The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
My New Article on Legislative Restrictions on Classroom Speech
I am pleased to see that my latest article on the efforts of state legislatures to restrict what ideas professors can endorse in the classroom has now been published. "Professorial Speech, the First Amendment, and Legislative Restrictions on Classroom Discussions" appears in the latest issue of the Wake Forest Law Review.
From the abstract:
Academic freedom enjoys an uncertain status in American constitutional law under the First Amendment. It is particularly unclear how the First Amendment applies when it comes to professorial speech in the classroom. This lack of clarity has grave implications in the current political environment. There is now an unprecedented wave of legislative proposals aimed at curtailing teaching and discussing controversial topics relating to race and gender in state university classrooms, and the constitutionality of such measures will soon need to be resolved.
This Article sets out a new argument for protecting from legislative interference how faculty at state universities teach their courses. Building on existing First Amendment jurisprudence regarding academic freedom and government employee speech, the article lays out the constitutional infirmities with anti-Critical Race Theory proposals and clarifies the scope of an individual constitutional liberty in the context of professorial speech.
From the conclusion:
The Supreme Court has invited confusion by noting but not fleshing out an academic-freedom exception to ordinary government-employee speech doctrine. It is possible to flesh out that exception in a way that coheres with the Court's various doctrinal commitments, but it will require reaffirming that professorial speech is "a special concern of the First Amendment." When state government officials attempt to restrict what ideas can be taught in the classrooms of public universities, they do real damage not only to the intellectual life of those universities but also to the public discourse of the country. The First Amendment is grounded in the fundamental commitment to the view that ideas should be freely discussed and that they cannot be rejected or embraced as a result of government diktat. In the mid-twentieth century, the government sought to prevent the spread on college campuses of what it regarded as dangerous ideas by dismissing any professor who might adhere to them, discuss them, or teach them. The Court rejected the stifling hand of censorship then. The tools of censorship being wielded by the government today are different, but the ultimate goal is the same. Government officials do not want professors at state universities to discuss ideas with which those government officials, and perhaps even popular democratic majorities, disagree. The First Amendment bars them from having their way.
The argument developed in the article has relevance for legislation like Florida's Stop WOKE Act, the constitutionality of which is now before the 11th Circuit.
