Fake Triumph Part 3: McAdams Wins a Dubious Victory for the First Amendment

In the beige marble halls of the Wisconsin State Capitol, Ralph Weber waited for the doors of the Supreme Court hearing room to open. Weber, representing Marquette University in the well-publicized case of McAdams v. Marquette, was having a moment. Chin raised, an enigmatic smile on his face, Weber was surrounded by associates from his downtown Milwaukee law firm of Gass Weber Mullins and appeared supremely confident, prepared to dominate.

This moment would stand in stark contrast to the drubbing Weber received during the hearing, where judicial favor mostly smiled upon his opponent, Rick Esenberg of the Wisconsin Institute for Law and Liberty. Esenberg and WILL have long represented and even championed John McAdams, the outspoken right-wing professor whose tenure Marquette University has been trying to revoke since 2015.

Late in 2014 Fall semester, McAdams blogged about a Marquette graduate instructor in the philosophy department who he claimed tried to suppress arguments against gay marriage in her class. (Note: It did not happen to be a class on arguing about gay marriage.) McAdams’ blog posts went viral, the instructor was viciously harassed and subsequently left campus, and McAdams has been a right-wing media darling ever since.

Other than Weber’s associates, the people milling around waiting for the hearing room doors to open on the afternoon of April 19 were mostly McAdams’ family members and supporters. Two well-dressed, middle-aged blondes who looked like retired Fox News anchors were clearly fans. They brushed off the notion that the death threats received by then-Marquette grad student Cheryl Abbate’s were in any way cause for concern on the University’s part. “If she didn’t want to get death threats, she shouldn’t have said what she did,” one of them told me.

In interviews McAdams gives on Fox News and a speech he made at CPAC 17, he has promoted the image of Marquette University as a hotbed of liberal totalitarianism in which conservative views are routinely suppressed. While this is far from the case – Marquette is not Berkeley – it is it is an idea that roils the audience he has cultivated.

I ran into McAdams before the hearing, surprised by the change in his appearance since I first interviewed him in 2015. These days he wears his gray hair in bangs and looks a bit like an aging 1950s beatnik, perhaps to emphasize the fact that he is a rebel and an outlier in the field of higher ed. When I asked him if he were aware of the Koch brothers nationwide initiative to transform higher education along libertarian-conservative lines, he brushed it off, insisting that conservatives “self-select” out of teaching at colleges and universities, not just because they don’t like the liberal campus atmosphere, but because they – and their ideas – are discriminated against.

This is a common complaint on the right. In part, it is what inspired Wisconsin governor Scott Walker to cut $250 million from the UW-Madison budget. As a result, UW is no longer ranked among the top five research universities nationally. But it might strike some people as odd that conservatives are still so inflamed about the university as a bastion of liberal ideas when the right has prevailed nearly everywhere else.

Wisconsin, where Marquette University is located, has been in the vanguard of the right-wing take-over of state and municipal government. Elected in 2010, Governor Scott Walker is a Koch brothers protegee. Walker and the Republican-dominated legislature have transformed a state once known for its progressive ideals into one that is a laboratory for right-wing civic experiments. They have repealed union rights, rolled back environmental protections, privatized state parks, even made it illegal for municipalities to ban plastic bags. In Wisconsin, no municipal government may rule against a developer who wants to do a project in its jurisdiction. Many, if not all, of these laws were originally drafted by ALEC, the conservative-funded American Legislative Exchange Council.

And now, thanks to John McAdams and his lawyer Rick Esenberg, Wisconsin is in the thick of what the New York Times recently called the conservative drive to “weaponize” the First Amendment. Many will recall that Citizens United, which gave the super-rich an outsized voice in our elections, was decided by SCOTUS as a First Amendment issue. Because, as Mitt Romney famously put it, “Corporations are people too.”

Last year, McAdams sued Marquette to get his job back and lost in Milwaukee County circuit court, but his lawyer, Rick Esenberg, was undeterred. In fact, he was energized. Two days before McAdams v. Marquette was heard in the Wisconsin State Supreme Court, WILL held a fund-raiser at the University Club, advertised as a “preview of the landmark lawsuit.”

It’s almost like Esenberg knew he was going to win.

The (Metaphorical) Rape of the Graduate Student

The Wisconsin Supreme Court’s 4-2 decision in McAdams’ favor has been widely reported as a victory for the First Amendment. It was lauded in the Wall Street Journal in an editorial that repeated the a now-familiar half-truth: “The case stems from a blog post by Mr. McAdams about a graduate instructor who had told a Marquette student that opinions against same-sex marriage would not be tolerated in her ethics class.”

In fact, no such conversation was ever had in Cheryl Abbate’s class on Theory of Ethics.

Few of the people commenting on the case, apart from maybe the Milwaukee Journal Sentinel’s Karen Herzog, whose bare bones reporting McAdams has criticized as biased, have reported on the case in any depth. Had they been in the hearing room on April 19, they would have witnessed a court so moved in favor of the plaintiff that McAdams’ attorney and the justices, most notably the ultra-conservative Michael Gableman, almost appeared to have coordinated their exchanges.

As the hearing commenced, Chief Justice Patience Roggensack announced that there would be “six for the decision” that day. The business-oriented Justice Annette Ziegler was absent. The liberal Shirley Abrahamson was present via Skype. Ann Walsh Bradley, who wrote the dissenting opinion on the McAdams case, was present but largely mum. Scott Walker-appointee Rebecca Bradley, Walker-appointee Daniel Kelly, and the ultra-conservative Michael Gableman were all present and accounted for. Gableman’s presence made it an especially good day for McAdams and Esenberg from the standpoint of legal theater.

Had Cheryl Abbate been present in that hearing room, she would have been in a similar position to the rape victim who finds herself on trial for having worn a red dress. Justice Gableman questioned whether any harm whatsoever had come to her. He seemed to feel that she had in fact benefited from the entire fracas.

“Ms. Abbate left the university within weeks [of the harassment]. Doesn’t the record reflect that she had been trying to transfer to other schools in fact for years prior to this incident,” Gableman speculated.

Gableman, who spoke slowly in a deep, sonorous voice and was not shy about invoking literary references, is an old hand at First Amendment cases. In 2009, the Wisconsin Judicial commission investigated Gableman’s campaign against incumbent Wisconsin Supreme Court justice Louis Butler, whom he had falsely accused of using a “loophole” to allow the release of a child molester. Gableman successfully defended his campaign commercials on free speech grounds. He has also been the subject of an ethics complaint for failing to recuse himself from a case in which he allegedly had a business interest.

Cheryl Abbate had not been at Marquette “for years.” In November 2014, she was a young Ph.D. student in her twenties who had earned her master’s in philosophy at UC-Boulder and who pursues a specialty in the cutting-edge area of animal rights. The controversy surrounding Abbate is a classic tempest in the academic teapot. It occurred because Abbate had a student who did not see eye-to-eye with her and was repulsed by her teaching of “liberal ideas” in a class on the Theory of Ethics which included a unit on the political philosopher John Rawls. I called him “Student Zero” in an earlier article. He was known as John Rourke on the Marquette campus when he listed himself as the only active member of Turning Point USA, a national conservative student organization. He also goes by the handle Ferdinand of the Two Sicilies. This kid has more aliases than a Russian operative. Though he has since graduated, he remains deep undercover.

In his November 9, 2014 blog post, McAdams gave his version of what happened in Abbate’s class. He wrote that the young instructor “listed some issues on the board, and came to ‘gay rights.’ She then airily said that ‘everybody agrees on this, and there is no need to discuss it.’”

By some accounts, including the student’s, it was “gay marriage” that was listed on the board. And McAdams had no way of knowing whether Abbate spoke “airily” or what her exact words were. The clandestine taping didn’t start until after class.

But what definitely gets lost in the often-virulent discussion of what happened in class that day are two key points. Gay marriage does fall under the rubric of Rawls’ “equal liberty principle.” And even more importantly, Abbate was under no obligation to hear arguments opposing gay marriage or anything else to do with gayness unless they were based on her teaching of Rawls. And since Student Zero was, by his own admission, flunking the class because he didn’t like its “liberal ideas,” and didn’t know if it was Rawls, Kierkegaard, or Nietzsche who was under discussion that day, he would have been unlikely to be able to do so.

So he went in another direction – the espionage direction.

The Marquette Warrior’s Shades of Inaccuracy

McAdams’ blog went on to say, accurately, that the “student, a conservative who disagrees with some of the gay lobby’s notions of ‘gay rights’ (such as gay marriage) approached her after class and told her he thought the issue deserved to be discussed. Indeed, he told Abbate that if she dismisses an entire argument because of her personal views, that sets a terrible precedent for the class.”

Here McAdams was clearly using Abbate’s own mistake against her. If she had simply told Student Zero to stick to the curriculum, all would have been well, but because she made some off-the-cuff remarks in her private, after-class discussion with the student about “homophobia” and said that maybe some gay people in the class might be offended by Student Zero’s views, all hell broke loose.

Charlie Sykes, who now frets about the direction of the Republican party under Trump in the pages of the New York Times Sunday Review, was still a right-wing talk radio host at the time and always glad to provide a megaphone for McAdams’s gripes about Marquette and the totalitarian-liberal faculty its administration was doing nothing to reign in. McAdams, who has also focused his ire on the fact that LBGTQ issues and women’s sexuality were openly addressed by extra-curricular and curricular campus programs at Marquette, was interviewed on the local Fox News channel. McAdams has complained about everything from “The Vagina Monologues” to the fact that a quote from a former Black Panther was used on a campus mural designed by students. He continues to write the Marquette Warrior blog. And, when Marquette’s high-powered conservative grads get involved as a result, people can end up losing their jobs.

Cheryle Abbate was targeted by far-right trolls, already hyped-up by talk radio, Fox News, and the conservative Interweb. Her email inbox was flooded with epithets and death threats. By the end of the semester, she had arranged to leave Marquette and go back to her former graduate school. McAdams was held responsible for the harassment by Marquette’s administration, suspended, and barred from campus. And it was McAdams’ plight that increasingly became the media’s cause celebre.

McAdams has continued to blog about – and name – Abbate. And, as he and his attorney have continued to battle Marquette, his profile has been raised. He is now the go-to guest when Fox News broadcasters like Laura Ingraham feel like fulminating about the evils of the liberal university.

A Conservative Hero is Something To Be

By the time the McAdams case reached the Wisconsin Supreme Court, anything Abbate may have suffered was viewed through the lens of her subsequent removal to safer ground. And she was clearly seen as the guilty party.

According to Gableman’s reading of the earlier circuit court decision, “The student made a comment after class that the issue deserved to be discussed, and here we are linking up Orwell [italics mine], ‘Abbate explained that some opinions are not appropriate. And then she invited the student to drop the class.’” Gableman went on to wonder “how this position links up with the guiding values recited in the faculty report of nurturing an inclusive and diverse community that fosters, among other things, vigorous yet respectful debate. I’m just trying to sort out how one professor writing about a report of another professor shutting down a debate can somehow be the basis of intolerance. I don’t understand.”

To which Esenberg replied, “And Dr. McAdams would agree with you. He thought that what happened there, was an example of something, there was an exercise of authority by someone in a position of authority – ”

Gableman interrupted to assert his agreement that Abbate, though a graduate student, was in a position of authority: “She was a teacher. The papers have been calling her a student.  But . . . she was the teacher of that class.”  He was further incensed that “we get to a term of art such as academic freedom when in the real world people call it conversation. “

To which Esenberg heartily concurred. “Yes, people call it conversation. And the purpose of academic freedom, I think, is to have a robust conversation. And robust conversation . . . can become heated, can become charged.”

In other words, calling Abbate filthy names, publishing her email address and inviting other trolls to do the same, and threatening her life, were simply an element of “robust” academic dialogue.

Esenberg went on, at length and without interruption about “what a university is about and what academic freedom is designed to protect. . . As a private institution [Marquette] could have chosen to operate under a different set of rules. I suppose it still could today if it wants to.  But having made those commitments [to allowing its faculty free speech], it has to honor them now. I am aware of no conception of academic freedom under which [McAdam’s] blog post is not protected. I’m aware of no circumstances anywhere where someone can be terminated for something like this.”

“Robust” Discussion at MU

However, Marquette does have an anti-harassment and anti-bullying policy which clearly spells out that dog-whistling to trolls and getting them to harass and bully other people is not allowed.

Much of the discussion at the supreme court hearing concerned a 123-page report by a Faculty Hearing Committee convened by Marquette which recommended McAdams continued suspension, unless he agreed to play a bit nicer on campus. The report states that McAdams aimed “to strike a blow at the . . . claimed phenomenon of liberal political correctness” and “Ms. Abbate was essentially a casualty in that wider battle, one that Dr. McAdams does not appear to feel much regret over.”

The committee’s sometimes scathing criticism of a fellow professor is unsurprising. McAdams was not especially popular with his fellow faculty members, and most of his on-campus supporters prefer to lie low. In November 2014, a group of Klingler College department chairs – including the chair of McAdams’ own political science department – had signed an open letter posted on the Marquette Wire stating that they supported Ms. Abbate and that McAdams’ blogging had “led members of the Marquette community to alter their behavior out of fear of becoming the subject of one of his attacks.”

Or, as Gableman and Esenberg would have put it, one of McAdams’ “robust” discussions”

More than a year later, the Faculty Hearing Committee found McAdams’ actions in the Abbate matter to be “imprudent, unprofessional, and unwise.”  The committee’s report asserted that “without corrective action, such conduct is likely to continue in the future.” The decision by the FHC was unanimous. They recommended that McAdams be suspended for two semesters and advised that he be terminated if the reckless behavior they detailed – which included misrepresentations of Abbate’s remarks and intentions – were to continue. But MU president Michael Lovell upped the ante. He decided to apply that “corrective action.” In his confidential letter to McAdams on March 24, 2016, Lovell required that in order to return to teaching in Spring 2017, McAdams would need to acknowledge in writing that his behavior had been “reckless and incompatible with the mission and values of Marquette University” and to commit that his future behavior would conform to the University’s standards as defined by the Faculty Handbook.

Naturally, McAdams refused. And with both a skilled lawyer and a deep-pockets legal organization at his back, he soldiered on. WILL received nearly $3 million dollars in funding from the Bradley Foundation alone from 2011-2015, according to hacked foundation documents published by The Milwaukee Journal-Sentinel in 2017. JS-Online reports that of the Bradley Foundations $186 million in giving during that period, $143 million went to organizations that “support conservative policymaking.”

However, it is worth noting that McAdams’ so-called attacks are not reasoned academic arguments based on a set of conservative ideas. What’s startling about McAdams’ opinions is that they come from an academic, since they are completely in line with what you might hear from a Fox News pundit like Laura Ingraham.

Conservatives Battle for Free Speech on Campus

When McAdams appeared on Ingraham’s show earlier this year, she introduced him by grimly announcing, “Conservative speech is under assault.” McAdams had been suspended by Marquette because, according to Ingraham, he “chastised a graduate instructor named Cheryl Abbate.”  (Right-wing pundits love to name Abbate, while her former student remains under deep cover.) “Why?” continued Ingraham. Because McAdams had simply pointed out that Abbate “would not tolerate dissent on the topic of same-sex marriage during her class on ethics.”

What is most surprising about all the media attention the McAdams case has received is that not a single pundit has pointed out that it wasn’t Abbate’s job to “tolerate dissent” or conduct debates on same-sex marriage. It was her job to teach the subject matter. But to hear conservatives talk these days, a college education has no higher purpose than to provide a forum for students to debate the stuff they already thought when they got to campus.

When the camera pulled back on Ingraham, it revealed a shiny gold cross hanging around her neck. She emphasized that Marquette is a “Catholic institution” and said that Abbate had “berated” the student for his views on same-sex marriage. McAdams, who demonstrates an unscholarly love of generalities, chimed in with, “A lot of institutions claim to be Catholic but fundamentally they’re secular and politically correct.”

In his critiques of Marquette, McAdams, who is Protestant, has never been shy about claiming to be an expert on what it means to be Catholic. On Ingraham’s show, he called Marquette’s request that he apologize for his dog whistling to the trolls, “Stalinist stuff.”

The ghosts of the millions who were either murdered, starved to death, or remanded to the gulags by Stalin might, in turn, say that this was a clear-cut case of verbal overreach.

But it plays well with McAdams’ fan base, one that has been prepped by his appearances on Fox and his speech at CPAC-17. McAdams was originally critical of Donald Trump during the run-up to the 2016 election, but after Charlottesville, he boldly told WISN-TV in Milwaukee: “Frankly, I agree with Donald Trump. There’s hatred on both sides.”

The Corporate University

During the April 19 hearing in the Wisconsin supreme court, Ralph Weber’s argument was essentially that, as a private employer, Marquette has the right to fire whomever it pleases. This position was supported by amicus briefs filed by the Metropolitan Milwaukee Association of Commerce, the National Association of Manufacturers, and the Association of Jesuit Colleges and Universities.

In other words, if you work for someone, your statements reflect on them, and therefore your employer has a right to limit your free expression. Essentially, the briefs reinforce the idea that the fact of your employment limits your right to free speech to expressions your employer deems appropriate.

Esenberg’s argument on McAdams’ behalf is that full First Amendment rights are granted to every Marquette professor by right of contract. However, the Marquette Faculty Handbook in no way grants the full range of first amendment rights as established by recent legal precedent, which protects all speech, no matter how hateful, vulgar, or untrue, that falls short of incitement to outright violence. So Esenberg’s argument might have rested on shaky ground had he been arguing before a less favorable court.

Freedom of expression under the Marquette Faculty Handbook is granted to extracurricular activities, which could cover McAdams’ Marquette Warrior blog, rolling along since the mid-nineties in its prickly, right-wing way, despite the fact that there was nothing much academic or intellectual about it. The Marquette Warrior came into being in the first place because MU changed the name of its athletic teams from Warriors to Golden Eagles, which is exactly the kind of wimpy liberal over-sensitivity to which McAdams most strenuously objects, especially when its doing totalitarian things like changing the names of athletic teams.

But in the Abbate case, McAdams had not only continuously misrepresented what Abbate actually did, but as a direct result of his blog, she was viciously harassed, her life was threatened, and she fled MU. He called out the trolls, knowing full well that his blog has the ability to incite. He had gotten people fired – or at least unhired –before if he didn’t like them (i.e., they were openly gay), and he didn’t feel they belonged on campus. McAdams’ blog is about a lot more than him expressing himself. It’s about him changing how the University does its business.

That’s why Weber’s focus was on the rights of the employer to restrain the speech of an employee. As a student from Ripon college marveled after the hearing, this wasn’t a fight between liberalism and conservatism, but between two different brands of conservatism – one corporate, the other brashly populist.

Rebecca Bradley Speaks Out — Again

Justice Daniel Kelly wrote the opinion for the majority. However, Justice Rebecca Bradley was so moved by the issue that she wrote a concurring opinion. Appointed to the state supreme court by Walker in 2015, Justice R. Bradley won election to a ten-year term in 2016 against Wisconsin jurist JoAnne Kloppenburg. While an undergraduate and a member of student government at Marquette University in the early 1990s, Bradley, then Rebecca Grassi, was passionate about a variety of issues and not shy about expressing herself.

According to a Bruce Murphy column in Urban Milwaukee, in 1992, Bradley wrote to the Marquette Tribune that people were “either totally stupid or entirely evil” for electing President William Jefferson Clinton. “Either you condone drug use, homosexuality, AIDS-producing sex, adultery and murder and are therefore a bad person, or you didn’t know that he supports abortion on demand and socialism, which means you are dumb,” Bradley, then Rebecca Grassi, wrote.

Murphy reported that Bradley also condemned gay people as “queers” who engage in “abnormal sex” that leads to AIDS and “degenerates who basically commit suicide through their behavior.”  She has since apologized for her written opinions as an undergraduate and said they no longer reflect her world view.

Though she managed to ask only a few questions during the April 19 state supreme court hearing itself, Bradley’s concurring opinion in the McAdams’ case is a passionate defense of the First Amendment. In the years since her graduation from Marquette, Bradley has developed fears that the “dominant academic culture on college campuses” is one obsessed with “microaggressions, trigger warnings and safe spaces that seeks to silence unpopular speech by deceptively recasting it as violence.”

It’s not surprising that Justice Bradley would be so concerned that the ability to voice opinions like hers should be imperiled on the very campus where she first expressed them. Though it is clear that she now sees Marquette strictly through the lens of the McAdams case and the wider lens of what conservatives in particular believe is a rampant outbreak of political correctness and respect for other people’s feelings swamping our universities. Or as Bradley put it in her concurring opinion, academic freedom and free speech are “increasingly imperiled in America and within the microcosm of the college campus.”

Marquette lost in Wisconsin state supreme court on April 19. That was clear by the time the hearing ended, but it’s hard to see how President Michael Lovell could have reacted otherwise. He had backed himself into a corner by demanding that McAdams apologize before returning to campus, but he had needed to take some kind of action in response to the harassment of Abbate. However much this harassment was minimized at the hearing on April 19, it deeply affected the life of Cheryl Abbate. And it would never had occurred without John McAdams who, as Ralph Weber tirelessly points out, was blogging to his heart’s content without interference by the University until November 2014, when McAdams went out and got himself a much bigger megaphone.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Blog at WordPress.com.

Up ↑

%d bloggers like this: