Martyred at the Mic?

Stephen LemonsNovember 17, 2020
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Arizona State University removed student radio station manager Rae’Lee Klein due to an unwoke tweet. Does the Cronkite School have a free speech problem?

Original photography by Mirelle Inglefield
Original photography by Mirelle Inglefield

The obscure, sometimes anonymous threats sent via direct message to her social media accounts have made Rae’Lee Klein, a senior at Arizona State University’s Walter Cronkite School of Journalism and Mass Communication, think twice about living Downtown in student apartments near the school.

“There were some that were, like, ‘You have a bounty on your head, keep an eye out, there’s a target on your back, so don’t come to campus,’” the 21-year-old says.

The Wyoming native and erstwhile beauty pageant winner offers screenshots of some of the scores of threats she received in the wake of her August 29 tweet linking to a New York Post article about Jacob Blake, the black Kenosha, Wisconsin, man shot seven times in the back by police officers, leaving him paralyzed from the waist down.

“YOU ARE NOTHING AND EVERYBODY HATES YOU,” reads one. “ASU HAS A STORM COMING FOR YOU. F*** YOU.”

Other messages speak vaguely of the need to “eliminate” her. She deleted many of the toxic missives but, in hindsight, regrets not saving them all. “At the time, I just wanted it all to go away,” she explains.

Nor did she call the cops, since the threats didn’t rise to the level of someone stalking or doxing her. Now she’s living away from campus in another part of the Valley with her mom and brother.

Klein is a little too well-known these days for student housing. Her now-infamous tweet unleashed a torrent of hate on her head and eventually led to the Cronkite School canning Klein from her gig as manager for ASU’s student-run Blaze radio station.

Predictably, Klein’s case has become a conservative cause célèbre and the subject of a federal lawsuit filed on her behalf pro bono by local attorney Jack Wilenchik, a lawyer who has represented Republicans and lost souls alike, everyone from former Sheriff Joe Arpaio to former Sen. Jeff Flake’s son Austin during the infamous Green Acre Dog Boarding case in Gilbert. The claim charges ASU with violating Klein’s First Amendment rights and demands her reinstatement.

As a result, the Cronkite School is reeling from the latest in a line of cancel-culture controversies that have raised free speech issues in the department and caused some to wonder who’s in charge: the largely untested novice journalists who comprise the student body, or their professors and deans, who sometimes seem perplexed by how to deal with them.

“I didn’t think I’d make national news because of a tweet,” Klein says. “But welcome to 2020, I guess.”

Klein is a self-avowed conservative Christian, raised in the suburbs of Cheyenne, Wyoming, by a mom who works “in and out of real estate” (and who has since moved to Arizona) and a dad who’s a regional manager for a gas and chemical company. She says she’s always been self-conscious about leaning right in a journalism school that – like most J-schools not called Oral Roberts University – skews left. So, in the time-honored tradition of journalists everywhere, she usually would “filter herself” for objectivity while reporting stories.

If the filter slipped on August 29, it was not by much – at least by traditional media standards.

“Always more to the story, folks,” Klein wrote in her tweet. “Please read this article to get the background of Jacob Blake’s warrant. You’ll be quite disgusted.”

According to the Post article Klein shared, Blake’s warrant was for third-degree sexual assault, criminal trespass and disorderly conduct, all in connection with domestic abuse. Kenosha police were apparently aware of the warrant when they responded to a 911 call from Blake’s former girlfriend on August 23.

The caller told a dispatcher that her boyfriend was at her home, had taken her car keys and was not supposed to be on the premises. When police arrived, a tussle ensued between Blake and officers. In video of the incident that later went viral, Blake can be seen walking away from officers, who have their guns drawn, to the driver’s side of a vehicle, in which three of Blake’s sons were seated. With one officer pulling his shirt, Blake opens the door and seems to reach down, at which time the officer shoots him seven times from behind.

The shooting sparked demonstrations in Kenosha that turned violent, with arson, vandalism and one 17-year-old Trump supporter, Kyle Rittenhouse, accused of gunning down two protesters.

Add to the Kenosha uproar the racial unrest that’s ripped through the country since the death of George Floyd, the debate over police violence and the anger of the Black Lives Matter movement, and the mood on social media in regard to these subjects has been combustible, to say the least. Many on Twitter branded Klein a racist for her tweet and accused her of rationalizing police violence against black men, while others defended her, arguing that Blake’s warrant and charges related to domestic abuse were inconvenient truths that didn’t fit BLM’s neat narrative.

Klein denies that she was saying Blake deserved to get shot because of his warrant, but that she was responding to the Post article as “a woman reading about sexual assault,” and wasn’t “trying to push a greater agenda or anything.”

Yet, a few hours after her initial tweet – and being subjected to scathing commentary by the Twitterverse – Klein deleted it, writing a Twitter thread in which she apologized profusely.

“I, as a student journalist, did not take into account the harm this may have further caused and I am committed to minimizing harm as I try to seek truth,”
she wrote.

The six-member student board of Blaze Radio initially stood by Klein, issuing a statement that offered support for Black Lives Matter and pointing out that Klein’s tweet was from a personal account and did not represent the online-only station. But that barely lasted a day. Motivated by pressure from various student groups and an online petition calling for Klein’s dismissal, the board later confronted Klein in an uncomfortable Zoom meeting, pushing her to resign.

Throughout it, Klein largely remained silent, saying she didn’t want to give an answer until she’d had time to think about it more.

Afterward, when Klein’s answer was not forthcoming, the Blaze board voted to “remove” her, issuing a statement to that effect on August 31. But the board didn’t have hiring and firing power. Klein was an employee of the university, who received a stipend for her work at Blaze. Only ASU administration could pull the lever on
the guillotine.

Klein’s story has since become fodder for countless pundits, reporters and politicians, mostly on the R-side of the aisle, from Fox News anchors to the conservative The Western Journal podcast to the Goldwater Institute to the National Review, which proclaimed that “cancel culture” had come to the Cronkite School.

Local Republican politicos like Phoenix City Councilman Sal DiCiccio and Congresswoman Debbie Lesko rallied to Klein’s cause online. Initially, she sought out the help of the Goldwater Institute, which in turn referred her to attorney Wilenchik. On her behalf, he quickly fired off a public demand letter, attaching emails from Cronkite School interim dean Kristin Gilger, who informed the young Klein that “staying on as a station manager is not an option.”

Instead, Gilger offered Klein her own “station” to manage, among other options. Gilger followed up this offer days later with a longer email about the new opportunity she was offering Klein. “As this shows, you are not being punished for your tweet,” Gilger wrote.

Klein in the Blaze studio in Septempber 2019; Photo courtesy Rae’Lee Klein
Klein in the Blaze studio in Septempber 2019; Photo courtesy Rae’Lee Klein
Wilenchik in his Phoenix office; Photo by Mirelle Inglefield
Wilenchik in his Phoenix office; Photo by Mirelle Inglefield

However, neither Wilenchik nor Klein took the bait.

Wilenchik’s letter was biting. “Unfortunately, it falls to Ms. Klein – a 21-year-old student of journalism – to stand up for the principles of journalistic integrity and freedom of thought that schools of journalism are supposed to teach,” he wrote.

On October 12, Wilenchik followed through by filing suit in federal court, where the case is pending. ASU, however, has brought out the heavy cannons by retaining Phoenix First Amendment maven David J. Bodney of the firm Ballard Spahr.

In a statement issued by ASU, Bodney insisted that there was “no First Amendment violation here,” labeling Klein’s claim “meritless.” In fact, ASU contends that, despite Gilger’s communications, it has not fired Klein, who, as this piece goes to press, is still listed on Blaze’s website as the station manager and is still receiving her stipend of $1,485 per semester, which Klein ironically calls her “hush money.”

ASU’s maneuvering is a mere legal fiction, according to Wilenchik, who notes that Klein is locked out of the online station and has no power to influence the site’s programming.

The Cronkite School’s social media guidelines, posted online, warn students to “avoid posting information to social networking sites or blogs that could call into question your ability to act independently as a journalist,” a dictate that includes “expressing political views” and “sports fandom.”

But the school’s social media directives can be inconsistent. To wit: An ASU handout to Cronkite students that’s quoted in Klein’s federal suit varies somewhat from the online instructions, encouraging students to promote themselves on their Twitter accounts.

“Personality is important,” it reads. “Don’t sound like a robot. Self-promotion is encouraged, but personal accounts differ from organization accounts. Your audience wants to connect to a real person, so sound like one!”

These two admonitions seem contradictory and open to interpretation.

Asked if the Cronkite School intended to change its social media policies in the wake of the Klein case, Gilger provided a statement, saying that the school is “continually evaluating our policies on matters related to the practice of journalism including social media guidelines and what we teach students about how to use social media.”

The Klein affair is not the first free speech controversy to dog the school bearing the name of the late, legendary CBS evening news anchor. Last spring, ASU rescinded the offer of the position of dean to Sonya Forte Duhé, then director of the School of Communication and Design at Loyola University in New Orleans.

Again, a tweet was involved – this time from Duhé, in the wake of the horrific killing of George Floyd by Minneapolis police officers and the resulting avalanche of demonstrations. Duhé’s June 2 tweet, later deleted, read: “For the family of George Floyd, the good police officers who keep us safe, my students, faculty and staff. Praying for peace on this #BlackOutTuesday.”

The reference to “good police officers” was not well-received by some on Twitter. Duhé’s comment also prompted a Twitter thread from a former student, Whitney Woods, accusing Duhé of racism. Woods complained that Duhé criticized her hair as messy and inappropriate for television and treated her and other black students “like shit.”

Woods was soon not alone, and ASU’s student newspaper, The State Press, catalogued the gripes of nearly two dozen former students, who claimed Duhé was guilty of racist and homophobic “microagressions,” or bigoted slights directed at people of color and others.

About a week after Duhé’s tweet, ASU revoked her job offer. But ASU’s free speech battles have not been limited to conservatives or those accused of microaggressions. In August, ASU president Michael Crow issued a directive to students about COVID-19, informing them that those participating “in social gatherings on or off campus that do not adhere to public health protocols will be subject
to suspension.”

The statement didn’t mention protests specifically, but it came just prior to a Black Lives Matter march on campus. Students marched anyway, accusing Crow of trying to mute them, and chanting, “Michael Crow has got to go.”

On paper, at least, ASU backs free speech on campus. The First Amendment watchdog group Foundation for Individual Rights in Education (FIRE), has given ASU a “green light” rating, reserved for schools “whose policies nominally protect free speech.”

But when contacted for this story, a spokesperson for FIRE declined to comment about ASU’s current free speech imbroglios, including the case of political science student Alexia Isais, whose plight has been documented both in the Phoenix New Times and The Arizona Republic.

A self-avowed radical leftist, who has written such impassioned opinion pieces for The State Press as “Why I Am a Communist,” Isais, 20, was booted from her position as an editorial writer by The State Press’ editors, who unlike the Blaze board, can hire and fire writers.

Her offending tweet: a vague but vindictive swipe at law enforcement September 17 after the Arizona Department of Public Safety issued a confusing “Blue Alert,” which supposedly indicates when an officer is in danger. Isais, being no fan of law enforcement, first tweeted that she had received a Blue Alert on her phone and that the “serotonin” was “kicking in.”

She clarified in a follow-up tweet: “Sorry, but police aren’t actually human…they can all go fall into the abyss and society would be better off without them.”

Within hours, The State Press had handed her a pink slip. Unlike Klein, she will not be receiving the balance of her stipend, according to media reports. But also unlike Klein, student groups rallied to Isais’ defense, blasting The State Press and boycotting the paper much in the same way DiCiccio recently said he is boycotting the Cronkite School, due to the Klein and Duhé firings.

Asked to comment on Isais’ case, Klein did not reply. But Klein’s attorney, Wilenchik, said he would be interested in speaking with Isais if she wanted to call him.

So, does Klein’s case have a shot at succeeding?

According to California attorney Ken White, the answer is yes.

A noted First Amendment expert, blogger and contributor to The Atlantic whose tweets under the handle @popehat are religiously followed by free speech advocates, White reviewed the Klein complaint and says he believes Klein has a “strong First Amendment complaint” and that ASU’s argument is weak.

As a public university, ASU is essentially an arm of the government, so it doesn’t have the same leeway with Klein as a private employer would. And for this to be a civil rights violation, ASU doesn’t even need to fire Klein, White explains. “They just have to take some sort of disciplinary steps that deter a reasonable person from speaking,” he says. “Removing her from her position and creating this cloud over her and investigating her, that’s clearly enough.”

White says there is “a fairly well-established test, a series of questions,” determined by Supreme Court precedent “when a government employee is being punished for speech.” One of these involves speech related to official job duties, for which government employees can be punished. But “this is a case where she is tweeting something on her personal account,” White says, so the claim survives that test.

Next, asks White, was the speech a matter of public interest? With Klein’s tweet, the answer is in the affirmative. But the government also has an interest in “an orderly workplace” and an ineffective government workplace could outweigh someone’s free speech interest.

“You see this part of the analysis in cases like where it turns out a police officer is a [Ku Klux] Klansman on the weekend,” he says. “Being a Klansman… it’s protected by the First Amendment, but the police department has a legitimate interest in appearing not to be run by Klansmen.”

So a “credible workforce” outweighs the person’s free speech right “to be a Klansman and a police officer at the same time,” White says. The university’s stance, according to him, is that “we need everyone working for the university to be super-woke,” and if someone is not super-woke, it causes a disruption.

“It’s a pretty lousy argument actually,” White says. “And it would be pretty embarrassing for the university to argue that it’s so disruptive for an employee to tweet a link to the New York Post, that it makes it unreasonably difficult for them to do their job.”

White observes this is a problem U.S. institutions of higher learning are constantly wrangling with: trying to respect First Amendment rights while placating Gen Z students who want to muzzle and punish people they disagree with, he says.

According to White, modern students “are costing their schools gigantic amounts of money” on legal bills, fighting First Amendment battles that “are not even close.”

But when you have deep pockets like ASU, maybe a pricey First Amendment defense is the cost of doing business.

Wilenchik says ultimately – in a matter of weeks or months – there will be a hearing on his request for an injunction to reinstate Klein, but that before it gets to that stage, ASU’s attorneys may seek an evidentiary hearing on disputed facts in an effort to slow down the litigation.

In its statement, ASU contends that “Klein’s conduct in the aftermath of the tweet – rather than the tweet itself” was the reason for her removal from the position. He says ASU’s attorneys have argued to him that the interviews Klein gave about her situation after the fact, and her discussions with political figures, make her unfit to be Blaze’s station manager.

But Wilenchik says he’s familiar with this post-firing game of “gotcha” from the employment law cases he’s done. The problem for ASU is that Klein’s interviews and talks with politicos are also protected by the First Amendment.

Meanwhile, for Klein, the whole ordeal has put her off journalism altogether. Though she has received a couple of job offers from smaller conservative news outlets, she doesn’t seem that interested.

Instead, she’s headed to where the real money is: law school.

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