The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For over a century, the American Association of University Professors has urged universities to recognize a robust freedom for professors to speak in public "as citizens" without fear of retaliation from their university employers even when such expression is controversial with either external or internal constituencies. That right is now widely recognized by American universities and incorporated into governing documents and policy statements. So-called "extramural speech" has become a particular area of controversy in recent years, however, as the political opinions of professors become more visible in the age of the Internet and social media.
For the past several decades, the U.S. Supreme Court has also recognized a limited First Amendment right for government employees to speak about matters of public concern. Starting with the case of a high school teacher Marvin Pickering, who wrote a letter to the editor of a local newspaper disagreeing with the school board about the merits of a bond referendum, the Court has held that in some situations government employees have a legitimate First Amendment interest in speaking as a citizen, but even in those circumstances the government's particular interest in maintaining an efficiently functioning workplace might allow the government as an employer to override an employee's First Amendment interests. Determining when the government's interest outweighs the employee's interest has become known as Pickering balancing, which is highly contextualized depending on the nature of the employee's job and workplace.
I have a new paper on how courts should understand the government's interests when conducting a Pickering balancing in the context of state universities and the extramural speech of professors. The Pickering framework is useful not only for understanding free speech rights in state universities but also for applying traditional protections for extramural speech in private universities. But as the courts have applied Pickering, there is a particular risk of a heckler's veto when it comes to government employee speech. Courts have repeatedly held that speech that generates a hostile reaction from coworkers or members of the public can be a legitimate reason for terminating a government employee. There might be circumstances in which such a concern is justified, but that certainly cannot be the standard when evaluating a university's interest in suppressing a professor's speech.
Considering cases such as the University of Florida's conflict of interest policy, the Ilya Shapiro controversy at Georgetown University Law Center, the Amy Wax saga at the University of Pennsylvania Law School, and the attack on a moral philosopher at SUNY-Fredonia, the paper argues that in the particular context of state university professors there are very few legitimate reasons for university employers to retaliate against an employee for speaking in public about a matter of public concern. Courts, and university employers, should be especially sensitive to the risk of empowering the mob to cancel a professor who offends their sensibilities and should regard extramural speech as relevant to a professor's employment status in only a narrow set of circumstances. An appropriate assessment of the nature of the university's function and of a faculty member's workplace should lead courts to conclude that the university's side of the Pickering scale is often empty and that sanctions for First Amendment-protected speech cannot be justified. The same calculus should hold true at private universities operating under their own academic freedom policies.