The First Amendment and Academic Freedom
Free speech. It is a cornerstone of our Constitution and one of the most important founding values in our country. As with any right in our Constitution, however, it is not absolute.
Interpretation of free speech continues to be debated and interpreted both in society and in the courts. That remains true today. Just in the last two weeks, public school book bans, protests against Spotify content, anti-critical race theory legislation, Congressional hearings around social media responsibility and a defamation case against the New York Times have all made headlines and they all center on the issue of free speech.
How are these free speech struggles viewed by college students whose job it is to be curious and inquisitive about the world around them? Recent results from a longitudinal Knight Foundation study suggest that confidence in free speech on campuses is waning among college students. While 84% of students feel that free speech rights are extremely or very important in our democracy, less than half (47%) feel that speech rights are secure, and only half of students feel comfortable voicing disagreement with their instructor (49%) or peers (52%) in class.
If free speech ought to be encouraged anywhere, a place of academic inquiry seems the most obvious. Yet, colleges and universities must balance this quest for curiosity and critical thinking with the need to create an environment of civility and respect. So, where are the lines drawn? What have the courts had to say on this issue?
There are a few areas on a campus where free speech pops up: exercise of academic freedom, campus speakers, school-sanctioned student activities, through campus speech codes and in social media speech. It is in the area of academic freedom that a lot of present debate is taking place.
Individual academic freedom began as a professional norm and has since been interpreted as a constitutional right through case law. It broadly refers to the right of a professor to teach their curriculum without undue interference from university officials. The American Association of University Professors defined academic freedom as “full freedom in research” and “freedom in the classroom in discussing their subject.” Likewise in the landmark 1957 Sweezy v. New Hampshire case, the U.S. Supreme Court directly recognized the connection between freedom of expression and academic freedom. In the decision, Chief Justice Warren stated that, “the essentiality of freedom in the community of American universities is almost self-evident. … Scholarship cannot flourish in an atmosphere of suspicion and distrust.” This broad endorsement of academic freedom has been refined in its scope in more recent years.
The most recent case law that is being used to understand the boundaries of academic freedom is Garcetti v. Ceballos (2006), in which the speech rights of public employees are defined. Prior to Garcetti, if a public employee was speaking on a matter of public concern as opposed to a private grievance, the employee’s rights to free speech were protected. In other words, if I speak out against something my employer does that is of public concern, my right to speak out is protected. This was referred to as the Pickering-Connick test.
Later, in the Garcetti case, that idea was changed. Instead, argued the Supreme Court, if a public employee speaks pursuant to their official duties, that speech is government speech and not the speech of the employee. Therefore, First Amendment rights of the employee do not apply if the speech is ordinarily in the scope of the employee’s duties.
Here is where the academic freedom question comes in. As a professor, teaching, researching and writing are all ordinary duties of my position, so is everything I say officially government speech and therefore not protected? Probably not. The Ninth (via Demers v. Austin) and Fourth (via Adams v. Trustees of the University of North Carolina-Wilmingon) circuit courts of appeals have ruled that there is an academic freedom exception in which faculty remain free to exercise free speech without fear of retaliation. Other circuits have disagreed, however, so until this exception is officially evaluated by the Supreme Court, guidance for professors in higher education remains somewhat unclear.
What is clear under academic freedom is that an institution has a constitutional right to be free from state interference with its core academic functions (ex. Grutter v. Bollinger, Fisher v. Univ. of Tex. at Austin) and faculty members are entitled to speak on subjects within the scope of their expertise without fear of institutional discipline (ex. Sweezy v. New Hampshire and Keyishian v. Board of Regents of University of State of New York).
Provided that we are teaching topics germane to our courses and expertise, we remain in line with existing court interpretations of academic freedom. In the current political and academic climate, it would not be surprising to see these lines more clearly refined and interpreted in the courts in the near future.
Dr. Heather Farley is Chair of the Department of Criminal Justice, Public Policy & Management and a professor of Public Management in the School of Business and Public Management at College of Coastal Georgia. She is an associate of the College’s Reg Murphy Center for Economic and Policy Studies.