(upbeat music)
- [Narrator] Do professors at public universities
have free speech rights?
From An Academic Freedom Exception
To Government Control Of Employee Speech
in the Federalist Society Review,
Volume 22 by Nick Cordova,
Law Clerk for the US Court of Appeals for the Third Circuit.
If a professor at a public university
says something controversial,
does the First Amendment protect her
from being fired for that speech?
The answer turns out to be surprisingly complicated.
Of course, the First Amendment usually has nothing to do
with employment situations
because the Constitution only binds government actors.
If you work for a private company
you can be fired for speaking your mind
and the Constitution has nothing to say about it.
But a public university is a government agency
so it is bound by the First Amendment's
protection of free speech.
On the other hand, the Supreme Court has recognized
that when the government acts as an employer,
it has a right to determine what its employees say
in their official capacities,
including by punishing speech that contradicts the message
it wishes to send.
Such speech is not protected by the First Amendment.
If a postal worker tells all the mail recipients
he encounters on his route that UPS and FedEx
are superior to the US Postal Service,
the Postal Service can fire him
without violating the First Amendment.
But public university professors seem like they belong
in a different category than postal workers.
Public universities need free inquiry and free speech,
academic freedom, and you really don't want
states censoring the ideas that professors can share
in their classrooms and publications even as they contribute
to public discourse.
Some federal courts have held
that there is an academic freedom exception
to the government employee speech rule,
but they've struggled to articulate why it exists
or how it works.
I argue that an academic freedom exception
to government control of employee speech makes sense
under Supreme Court doctrine.
The court's rationale for allowing the government
to control its employees official speech
is to give the government leeway
to communicate certain messages.
But professors are in a unique situation.
They're hired specifically to contribute to
the marketplace of ideas.
So as long as she is also teaching the university's
required curriculum, a professor who voices
controversial opinions on the job
is not acting as a rogue employee.
The professor is in fact doing exactly
what she was hired to do,
and I argue her speech deserves First Amendment protection.
Of course, this unique aspect of public university
professor's speech does not mean that the First Amendment
absolutely privileges these professors
to teach or publish whatever they want to.
Instead, I believe what they say in their official capacity
as professors can be protected under the First Amendment
by means of the longstanding First Amendment test
for public employees private capacity speech.
That test asks whether the public employee's interest
in speaking as citizen outweighs the government's interest
in an orderly workplace.
Does the professor's interest as a member of society
in freely circulating an idea among college students,
other academics, and the public at large
outweigh the government's interest
in creating an effective educational environment?
The answer will depend on the circumstances.
For example, the government can certainly fire a professor
for loudly lecturing on the latest theory
of Bigfoot's existence at a student disciplinary hearing,
but not for publishing an article
advocating that same theory.
This balancing test is more protective
of public university professor's official speech
than the typical rule of absolute government control
of employees official capacity speech.
In my view, it is the best way to both safeguard
academic freedom and foster a vibrant,
intellectually diverse society.