The AFA, FIRE, and AAUP on Idaho's Abortion-Related Speech Restrictions

The University of Idaho's guidance to faculty on classroom discussion makes plain a First Amendment problem

The general counsel of the University of Idaho issued a guidance memo to university employees regarding the implications of the state's new abortion law for university operations. That memo told professors that they should maintain instructional neutrality in any classroom discussions relating to abortion if they wished to avoid the possibility of criminal prosecution. I wrote about the law and the memo in an earlier post. Eugene Volokh has likewise blogged about it.

The Foundation for Individual Rights and Expression and the Academic Freedom Alliance and the American Association of University Professors have now issued separate letters regarding the assault on academic freedom in Idaho. The FIRE letter can be found here.  The AAUP statement can be found here. The AFA letter can be found here.

From the AFA letter:

It is imperative that the University of Idaho not merely inform the faculty of the potential risks of teaching with such a law on the books but also strongly voice its objections to any such interpretation or application of the state law. The general counsel's guidance sends a chilling message to every member of the faculty who must discuss difficult and controversial material relating to abortion as part of their teaching duties. The statute itself might not recognize "academic freedom [as] a defense to violation of law," but the First Amendment is an overriding limitation on the power of the state legislature to impose such a restriction on classroom teaching in state universities.

Comments

[The Margrave of Azilia]

It seems they found a 9th Circuit precedent for protecting state-employed professors’ speech even while on the clock, unlike the situation with other public employees who generally can’t say stuff the government doesn’t want said.

(Idaho is apparently in the 9th Circuit)

Maybe the circuit court explained the distinction.

[Archibald Tuttle]

We hear often on VC that employers can restrict the speech of employees. For example, a judge who thinks that a litigant is an a*hole can not say that in court.

It seems therefore that academic freedom in colleges is a tradition, not a legally enforceable right.

See the recent book, Understanding Academic Freedom from Johns Hopkins University Press, by Hank Reichman.

[Da5id]

This is a state school though. Obviously IANAL, but I understand that as the university is an arm of the state government it is less free than a private employer would be to interfere with the free speech of its employees.

[Bored Lawyer]

For those who have claimed that FIRE only protests when right wing views are in jeopardy, this seems to be a counter-example.

[Rev. Arthur L. Kirkland]

More important -- this is not a conservative-controlled religious school, so it does not get the entire free pass issued by the right-wing hypocrites at FIRE, AFA, etc.

[Krayt]

Pardon them for being concerned about government censorship, from which you cannot walk away.

And they are holding private universities' feet to the fire for their own boilerplate statements to academic freedom. This is due to your complaining. You should feel good.

Now let's see you complain when other free, private entities, tech media giants, censor posts. Or is that when you decide to defend freedom of private organizations?

[Bored Lawyer]

This is a good example of a vague law that can be exploited to quash undesired viewpoints. "Promoting" can mean anything from a discussion about whether abortion should be legal and under what circumstances, to the location of the nearest abortion clinic.

[Michael D]

Is it the law or the university’s interpretation that is the problem? The AFA letter makes it clear that no matter the state law, the 1st Amendment would protect academic freedom. It would seem the letter from the university had chosen to ignore that. I tend to think the letter writer from the university is pushing an agenda.

[Michael P]

The university definitely took a very broad interpretation of the law, and did not decide mention any of the extensive case law that counsels against that interpretation. EV quoted some of that case law yesterday, including a discussion of how a statute's wording about "promotion of" something should be construed in this kind of context.

[Rev. Arthur L. Kirkland]

The Academic Freedom Alliance suggests the university should focus -- in advice to faculty -- on the university's objections about academic freedom (feelings) rather than on that Idaho's Republican knuckle-draggers enacted (the law)?

Right-wing separatist organizations aren't what they used to be. Maybe these losers should hire some strong liberal-libertarian lawyers rather than limiting themselves to Federalist Societeers.

[ReaderY]

There’s been a fairly large set of issues in the past half century or so where crime facilitation speech law and things students or faculty might do could run kmto conflict. Various kinds of sex outside of marriage; drugs; underage drinking; and a great deal else.

At the end of the day, there’s nothing especially new about any of this.

The 4th Circuit’s Palladin Enterprises case suggest that persuading people in general to do something is outside the First Amendment. And its Lesbian and Gay Student Association v. Virginia Commonwealth University case suggest advising an individual student about abortion could be legal trouble.

But both cases afe fairly well outside what happens in general classroom discussion.

[Darwinnie]

It’s almost like they’re not politically-controlled entities like executive agencies.

[Brett Bellmore]

Realistically, they are politically controlled entities, the difference being that elections don't change which party controls them.