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Some background: Traditional academic-freedom principles and policies generally protect speech by members of the faculty in three broad contexts. As scholars, professors are entitled to freedom in their research and its publication. As instructors, they are entitled to freedom in the classroom in discussing their subject. As “citizens, members of a learned profession, and officers of an educational institution,” they should be free to express their personal opinions without fear of institutional reprisal. Speech in all those contexts is broadly covered by the 1940 Statement on Principles of Academic Freedom and Tenure endorsed by the American Association of University Professors and the American Association of Colleges and Universities.
The extent to which such faculty speech is further protected by constitutional law in the case of state-university professors is still unsettled. The courts have perhaps been most protective of professors when they speak “as citizens” in an extramural context, that is, when they express their private opinions in their private capacity. Extramural speech has historically taken the form of newspaper op-eds and speeches at political rallies, and more recently of blog posts, social-media posts, and podcast episodes. Such extramural speech was at issue in the case of the University of Florida professors who wanted to testify as expert witnesses in a lawsuit against the State of Florida. When professors speak entirely outside their job responsibilities in situations like these, the courts have recognized that they have a First Amendment interest that is entitled to some protection against their government employers. That protection is subject to what is known as a Pickering balancing test, which takes into account whatever legitimate interests college officials might have in punishing such speech and weighs it against the professor’s First Amendment interests. The courts have not always done a good job of protecting extramural speech, but the doctrine is on the professors’ side.
The federal circuit courts have also generally been willing to recognize some First Amendment interest of state-university professors in the context of teaching and research, although the Supreme Court cast a shadow over such cases with its 2006 decision in Garcetti v. Ceballos. In Garcetti, the court held that government employees did not generally enjoy constitutional protection for speech made pursuant to their ordinary employment duties. That would be very bad news for academic freedom, but the court explicitly left unresolved whether that same rule would apply “in the same manner to a case involving speech related to scholarship or teaching.” The lower courts have generally accepted that there is an “academic freedom” exception to Garcetti, and so some First Amendment protection for teaching and research under a traditional Pickering balancing test. Whether and to what degree that is true has big implications for recent legislative activity like Florida’s Stop WOKE Act, which prohibits the advocacy of some specific ideas in state-university classrooms.
The courts have not been actively involved in cases of intramural speech, and the doctrine in this area is especially unsettled. In 1976, for example, the Ninth Circuit heard a case of an assistant professor who was not reappointed after he declared that “this college is run by a jerk” at an Academic Senate meeting. That court thought that “momentary stridency” in faculty deliberations deserved some constitutional protection.
The courts could build on the logic of the AAUP and extend constitutional protection to intramural speech. That would require further treating professors as different than other government employees. Professorial speech regarding such matters as faculty hiring or curriculum design are so closely related to matters of teaching and scholarship that perhaps it should also fall under the Garcetti exception. If we are willing to take that step, can we take the further step of protecting intramural speech on such matters as the appropriate Covid response by colleges or campus policies regarding undergraduate-admission policies? That probably wouldn’t work, because ultimately courts are likely to think that such faculty speech is just “an employee grievance concerning internal office policy” that should be left to college officials to resolve.
The dissenting judge in Porter took a different approach, treating intramural speech the same as extramural speech. Speaking at a faculty meeting was not an employment duty, the dissenting judge thought, and thus should be treated as purely private speech, like a blog post. That does not seem like a sustainable path to take.
The problem of intramural speech poses genuine challenges for existing First Amendment doctrine, but then again so do other types of speech by public-college professors. Properly protecting such speech will require judges to revisit the fundamental concerns of the Supreme Court’s academic-freedom cases of the 1950s and 1960s, and think through how the unique job responsibilities of professors will require some unique doctrinal solutions. If professors really are the “priests of our democracy,” as Justice Felix Frankfurter once asserted, then how they perform their duties will have some distinctive constitutional significance and require greater solicitude from the courts.
If intramural speech is beyond the protection of the First Amendment, the consequences for professors at public colleges and universities could be quite dire. Writing a “Dear Colleague” email expressing unpopular views about any number of professional matters could get you fired or otherwise sanctioned. Of course, state colleges could still choose to protect such speech through appropriately drafted academic-freedom policies, but as academic controversies become hot-button political issues, state political leaders might not be so willing to let those colleges shield such faculty speech.
The proper degree of protection for intramural speech is not an easy question for either academic-freedom principles or constitutional law, but if other judges follow the lead of the Fourth Circuit, professors should not expect much help from the courts.