Should academic freedom in American public universities and public schools be a constitutionally protected right under the First Amendment?
This question has been posed in a case which was just heard by the Supreme Court, Garcetti v. Ceballos. The instant case before the Court involves a public prosecutor who was demoted when he protested the district attorney’s decision to validate a search warrant obtained through perjured testimony. The lawyers for prosecutor argued that his protest was protected speech under the First Amendment, given that it is an arm of the government that penalized him for his speech. Moreover, they argue, the content of his speech was directed at governmental misconduct. The lawyers for the County of Los Angeles contended that “job-related speech should not be protected under the First Amendment,” whatever its merits. [The New York Times provided an account of the hearing of the case, Justices Grapple With Whether Public Employees Enjoy Free-Speech Rights on the Job.]
Directly raising the issue of academic freedom, Chief Justice John Roberts asked if a professor at a public university could be dismissed for the content of his lecture. A public university professor “should not be entitled presumptively to First Amendment protection,” responded the lead lawyer for Los Angeles County. What does that mean in practice, Roberts inquired. The professor would have a burden of proof to show that he should not have been dismissed for the content of his speech, came the reply. In what may be a clue to his own thinking, Roberts ended the line of questioning with a comment. “I would have thought,” he concluded, “you might have argued that because the speech was paid for by the government, it was government speech and the First Amendment did not apply at all.”
To be fair, the position that Roberts seems to be supporting is not one opposed to academic freedom per se. Rather, it is opposed to including academic freedom within the First Amendment protections of freedom of speech, even in the context of a public educational institution under the aegis of government. As a practical matter, therefore, this position is agnostic on the subject, leaving the question up to the state and local governments which sponsor the public educational institutions to decide. Such a stance would allow the state or local government sponsoring the university to pass laws protecting academic freedom, and permit the university itself to adopt a policy of academic freedom. But by the same token, it would also allow the state or local governments to pass laws which would restrict academic freedom, and permit the university to adopt policies which would infringe upon it.
Should academic freedom rise to the level of a constitutional protected right, such that a state or local government could pass no law rinfringing upon it, and a public university or a public school would be required to respect it?
For some guidance, one might consider here the First Amendment protections the Court has accorded to political speech. Although American constitutional history is not without its blemishes in the area of political speech, over much of the last half century the Court has accorded considerable protection, as much as any liberal democracy, to political expression. The standard established by the Court in Brandenburg v. Ohio (1969) – that government can not criminalize general advocacy of political violence, but only speech which directly incites acts of violence – provides wide latitude for the free expression of dissenting, even revolutionary, political views. It is telling that acts as provocative and potentially disruptive to civil order as burning an American flag have been given First Amendment protection [Texas v. Johnson (1989)]. A similar level of protection is not accorded to commercial speech, which can be and often is limited and regulated in rather substantial ways. The logic for this high level of constitutional protection accorded to political expression is that it is uniquely essential to the well-being and proper functioning of democratic government, as “the people” can only come to know its democratic will in a context where it can discover and deliberate among the full range of political choices. [On this question, see Cass Sunstein’s Democracy and the Problem of Free Speech.]
One could argue analogously that academic freedom is much closer to political expression than it is to commercial speech, as academic freedom is essential to maintaining the public university and public school as centers of free inquiry and investigation where young men and women cultivate the skills and the dispositions of democratic citizenship. Just as democratic citizenship requires a free and open society for its full development, education into democratic citizenship demands a free and open university and school. Rousseau to the contrary, one can not be indoctrinated into democratic values and practices; one can not “be forced to be free.”
And if you think about it, the facts of the case before the Supreme Court pose a question which involves some of the very same issues as academic freedom. Is it not vital that those who work for the government have the protected freedom of expression to “whistle blow” on government misdeeds and abuses of power, as part of the foundation of democratic government? Are not openness and public accountability essential to a healthy democratic government?
But this is not the framework that the Court appears to be heading toward in its deliberations on Garcetti v. Ceballos. Rather, as the headline of the New York Times article captures, the frame of the Court appears to be whether workers should have constitutionally guaranteed freedom of expression in the workplace. And that is not good news. For if there is any major shortcoming in the Court’s First Amendment jurisprudence, it most surely lies in the yawning chasm between its treatment of the free expression rights of corporations, on the one hand, and the free expression rights of labor, on the other hand.
While it may seem somewhat incongruous that corporations would have the rights expressly accorded to citizens, there is a body of American constitutional law, dating back to a ruling in Santa Clara County v. Southern Pacific Railroad (1886), which has bestowed ‘personhood’ upon corporations. Under the logic of the Santa Clara precedent, corporations were protected by the equal protection and due process clauses of the Fourteenth Amendment; when the due process clause was used in the 20th century to ‘incorporate’ the Bill of Rights, applying their protections to state and local governments, the Court has bestowed an ever-growing series of rights upon corporations. In the field of the First Amendment alone, corporations were given rights of political speech, commercial speech and and a “negative free speech not to be associated with the speech of others.” Having established the right to spend money in elections as freedom of expression in Buckley v. Valeo (1976), the court established a corporate right to spend money to influence elections and referenda in First National Bank of Boston v. Bellotti (1978); it established a corporate right to commercial speech in Central Hudson Gas and Electric Corporation v. Public Utilities Commission (1980); and it created a “negative free speech not to be associated with the speech of others” in Pacific Gas & Electric Company v. Public Utilities Commission (1986), when it supported a utilities objection to a law mandating the inclusion of notices from a rate-payers association in its bills.
By contrast, the Supreme Court has erected a gigantic “The First Amendment does not apply here” banner across the American workplace. As much as the field of corporate freedom of speech has expanded, the terrain of labor freedom of expression has contracted. My friend Nathan Newman, who has worked as a labor organizer and is now a labor lawyer, is tireless on this subject. [See his most recent comments on the subject at the House of Labor on the TPM Café, here and here.] As Nathan puts it, protected freedom of expression ends for the Supreme Court when it comes to workers communicating with other workers for the purposes of furthering solidarity. For example, the Court has allowed extraordinary limits on labor picket lines, based in some cases on nothing more than the content of the picketers’ message [DeBartolo Corporation. v. Florida Gulf Coast Trades Council (1988)]. Operating from these precedents, the Bush controlled N.L.R.B. has gone so far to ban the presence of ‘large inflatable rats’ at union picket lines, and, in a truly Orwellian move, to uphold a company regulation which reads “you must NOT . . . fraternize on duty or off duty, date or become overly friendly with the client’s employees or with co-employees.” [See Harold Meyerson’s Washington Post op-ed, Big Brother On and Off The Job,” on this decision.] In a stark declaration of the state of the law, the DC Court of Appeals, basing itself on the Supreme Court precedents, found that “the First Amendment does not protect communications directed at – and only at – the neutral employees merely because the form of communications is handbilling and conversations.” [Warshawsky Co. v. N.L.R.B. (1999).]
It is worth noting here, if only in passing, that the right of workers to join together in unions, to protest their conditions and to strike, and to bargain collectively are based upon the First Amendment freedom of association, a protected right that the Supreme Court has held to be implicit in the freedom of speech and the right of petition contained within that Amendment. The state of labor law in the United States has so eviscerated this freedom that the leading international human rights organization, Human Rights Watch, issued a scathing report – Unfair Advantage: Workers’ Freedom of Association in the United States under International Human Rights Standards – on the subject.
Insofar as the Court reads Garcetti v. Ceballos as a case of freedom of expression for public sector workers in their workplace, therefore, the results are not likely to be good. Union organization in the academic workplace will remain the first, last and – for want of another – best line of defense for academic freedom.
6 Comments:
1 Labor Blog
· Oct 17, 2005 at 5:25 pm
ACADEMIC FREEDOM — A FIRST AMENDMENT RIGHT ?
ORIGINALLY POSTED AT EDWIZE Should academic freedom in American public universities and public schools be a constitutionally protected right under the First Amendment? This question has been posed in a case which was just heard by the Supreme Court, Gar…
2 redhog
· Oct 17, 2005 at 7:38 pm
Like all virtuous concepts, free speech lends itself to its own perfect ridicule when morbidly executed.
Ward Churchill, whose surname should imply honor,a few months ago flashed his newsworthiness in the only fashion possible for a latter-day academic: he made the civilized mind recoil.
Seizing the moment in the immediate wake of the World Trade Center murders, this professor of so-called “ethnic studies” at the University of Colorado likened the moms and dads who leapt into vapor from the hellfire of the Towers to “little Eichmanns.” Eichmann was the Nazi logistical genius of genocide.
Once word of his ravings escaped the campus and a public relations nightmare loomed, his university had no choice but to express outrage and called for Churchill’s resignation.
Shielded by tenure he reportedly said, “I’m not backing up an inch. I owe no one an apology.”
As this was coming to light, Mr. Churchill was scheduled to speak at Hamilton College in New York on American Indian activism, a field in which he professes expertise because he is allegedly a natural-born tribal member. Even that qualification, if it ever is one, has been called into question by the American Indian Movement, which claims that Churchill is an imposter. It claims that Churchill “waves around an honorary membership card that at one time was issued to anyone by the Keetowah Tribe of Oklahoma…He has deceitfully and treacherously fooled …many people worldwide.” AIM’s Governing Council is furthermore “vehemently and emphatically repudiating and condemning the outrageous statements made by academic, literary, and Indian fraud Ward Churchill in relationship to the 9/11 tragedy…”
Even if Churchill were, in fact, on the level, the fruits of his specialized scholarship would be rotten anyway. Consider his assertion that in 1837, the United States Army deliberately afflicted the Mandan Indians with smallpox. The alleged hoax of his identity, transparent to those who would know best, probably helped him avoid earning his position the old-fashioned way by a doctoral degree in a related and genuine field from a university of some note.
Hamilton College had no problem with Churchill’s appearance until it received threats of violence. It cancelled his guaranteed diatribe until a day later when Hamilton reversed itself again. Its decision to allow the rant after all coincided with Churchill’s submitting a federal lawsuit the same day. With candor as plausible as Churchill’s credentials, scholarship and actual identity, Hamilton said it was finally giving the green light because the college had received “additional information about the structure of the event.” We know better than to expect a bastion of free speech to be up front about its own motives.
Even if vileness of thought were objective reality and not a judgment call, it would be no basis for the abridgement of free speech. Was Churchill quoted out of context? His words are so obscene that, having been spilled, they are stuck in the present tense forever. So what are they?
Churchill refers to the World Trade Center terrorists as “combat teams” and calls the crashing of planes “retaliation.” He asks, “Why do they hate us? and instantly adds “How could they not?”
Churchill traces the blood splashed on the wounded tablets of world history to the huge weapon called America. Since our founding, in every generation and on all continents, America is to blame for every atrocity. He cites, for example, “a whole bunch of dead people” in Latin America, the Palestinian children of the intifada, and the “basically butchered” Indians who resisted the sale of Manhattan.
In the spirit of collective responsibility, Churchill concludes, “All those chickens came home to roost on 9/11.” He notes wistfully “there had never been a response in-kind in all that grisly history.”
When asked by the Boulder Weekly whether those who died on 9/11 deserved their fate, he replied, “I’m not a judge…” The hijackers “were sending a message that you’re not going to do this stuff with impunity any more.”
In his original broadside of 2001, Churchill identified the “technocratic corps” at the World Trade Center, who “were too busy braying incessantly and self-importantly into their cell phones, arranging power lunches and stock transactions, each of which translated…into the starved and rotting flesh of infants.”
Ward Churchill has been around the radical block for a long time. He is known for the company he keeps, even in abstentia. He was the national spokesman the Leonard Peltier Defense Committee. Peltier is the convicted murderer of two federal agents.
Churchill should be allowed to continue shooting off his mouth, spinning his wheels, and chasing his tail. This poster boy for hate speech should be denied the flattery of martyrdom. Let his cry be heard. It is nothing more than a lonely gasp from the toilet bowl.
3 JennyD
· Oct 17, 2005 at 8:36 pm
I’m not sure I’m with Redhog 100 percent, but close. You can’t yell “Fire” in a crowded theater. Likewise, you probably can’t throw rhetorical gasoline on a college campus.
I think if a professor stood up in a lecture and said blacks were second class citiznes, so inferior they belonged in the fields not in a college classroom, that professor would be fired.
Is that a wrong thing, to fire that professor? I don’t know. Is it academic freedom to express something that is both unacceptable in society and probably outright wrong intellectually? I don’t know.
Maybe a better question is: why would a university hire such a person to begin with?
There’s part of me that wants to let every person talk his fool head off and let the bright light of public scrutiny bring these people and their ideas into context. There’s another part that doesn’t want to listen to hateful ideas at all. But I don’t know if I can legislate it.
4 Jackie Bennett
· Oct 17, 2005 at 10:38 pm
About the new Chief Justice:
Leo Casey wonders if we can read anything into Roberts comment in court today and says that ”Roberts seems to be supporting” a position limiting free speech for employees. Wouldn’t be surprising considering the culture of the country.
But I’m not so sure we can tell anything at all about Roberts from his comment to the LA lawyer. In fact, just from what I’m reading in Casey’s post, it seems he could just as easily be showing us that he’s not buying his arguments against free speech at all.
Look at the conversation from a different angle.
LA County is arguing for curtails on job-related speech (in which case, everyone on this blog is probably in danger of dismissal). Maybe Roberts thinks that’s a little extreme, especially since in this particular case it seems LA County is trying to silence a whistle blower.
So, Roberts says, “Well, how about professors at public universities? Can they have speech curtailed?” (implying that if we take LA’s logic forward, then even a university professor can be fired for preferring Keats, let’s say, to Shelly).
To which LA replies, “Absolutely! Fire him! And the burden of proof is on the professor to prove he shouldn’t be fired.”
So, Roberts leans back in his little judge chair there, and he smirks. And says, to paraphrase the quote above, “Boy, with a ridiculously extreme attitude like yours I’m surprised you’re not just saying that as a professor in a public university he’s a government employee, and therefor has no First Amendment Rights at all!!!”
This is how deconstructionists make a living.
5 Sherman Dorn
· Oct 18, 2005 at 5:48 am
Several times in his life as an appellate lawyer, Roberts represented universities, and I wouldn’t be surprised at all if his take on academic freedom is that it lives in the institution, not the individual faculty member.
I thought Ginsburg had the best approach to Roberts’s question, at least as reported by the Times: there’s a difference between buying a specific service and specifying mandated and prohibited speech, on the one hand, and employing an individual, on the other.
6 Leo Casey
· Oct 18, 2005 at 2:52 pm
Academic freedom is not absolute. Like all other rights, academic freedom can be subjected to reasonable limitations. To cite an obvious example, teachers in public schools, must consider the question of age appropriateness in what they choose to teach. It is one thing to teach D. H. Lawrence’s Sons and Lovers or Lady Chatterley’s Lovers to a college level English literature class, with a group of 20 years olds, and an altogether different matter to teach it to a high school freshman class of 13 year olds. Reasonable educators would agree, I think, that academic freedom should include the right of an educator to do the former, but not the latter.
By the same token, however, academic freedom is like other First Amendment rights in that its true test is extending it to views we find repugnant. The Supreme Court ruled that the First Amendment protects the right to burn an American flag because the majority of that Court saw thet action as a form of political speech, a particularly visceral communication of dissenting political views, not because they felt any sympathy for those who do so.
I do not hold the slightest brief for Ward Churchill and most of what I have read of his writings. But I look warily at attempts to expel him from his position and from academia based on such views. He is the academic equivalent of the flag burner, person who is as deliberatively provocative as he can be. That makes him an easy target, since he invites most of the attacks on himself. But for the rest of us, it poses the difficult problem of explaining why academic freedom, like freedom of expression more generally, must protect the offensive if it is to have real meaning.
Jenny D. addresses the real crucial point here, from the point of view of the integrity of educational institutions. How was a Ward Churchill hired? How was he given tenure? How was he promoted in the university? At the very least, his academic credentials and resume seem rather thin, and one has a hard time conceiving of him contributing much to the education of his students. An educational institution which cherishes academic freedom needs to pay very close attention to the qualifications of those with whom it would entrust that freedom.