Today, the Supreme
Court cast a dark cloud over public employees’ free speech rights by ruling in Garcetti v. Ceballos that speech by
an employee in the course of his job is entitled to no First Amendment
protection. A sharply divided court ruled
5-to-4 that a whistle-blowing deputy district attorney, who protested a
misleading application for a search warrant in a memo to his superiors, was not
protected by the First Amendment. The majority
reasoned that the deputy D.A. was entitled to no protection because he was
speaking not in his capacity as a citizen, but rather pursuant to his official
duties, which required him to draft memos on pending cases.
If this is
extended to the academic setting, it will be a very bad precedent indeed. Professors' classroom speech is generally
part of their official job duties. For
this very reason, courts have typically required a greater showing of
government justification before professors’ speech can be restricted than for
regular bureaucrats. And prior to
today’s decision, they typically held that professors’ speech in the course of
their jobs was protected.
Do we really want
a rule where people whose jobs are most devoted to expressive purposes have the
least legal protection for their speech as a result? Almost all professor speech, from classroom
teaching to published research and community involvement, is considered in
their tenure applications, and thus is job-related.
The Supreme Court majority
left open whether or not its ruling that job-related speech is unprotected
“would apply” to “speech related to scholarship or teaching,” in light of
“academic freedom” concerns. But this is
a hollow reassurance, since academic freedom mainly exists to protect the
autonomy of private colleges, rather than individual professors. For professors, academic freedom is not an
independent right, but rather just a factor in construing the free speech
rights they enjoy against the government a bit more generously.
Historically,
professors and teachers were given
more protection for their workplace remarks, than employees in more
regimented professions, where group cohesion was deemed more essential to
workplace efficiency than independent thought. Now, ironically, the reverse may be true.
The dissenters
pointed out the perverse consequences of this ruling. They observed that under this precedent, an
employer can deprive whistleblowers of the free-speech protection they would
otherwise enjoy under the Supreme Court's public-employee speech jurisprudence
by defining whistle-blowing in general as a job requirement.
The majority
attempted to deny this, saying that such redefinitions of employees’ job duties
would be a pretext, and what matters is the "practical" scope of an
employee's job duties, not what an employer says it is. But the majority never explains how to
distinguish between practical and nominal job duties.
Even if the
Supreme Court later resolves these ambiguities in its decision in favor of free
speech, it will come too late for many whistleblowers and professors. When the law is unclear, victims of
censorship are barred from receiving any money or lost wages by the judge-made
doctrine of qualified immunity. The
doctrine requires that the scope of a constitutional right be crystal clear before
the government official who violates it can be forced to pay any money or
compensation. But as federal appeals
courts have observed, the free speech rights of public employees are already so
poorly defined that the law is “rarely,
if ever” clear enough to permit compensation.
Moreover, victims
of workplace censorship usually cannot find an attorney to represent them,
because First Amendment cases are only financially worth bringing when the law
is not open to dispute but rather quite clear. First Amendment cases are already not as lucrative as other kinds of
federal cases, such as discrimination cases, in which damages can be awarded directly
against state agencies even when the law is very unclear. Today’s decision will magnify the judicial
bias against First Amendment cases.
The courts are not
exactly clogged with First Amendment cases as it is. There are far more lawsuits
brought under the Individuals with Disabilities Education Act against school
districts than there are First Amendment cases involving teachers and students. Due
process and discrimination claims heavily outnumber First Amendment claims, and
have far more effect on school discipline.
--Hans Bader
