"a Kind of Continuing Dialogue": Reexamining the Audience's Role in Exempting Academic Freedom from Garcetti's Employee Speech Doctrine

• Publication year: 2021

"A Kind of Continuing Dialogue": Reexamining the Audience's Role in Exempting Academic Freedom from Garcetti's Employee Speech Doctrine

Michael A. Sloman
University of Georgia School of Law

[Page 935]

"A KIND OF CONTINUING DIALOGUE": REEXAMINING THE AUDIENCE'S ROLE IN EXEMPTING ACADEMIC FREEDOM FROM GARCETTI'S EMPLOYEE SPEECH DOCTRINE

Michael A. Sloman^*

The U.S. Supreme Court's decision in Garcetti v. Ceballos put further restraints on public employee speech by exempting from First Amendment protection speech made pursuant to the "official duties" of public employees. This limitation, if applied to the speech of college professors, would constrain their academic freedom of instruction and scholarship by permitting overbearing institutional oversight. This constraint would be detrimental not only to the employed professors, but also to their students and the post-secondary educational system as a whole. Courts should not apply Garcetti to academic freedom in the post-secondary education context, and they should avoid further limitations on professorial speech.

This Note argues that Garcetti should not be applied to higher education faculty by reconsidering the purpose of the university and the role that students and colleagues play in the expressive activities of professors. While many commentators have noted Garcetti's potential detriment to the speaker, very few have considered the audience's participation in both instruction and research. This Note accounts for the rights of those receiving instruction from, or engaging in scholarship with, the professor to argue that restraints on professorial speech harm both the speaker and the audience.

[Page 936]

Table of Contents

I. Introduction....................................................................937

II. Legal Background.........................................................939

A. Academic Freedom................................................940
B. Public Employee Speech Doctrine......................944
C. Garcetti v. Ceballos............................................945

III. Academic Freedom After Garcetti...........................947

A. Circuit Court Cases..............................................947
B. Post-Garcetti Scholarship..................................949

IV. The Role of an Audience.............................................951

A. The Right to Receive Communications...............951
B. Reaffirming The Rights of Listeners in The Arcetti Analysis.................................................953

V. Conclusion......................................................................956

[Page 937]

I. Introduction

"The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."¹ The U.S. Supreme Court's sweeping assertion in Tinker v. Des Moines perfectly demonstrates how far the American judicial system is willing to go to preserve the classroom's peculiar role as "the 'marketplace of ideas.'"² These "constitutional freedoms" primarily refer to the First Amendment's protections for free expression.³ Importantly, these protections are not merely rights afforded to American students; rather, teachers also enjoy (to some extent) free speech rights.⁴ At the collegiate level, freedom of expression naturally implicates a professor's in-class instruction or professional scholarship.⁵ A professor's freedom to teach, research, and publish without infringement is generally known as "academic freedom."⁶ But does the First Amendment fully embrace academic freedom as a form of protected individual expression?

In Bishop v. Aronov, the Eleventh Circuit expressed doubt "that academic freedom is an independent First Amendment right."⁷ Despite ardent protections for free speech, both teachers and scholars recognize the tenuous legal status of academic freedom as protected speech.⁸ Without freedom to publish or instruct as they

[Page 938]

please, professors may be subject to discipline from their employing institutions, and the marketplace of ideas may be sullied. The immediate fear of government censorship is obvious—our society has long recognized that a college "may not restrict speech or association simply because it finds the views expressed by any group to be abhorrent."⁹ This legitimate fear of censorship was heightened by the U.S. Supreme Court's decision in Garcetti v. Ceballos.¹⁰ There, the Court further narrowed the availability of free speech to public employees by holding that all speech made pursuant to the "official duties" of a public employee's job does not receive First Amendment protection.¹¹ This restriction on free expression naturally applies to instructors and researchers at public universities whose official duties likely include forms of speech.¹² Given that the classroom requires the most "vigilant protection" of our constitutional freedoms,¹³ Garcetti's potential limitation on collegiate instruction and scholarship, by placing these activities outside the scope of the First Amendment, presents a very real danger to American society as a whole.

This Note argues that Garcetti cannot be applied to the academic speech of professors pursuant to their teaching or scholarship, because controlling this speech contravenes the purposes of the First Amendment and infringes on the rights of the audience. Only one other scholar, Aaron Worthen, has addressed the role the

[Page 939]

audience plays in a Garcetti-based analysis of professorial speech.¹⁴ Worthen, however, concludes that only professorial speech related to scholarship should be exempt from the Garcetti doctrine, arguing that in-class instruction should still be subject to Garcetti's stringent standards.¹⁵ This Note takes a similar approach as Worthen, examining the legal background of academic freedom, the effects of Garcetti and post-Garcetti decisions on academic freedom, and finally arguing for the abandonment of Garcetti in the narrow context of professorial speech. Unlike Worthen, however, this Note concludes that both instruction and scholarship should receive higher levels of constitutional protection under the First Amendment.

Part II of this Note explores the history of academic freedom in the United States and the development of the public employee speech doctrine, focusing specifically on Garcetti. Part III examines how the circuit courts have treated cases where parties have asserted academic freedom after Garcetti and how scholars have reacted to this developing doctrine. Part IV summarizes the audience's right to receive communication and its heightened importance in education and concludes that additional First Amendment protection precludes the application of Garcetti to collegiate academic freedom cases.

II. Legal Background

Professorial speech jurisprudence draws upon two competing First Amendment doctrines: academic freedom's permissive free speech principles and the free speech limitations imposed on government employees.¹⁶ Although these two doctrines rarely overlap, "the nature of the university setting is, in many respects, unique among other places of public employment" and requires

[Page 940]

courts to differentiate between academic speech and employee speech.¹⁷ University professors must confront both these protections and limitations when assessing their rights. This Part details the evolution of both doctrines and analyzes the challenges to their reconciliation presented by Garcetti, which further limited the free speech rights of public employees.¹⁸

A. Academic Freedom

In 1940, the American Association of University Professors (the AAUP) promulgated a Statement of Principles on Academic Freedom and Tenure (the 1940 Statement).¹⁹ The stated purpose of the document was "to promote public understanding and support of academic freedom" and to lay out three guiding principles for academic freedom: (1) professors are entitled to "full freedom" in their research and publications; (2) professors have freedom to discuss what they want in class, as long as the content is reasonably related to their subject matter; and (3) professors who "speak[] or write[] as . . . citizen[s]" should be free from censorship or discipline by their employing institution.²⁰ The 1940 Statement formalized the concept of academic freedom and the AAUP's formulation continues to guide the standards for many academic codes.²¹

[Page 941]

The U.S. Supreme Court first began acknowledging academic freedom as a unique interest of education in the early 1950s.²² Justice Douglas's dissent in Adler v. Board of Education²³ and Justice Frankfurter's concurrence in Wieman v. Updegraff²⁴ invoked the concept of academic freedom to caution against state actions aimed at employees during the Communist scares, arguing that teachers cannot effectively educate in an atmosphere that distrusts discussion of sensitive, and possibly subversive, topics.²⁵ Though the legal conception of academic freedom would grow to encompass more parties and greater rights, the foundation of the Court's jurisprudence "began primarily with an emphasis on the rights of individual teachers."²⁶

Sweezy v. New Hampshire marked the first great triumph for academic freedom in the courts.²⁷ There, the U.S. Supreme Court reversed the conviction of a University of New Hampshire professor for a lecture he had given to his students during which he allegedly violated the state's subversive conduct act.²⁸ In the plurality opinion, Chief Justice Warren extolled the "essentiality of freedom in the community of American universities," declaring that

[Page 942]

"[t]eachers and students must always remain free to inquire, to study and to evaluate, [and] to gain new maturity and understanding; otherwise[,] our civilization will stagnate and die."²⁹

The Court reaffirmed these principles ten years later in Keyishian v. Board of Regents, finally applying a form of constitutional protection to academic freedom.³⁰ Justice Brennan, writing for the Court, declared that America "is deeply...