What Speech Is Protected?

Earlier this month a Maine parole commission accomplished what pleas from citizens and the governor of Massachusetts could not, in preventing the speech of a convicted terrorist at the University of Massachusetts. Widespread protest greeted an invitation by professors to Raymond Luc Levasseur, the leader of United Freedom Front, a violent anti-government group linked to some 20 bombings and the slaying of a New Jersey State trooper. What these protests could not stop, Levasseur’s parole commission did. What was the University administration’s catch-all defense of the event? Academic Freedom. The professors who invited Levasseur were entitled to host whomever they wanted in the name of “academic freedom and free speech.”
We’ve seen this show before, of course. When a speech at the University of Nebraska by Weather Underground founder Bill Ayers was canceled last year, professors rose up crying that it was a violation of academic freedom. Of course, it’s not only when visitors come that professors become interested in academic freedom. Ward “little Eichmanns” Churchill and Nicholas “a thousand Mogadishus” De Genova were also only exercising their academic freedom when they made their outrageous pronouncements. Arthur Butz, author of The Hoax of the Twentieth Century: The Case Against the Presumed Extermination of European Jewry, has been teaching at Northwestern University for more than 30 years, regularly exercising his academic freedom, for instance by congratulating Mahmoud Ahmadinejad on his Holocaust denying views.
Despite what seems like some pretty wide latitude for faculty, the American Association of University Professors is up in arms about recent attacks on academic freedom. They announced last week that they are launching a campaign to fight back. “The right of faculty members at public colleges and universities to speak freely without fear of retribution is endangered as never before,” the AAUP said in a newsletter called “Speak Up, Speak Out: Protect the Faculty Voice on Campus.” The newsletter urged faculty and administrators to adopt policies that would protect faculty who speak up (and out) on academic matters, university governance, teaching, research, and, of course, issues that have nothing whatsoever to do with higher education at all. Cary Nelson, the AAUP president, told the Chronicle of Higher Education, breathlessly, “One is only willing to play Russian roulette with a certain number of the chambers filled.”

The campaign was ostensibly prompted by some recent court decisions. Oddly enough, the current standard for what falls within the bounds of free speech on a public university campus is a 2006 Supreme Court case, Garcetti v. Ceballos, about a Los Angeles deputy district attorney, Richard Ceballos, who recommended dismissing another member of his office for misrepresenting information in an affidavit. He claimed his supervisors retaliated by firing him, thereby violating his First Amendment rights. The court held, though, “that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
So what happens to a public university professor? Is speech protected in a classroom? Is it protected when a faculty member is criticizing the school’s provost or his department chair? What about if he is railing against American foreign policy? Surely the jobs of a professor and that of other public employees are somewhat different.
Professors are not simply hired for the purpose of being government mouthpieces or to carry out the government’s bidding, the way, say, a bureaucrat in a municipal department of public health might be asked to do. In other words, professors are not supposed to be instruments of the state. There are some libertarians who would reasonably argue that this is the problem with public universities in the first place. But aside from whether higher education is a legitimate function of government, many people might argue that the state shouldn’t be in the higher education business because the professors it pays will inevitably have tainted views and teachings.
The court briefly acknowledged the dilemma in applying the public employee standard to university professors when it wrote: “We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”
But as it stands, the court has not clarified what the decision does mean for professors. Rachel Levinson, the general counsel for the American Association of University Professors notes one significant problem with the way the court has drawn the lines. “The paradox of Garcetti is that the more you know about something, the less you are protected for speaking about it.” Ms. Levinson believes that this is “problematic for the faculty and the public interest as well.” If a constitutional law professor wants to write a controversial op ed about constitutional law, he won’t be protected from retaliation by his employer, but if he wants to write one about the scientific proof for the existence of UFOs, the university has no claim against him. Ms. Levinson argues that this decision actually means that professors’ speech is protected less than that of the average American. “Do you give up the basic rights of being a citizen when you become government employee?”
Ms. Levinson has a point, but most professors aren’t teaching constitutional law and most of their pronouncements are not nearly as useful to the public discourse as she would have you believe.
The AAUP has also been closely following the case of Hong v. Grant, which is now pending before the U.S. Court of Appeals for the Ninth Circuit. In that case, Juan Hong was denied a merit increase and assigned an increased teaching load (harsh punishment if there ever was one) after publicly criticizing a number of the administration’s recent staffing decisions. Following the Garcetti decision, a lower court held that Hong was acting officially-and thus not entitled to First Amendment protections against actions by his employer-when he made the statements. The AAUP filed an amicus brief in the case arguing that “speech related to shared governance emanates from faculty members’ broader right to academic freedom.”
Why don’t managers at Wal-mart get the protections of academic freedom if they want to criticize their higher ups at that company? Maybe one could argue that the public has an interest in knowing that the administration of a public university is behaving badly, though it’s not clear UC Irvine was doing anything illegal or even unethical. Nonetheless, many states have whistle-blower laws to cover this problem–so that public employees can criticize bad acts of their employers without losing their jobs as a result.
But that’s not what the AAUP and other faculty representatives are looking for. They want complete latitude to publicly criticize their bosses, no matter what the reason. The end game for the faculty here is clear. They want every one of their utterances to fall under the protection of academic freedom.
At a panel on accountability in higher education at the American Enterprise Institute last week, I found myself seated next to Gary Rhoades, the general secretary of the AAUP and Charlotte Kuh of the National Research Council. I suggested that there are certain disciplines-vocational ones-which, by their very nature, do not require faculty to have the protections of academic freedom. (And those disciplines have, in the past couple of decades, been growing by leaps and bounds.)
Are professors of nutrition or professors of “security and protective services,” I wondered, really engaged in the pursuit of deep philosophical truths for which they need the great shield of academic freedom? The answer, offered by Ms. Kuh and Mr. Rhoades, was telling. Yes, they argued. Didn’t I realize that people teaching nutrition have to say “some controversial things about obesity?” asked Ms. Kuh. And don’t people teaching about security have to say “controversial things about border patrol?” added Mr. Rhoades.
Americans are fat and our border patrol isn’t very effective. There. Now I want academic freedom (and tenure) too.