A recent decision from the U.S. Court of Appeals for the Ninth Circuit provided some welcome news for supporters of academic freedom. The case, Demers v. Austin, dealt with a lawsuit by a tenured associate professor at Washington State University. The professor, David Demers, claimed that university officials had retaliated against him for distributing a pamphlet and a book that he was writing that displeased several administrators. For more on the specific facts of the case, the Ninth Circuit’s opinion is available here.
The trial court in the case looked to the standards announced by the Supreme Court in Garcetti v. Ceballos to hold that Demers’ writings were not protected by the First Amendment. In Garcetti, the Supreme Court held that public employees’ speech is ineligible for First Amendment protection when made pursuant to carrying out official employment duties. But, the Court explicitly stated that it was leaving open the question of whether Garcetti applies to faculty speech. Lower federal and state courts have reached conflicting conclusions regarding this issue.
Prior to Garcetti, the Supreme Court had held that a public employee’s speech was subject to First Amendment protection depending on whether it addressed a matter of public or private concern. If solely dealing with a matter of private concern, then the speech wasn’t entitled to First Amendment protection. Speech addressing a matter of public concern was eligible for First Amendment protection, with a governmental employer required to advance a sufficient justification to restrict such speech. Garcetti added a new layer to this analysis, one that categorically removed certain types of employee speech from the purview of the First Amendment (i.e., speech made while carrying out official job duties).
Rather than serving as mouthpieces or speech conduits for their institutions, faculty members are hired to develop and offer independent views and opinions. The fundamental roles and purposes of faculty are in tension with the logic (however faulty) underlying Garcetti, where the Supreme Court focused on the need for public employers to be able to exercise absolute control over the speech of their employees made in carrying out official employment tasks.
In Demers, the Ninth Circuit held that Garcetti, under principles of First Amendment protection for academic freedom, could not be applied to professors’ teaching and academic writing. Looking to the standards articulated in pre-Garcetti cases, the court held that evaluation of such faculty speech should turn on whether it addresses a matter of public or private concern. Significantly, the court offered a broad definition of academic writing as not restricted solely to scholarship, but as also encompassing such issues as participation in shared governance matters. The decision represents an important judicial declaration of First Amendment protection for professors’ academic freedom.