The Volokh Conspiracy
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What Can Professors Say in Public?
My new article on the First Amendment and controversial faculty speech
The new issue of the Case Western Reserve Law Review with a symposium on the First Amendment and classrooms has now arrived, and with it my article, "What Can Professors Say in Public? Extramural Speech and the First Amendment."
From the abstract:
Since the early twentieth century, academics have urged universities to recognize robust protections for the freedom of professors to speak in public on matters of political, social, and economic controversy—so-called "extramural speech." The U.S. Supreme Court eventually recognized First Amendment protections for government employees, including state university professors, who express themselves about matters of public concern. The Court has indicated that the state should be especially solicitous of the speech of government employees in an academic context, but it has not adequately elaborated on the nature of those protections and how courts and government employers should assess the state's interests relative to the extramural speech of professors employed at public universities.
This Article describes the state of the existing principles and doctrine surrounding extramural speech and examines the factors that private and public universities can reasonably take into consideration when responding to such speech—and what rationales for suppressing such speech or sanctioning faculty for engaging in such speech are inappropriate. Controversies surrounding the public speech of university faculty have only become more common and more intense in recent years, and both public and private universities need to be more self-conscious about the risk of stifling the intellectual environment of universities and chilling unpopular speech when responding to such controversies. If First Amendment values are particularly weighty in the context of the marketplace of ideas on university campuses, then many of the rationales for disciplining government employees for controversial speech that may make sense in some governmental workplaces should be rejected if applied in the university context.
The article focuses on the balancing test in the Supreme Court's Pickering doctrine for government employee speech, and how that balancing test should be conducted in the specific context of universities and faculty speech. Although the constitutional test is specific to state universities, it works well for thinking through protections for free expression at most private universities in the United States as well.
From the conclusion:
There are very few occasions when university officials can properly sanction a university professor for his or her extramural speech. . . . Professors may say things in public that are mistaken, offensive, or even repugnant and vile—or they may simply say things that threaten the interests of powerful groups and individuals or run contrary to prevailing sentiment—but general principles of free speech protect their right to say such things and university employers should refrain from penalizing them for such speech. When universities claim that firing professors who say controversial things is justified, courts should stand ready to closely interrogate such claims. When the extramural speech of professors is weighed in a Pickering balance, the university's legitimate interest should not include an interest in suppressing speech because it is unpopular or uncivil or gives rise to the commotions that unpopular or uncivil speech can trigger.
