what falls within someone’s area of ​​expertise because expertise is difficult to define and changes over time. So, instead, we say that extramural speech should be protected regardless of its connection to academic expertise. We can’t easily say what counts as extramural discourse, because public engagement—writing op-eds (like this one), giving interviews, championing causes—is now part of what it means to be an academic for most academics, instead of just for an elite few and even part of the number of academics valued by their employers. So instead, we say anything remotely resembling extramural speech it is extramural speech and should not trigger negative employment consequences.

But these are arguments based on necessity and pragmatism. They are not based on the intrinsic desirability of an absolutist approach.

Necessity and pragmatism are good and valid reasons for adopting a position such as extramural absolutism. These are why I lean towards extramural absolutism (though I’m still less comfortable with it than with its analogue free speech). They are also, I think, reasons that are more likely to resonate with nonacademics because they do not depend on those listeners’ conviction that American society will collapse without an absolutist approach to extramural discourse. Instead, they simply acknowledge the unusual features of what academics do (and are expected to do) and how academics work (and are expected to work) before showing that there is only one way in which academics can meet those expectations by having in view of those constraints: extramural absolutism.