Professors' free speech rights can clash with public universities' interest in managing their employees as they choose

By Helen Norton
University of Colorado Boulder

(THE CONVERSATION) — University of Florida officials in November blocked three professors from offering expert testimony in a lawsuit that challenged recently enacted state voting restrictions. But the university soon reversed course amid a public outcry.

The criticism leveled at the university included charges that the scholars’ academic freedom had been violated, along with their First Amendment rights to free speech. The professors themselves filed a lawsuit against the university after the reversal, saying that the university had violated “foundational principles of academic freedom and free speech.”

From my perspective as a constitutional law scholar and lawyer, untangling how these two claims are both related and distinct can help us understand how these kinds of disputes ultimately pit robust protections for free inquiry and debate against public institutions’ desire to manage their operations as they choose. It turns out that courts reach very mixed results when deciding these disputes.

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Protecting speech

Public universities – like the University of Florida – are government employers. They sometimes restrict the speech of faculty members, who are their employees.

For example, the University of Florida asserted that professors’ testimony in a lawsuit against the state was “adverse to the university’s interests as a state of Florida institution” when it first sought to block that testimony. Such restrictions can trigger both First Amendment and academic freedom concerns.

First Amendment law is the body of constitutional law that protects speech from the government’s unjustified interference.  For example, it prohibits the government from punishing critics for speaking out.

Academic freedom describes an academic community’s customs and practices that allow free intellectual inquiry and debate. These customs and practices help advance universities’ mission of creating and disseminating knowledge.

Under these customs and practices, for instance, scholars have the freedom to choose which topics to explore and which conclusions to draw.

Academic freedom protections are enforced by academic communities, like universities. First Amendment protections are enforced by courts.

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Government often limits its employees’ speech

First Amendment law generally prohibits the government from restricting individuals’ right to speak freely. But the First Amendment rules that apply to the government when it limits the speech of its own employees are much more government-friendly, allowing greater restrictions of those workers’ speech.

Under these rules, the First Amendment protects a public employee’s speech as an individual citizen on a matter of public concern, so long as that speech does not unduly interfere with her government employer’s operations.

So, for example, the First Amendment would protect a public school teacher’s letter to the editor or social media posting that criticizes the mayor. The lawsuit filed by the University of Florida professors who were originally told they couldn’t give testimony similarly argues that, through that testimony, the professors sought to offer their views as individual citizens on the important matter of voting rights.

In contrast, according to the Supreme Court, public employees’ speech “pursuant to their official duties” is entirely unprotected by the First Amendment.

According to one landmark ruling, that’s because government employers must, as a practical matter, have power over their employees’ job-related speech, to control what the Supreme Court called “what the employer itself has commissioned or created.” In other words, what a person says as part of her official duties as a government employee is not protected by the First Amendment. This is so, according to the court, even when the employee’s job-related speech is on a matter of great concern to the public.

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What about whistleblowers?

The Supreme Court first announced this rule in a 2006 decision called Garcetti v. Ceballos. In that case, the justices rejected a prosecutor’s claim that he was exercising his First Amendment rights to free speech and should not have been punished by his governmental employer for his internal memo that questioned a warrant’s legitimacy. 

Lower courts now frequently apply the Garcetti ruling to dismiss the First Amendment claims of government workers punished for truthfully reporting government misconduct when it was their job to report it.

For example, courts found that the First Amendment did not protect public health care workers who were disciplined after conveying their concerns about patient care. Likewise, it didn’t protect police officers who were fired after reporting public corruption. 

The Garcetti ruling sometimes makes it hard to figure out when public employees’ speech occurs “pursuant to their official duties” and thus loses any First Amendment protection. 

One court even applied Garcetti to conclude that the First Amendment permits the government to punish a public employee for truthfully testifying that a state legislator on a state agency payroll had not been reporting to work – when the employee’s testimony involved information that he acquired on the job.

Fortunately, the Supreme Court reversed that decision in Lane v. Franks, holding that the First Amendment “protects a public employee who provided truthful sworn testimony” when his job duties did not ordinarily involve such testimony.

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Crowded intersection

Another important question that remains unanswered is whether the Garcetti ruling strips public university faculty members of First Amendment protection for their research, teaching and other job-related speech. It’s a First Amendment question complicated by its intersection with academic freedom protections.

The Supreme Court has emphasized that academic freedom is key to universities’ mission of creating and disseminating knowledge. This mission, the justices said, advances First Amendment values by contributing to the marketplace of ideas and a vibrant democracy.

The court relied on this observation in two mid-20th-century decisions to say that the First Amendment protected universities from legislatures that sought to squelch unorthodox beliefs or unpopular expression. Lawmakers had tried to do that by requiring loyalty oaths of faculty members or by investigating faculty members’ allegedly “subversive” activities.

If the First Amendment protects universities from that sort of legislative interference with their academic mission, does it also protect public university faculty members from employer interference with their job-related speech?
Decades later in the Garcetti case, the Supreme Court punted on this question. It’s still not clear whether the First Amendment protects public university faculty members’ research, teaching or other on-the-job speech from their employer’s restrictions.

Regardless of how the Supreme Court ultimately rules on this First Amendment question, academic freedom principles – which rely on academic communities themselves for their enforcement rather than on courts – can still provide an independent source of protection for faculty members’ job-related speech.

In other words, universities themselves can choose to respect those principles in their treatment of their faculty members.

For these reasons, those who objected to the University of Florida’s efforts to silence its professors’ testimony argued not only that the university was violating the First Amendment, but also that it was violating its own institutional commitment to academic freedom.