Victory For The First Amendment In The Third Circuit
The following essay is by Frederick C. Kelly III, Esq., with whom FEF’s Glen Allen has litigated several important First Amendment cases:
VICTORY FOR THE FIRST AMENDMENT IN THE THIRD CIRCUIT
On September 8, 2025 the Third Circuit Court of Appeals did something remarkable: it protected a proponent of race realist speech against depredation by a state university. The case is Jorjani v. New Jersey Inst. Tech, 151 F.4th 135 (3rd Cir. 2025) and it bears watching.
Jason Jorjani was a lecturer at the New Jersey Institute of Technology (or NJIT) in Newark, New Jersey. (A lecturer is a kind of junior professor, a role many universities have embraced as a means of exploiting the large number of Ph.Ds on the market). He had taught for several years at NJIT in Newark, earning very strong reviews from his students, especially the minorities. His publishing record, too, was very strong. But then Jorjani found himself the subject of a doxxing attack published in the New York Times on September 19, 2017 (viz. “Undercover with the Alt Right” by Jesse Singal). It transpired that in the summer of 2017, while school was not in session, Jorjani was secretly recorded without his consent during an off-campus conversation in a pub in New York City. His interlocutor in that conversation, which had gone on for hours and covered various controversial topics, turned out to be an undercover left-wing operative.
None of Jorjani’s remarks were directed to anyone at NJIT, nor did they mention anyone at NJIT.
The premise that the left-wing operative used to secure Jorjani’s confidence was that the operative was a right wing graduate student who wanted to discuss how the left persecutes the right in the modern academy. Immune to all irony, one of the first things the left wing organization that had set the sting did upon publication was to post a Facebook petition demanding that Jorjani be fired for his comments in the New York City pub.
The left-wing operatives would soon have their way.
Instead of defending Jorjani’s right to speak, the day after the NYT Op-Ed was published the President of NJIT, along with the Dean, responded with the release of a Mass Email that went to all faculty and staff at NJIT (approximately 200 people) before Jorjani had even been heard from. The Mass Email specifically condemned Jorjani for his speech as revealed in the NYT Op-Ed and then announced that he was being treated to an investigation because of his speech. Five days later, those sanctions were given added teeth when the NJIT administration suspended Jorjani from teaching while they conducted an “investigation” prompted by his speech.
NJIT’s administration inspired something like a feeding frenzy in the rest of the faculty. With the NJIT administration having chummed the waters by indicating that Jorjani could and would be targeted because of his extra-mural speech, the sharks began to circle. The administrative attack on Jorjani induced people within NJIT to scrutinize other extra-mural speech by Jorjani and bring such speech to the attention of the NJIT administration. Thus, shortly after the Mass Email, a female professor – and of course, it would be a female professor because, as Orwell noted, “It was always the women, and above all the young ones, who were the most bigoted adherents of the Party, the swallowers of slogans, the amateur spies and nosers-out of unorthodoxy”– handed NJIT’s Provost an essay from Jorjani’s personal (non-university) website entitled, “Against Perennial Philosophy.” His sin here was mentioning a genetic link between race and intelligence, which really set the faculty frothing. Entire departments took to the school newspaper to denounce Jorjani – though none dared debate him.
Jorjani’s “Against Perennial Philosophy” essay was again an instance of extra-mural speech on various topics of public concern, including geo-political matters in modern Iran, brutal periods in Persian history (including an apparent historical genocide perpetrated by invading Turkic peoples against the prior Aryan peoples of Persia), and the prospect of eugenics. It was composed from remarks Jorjani had originally delivered to a Persian think tank he had been involved with. Again, Jorjani had never directed “Against Perennial Philosophy” to anyone at NJIT, nor did the essay even mention anyone at NJIT.
Suffice to say that no one at NJIT was interested in past genocides, let alone of white people. Rather, what excited their attention was the very small part of the essay which dealt with racial differences in intelligence.
Needless to say, Jorjani’s suspension was never reinstated; instead, the school simply refused to renew his appointment. Incredibly, the state university contended that Jorjani’s extramural speech in both the NYC pub and in his essay, which they conceded met the test under the law for “speech on a matter of public concern,” was simply too “disruptive” in itself to permit his continued employment. (Again and again NJIT came back to this notion of “disruption,” ultimately derived from the case Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)). If one wants to know what kind of men find their way in the modern academy and hold rein there, we offer the following exchange from the deposition with Jorjani’s Dean:
Q: Students and faculty were so distracted by a conversation that had been secretly recorded off campus months before, they could not effectively concentrate on their studies and on their teaching at NJIT; is that right?
A: Yes.
Nor was this a momentary lapse of reason. Here are some additional outtakes from the Dean’s performance at his deposition:
Q: In the course of your nearly three decades in the academy, have you had the opportunity to consider the concept of academic freedom?
A: It — it — it’s difficult to say. I — I haven’t explicitly considered it.
*
Q: Your job [is] concerned in some respect with academic freedom; correct?
A: I’m not aware that, you know, specifically that’s in my job description.
*
Q: So my question to you, Dean ___, is: Are there some instances when there should be a pall of orthodoxy thrown over the classroom?… MR. KELLY: Let the record reflect that Dean _____ was taking some time to answer this question. Please take as much time as you need, sir.
THE WITNESS: Sure. I’ll say possibly, yes.
*
Q: So, Dean____, the question is: As part of the limited concept of academic freedom that you hold, are you aware of the need for the academy to protect controversial speech?
A: No.
*
Q: Did you have any concern in September of 2017, with protecting unpopular speech?
A: Did I have a concern about protecting unpopular speech?
Q: Yes, sir.
A: No.
Q: Have you had time to reflect upon that lack of concern since then?
A: I — I — I — no. I haven’t really thought about it.
And yet the trial court, standing all modern First Amendment jurisprudence on its head, backed the Dean and NJIT. It is as though the judge interpreted the bedrock principle to be that the Government certainly may prohibit the expression of an idea – simply because society finds the idea itself offensive or disagreeable.
But a unanimous panel of the Third Circuit disagreed, strongly: “the disruption NJIT described does not outweigh even minimal interest in Jorjani’s speech.” Jorjani v. New Jersey Inst. Tech, 151 F.4th 135, 144 (3rd Cir. 2025). It not only characterized the alleged “disruption” as “minimal” but noted that it differed “little from the ordinary operation of a public university.” Id. at 142. Nowhere did the Third Circuit indicate that it was confronting a “close question.”
The case of Jorjani v. New Jersey Inst. Tech, 151 F.4th 135 (3rd Cir. 2025) is now etched in law as a firm reprimand against state sponsored groupthink at public university. Let us hope for a few more free speech victories.
– Frederick C. Kelly, Goshen, New York. The author records his gratitude for professional help from the FEF in reviewing his brief in Jorjani v. New Jersey Inst. Tech, 151 F.4th 135 (3rd Cir. 2025).
