The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Journal of Free Speech Law: "Extramural Absolutism," by Deepa Das Acevedo
This new article is here. The Introduction:
Free speech absolutism has seemingly had its day, inasmuch as scholarly and public (if not judicial) opinion are increasingly hostile to the idea that more speech is invariably better. Yet, within academia, a close cousin of free speech absolutism—a principle of university management that this Article calls extramural absolutism—remains alive and well. Many academics and their supporters still champion the idea behind this principle, which is that speech undertaken by professors who are acting in a personal capacity should invite few if any adverse employment consequences. Academic disagreement with the principle, when it arises, lies more in its application to specific incidents than with the principle itself.
But extramural absolutism is deeply unpopular outside academia as well as among many stakeholders inside the university community. This Article explains extramural absolutism's unpopularity and proposes a way forward. The problem, I argue, is not with extramural absolutism itself but with how it is presented and justified. The answer, moreover, is not to insist on distinguishing between speech that warrants protection and speech that does not: It is to acknowledge that academic labor and the way it is managed make a policy of extramural absolutism the only feasible approach.
Supporters of extramural absolutism have failed to be convincing for two reasons. First, they often imply that speech by academics merits an exceptional level of protection because academic speech is uniquely valuable to society. In this respect, they are like supporters of academic freedom writ large. "[T]he pursuit of truth without interference," argue William Tierney and Vicente Lechuga in their defense of academic freedom, "is in the best interest of society." Similarly, Matthew Finkin and Robert Post affirm the AAUP belief that universities are "instruments of the common good" and that the "roots of academic freedom" have "internal connections to emerging needs for knowledge and intellectual mastery."
These lines of commentary presume a shared belief that academic speech is uniquely valuable because expert knowledge and expert pedagogy are better than their opposites. That is, academic speech deserves special protection because it contributes more to societal well-being than do other types of speech or speakers: Academic speech informs, instructs, challenges, and clarifies in addition to expressing opinion.
But, as Keith Whittington observes, extramural academic speech rarely contributes so much to intellectual progress or societal well-being—yet "failing to protect such speech might well hamper the kind of advancements in human knowledge that we most care about." This Article offers an argument grounded in labor realities that complements Whittington's argument, which is keyed to academic freedom. By drilling down into the realities of academic training and job performance, I show that identifying the boundaries of individual expertise is a surprisingly difficult task. Consequently, a connection to expertise cannot be used to distinguish between deserving and undeserving extramural speech in a way that is conceptually coherent.
Supporters of extramural absolutism also underestimate the magnitude of the workplace exception they are claiming. Extramural absolutism asks us to remove employment consequences from all speech by some speakers, with only very few exceptions sounding in generally applicable law. (Extramural absolutism could not immunize professors from any legal consequences because it is a principle of organizational management rather than a legal claim.)
But even if a policy of extramural absolutism would not immunize faculty from civil claims or criminal prosecution, it would protect them from negative employment consequences arising from all other types of expressive activity. This makes extramural absolutism a momentous deviation from general employment practices and the ultimate claim to academic exceptionalism, but supporters rarely acknowledge it as such. Part II draws on existing case law regarding extramural expression by employees working in public and private contexts outside academia to show why a policy of extramural absolutism vastly exceeds the legal rights and organizational practices experienced by workers elsewhere.
Despite the magnitude of the exception it represents and many shortcomings in how it has been articulated and defended, this Article argues that extramural absolutism is both reasonable and necessary as a principle of organizational management. And, somewhat ironically, the best defense of extramural absolutism also rests on an appeal to academic exceptionalism. As I show, academia is unique—but in its labor dynamics, not in the intrinsic value of its practitioners' speech. What academics do (and are expected to do) and how academics work (and are expected to work) makes it impossible to engage in any principled boundary-drawing regarding extramural speech, including the boundaries of the category itself. Reframing the debate in terms of employment rather than expression allows supporters of extramural absolutism to justify unrivaled speech protections without resorting to unappealing and counterproductive elitism.
Part I of this Article surveys selected recent incidents where the extramural speech of tenured professors has triggered adverse employment consequences. I show that both the professors in question and their supporters consistently appeal to a principle best understood as "extramural absolutism."
Part II contextualizes extramural absolutism within the broader landscape of employee speech rights to show that extramural absolutism is indeed a stark deviation from standard employment practice. Neither nonacademic employees in the private workforce nor public employees (including in academics) enjoy legal protections approaching the institutional protection afforded under a policy of extramural absolutism.
Part III shows why the exceptional protection required by extramural absolutism is necessary through a granular analysis of academic labor practices and constraints. I draw on social science and higher education scholarship to show that academic training and working conditions render an absolutist approach necessary. It is impossible to distinguish between types of extramural speech such that we can protect some extramural remarks but not all.
Finally, Part IV considers and refutes a few of the most common objections to extramural absolutism. Most important among these are the worries that extramural absolutism will open the floodgates for bad-acting professors by allowing them to easily evade employer discipline (IV.C) despite those professors' articulation of opinions that exhibit manifest unfitness (IV.B). To preview the argument: These instances are neither so straightforward nor so common as the news cycle suggests and, consequently, they should not drive our approach to university management.
Ultimately, this Article finds common ground with both critics and supporters of extramural absolutism. Alongside critics, I argue that extramural absolutism is indeed a singular exception from standard practices and laws regarding employee speech rights. I further agree with critics that the inherent value of speech by academics cannot, by itself, justify this exception.
Nevertheless, alongside supporters, I argue that extramural absolutism is an exception that is made unavoidable by dynamics, constraints, and expectations that are, in fact, peculiar to academia. For better and for worse, the structure and purpose of academia depends on an absolutist approach to extramural speech.
