Law professor sues West Point over rules he says curb free speech

Geoff Bennett:

The U.S. Military Academy at West Point is facing a lawsuit that claims it's violating the First Amendment. The suit, filed by its own law professor, Tim Bakken, alleges the academy is banning professors from expressing opinions in the classroom and demanding they seek approval to speak publicly.

Bakken, who is the longest-serving law professor in West Point's history, says this crackdown undermines free speech and academic freedom. He's now seeking class action status on behalf of his fellow faculty.

Tim Bakken joins us now in an exclusive interview. He is in New York City.

Thank you for being with us.

Tim Bakken, Law Professor, United States Military Academy at West Point: You're welcome. Thanks, Geoff.

Geoff Bennett:

Professor Bakken, you have argued that West Point went beyond what President Trump and the Pentagon directed on issues of diversity, race, and gender, imposing restrictions that were never actually required. What exactly did West Point do that in your view crosses the line?

Tim Bakken:

My focus is on a regulation that West Point created in February of this year that requires professors, if they're naming their employer, they indicate who they work for, then they have to seek approval of department heads at West Point.

To me, that's contrary to the notion of freedom of expression. In fact, professors are hired specifically to teach, speak, and write according to their conscience. And if they have to submit what they're speaking or writing or teaching about to someone else, then we wouldn't really know what they truly believe and, as a result, people would trust each other less and, certainly, from the perspective of anybody who's a teacher, we'd have less knowledge produced both in the classroom and outside of the classroom in the public arena.

And that's the least of what we want from our public servants, our public employees, and certainly our public teachers.

Geoff Bennett:

Tell me more about that, because the lawsuit says that West Point is barring professors from expressing their opinions in class. Give us a specific example where you felt silenced or unable to teach effectively under this policy.

Tim Bakken:

In my example, for instance, I wouldn't be able to opine on the value of a majority opinion of the Supreme Court or question a dissenting opinion of the Supreme Court if, in my opinion, those majority or dissenting opinions were right or wrong.

My opinion, according to the application of this regulation at West Point, would be invalid, and, therefore, I wouldn't be able to share what I know about that case. And, in fact, everybody would be lesser for it, because knowledge certainly wouldn't be progressing. And the cadets at West Point and students anywhere else wouldn't have the opportunity to question Supreme Court decisions or government decisions elsewhere.

Geoff Bennett:

On the larger point, I'm sure there are people watching this discussion who would ask, would make the point that West Point is a military academy. The president is commander in chief. If the commander in chief can dictate what's taught and how it's taught, why shouldn't West Point have the authority to create mechanisms to enforce that executive order?

Tim Bakken:

The military is not all-encompassing. In fact, like military officers, I have sworn an oath to the Constitution, which includes protecting the First Amendment rights of everyone.

It's sometimes thought that employer can dictate what employees speak about or write about, but the Supreme Court has noted that, with regard to academic freedom, there's a special constitutional niche for college teachers. That niche is necessary to prevent overbearing and unconstitutional prior restraints on expression, so that there can be at least one place in American society where everybody can go and speak freely.

Not everybody will agree with what a college teacher says, but that's not the point. The point is that what's most important is that we have a place to express ourselves. And in those places, when young people, for example, professors at West Point teach the future generals of the United States, those people will learn from the professors, and when they go on and be successful in their careers, including leading our country in wars, we will be more confident that they know the critical points that are necessary to win those wars.

We have had some difficulty in that in the past generations, and I think one of the reasons is that we haven't been able to speak freely. And, certainly, in the military, our officers have not been able to speak freely. And I hope, from what I'm trying to do and from what other people want to do with regard to the preservation of the First Amendment, no prior restraints on what we're speaking about, we can encourage military officers to speak up and tell more about what they believe is necessary to win wars.

Geoff Bennett:

You're seeking class action status, as we mentioned, on behalf of more than 100 faculty members. Have colleagues signaled their support either privately or publicly?

Tim Bakken:

One of the great difficulties of — in society or any institution — and I'm not speaking about a military academy necessarily or any organization — is that when people are not free to speak and when they have to run their ideas through the person in charge, then they're less likely to speak.

And for those people who do speak, they're less likely to be able to connect with other people, and knowledge is lost. With regard to trying to seek a legal remedy in this instance, the main point is that everybody in this kind of position has the same interests, whether it's in a private organization or a public organization, but especially college.

The interest is in speaking and teaching and writing according to your conscience. And, if you can't do that, then everybody has a shared value in trying to ensure that we can make some changes and go about deciding how to do that, and do it effectively.

Geoff Bennett:

Our team reached out to West Point for comment, and the U.S. Military Academy Public Affairs Office said only: "We are aware of the lawsuit filed Monday. Respecting the rule of law, we do not discuss ongoing litigation."

In your view, what does success in this lawsuit look like for academic freedom, not just at West Point, but other service academies?

Tim Bakken:

I would include, Geoff, not only service academies, but colleges around the country, as well as any other organization that is having difficulty with freedom of expression, but especially at colleges.

Sometimes, we forget that academic freedom is a niche within the U.S. Constitution. And the reason that it's a niche there, the reason that it's protected is so that people who have dedicated themselves to speaking and teaching and writing will have the opportunity to speak according to their conscience. That's the essence of the First Amendment, speaking according to our conscience.

It's difficult to imagine any greater value in our Constitution. I'm encouraging everyone to think about that and to understand, even if we disagree about a position or that position or a government position, in the end, the most important thing is to be able to speak according to our conscience and disagree with everybody.

That doesn't mean that there won't be hurt feelings sometimes, but the point is that we have to have that opportunity to speak, or we can't advance as a society, as an institution, and our knowledge will be a whole lot less if we're disabled by prior restraint of our speaking, if we're subject to the approval of someone else before we speak or write or teach.

Geoff Bennett:

West Point Law Professor Tim Bakken, thank you, sir, for your time. We appreciate it.

Tim Bakken:

You're welcome.