Cancel Culture Win: U. North Texas Prof. Timothy Jackson’s Free Speech And Defamation Case Can Move Forward, Court Rules

Cancel Culture Win: U. North Texas Prof. Timothy Jackson’s Free Speech And Defamation Case Can Move Forward, Court Rules

Timothy Jackson is a Professor of Music Theory at the University of North Texas who ran into the campus cancel culture buzzsaw in the summer of 2020, when attacks on free-thinking professors swept academia as BLM riots swept cities. We have covered so many of these cases, including Prof. Jackson’s.

I have limited time, and regret that I was not able to focus more on Prof. Jackson’s situation. It’s worth paying attention to, particularly for reasons you will read below.

Prof. Jackson’s case was particularly illustrative of the mania that swept academia, where not pledging and evidencing allegiance to every last dogma was viewed as heresy. Prof. Jackson’s alleged offense was disputing claims that a noted historical music theorist was racist. That’s it. Disagreeing was enough to whip up the academic mob.

As summarized in an article in National Review at that time:

Chances are you have never heard of the music theorist Heinrich Schenker or the Journal of Schenkerian Studies, a publication at the University of North Texas (UNT) devoted to “all facets of Schenkerian thought, including theory, analysis, pedagogy, and historical aspects.” But that journal, and, in particular, the UNT music-theory professor Timothy Jackson, who oversees it, are now at the center of a controversy that goes to the heart of whether we are truly a free society. Can people speak their minds, or will those who express dissenting opinions be destroyed by a mob they can neither challenge nor resist?

In the most recent issue of the Journal of Schenkerian Studies, Jackson published a critique of a plenary address given by the music theorist Philip Ewell to the Society for Music Theory. Ewell posited “a ‘white racial frame’ in music theory that is structural and institutionalized.” In particular, Ewell accused Schenker (1868–1935) of being racist, therefore suggesting that his work in music theory is tainted.

For Jackson to have questioned Ewell’s thesis and defended Schenker against the charge of racism was seen as nothing short of heresy. UNT graduate students and faculty, as well as music professors across the country, are now demanding that Jackson be investigated, his journal shut down, and his position eliminated. A group of graduate students in UNT’s Division of Music History, Theory, and Ethnomusicology issued a statement calling on the university to “hold accountable every person responsible for the direction of the publication” of the journal.

“This should also extend to investigating past bigoted behaviors by faculty,” they wrote, “and, by taking this into account, the discipline and potential removal of faculty who used the [Journal of Schenkerian Studies] platform to promote racism. Specifically, the actions of Dr. Jackson — both past and present — are particularly racist and unacceptable.” A group of UNT faculty piled on, circulating a petition “endors[ing] the call for action” by the graduate students.

You can guess the rest. Spineless (at best) faculty and administrators saw attacking Prof. Jackson as the easy way to calm the howling mobs. And in so doing, Prof. Jackson alleges his free speech rights were infringed, and he was defamed and had his professional career damaged. And he’s suing.

In a January 14, 2021, federal court Complaint against the individual members of the university Board of Regents and various other individuals, Prof. Jackson alleged, among other things:

Plaintiff Timothy Jackson is a professor at the University of North Texas and a scholar of the music theorist Heinrich Schenker. After a fellow music scholar named Philip Ewell published a paper and delivered a prominent talk that denounced Schenker as “an ardent racist,” Professor Jackson organized a symposium and invited music scholars to submit papers responding to Ewell’s thesis. Many (though not all) of these symposium papers were highly critical of Ewell’s attacks on Schenker. Professor Jackson also contributed his own piece to the symposium, which defended Schenker and sharply criticized Ewell for quoting Schenker out context and refusing even to mention that Schenker was Jewish and experienced anti-Semitism in Nazi Germany. Professor Jackson then arranged for these symposium papers to be published in the Journal of Schenkerian Studies, a journal that Professor Jackson founded almost 20 years ago and operates at the University of North Texas.

Professor Jackson’s defense of Schenker and criticisms of Ewell—as well his role in publishing a symposium that was largely (though not entirely) critical of Ewell’s denunciations of Schenker—incited an academic mob. Allies of Ewell have been demanding that the University of North Texas fire Professor Jackson and shut down his Journal for Schenkerian Studies, as well as the Center for Schenkerian Studies that Professor Jackson runs at the university. Numerous individuals defamed Professor Jackson by publishing statements calling him “racist”—merely because he organized a symposium to defend a music theorist accused of being a racist and because he criticized a colleague, Philip Ewell, who happens to be black.

Rather than defend Professor Jackson’s academic freedom, the University of North Texas and its administrators joined the witch hunt. They launched an investigation into Professor Jackson, and commissioned an “ad hoc review panel” to determine “whether the standards of best scholarly practice were followed” in publishing the symposium. The panel issued its report on November 25, 2020, published on the University of North Texas website, which makes baseless criticisms of the “editorial and review practices” of the Journal for Schenkerian Studies. Professor Jackson’s department chair is now using this report as an excuse to exclude Professor Jackson from any continued involvement with the journal.

All of this—the investigation, the criticisms of Professor Jackson in the ad hoc panel’s report, and the threats to remove Professor Jackson from the Journal for Schenkerian Studies—was done to retaliate against Professor Jackson for exercising his constitutional rights under the Speech Clause. He sues to undo these unconstitutional actions and enjoin the university from any further retaliatory action against him. Professor Jackson is also seeking relief against the individuals who defamed him by publishing and propagating baseless statements that he is “racist.”

There were some procedural twists and turns as to who could be sued, leading to the court holding an evidentiary hearing. That’s not very common on a motion to dismiss, but there were jurisdictional issues which imperiled the case.

In an important Memorandum Decision and Order denying the motion to dismiss, the court summarized the testimony:

The Court will briefly summarize the facts as developed at the Hearing. Both Plaintiff and Dr. Brand, on behalf of UNT, testified about the aftermath of this controversy. Plaintiff explained that he currently has no involvement with the Journal he founded and has suffered severe damage to his reputation. Pieces set for publication in the thirteenth volume of the Journal are frozen in the editing stages because, as UNT put it, the Journal is “on ice,” or, in other words, at a functional standstill. Plaintiff further testified that at least one other UNT funded journal had engaged in the same scholarly practices with which the Panel expressed disapproval in its Report. Specifically, Plaintiff named a journal that had previously published anonymous work and foregone a peer review process but testified that UNT took no action against that journal or its leading faculty member. Additionally, Plaintiff explained that UNT had posted the Panel’s Report to the UNT website but never published Plaintiff’s Response. The Response did not become public record until Plaintiff filed the present case.

Defendants maintained that UNT did not remove Plaintiff from his role or banish him from the Journal; rather, the Journal’s inactive status results from the restructuring of the Journal’s editorial board that Plaintiff agreed to when he adopted the Panel’s recommendations. Specifically, the Journal is now expected to be led by an editor-in-chief who holds a full-time faculty position
at either UNT or another university. However, Defendants contended that since Plaintiff’s adoption of the Panel’s recommendations, the Journal’s editor-in-chief position has been vacant because no one has applied for the position. Until someone applies for and is offered that position, the Journal will remain “on ice.” Further, Defendants noted that Plaintiff has not applied for the position but that he is welcome to. Defendants also claimed that Plaintiff is still technically on the editorial board—but in the same breath indicated there is no editorial board until the editor-inchief appoints board members. This circular reasoning, Plaintiff responded, has left him essentially removed from the Journal he founded because neither he, nor anyone, can publish scholarship in it.

The Motion to Dismiss, as summarized by the court, was procedural in nature:

Defendants’ Motion to Dismiss asserts that Plaintiff cannot properly invoke this Court’s federal jurisdiction for three reasons: (1) Plaintiff lacks Article III standing to bring this suit against the Board Defendants; (2) Eleventh Amendment sovereign immunity shields the Board Defendants from suit; and (3) the Court cannot—or, in the alternative—should not exercise supplemental jurisdiction as to the defamation claim.

As to standing, the court found that Prof. Jackson alleged an actionable injury:

Plaintiff claims an ongoing injury in his continued banishment from the Journal. Defendants assert Plaintiff only suffered past harm—not an ongoing injury—because he was not banished from the Journal—the Journal is simply on pause until an editor-in-chief is appointed who can restart its operations. Further, Defendants claim that any threat of future injury is purely speculative, and the current state of Journal affairs does not constitute a cognizable injury suffered by Plaintiff.

The Court finds that, given the relaxed standing requirements in First Amendment cases, Plaintiff has established a cognizable injury. Plaintiff has been de facto removed from the Journal he founded and therefore cannot engage in the speech he wishes to express…..

The harm from which Plaintiff continues to suffer constitutes, at a minimum, chilled speech. Specifically, Plaintiff can no longer publish scholarship in the Journal that he considers a trademark of his life’s work, and if he took action to publish the work that is currently “on ice,”3 he would face negative consequences imposed by UNT officials.

The court also found that Prof. Jackson has alleged causation linking that damage to the actions of the Regents:

Defendants in this case seek to put Plaintiff in a Catch-22: if he sues the Board of Regents as an entity, sovereign immunity likely bars the federal claim. But if Plaintiff sues members of the Board of Regents in their official capacities, Defendants claim he cannot satisfy causation sufficient for Article III standing. Though the doctrines of standing and sovereign immunity remain somewhat convoluted, it cannot be that, absent literal causation between named defendants and a plaintiff’s injury, a constitutional claim is dead on arrival.

Further, federal courts routinely address the merits of claims against university board members—as well as claims against governors, attorney generals, etc.—in their official capacities, as opposed to claims against the officials who directly caused the alleged injury….

Any self-inflicted injury in this case does not break the causal chain. Plaintiff may have stepped down from his leadership role, but he did so only after enduring serious backlash, multiple calls for his removal from graduate students and his own colleagues, UNT’s investigation of his Journal’s editorial practices, and a threat of removal from his leadership position on the Journal. Plaintiff’s decision to partially succumb to this pressure may have “‘put [Plaintiff] at risk of injury,’ but that fact alone does not defeat standing.” Kinetica Partners, 505 F. Supp. 3d at 669 (quoting Ciox Health, 435 F. Supp. 3d at 51). Further, Plaintiff’s decisions were made with reliance on UNT’s “guarantees in its policies to ensure that the faculty and administration protect academic freedom and free expression” and with the understanding that he would “carry[] on the Journal’s and the University’s important work” (Dkt. #1 Exhibit V at p. 22). Now, because of circumstances in UNT’s control, Plaintiff can no longer carry on this work.

For all these reasons, the Court finds the cause of Plaintiff’s injury is fairly traceable to the Board Defendants.

The court also found that the individual Board of Regents members named did not have sovereign immunity:

The Board Defendants, in their official capacities as members of UNT’s governing board, are connected to that threat of enforcement.10 Therefore, the Board Defendants have some connection to the challenged action. See Verizon Md. Inc., 535 U.S. at 645 (“The prayer for injunctive relief—that state officials be restrained from enforcing an order in contravention of controlling federal law—clearly satisfies our straightforward inquiry.”). Consequently, the Ex parte Young exception applies, and sovereign immunity does not shield the Board Defendants from suit.

The court then ruled that it would exercise jurisdiction over the state law defamation claims:

Evident from the extensive standing, sovereign immunity, and First Amendment (see infra) analyses in this Order, the federal claims in this case constitute the real body. The essence of the defamation claims, though brought against a greater number of defendants, do not substantially predominate over the constitutionally complex federal matters.

Additionally, the Court does not today dismiss the First Amendment claims. Accordingly, the Court will exercise supplemental jurisdiction.

After disposing of all the procedural objections, the court addressed whether Prof. Jackson stated a claim upon which relief could be granted, finding that he had alleged facts sufficient to sustain retaliation and suppression of speech claims:

Plaintiff alleges he was de facto removed from the Journal in retaliation for the symposium’s criticisms of Professor Ewell. This is a plausible assertion that states a legal claim. UNT, responding to backlash from its displeased students and faculty, took immediate action. It created the Panel to investigate the Journal and its editorial practices and later issued recommendations regarding the Journal that Plaintiff was expected to implement. Dr. Brand then threatened Plaintiff with removal from the Journal. Plaintiff alleges these actions have left him banished from the Journal he founded. Plaintiff also alleges UNT removed him from the Journal for his speech. The Court at the 12(b)(6) stage views the alleged facts in the light most favorable to Plaintiff, and, accordingly, can reasonably infer that Plaintiff was disciplined as a result of the controversial remarks published in Volume 12 of the Journal….

Plaintiff alleges he took part in publishing a symposium that, given the response, clearly interests the music theory community and other academics. With respect to the second element, Plaintiff alleges he was de facto removed from the Journal in retaliation for the symposium’s criticisms of Professor Ewell. As reasoned previously, this is a plausible assertion.12 ….

For the foregoing reasons, this Court finds Plaintiff has successfully shown a plausible First Amendment violation—for either retaliation or for the unconstitutional stifling of speech—under § 1983.

The court also found Prof. Jackson stated claims for defamation:

Accepting as true all well-pleaded facts in Plaintiff’s Complaint, and viewing them in the light most favorable to Plaintiff, the Court finds that Plaintiff’s defamation claims plausibly suggest an entitlement to relief. Absent a claim which is obviously insufficient, a court should not grant a Rule 12(b)(6) motion to dismiss, thereby denying Plaintiff an opportunity to develop facts to support his Complaint. Issues pertaining to Plaintiff’s defamation claims are better resolved at the summary judgment stage. Thus, Defendants’ motion to dismiss for failure to state a claim of defamation is denied.

And there you have it. Prof. Jackson’s case can move forward. Surviving a motion to dismiss is a huge hurdle in free speech and defamation cases, particularly where the claims involve individual Regents (or Trustees). But Prof. Jackson survived, which is all you need on a motion to dismiss.

This is a big win. Prof. Jackson will have to survive additional procedural hurdles, such as a motion for summary judgment, but in this case the facts already seem pretty well developed, so if he could survive a motion to dismiss, there’s a good chance he’ll survive long enough to get to trial.

UPDATE (1-24-2022):

I should have mentioned that Prof. Jackson is represented by Michael Allen and Samantha Harris of Allen Harris Law, whose work fighting for faculty, staff, and students under cancel culture attack we have written about many times. Additional counsel is Jonathan F. Mitchell, one of the attorneys representing me in the lawsuit against the NY State health commissioner.

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