The Garcetti test: limiting a public employee’s freedom of speech and the constitutional implications on academic speech: Garcetti v. Ceballos

The Garcetti test: limiting a public employee’s freedom of speech and the constitutional implications on academic speech: Garcetti v. Ceballos

Matthew R. Griffith

“[T]he government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch.” (1)

INTRODUCTION

Freedom of speech is a fundamental right bestowed upon American citizens, (2) particularly when citizens speak on their own, expressing their own thoughts. However, courts have long recognized that the right to free speech is a limited fight, especially for citizens who work for public employers, such as governments, schools, and universities. (3) Public employees are not entitled to absolute First Amendment protection, particularly when they are acting in their professional capacity. (4)

In Garcetti v. Ceballos, the United States Supreme Court held that “when public employees make statements pursuant to their official duties, … the Constitution does not insulate their communications from employer discipline.” (5) With this holding, the Court placed a constitutional bar on employee speech made pursuant to an employee’s official job duties. (6) The holding qualified prior decisions by sympathetically ruling that the First Amendment affords no protection for a public employee who speaks as an employee on a matter of personal interest.

In the interest of allowing a public employer to operate and control the official communications issuing from within its halls effectively, speech arising solely from a public employee’s job is no longer entitled to First Amendment protection. (8) Garcetti thus limits the expression of public employees by strengthening the administrative hand of public employers. Academic speech will fall victim to the constitutional hurdle placed before it with the Garcetti ruling, as public university professors will be unable to hide their academic speech behind the shield of the First Amendment. Garcetti makes clear the circumstances when a public employee’s speech is constitutionally protected and when the government employer’s interest will trump the interest of its employees.

The first section of this Note discusses the relevant legal background, including a detailed analysis of First Amendment protection afforded public employees in the workplace. The next section presents a statement of the case, including the facts, the procedural posture, the Court’s holding and reasoning, and the dissenting opinions. The third section analyzes Garcetti and the resulting constitutional implications for academic speech. The final section is the conclusion.

BACKGROUND

Although different cases have dealt with a public employee’s rights concerning free speech, several cases provide the basic framework for the Garcetti decision. The first is Pickering v. Board of Education, where the Court implemented a balancing test. (9) The second is Givhan v. Western Line Consolidated School District, where the Court held that employees do not necessarily lose their protection of speech under the First Amendment just because they choose to communicate their speech privately. (10) The third is Connick v. Myers, where the Court applied the Pickering balancing test and held that when an employee speaks as an employee on matters of personal interest, instead of as a private citizen on matters of public concern, the First Amendment does not protect that speech. (11)

Pickering involved a contentious school tax vote where the Board of Education (“Board”) successfully won approval for a new school bond after two attempts. (12) Subsequently, the Board twice failed to raise taxes to fund certain programs for the school. (13) Two days before the second vote, the superintendent for the Board published a letter in the local newspaper urging support of the tax increase. (14) In response, Marvin Picketing, a school teacher, wrote a letter to the newspaper attacking the Board’s handling of the bond issue, alleging that the superintendent would not allow the teachers or other workers from the school to speak out opposing or criticizing the bond issue. (15) The Board fired Picketing desire his claim that his letter was constitutionally-protected speech. The trial court rejected the claim, determining that a teacher such as Picketing must refrain from making statements about the operation of the school. (17)

The central goal of Pickering was to balance the interests of an employee when speaking as a private citizen with the interests of the employer. (18) The Pickering Court tipped the balance in favor of the employee, reasoning that free and open debate is a corner stone of our society, and teachers are the members of the community with the most informed opinions about scholastic matters. (19) The Court held that allowing the teacher to contribute to public debate was more important than allowing the employer to limit the teacher’s speech. (20)

Subsequently, the court used the Pickering balancing test in Givhan, where a school district fired a junior-high teacher after she criticized the school district in a private meeting with her supervisor. (21) The district court found that the main reason the school district fired the teacher was because she criticized the school system. (22) The Supreme Court held that a public employee does not per se forfeit his First Amendment protection when the speech is expressed privately. (23) The Court stated that application of the Pickering balancing test is necessary for all speech of public employees, regardless of whether expressed in a private or public forum. (24)

Finally, in Connick v. Myers, Sheila Myers worked as an Assistant District Attorney in New Orleans for five and one-half years before learning she would be transferred to a different section of the department. (25) In response to this un-welcomed transfer, Myers prepared an intra-office questionnaire that she passed out to other employees. (26) Upon learning about the questionnaire, her supervisor fired her, telling her that passing out the questionnaire was a form of insubordination. (27)

Connick held that unless the speech in question relates to a matter of public concern, scrutiny of any employment actions be falling the speaker is unnecessary. (28) More importantly, the Court limited the speech that qualifies as a matter of public concern. “When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.” (29)

The Court concluded that even if the speech did not pertain to a matter of public concern, the speech was not automatically in the narrowly-defined realm of speech that a state can prohibit. (30) Specifically, the Court held that “the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.” (31)

If the speech related to a matter of public concern, a determination must be made as to whether the government employer was justified in terminating the employee. (32) In Connick, the Court characterized the questionnaire as touching on a matter of public interest “in only a most limited sense” and stated that it was best characterized as an employee grievance. (33) Arguably, the Court did not apply the Pickering test to the questionnaire. The Court held that when “close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.” (34) When speech leads to a “disruption” in the workplace, (35) an employer is justified in taking adverse employment actions even if the speech relates to a matter of public concern. (36)

STATEMENT OF THE CASE

A. Factual History

Richard Ceballos began working for the Los Angeles County District Attorney’s Office in 1989, where he served as a calendar deputy with duties that included supervising other attorneys in the office and writing memos. (37) In February of 2000, a defense attorney working a case under Ceballos’s supervision told Ceballos that he had filed a motion to traverse a warrant that had been used against his client and wanted Ceballos to investigate an affidavit that the defense attorney felt contained inaccuracies. (38)

After conducting an investigation, Ceballos determined that the affidavit contained serious misrepresentations. (39) When Ceballos received an inadequate explanation for the inaccuracies, he contacted his supervisors and prepared a disposition memo that recommended dismissing the case. (40) In response to Ceballos’s memo, a meeting was held to discuss the affidavit, and Ceballos, his supervisors, the affiant, and other employees from the sheriff’s department were present. (41)

The District Attorney proceeded with prosecuting the case, and a hearing was set to determine the defense’s motion to traverse the warrant. (42) At the hearing, the defense called Ceballos to testify about the findings of his investigation. (43) Ultimately, the trial court upheld the warrant. (44) Ceballos claimed that he suffered retaliatory employment actions because of his memo, including reassignment from his previous position to a lower position, transfer to another courthouse, and denial of a promotion. (45)

B. Procedural History

Ceballos initiated an employment grievance that was denied based on a finding that he had notsuffered any retaliation. (46) He then filed suit against his employer alleging that his employer had retaliated against him, thus violating his First and Fourteenth Amendment rights and asserted a claim under 42 U.S.C. [section] 1983. (47) The petitioners moved for summary judgment based on their assertions that their actions toward Ceballos were legitimate and that Ceballos’s memo was not entitled to First Amendment protection. (48) The district court held that Ceballos’s memo was not entitled to First Amendment protection, and even if Ceballos’s speech was entitled to constitutional protection, the petitioners had qualified immunity. (49) Accordingly, the petitioner’s motion for summary judgment was granted. (50)

The Court of Appeals for the Ninth Circuit reversed the district court’s holding. (51) The circuit court used the Pickering balancing test and “struck the balance in Ceballos’s favor.” (52) The court held that Ceballos’s fights were well established and that the petitioner’s actions were not reasonable and thus concluded that Ceballos’s First Amendment rights were violated. (53) The Supreme Court granted certiorari and after heating oral argument, reversed the holding of the appellate court. (54)

C. Supreme Court’s Holding and Reasoning

Justice Kennedy delivered the majority opinion, which stated that “when public employees make statements pursuant to their official duties, the employees are not speaking as [private citizens]” and are not afforded First Amendment protection. (55) In determining the First Amendment rights of a public employee, the overreaching goal of the Court is to strike a balance between the interests of the speaker in commenting upon matters of public concern and the interests of the employer in regulating the speech and in taking actions based on the speech. (56) The Court recognized that at certain times the government must have the authority to curb employee speech and held for the employer, noting that a citizen who enters into government service, such as Ceballos, must accept certain limitations on his freedom. (57)

D. Dissent

Justices Stevens, Souter, and Breyer filed dissenting opinions in Garcetti. (58) Justice Stevens’s dissent began with the assertion that a government employee is sometimes entitled to First Amendment protection from discipline based on speech made pursuant to official duties: (59) Justice Stevens also opined that a categorical difference between speaking as a private citizen and speaking as a government employee should not be made, stating that “it is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description.” (60) In referencing Justice Souter’s dissent, Justice Stevens stated that the majority’s holding was misguided. (61)

Justice Souter’s dissent, the most thorough of the three dissents, suggested that certain classifications of speech should have First Amendment protection. In the first section of his dissent, Justice Souter recognized that “judicial line-drawing” is sometimes necessary (62) and stated that “no adequate justification for the majority’s line categorically denying Pickering protection to any speech uttered ‘pursuant to official duties'” exists. (63) Justice Souter instead advocated an adjusted Pickering balancing test in cases such as Garcetti. (64)

In the second section of his dissent, Justice Souter discussed his concerns surrounding the majority’s opinion. (65) Justice Souter feared that the majority’s holding would infringe or inhibit academic speech because teachers and professors “necessarily speak and write ‘pursuant to official duties.'” (66) Justice Souter also feared that the majority’s holding would affect whistle-blowing statutes and opined that state legislatures should not entirely control such statutes because the statutes invoke some constitutional protection. (67)

Justice Breyer did not agree fully with either the majority or Justice Souter’s dissent. Justice Breyer believed the majority’s holding placed a total constitutional ban on speech arising pursuant to official duties and found this ban to be too absolute. (68) Justice Breyer supported applying the Pickering test when professional and special constitutional obligations are present. (69) Justice Breyer also found Justice Souter’s hard-line definition too broad for determining what speech to protect. (70)

ANALYSIS

A. Analysis of Ceballos’s Speech: Was it a Matter of Public Concern?

The Garcetti Court first set out a two-step analysis that guided its decision. (71) The first step was determining if the employee spoke as a private citizen on a matter of public concern. (72) If the employee did not speak as a private citizen, then the employee does not have a First Amendment claim. (73) A valid claim might arise if the employee, speaking as a private citizen, spoke on a matter of public concern. (74) However, an employee does not speak as a private citizen on an issue of public concern when they speak pursuant to their official job duties. (75)

The crux of the problem is in determining exactly what speech is “pursuant to official duties.” (76) The Court did not create hard and fast boundaries to determine what speech is pursuant to official duties and what speech is entitled to First Amendment protection. (77) However, the Court held that public employees do not enjoy unfettered discretion in their expressions and made a distinction that when a public employee is speaking privately about a legitimate public concern, the First Amendment will lend a helping hand to that speech. (78) However, when an employee speaks through the course of his job or because his job requires him to speak, First Amendment protection will not extend to that speech. (79) The holding poses a problem for cases dealing with academic freedom or academic speech, on which the majority explicitly declined to comment in Garcetti. (80)

Although Ceballos’s speech was in an intra-office memo, the Court simply dismissed this as “not dispositive” and noted that the majority of citizens do most of their talking inside the workplace (81) The fact that the memo concerned the subject matter of Ceballos s employment was also not dispositive. (82) The Court noted that public employees such as the teacher in Pickering, as well as other public employees, are usually the most knowledgeable speakers on the subject because of their proximity to the situation and the knowledge gained from their employment. (83) Thus, Garcetti did not give any weight to the origin of the information but instead closely considered the motivation behind the speech. Because it was Ceballos’s job to write memos to his superiors, his speech, which was the memo itself, is not protected. If Ceballos had written a newspaper editorial discussing the shortcomings of his office, a different standard would be applied because such speech is not required of him as a calendar deputy.

The fact that the teacher in Pickering wrote a letter to a newspaper, which was not part of her job, plays an important, albeit underlying, distinction in understanding the decisions of both Pickering and Garcetti. (84) The Picketing holding balanced the interests of the employee, as a private citizen speaking on matters of public concern, with the interests of the employer in controlling the speech. (85) The Court noted that the public has a right to know what is going on in public departments and that the best person to speak to that point is an employee of the department. (86) However, Ceballos was not trying to raise attention to the inequities of his office. Instead, Ceballos was doing his job, speaking as an employee. (87) As a result, his employer decided to take adverse employment action. (88)

The Court held that “[r]estricting speech that owes its existence to a public employee’s professional responsibilities does not infringe upon any liberties the employee might have enjoyed as a private citizen.” (89) Instead of balancing the interests of the employee with those of the state as an employer, the Court concluded that the public employer can exercise control of the employee’s speech. (90) The Court further stated that Ceballos did not act as a private citizen when he conducted his daily professional activities and did not speak as a private citizen when he wrote his memo. (91)

The next step in the Court’s analysis is to determine whether Ceballos’s employers were justified in taking adverse employment action against him. Because Ceballos’s speech was made pursuant to his job duties, the Court decided that the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities. (92) While the Court specifically declined to outline what exactly constitutes “pursuant to official duties,” the Court rejected the contention that employers could create “excessively broad job descriptions” as a way around the Garcetti holding. (93)

Ceballos’s case is identifiable as unprotected speech under the holding in Garcetti. (94) A problem may arise, however, when a public employee suffers adverse employment action for speech made pursuant to official duties when the “official duties” include commenting to members of the press or the public at large. An example of such a job would be the press secretary for the President or a spokesperson for a public entity, such as a police department. Part of these job descriptions involves speaking to the public on matters of public concern. However, the government, as an employer, would still have the ability to control that speech, and that ability is crucial to the government employer’s ability to effectively operate. (95) Even a strict civil libertarian would agree that the press secretary for the President should not have carte blanche to speak while hiding behind the veil of the First Amendment. A government employer must be careful with its public speech and communications, so the government necessarily should have the ability to control such public speech.

Consider how the Court would handle the following situation. A calendar deputy, after testifying as to a warrant’s inaccuracies in a hearing to traverse the warrant, made a statement to a newspaper that the sheriff’s office was not doing a thorough job. This speech would owe its existence to the deputy’s employment because he would not have become aware of the problem but for the fact that he was a calendar deputy. However, his job description does not require him to speak to the newspaper. Would the guiding principles of Pickering apply here? Would the Court allow an employee to speak freely on this matter because it would add to the public discourse? Would an employee not have some integral information to add to such a discussion?

The answers to these questions are determined using the Garcetti two-part analysis. (96) The first step of the test determines whether the employee spoke as a citizen on a matter of public concern. (97) Because the deputy clearly would be speaking as a private citizen, the analysis would move to the second step of the test to determine if the operations of the sheriff’s office were a matter of public concern. The second inquiry is whether the government employer had a reason to treat the employee differently from a member of the general public. (98) Thus, the Pickering balancing test would be invoked, and balancing the interests of the employee with the interests of the public employer would decide the issue.

In Garcetti, the Court attempted to give government employers broad discretion in running their operations. (99) A government employer has to be wary about the official communications coming from its office, and the employer should be able to exert some control over those communications. As the Court noted, official communications from an office need to be accurate, consistent, and promote the employer’s goals. (100) In Garcetti, the Court created a litmus test for public employee speech. (101) If the speech is made pursuant to official duties, no First Amendment protection exists. This test eliminates judicial balancing and replaces it with definite boundaries that are clear to both the employer and the employee.

Anytime the Court denies constitutional protection to classes of speech, some commentators are quick to react. Freedom of speech has always involved difficult issues of determining when speech is to be denied or granted constitutional protection. (103) When a hard and fast line is drawn that either bans or promotes constitutional protection for a class of speech, courts can more easily decide and rule on otherwise complicated issues of First Amendment jurisprudence. If a person is absolutely certain what they can and cannot say, then a clear line has in fact been drawn, and that person is less likely to cross the line. However, if a person only knows that speech might sometimes be bad and is not sure where the line is drawn, then that person would inhibit themselves from speaking on matters which would ordinarily go unpunished. Thus, when a court sets a vague standard for speech or does not partake in judicial line-drawing, the intended effect of the court is to allow more freedom of speech. The actual effect is the opposite, as less speech will likely be made due to the fear of crossing the vague line. A better judicial philosophy is to create and implement clear definitions of what speech is protected and what speech is not. The Gareetti holding did just that. (104)

The anomaly of freedom of speech mentioned above can be explained as follows. Imagine horseback riders galloping through the dusty plains of Texas on a dark, moonless night. The riders know that a dangerous barb-wired fence is somewhere on the horizon, but they are not aware of its exact location. As they near the suspected location of the fence, the riders slow from a gallop to a walk because they are fearful of crashing into the fence. (105)

The Court enunciated a clear line in Garcetti, and unfortunately, a government employee no longer has an expectation of receiving First Amendment protection for his expressions that arise pursuant to his job duties. (106) The problem with Garcetti will not arise in a case such as Garcetti, where the speech clearly arose directly from a job duty, but instead the problem will be in cases where the job duty itself is to speak, such as that of a professor. The next part of this Note discusses what constitutional implications Garcetti will have on academic speech.

B. Implications of Garcetti on Academic Freedom (107)

Restricting what has been termed academic freedom may possibly be the largest problem with Garcetti. (108) In his dissent, Justice Souter suggested that college professors “necessarily speak and write pursuant to official duties.” (109) Garcetti implicitly provides for a constitutional limit on academic freedom because professors of public universities will be denied First Amendment protection for speech made pursuant to their job. (110) Not much discussion in the Garcetti opinion is devoted to this issue. Instead, the majority opted to say that “there is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence.” (111) The next section of this Note discusses the implications of Garcetti on academic speech, including an analogy between academic speech and Establishment Clause cases, what constitutes academic speech, three categorizations of academic speech, and how the three categorizations should be adjudicated on constitutional grounds.

Today is a unique time for civil liberties in our country. Following the horrific terrorist attacks of September 11,2001, our nation is especially sensitive to terrorism and religious ideology. In the past, the federal government has restricted civil liberties in times of national concern. (112) The effects of September 11th, have surfaced in the classroom. (113) Now, more than ever, the issue of academic freedom is of utmost importance. How much freedom should be given to a professor’s speech in the classroom, or in a symposium, or even in a publication? Can professors hide behind the shield of academic freedom and be given carte blanche to teach zealous principles? Can professors, in the name of academia, teach fanatical religious beliefs? The answers are no, and the Garcetti rule will have a positive social impact in curbing this type of speech through constitutional measures. But perhaps Garcetti will not be the only controlling case on academic speech. The issue in Garcetti was not the content of the speech, but rather the motive of the speaker, which is often indicated by the audience of the speech. (114)

1. An Analogy between Academic Speech and Establishment Clause Cases (115)

When employees speak as private citizens, their speech is entitled to First Amendment protection. (116) A close analogy can be drawn to Establishment Clause (117) cases, in which a major issue addressed by the Court is whether employee speech is considered private speech or government speech. (118) Similarly, when professors speak in a similar manner or context as a party in an Establishment Clause case, their speech may be classified as either government speech, which is not entitled to First Amendment protection, or private speech, which is entitled to First Amendment protection. This section of the Note discusses three major Establishment Clause cases that are analogous to academic speech: Engel v. Vitale, (119) Santa Fe Independent School District v. Doe, (120) and Lee v. Weisman. (121)

In Engel, the Court held that a New York school district’s imposed daily prayer violated the Establishment Clause. (122) The Board of Education directed a school principal to have a prayer spoken every morning before class. (123) The Court held that no level of government in this country has the power to prescribe the “particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity.” (124)

The school-mandated prayer in Engel is an example of government speech, not private speech. The prayer was recommended by the State Board of Regents, approved by the Board of Education, and implemented by the principal. (125) The speech clearly originated with and was approved by the government of New York to encourage recitation of the prayer. (126) The prayer was considered government speech because the government mandated the speech and not because the content of the speech was religious.

In Santa Fe Independent School District, the Court held that student-led prayer before football games was government speech prohibited by the Establishment Clause, even though the student body had democratically voted for the prayer. (127) The school board allowed the senior class to vote on whether or not a prayer would be said at graduation, and if the prayer was allowed, the senior class would vote on who would deliver the prayer. (128) While agreeing that there is a distinction between government speech and private speech, the Court held “the pre-game invocations should [not] be regarded as ‘private speech.'” (129)

The Court gave several reasons why it rejected the school district’s claims that the speech was private. First, the school district authorized the prayers and allowed the prayers to take place “on government property at government-sponsored school-related events,” making the speech government speech, not private speech. (130) Secondly, the majoritarian process used by the school district implicitly denied a voice to the minority of students who did not want a prayer. (131) Lastly, although the school district alleged the speech was private because they used a hands-off technique, the Court was not persuaded by this argument and held that because of the “degree of school involvement,” the prayers constituted government speech. (132)

The prayers initially took place because the school board empowered the students to decide if they wanted a prayer before a football game. (133) The election of school prayer was then supervised by the principal and the student council. (134) In determining if religious speech is government or private speech, the Court noted the relevant question of “whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive [the prayer] as a state endorsement of prayer in public schools.” (135)

Although the results in Engel and Santa Fe Independent School District are the same, the Court’s reasoning was different. In Engel, the prayer was clearly government speech because of the active involvement of state officials, the school board, and the principal. However, in Santa Fe Independent School District, the School District tried to circumvent the rigorous requirements of the Establishment Clause by allowing the students to vote on the issue of school prayer. The Court suggested that in order to determine if speech is government speech or private speech, a court should look to the degree of involvement of the school. (136) The school district’s level of involvement in procuring the vote on the prayer was high enough for the Court to hold that the speech was not private. To determine if speech is private or if it is attributable to the government, a court should consider the degree of involvement of a school and ask if an objective person would perceive the speech to be state-endorsed or government speech. (137)

In Lee v. Weisman, the Court held that a school system cannot coerce any student to listen to a prayer at a graduation ceremony. (138) The school principal invited a local rabbi to say a prayer at a middle school graduation ceremony and gave the rabbi Guidelines for Civic Occasions without telling the rabbi what to say. (139) The Court held that the prayer constituted government speech because “the principal decided that an invocation and a benediction should be given; this is a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur.” (140) In addition, the Court noted that the “degree of school involvement … made it clear that the graduation prayers bore the imprint of the State.” (141) Furthermore, the graduates were pressured by the State to attend graduation. (142)

The prayer in Lee was not directly attributable to the school system, as in Engel, but nevertheless failed to clear the Establishment Clause hurdle. (143) The Rabbi’s prayer was not considered private speech because the degree of the school system’s involvement in the prayer was too great and because the audience was coerced into listening to the prayer. (144) As in Santa Fe Independent School District, the Court was not persuaded by the school system’s argument that enough intervening causes made the speech private. (145)

The Establishment Clause cases alone do not deal squarely with academic freedom, but in the wake of Garcetti, how the Court might handle constitutional issues of academic freedom is clear. The Establishment Clause cases show that when speech is classified as government speech, speakers cannot hide behind the shield of the First Amendment. (146) In Garcetti, the Court denied the speech First Amendment protection because it was not private. (147) Thus, Garcetti impacts academic freedom by suggesting that speech classified as private is more likely to be afforded First Amendment protection. Conversely, when speech is made pursuant to official job duties or attributable to the government because of governmental coercion or a high degree of governmental involvement, the speech will likely be denied First Amendment protection.

The Court in Garcetti and the Establishment Clause cases recognized that First Amendment protection is justified for private speech, but not for government speech. (148) In the context of academic freedom, a critical question then becomes whether a professor is speaking privately or whether the speech can be classified as government speech. Will Garcetti and the Establishment Clause cases give rise to a First Amendment privilege for public colleges and universities to similarly control their operations? Public universities and schools have an interest in what is taught by their professors and teachers. Thus from the outset, a public university will have some interest in controlling the academic speech of its professors. (149) However, this right should not be unlimited. Following the precedents of Garcetti and the Establishment Clause cases, the right of academic freedom should hinge on the content and context of the speech or the motive of the speaker.

2. Defining Academic Freedom

The Supreme Court has never specifically defined academic freedom. (150) Until a landmark case is brought before the Supreme Court, professors employed by public colleges or universities will not have a constitutional academic freedom defense. Their speech will be governed by the public employer test enunciated in Garcetti and possibly the Establishment Clause cases. Until such a case arises, the question becomes how will the Garcetti ruling impact academic freedom cases and the constitutional rights of college and university professors?

Neither the common law nor federal or state statutory law recognizes academic freedom as a right. (151) However, “the Court has proclaimed that ‘[t]o impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation,'” (152) and that “our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us.” (153)

There are two idealistic formulations for defining academic speech. (154) The first closely resembles Garcetti, in which the academic institution enjoys autonomy and decides how to carry out its function. (155) This formulation considers academic freedom as a “very elastic concept” and gives deference to university officials. (156) The second formulation aligns professors and school administrators on the same side. (157) Administrators and professors both have a vested interest in allowing the professors freedom of speech to insure the “discovery of truth and the advancement of knowledge” in the classroom. (158)

Other commentators describe academic freedom differently. (159) Academic freedom “has different, if related, meanings in the mouths of academics and in the mouths of judges and that both the academy and the courts have suffered from the confusion.” (160) Thus, “‘academic freedom’ [is] a non-legal term referring to the liberties claimed by professors through professional channels against administrative or political interference with research, teaching, and governance.” (161)

Academic speech is not founded on the same principles as other areas of constitutionally protected speech. Rather, academic speech is intended solely to ensure truthfulness and an open learning environment. (162) However, professors do not teach in a vacuum. They are employed by public universities to educate students. The professors are being paid to speak, and the nature of this relationship infers that the university itself should retain some indicia of control over the professors’ teachings.

For the purposes of this Note, academic freedom is best defined as the right of public university professors, tenured or non-tenured, to have their speech protected while in the role of teaching. This right is not unlimited, and professors are not entitled to constitutional protection to say whatever they wish in their professional capacity. The universities have a viable and real responsibility to their students, supporters, and alumni to run the university prudently. This responsibility will inevitably involve placing restrictions on employee speech.

If the Court continues to remain silent on academic freedom, Garcetti will most likely be the controlling case. As such, determining exactly when a professor is speaking in a professional capacity and not as a private citizen is important. Professors will undoubtedly face many situations, both professionally and privately, in which they will express their academic views. Various arenas of professor speech include faculty meetings, classroom lectures, symposia, research papers or publications, and out-of-class communications, either with students or with the public at large.

Some commentators believe academic speech should be placed outside the jurisprudence of public employee speech, and they believe that a special niche should be carved out of the First Amendment in order to protect academic speech. (163) One argument is that public employee speech and academic freedom are incompatible. (164) This argument asserts that professors require “expansive intellectual space” to conduct their studies, with the foundational goals of a public university to educate the students in an open learning environment. (165) To accomplish the goals of the university, professors need wide latitude with their academic speech.

This argument conflicts with the policy of Garcetti and either ignores or refuses to define academic speech in this context. Instead, a Picketing-like balancing test, which implicitly refuses to deal directly with the manner of the speech and focuses on the content of the speech, should be implemented. By allowing wide discretion in restricting speech, as Garcetti allows, the Court recognized the need of a public employer “control … their employees’ words and actions” to ensure efficient operations. (166) But when restricting speech, the government employer must be acting “in its role as employer,” and the restrictions “must be directed at speech that has some potential to affect the entity’s operations.” (167) Thus, Garcetti requires that academic speech must be categorized in relation to official duties and as private speech or speech attributable to the government.

3. Three Categories of Academic Speech

Many systems exist for categorizing professor speech. But for the purpose of this Note, professor speech is most effectively categorized into three distinctive groups for First Amendment analysis. The three distinctive groups of professor speech analyzed in this section are classroom speech, symposium speech, and publication speech.

The first category of professor speech is classroom speech, which is speech that arises from a class that the professor is teaching. This speech can be either from a class lecture or from discussions outside of the classroom, as long as the speech relates to the class. Professors should not be allowed to shield themselves from their employer by raising a constitutional defense of academic speech for classroom speech. Any speech that is made in the course of the class owes its existence to the professor’s job. As such, Garcetti would allow the employer-university to take action against the professor, and the professor would not be able to take refuge behind the First Amendment.

Classroom speech could also be recognized as government speech because a university or college has a vested interest in the curricula taught on its campus. Professors are hired based on their aptitude to educate students in a particular area. In Establishment Clause context, school officials exert a significant degree of influence over what is taught in the classroom and sometimes directly control what is taught. The purpose of a university is to serve as an incubator for education and ideas, and restrictions on classroom speech would not frustrate this purpose. (168) By restricting classroom speech, universities can effectively control its academics as well as its public image.

The next category of academic speech is symposium speech, which refers to speech that is made outside of a classroom, but still in an academic setting, such as symposia, conferences, and round-table discussions. This category is different than classroom speech. A university should be able to restrict classroom speech in order to effectively operate because classroom speech is directly linked to the goals and purposes of a university. But this link is not as clear in symposium speech.

Symposium audiences are less homogeneous than classroom audiences. Audiences at symposia, conferences, or other venues of symposium speech include a mixture of students from different universities, professors, various professionals, and even members of the public. As such, a professor’s academic speech would have difficulty thwarting a university’s goals. Universities retain a vested interest in the communications or speech emanating from within its walls, but when a professor is in a setting such as a symposium, the professor’s speech will not directly impact the university.

Thus, determining if a professor’s symposium speech arises from official duties is more difficult. The determination should be based on the relationship between the symposium, the professor, and the university. If a professor represents his employer-university at the symposium, the speech would arise pursuant to official duties as a professor. However, the line becomes blurred when a professor speaks at a symposium as a scholar who is merely associated, or employed, by that university. When a professor speaks at a symposium as a scholar, a Pickering-like balancing test should be implemented. The university will have difficulty showing that it has interests in restricting symposia speech by a professor in a non-representative capacity.

When a professor speaks in a representative capacity, Garcetti should apply, enabling the university to restrict the speech to best serve its mission and goals. Suppose a round-table symposium was being held to discuss the different ways to teach Torts I to first-year law students. Included at the symposium is Professor A, who is from a state-run law school and is there on behalf of his school to describe the teaching methods that are employed by his school. Professor B, a renowned Torts I scholar, is also included to describe what changes he has witnessed in the evolution of torts. Professor B has taught at several different law schools and is now tenured at a state-run law school. Because Professor A is speaking in a representative capacity of his university, his academic speech would not be protected, as his speech would arise pursuant to his official duties. Professor B’s speech, however, would be entitled to some First Amendment protection because he is not speaking in a representative capacity. A court should balance the interests of Professor B in speaking with the interests of his university in restricting his speech.

The third category of academic speech is publication speech. Publication speech is any communication published or spoken by a professor in the vein of publishing his ideas, thoughts, or expressions outside of classroom and symposia speech. The most obvious example is an academic paper published by a professor in a journal. Garcetti is not well-equipped to handle this situation.

Publication speech is far different from both classroom and symposia speech. Publication speech almost invariably involves a professor speaking as an independent scholar publishing personal ideas, thoughts, or expressions. The audience for publication speech is the most varied and wide-ranging. Numerous people are exposed to publication speech, including students from the professor’s university, other students, professors from other schools, and even people outside academia. Because publication speech is almost always made independently of a professor’s professional responsibilities, publication speech is not likely to arise pursuant to the professor’s official duties. A university would have a difficult time claiming any interest in restricting a professor’s publication speech. Completely ruling out the possibility of a university having an interest in publication speech would be unjust, so a Pickering-like balancing test should be applied to publication speech.

A balancing test for publication speech is appropriate because the Garcetti policy of allowing public employers discretion in their operations, via restricting employee speech, is not present in publication speech. A professor who publishes thoughts, ideas, or expressions is not speaking for or even through the university. He is speaking as an independent scholar seeking to contribute to an area of study. However, many university resources may be used in the publication process, and the professor is still affiliated with his employer-university. The professor’s publication speech would have little, if any impact on the university’s day to day operations, even if the publication speech was adverse to the university’s goals.

Comparing publication speech to the Establishment Clause cases reveals that publication speech would be recognized almost exclusively as private speech and should be afforded First Amendment protection. The university does not exert a great degree of influence, if any, over a professor’s publications and certainly does not coerce anyone into reading them. Thus publication speech should be recognized as private speech by the professor.

Not all speech will fit neatly into the above categories. For example, a professor could publish a work in a journal, defend the work at a symposium, and then lecture on the ideas in a classroom. This situation would involve all three categories of academic speech, and involve three different standards. But categorizations of academic speech are needed to afford professors some academic freedom while retaining the universities’ rights to control their operations, missions, and goals. This categorization of academic speech is in line with Garcetti, where the Court placed the emphasis of public employee speech on the manner in which the speech was made rather than the content of the speech. In addition, the categorization of speech would clarify academic speech, reducing a great deal of future litigation, while providing a clear and concise framework from which professors can teach.

Although Garcetti places a constitutional limit on academic speech, professors may still be protected against termination for their academic speech. Although exceeding the scope of this Note, regulations in place at the university level are generally meant to protect a professor’s academic speech. Even though Garcetti and the Establishment Clause cases may bridle academic freedom, professors will not be left without any recourse. While professors may be entitled to regulatory protections from academic speech, a professor’s speech is not entitled to constitutional protections.

CONCLUSION

The Supreme Court reached the correct decision in Garcetti v. Ceballos. While some confusion over what constitutes “official duties” of a public employee may exist, the Court set clear precedent for future courts to follow. Now the emphasis is on the manner in which the speech was made rather than the context of the speech. (169) Public employees do not give up all of their rights when they enter government service, and employers can restrict employee speech to the degree necessary to effectuate smooth operations and control the official communications.

The hardest test for Garcetti will be academic freedom. The Court has yet to define academic freedom and may choose to apply Garcetti or its predecessors to academic speech. Academic speech should be categorized into classroom speech, controlled by Garcetti, and symposia speech and publication speech, controlled by a Pickering-like balancing test.

Garcetti along with the Establishment Clause cases shows how the Court might handle an academic speech case. Any public employee speech, including professor speech, can be thought of as speech originating privately from the individual or as speech attributable to the government. When the speech is private, First Amendment protection is available to the speaker. (170) But when the speech is attributable to the government, First Amendment protection is not available. (171) This analysis is consistent with Garcetti because when speech owes its existence to a job duty, the speech will be inherently less private than speech arising in another context or spoken with another motive.

The future is unclear for academic speech, but until the Court announces otherwise, academic speech by a professor at a public university will likely be treated as public-employee speech jurisprudence.

(1) Arnett v. Kennedy, 416 U.S. 134, 168 (1974) (Powell, J., concurring in part and concurring in the result in part).

(2) U.S. CONST. amend. I.

(3) “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.” Schenk v. United States, 249 U.S. 47, 52 (1919) (citing Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 439 (1911)).

(4) Picketing v. Bd. of Educ., 391 U.S. 563 (1968), noted by Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 414 (1979) (noting that employees may receive some First Amendment protection for things they say at work).

(5) Garcetti v. Ceballos, 126 S. Ct. 1951, 1960 (2006).

(6) Id.

(7) Connick v. Myers, 461 U.S. 138, 147 (1983).

(8) Garcetti, 126 S. Ct. at 1960.

(9) Picketing v. Bd. of Educ., 391 U.S. 563, 568 (1968) (determining that the interests in protecting employee speech should be balanced against the interests of the employer).

(10) Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 415-16 (1979).

(11) Connick, 461 U.S. at 147.

(12) Picketing, 391 U.S. at 565-66.

(13) Id. at 566.

(14) Id.

(15) The letter was attributed to District 205 Teacher’s Organization. Id. at 566.

(16) Id. at 566-67.

(17) The Board alleged that the statements in the letter were false; that the publication impugned the motives, honesty, integrity, and competence of the Board; and that the false statements damaged the reputations of the Board members. Id.

(18) Id. at 568.

(19) Id. at 571-74.

(20) “[W]e conclude that it is necessary to regard the teacher as the member of the general public he seeks to be.” Id. at 574.

(21) Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 411 (1979). The school district alleged that the teacher made “petty and unreasonable demands” in a manner that was “insulting, hostile, loud and arrogant.” Id. at 412.

(22) Id. at 413.

(23) Id. at 415.

(24) Id.

(25) Connick v. Myers, 461 U.S. 138, 140 (1983).

(26) The questionnaire solicited the views of her fellow staff members concerning office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns. Id. at 141.

(27) Id.

(28) Id. at 146.

(29) Id.

(30) Id. at 147 (stating that the “narrow and well-defined class” refers to speech such as obscenity, which the State has the right to punish and prohibit); see also Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (stating that certain narrow and well-defined classes of speech exist that have never been thought to raise constitutional issues when punished).

(31) Connick, 461 U.S. at 149. The Court also noted that a federal court is not the proper forum to review personnel moves made by the public employer. Id. at 147.

(32) Id. at 149.

(33) ld. at 154.

(34) Id. at 151-52.

(35) Id. at 152. (“[W]e do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.”).

(36) Id. at 154.

(37) Garcetti v. Ceballos, 126 S. Ct. 1951, 1955 (2006).

(38) Id.

(39) Id. Ceballos thought what was described in the affidavit as a “long driveway” should have been called a separate roadway. Id. Although the affidavit stated there were tire tracks present, Ceballos thought that the above mentioned roadway’s composition made it difficult to leave visible tire tracks. Id.

(40) Id. at 1955-56.

(41) The purpose of the meeting was to discuss the affidavit, but the meeting became heated when one employee of the sheriff’s department criticized Ceballos’s actions. Id. at 1956.

(42) Id.

(43) Id.

(44) Id.

(45) Id.

(46) Id.

(47) Id.

(48) Id.

(49) Id.

(50) Id.

(51) Id. The Ninth Circuit Court of Appeals held that Ceballos’s speech was entitled to First Amendment protection and that Ceballos’s memo was “inherently a matter of public concern.” Ceballos v. Gareetti, 361 F.3d 1168, 1174 (9th Cir. 2004).

(52) Garcetti, 126 S. Ct. at 1957.

(53) Id.

(54) Id. The Supreme Court heard eighteen cases from the Ninth Circuit in the 2005-06 term. In the eighteen decisions, the Court reversed or vacated the previous holding fifteen times. The reversal rates of the Ninth Circuit were eighty-three percent, compared to an overall reversal rate of seventy-two percent. Brent Kendall, Ninth Takes Its Lumps From Supreme Court, DAILY J. (Los Angeles, Cal. & San Francisco, Cal.), July 3, 2006, available at http://pda-appellateblog.blogspot.com/search?q=July+2006.

(55) Garcetti, 126 S. Ct. at 1960. The Court noted the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities. Id.

(56) Id. at 1957.

(57) Id. at 1958.

(58) Justice Ginsburg joined Justice Souter’s dissent. Id. at 1963.

(59) Id. at 1962 (Stevens, J., dissenting).

(60) Garcetti, 126 S. Ct. at 1963.

(61) Id.

(62) Id. at 1965 (Souter, J., dissenting).

(63) Id.

(64) Id. at 1967. In support of such a test, Justice Souter reasoned first that the government should create a minimum threshold for comments, such that any comments exceeding the threshold would not be entitled to First Amendment protection. Id. The threshold would entitle speech such as comments on official dishonesty, deliberate unconstitutional action, other serious wrongdoing, and threats to health and safety to First Amendment protection. Id. at 1967-68.

(65) Id. at 1968.

(66) Id. at 1969.

(67) Id. at 1970-71.

(68) Id. at 1974-75 (Breyer, J., dissenting).

(69) Id.

(70) Id. at 1975-76. Justice Breyer argued that the “underlying problem with this breadth of coverage is that the standard … does not avoid the judicial need to undertake the balance in the first place.” Id. at 1975.

(71) Id. at 1958 (majority opinion).

(72) Id.

(73) Id.

(74) Id. (emphasis added); see Picketing v. Bd. of Educ., 391 U.S. 563, 568 (1968) (suggesting that if there is a valid cause of action, the Court should use the balancing test).

(75) Garcetti, 126 S. Ct. at 1960.

(76) Id.

(77) The Court noted the proper inquiry for determining an employee’s official duties is a practical inquiry. Id. at 1961.

(78) Id.

(79) Id. at 1962.

(80) Id.

(81) Id. at 1959 (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 573 (1968)) (stating that public employees should not always be treated like “any member of the general public”).

(82) Id.

(83) Id.

(84) Picketing, 391 U.S. at 566-67.

(85) Id. at 568.

(86) Garcetti, 126 S. Ct. at 1959.

(87) Id. at 1956.

(88) Id.

(89) Id. at 1960.

(90) Id.

(91) Id.

(92) Id. at 1961.

(93) Id. The Court’s determination that Ceballos’s speech arose pursuant to his job duties was based on the fact that Ceballos was fired for his speech contained in a memo, even though Ceballos was required by his job to write such memos. Id. at 1960-61.

(94) Id. at 1961.

(95) Id. (“Restricting free speech that owes its existence to a public employee’s professional responsibilities … simply reflects the exercise of employer control over what the employer itself has commissioned or created.”).

(96) Id. at 1958.

(97) Id.

(98) Id.

(99) Id. at 1960.

(100) Id.

(101) Id.

(102) (Id).

(103) See, e.g., Schenck v. United States, 249 U.S. 47, 52 (1919) (“The most stringent protection of flee speech would not protect a man in falsely shouting fire in a theater and causing a panic.”); Texas v. Johnson, 491 U.S. 397, 418 (1989) (holding that flag burning is protected speech under the First Amendment); Cohen v. California, 403 U.S. 15, 26 (1971) (holding that wearing a jacket with language opposing the draft in a courthouse was protected speech under the First Amendment); Brandenberg v. Ohio, 395 U.S. 444, 449 (1969) (holding that a Ku Klux Klan rally was protected speech). But see, e.g., Young v. Am. Mini Theaters, 427 U.S. 50, 71 (1976) (holding that the state may regulate where adult films may be shown without violating the First Amendment); FCC v. Pacifica Found., 438 U.S. 726, 738 (1978) (holding that the FCC had a right to censure George Carlin’s monologue broadcasted on the radio).

(104) Garcetti, 126 S. Ct. at 1961.

(105) Interview with Donald Garner, Professor of Law, Faulkner Univ. Thomas Goode Jones Sch. of Law, in Montgomery, Ala. (Oct. 4, 2006).

(106) Garcetti, 126 S. Ct. at 1962.

(107) The nature and scope of this Note is important to note at the beginning of this section. Numerous societal protections for academic speech are in place at universities and schools. These societal protections are usually academic regulations: regulations that usually guarantee academic freedom to professors. However, these societal regulations and protections far exceed the scope of this Note. This Note focuses on First Amendment issues and how the Court might deal with academic freedoms when viewed in light of Garcetti.

(108) Garcetti, 126 S. Ct. at 1969 (Sourer, J., dissenting).

(109) Id.

(110) The term “professor” as used in this Note, unless otherwise noted, will refer exclusively to a professor or teacher employed by a public university or college. For purposes of this Note, the effect of tenure is immaterial.

(111) Garcetti, 126 S. Ct. at 1962 (majority opinion).

(112) See Jennifer Elrod, Comment, Academics, Public Employee Speech, and the Public University, 22 BUFF. PUB. INT. L.J. 1, 5-6 (2004) (discussing academic speech and the restrictions placed on civil liberties). The author notes as support the Alien and Sedition Acts of 1798, “the suspension of civil liberties during the Civil War, the Espionage Act of 1917, and the Smith Act of 1940.” Id.

(113) Id. at nn.23-24 (citing Aria Marie Cox, The Changed Classroom, Post September 11, CHRON. OF HIGHER EDUC., Oct. 26, 2001, at 16; Arlene Levison, College Faculty, Staff Find Chilling New Climate for Free Speech on Campus, Assoc. PRESS STATE & LOCAL WINE, Oct. 12, 2001).

(114) But see Givhan v. W. Line Consul. Sch. Dist., 439 U.S. 410, 415-16 (1979) (holding that when speech is made privately to an employer, the employee does not lose constitutional freedom of speech).

(115) Although the Establishment Clause cases discussed in this Note address elementary or secondary teachers, this fact has no impact on the analogy between Establishment Clause cases and academic freedom because the underlying principles, such as when speech is recognized as government or private, remain the same.

(116) Garcetti, 126 S. Ct. at 1961.

(117) “Congress shall make no law respecting an establishment of religion.” U.S. CONST. amend I.

(118) Bd. of Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 250 (1990). “There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” Id. (emphasis added).

(119) Engel v. Vitale, 370 U.S. 421 (1962).

(120) Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).

(121) Lee v. Weisman, 505 U.S. 577 (1992).

(122) Engel, 370 U.S. at 424.

(123) Id. at 422-23.

(124) Id. at 430.

(125) Id. at 422.

(126) Id. at 424.

(127) Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000).

(128) Id. at 296-97.

(129) Id. at 302.

(130) Id. But see Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 841 (holding that an individual’s contribution to a government-created forum was not government speech). The pre-game school forum is not the kind of forum discussed in Rosenberger. Santa Fe Indep. Sch. Dist., 530 U.S. at 302-03.

(131) Santa Fe Indep. Sch. Dist., 530 U.S. at 304; see also Bd. of Reg. of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235-36 (explaining why majority votes involving expressive activities are constitutionally problematic).

(132) Santa Fe Indep. Sch. Dist., 530 U.S. at 305.

(133) Id. at 306.

(134) Id.

(135) Id. at 308 (citing Wallace v. Jaffree, 472 U.S. 38, 76 (1985) (O’Connor, J., concurring)).

(136) Id. at 305.

(137) Id. at 308.

(138) Lee v. Weisman, 505 U.S. 577, 587 (1992).

(139) Id. at 581. The fact that this was a middle school graduation had no bearing on the decision because the Court determined middle school graduations to be analogous to high school graduations. Id. at 583-84.

(140) Id. at 587.

(141) Id. at 590.

(142) Id. at 593. The Court noted the petitioner’s argument that the students did not have to attend the graduation exercise but stated that “law reaches past formalism.” Id. at 595.

(143) Id. at 587.

(144) Id.

(145) Id.

(146) Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006).

(147) Id. at 1960.

(148) Id. at 1957-59.

(149) The simplest example of the interest of the university is that the university does not want “2+2=5” to be taught in a math class. The university has an interest in ensuring academic integrity.

(150) See, e.g., Alder v. Bd. of Educ., 342 U.S. 485, 510 (1952) (Douglas, J., dissenting) (stating that “It]here can be no real academic freedom [and] … [w]here suspicion fills the air and holds scholars in line for fear of their jobs, there can be no exercise of the free intellect” and that “[s]upineness and dogmatism take the place of inquiry.”); Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (stating that the freedom of inquiry is the essence of the university community and to interfere with it would endanger society); Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967) (recognizing academic freedom is a special concern of the First Amendment).

(151) J. Peter Byrne, Academic Freedom: A Special Concern of the First Amendment, 99 YALE L.J. 251, 256 (1989).

(152) Id. at 257 (quoting Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957)).

(153) Id. (quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)).

(154) See Elrod, supra note 112, at 10 (describing two formulations for interpreting academic freedom).

(155) Id.

(156) Id. at 9-10.

(157) Id. at 10.

(158) Id. The American Association of University Professors (AAUP) defines academic freedom differently by advocating that teachers’ freedom to research and publish their results is subject only to performing their other academic duties adequately. 1940 Statement of Principles on Academic Freedom and Tenure, http://www.aaup.org/AAUP/ pubres/policydocs/1940statement.htm (last visited Mar. 5, 2007). The AAUP further provides that any paid research should be with the educational institution’s understanding. Id. Regarding classroom academic freedom, the AAUP provides that teachers should freely be able to discuss their subject, but they should be careful in introducing unrelated material that is controversial. Id. Institutions may limit academic freedom based on religious or other goals of the institution, but these limitations should be clearly set forth at the time the professor is appointed. Id. When speaking as private citizens, professors should be free from censorship or discipline by the institution, but because of their position in the community, professors have special obligations and should keep in mind that when they speak, the public may judge both the institution and their profession. Id. Because of this special obligation, professors should aim to be accurate, to be respectful of the opinions of others, to exercise appropriate restraint, and to indicate that their words are their opinion and do not necessarily represent the views of the institution. Id.

(159) Academic freedom can also be characterized as a personal liberty right to research, investigate, teach, and publish any subject matter of a professional interest, without the threat of sanction or vocational jeopardy absent an inexcusable breach of professional ethics. William Van Alstyne, The Specific Theory of Academic Freedom and the General Issue of Civil Liberty, in Tim CONCEPT OF ACADEMIC FREEDOM 59, 71 (Edmond L. Pincoffs ed., 1972). Specifically, academic freedom rejects any accountability to the institution, to societal standards, to acceptable interests and right thinking, and to socially constructive theory. Id. Professional integrity is the only allowable limit on academic freedom, and to condition employment on institutional or societal approval is to abridge academic freedom. Id. However, Stanley Fish considers academic freedom to have no relation to content. Stanley Fish, Conspiracy Theories 101, N.Y. TIMES, July 23, 2006. Academic freedom, as a subset of the general American freedom to say anything you like, is the freedom to study anything with potential intellectual payoff. Id.

(160) Byrne, supra note 151, at 254.

(161) Id. at 255. The author, however, differentiates between this description of academic freedom and “constitutional academic freedom.” Id. Regardless of what definition of academic freedom is used, the term “constitutional academic freedom” is misleading because the Supreme Court has neither defined academic freedom nor granted particular First Amendment protections to academic freedom. See Elrod, supra note 112.

(162) Byrne, supra note 151, at 259-60.

(163) Elrod, supra note 112, at 62.

(164) “[T]he public employee speech doctrine is incompatible with the purpose of a university.” Id.

(165) Id. at 62-63.

(166) Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006).

(167) Id.

(168) Elrod, supra note 112, at 62-63 (stating that the “goal of post secondary education is to educate in the broadest sense, that is, to serve as a safe haven, an incubator, and a testing ground for ideas”).

(169) Garcetti, 126 S. Ct. at 1960 (holding that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline”).

(170) Id. at 1958.

(171) Id.

Matthew R. Griffith, B.A., Auburn University, 2005; candidate for Juris Doctor, May 2008, Faulkner University Thomas Goode Jones School of Law. The author would like to thank Professors Donald Garner and Andy Olree for their invaluable help on this Note.

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