Was a Trump critic’s 1st Amendment violated by Yale? We’re about to find out. – MSNBC

Posted: March 31, 2021 at 3:38 am

For much of the past four years, psychiatrist Dr. Bandy X. Lee, a professor at Yale University, warned the public about the mental health of then-President Donald Trump. Her statements ended up costing her her job at Yale, and this week, Lee sued Yale for breaking her employment contract.

The survival of human civilization for four years turned on the psychological condition of a man whom Lee believed in her professional opinion was mentally unfit for office.

Some observers, including myself and my law school classmate George T. Conway III, agreed with Lees assessment, publicly expressing concern that Trumps extreme narcissism made him dangerous.

Up until noon this past Jan. 20, Trump had the power to launch a nuclear attack. The survival of human civilization for four years turned on the psychological condition of a man whom Lee believed in her professional opinion was mentally unfit for office.

Many of us urged that Trump be removed under the 25th Amendment, which was ratified in the 1960s to address physical or mental incapacity of a president. Along with Norman Eisen of the Brookings Institution, I co-authored a chapter on the 25th Amendment to Lees book, The Dangerous Case of Donald Trump.

But not everyone agreed with our assessment of Trumps mental health. Dr. Ronny Jackson, the White House physician at that time who later successfully ran for Congress as a Republican believed Trump was fit for office. Law professor Alan Dershowitz, often an apologist for Trump and Trumps lawyer in his first impeachment trial, believed our concerns about Trumps mental condition were overblown. Some psychiatrists agreed with that assessment as well. Who was right?

Nuclear war did not come, so our worst fears never came to be. But Trumps reaction to his election loss in November and his incitement of the Capitol riot of Jan. 6 proved that he could be extremely dangerous. The events of Jan. 6 also proved that agitation can spread easily between a charismatic leader and his followers when egging one another on to do more irrational and more violent things.

The events of Jan. 6 proved that agitation can spread easily between a charismatic leader and his followers.

All of us had the freedom to raise our concerns about Trumps mental health without fear of retribution. The First Amendment gave us that right, and our employers respected our freedom to speak our mind on a matter of great public importance. All of us, that is, except Lee.

Lee continued to question Trumps mental health and point out the danger he posed for our country and the world. Things appeared to come to a head when she also raised questions about Dershowitz in response to a tweet I myself posted after the professor boasted that he had a perfect sex life which, I pointed out, echoed Trumps narcissistic boast in 2019 that he had had a perfect phone call with the president of Ukraine.

Lee questioned whether Dershowitz and Trump shared the same psychosis. Dershowitz, normally a champion of free speech, wrote Yale and demanded an investigation. In 2020, the university fired Lee, who was on a term contract to teach at the medical school. Yales reason: Her alleged violation of the Goldwater Rule.

The rule was endorsed by the American Psychiatric Association in the 1970s after some psychiatrists expressed concern about 1964 presidential candidate Barry Goldwaters mental fitness to be commander in chief.

But regardless of whether these psychiatrists were correct about Goldwater a fiery speaker who was nonetheless a model of mental stability compared with Trump the Goldwater Rule is wrong. It was an attempt by the psychiatric profession to prevent its members from participating in one of the most important parts of political discourse, which is assessment of the character of our leaders.

The psychiatric profession needs to repudiate the Goldwater Rule.

The psychiatric profession needs to repudiate the Goldwater Rule. The mental health condition of public officials is not simply a private matter. The public, including psychiatrists themselves, must be free to talk about it. The 25th Amendment recognizes that physical or psychiatric incapacity of a president can be grounds for removal by the Cabinet and Congress. That removal mechanism, as well as the election process to remove a president, is substantially weakened if psychiatrists are not permitted to speak out about the presidents mental health. A free country depends upon free speech, and that includes free speech for Lee.

There is the fact that Yale, as a private university, is not a state actor bound by the First Amendment. Lee was not tenured, so perhaps Yale believed that meant she had less of a right to free speech. But the university has repeatedly committed itself to the principle of academic freedom, including its well known 1974 Woodward Report and statements about freedom of expression in the faculty handbook, and is bound to honor that commitment in its contracts with academic employees including Lee.

This matter should not have to be decided in a court of law. Yale should stand up for the academic freedom of its faculty, which is essential to the core mission of a university. Even if Lees comment about Dershowitz was superfluous, it was well within the scope of her academic freedom.

Her observations about Trump were a critical part of the public conversation about the psychological disposition of a very controversial president. Everyone knew that she had not examined Trump as a patient and that her observations were based on publicly available information.

And her observations, as well as her experience with mental health, are as important in the case of Trump as her opinions are important in the many cases where she has examined patients, including as an expert witness for mental capacity in criminal trials.

Even more important than Lees lawsuit against Yale is that we should examine the role of mental health professionals in our political system. A few have played a pernicious role, including the psychologists who advised the government on how to make the post-9/11 torture program more effective for coercing detainees. Others, such as Lee, have played a constructive and necessary role in warning about the consequences of vesting political power in persons who might abuse it. For that she should not be punished.

Richard W. Painterwas the chief White House ethics lawyer from 2005 to 2007, underPresident George W. Bush. He is currently the S. Walter Richey Professor of Corporate Law at the University of Minnesota, and is a graduate of Harvard College and Yale Law School.

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Was a Trump critic's 1st Amendment violated by Yale? We're about to find out. - MSNBC

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