When I write about professors acting badly, like William S. Penn of Michigan State University or Erik Loomis of the University of Rhode Island, readers argue about whether taxpayer-funded public university professors should or can be fired for their speech.
Yesterday, in Demers v. Austin, the Ninth Circuit clarified the state of the law on that topic. The opinion — uploaded here — represents a significant clarification of the free speech rights of public university professors, often a matter of some controversy.
Explaining the opinion requires some background. Get a drink and hang on. This will hurt.
The Default Situation: The State Can't Punish You For Most Speech
Say you want to say "[Politician X]" is an ass." Generally, under the First Amendment, the state can't punish you for that. Sure, there are some reasonable time, place, and manner restrictions — you can't repeatedly scream it in the waiting room at the hospital where Politician X is having his syphilis treatment, or chant it in the courtroom during his arraignment for insider trading — but generally you can't be jailed for it or have your state benefits taken away for it.
Employment Is Different
But the state, bless its addled head, can wear more than one hat in its relationship to you. The state can relate to you as a citizen — in which case you have all the rights that everyone else does — or as an employee — in which case you don't, exactly. As a citizen, you can say "[Politician X] is an ass," but if you work for [Politician X], you have to wait until you leave and write your book or get interviewed on Fox.
The Supreme Court has repeatedly held that, even when wearing its employer's hat, the state can't fire you for any reason it wants. On the other hand, the state as employer has a legitimate interest in keeping order in the workplace. As the Court said in 1968:
To the extent that the [lower court's] opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court. . . . . At the same time, it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.
So: public employees have free speech rights, just not as extensive as those of citizens.
The Pickering-Connick Test Governs Public Employee Speech Rights Generally
Courts balancing the rights of the state-as-employer and the free speech rights of public employee have developed an approach called the "Pickering-Connick Test," after Supreme Court cases Pickering v. Board of Education in 1968 and Connick v. Myers in 1983.
There are tons of cases applying the Pickering-Connick test. Speaking very generally — because the application of the test is not the point of Demers v. Austin, or this post — the test requires several steps. First a court must determine whether or not the speech is on a matter of public interest. Speech on matters of public interest are entitled to protection, even when uttered by employees; speech on purely private matters (like, say, a private and internal spat among employees) is not. Then the court must balance the employer's interest in an orderly and efficient workplace against the speech rights of the employee, taking into account things like whether the speech restriction is content-based (that is, whether it censors some viewpoints but not others), the circumstances of the speech, the strength of the employee's interest in the speech, whether the speech genuinely disrupts discipline and order and interferes with relationships, and so on. For an example of this complex balancing test in action, consider the district court case Johnson v. County of Los Angeles, in which a firefighter challenged a sexual harassment policy that forbade firefighters from having pornography at work.
But then the Supreme Court came along in 2006 and made things substantially worse for public employees.
The Garcetti Complication
A Deputy District Attorney named Robert Ceballos claimed that the Los Angeles County District Attorney's Office retaliated against him for criticizing what he saw as misstatements in an application for a search warrant. This, he asserts, pissed off the Los Angeles County Sheriff and his supervisors, who no doubt recognized that if every Deputy DA dwelt on every warrant application that was full of maliciously or incompetently perjured horseshit no work would ever get done.
In ruling for the DA's Office in Garcetti v. Ceballos, the Supreme Court drew a distinction that sharply limited public employee free speech rights: it said that employees have no such rights, and the Pickering-Connick test doesn't apply, when the speech in question is part of the employee's job.
We hold 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.
The Supreme Court noted that Ceballos was speaking as a Deputy DA when he raised his concerns about the veracity of the search warrant. Therefore he was shit out of luck if the DA subjected him to freeway therapy. Had somebody raised concerns even though it wasn't their job — say, a paralegal in another part of the DA's office — they would have enjoyed First Amendment protection. Hence the person with the most relevant knowledge and the ethical duty to raise issues had fewer rights and people with less knowledge and fewer obligations had more rights. The law is majestic.
Lost to most in this exchange was a battle between the dissent and the majority over what this would mean for public employees of universities. Quoth the majority opinion:
Second, Justice Souter suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value. See post, at 12–13. 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. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.
The question was therefore left open: after Garcetti, is a public university free to fire a professor for anything they say in the classroom because saying things in the classroom is their job?
It turns out: no.
In Demers v. Austin, The Ninth Circuit Recognizes That Colleges Are Different
In yesterday's decision in Demers v. Austin, the Ninth Circuit considered a lawsuit by a David Demers, an associate professor at Washington State University. Demers claimed the university retaliated against him for writings critical of the development of the journalism school. The district court determined that Demers' writing was part of his job — in part because he was on a committee responsible for evaluating the journalism school, and in part because he listed the writing on various school publications about himself — and ruled, under Garcetti, that the university was entitled to summary judgment under Garcetti because a public employee's job activities are not protected by the First Amendment. This decision seemed to validate all the fears of Garcetti's critics — they showed how broad the definition of "on the job" could be, and showed that the doctrine would strip protection from a professor's advocacy of how a university should be run.
Yesterday the Ninth Circuit reversed. Relying on the paragraph above in Garcetti, it held that the Garcetti doctrine cannot be applied to professors at public colleges and universities, because speech in that context holds special First Amendment significance.
Demers presents the kind of case that worried Justice Souter. Under Garcetti, statements made by public employees “pursuant to their official duties” are not protected by the First Amendment. 547 U.S. at 421. But teaching and academic writing are at the core of the official duties of
teachers and professors. Such teaching and writing are “a special concern of the First Amendment.” Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603 (1967). We conclude that if applied to teaching and academic writing, Garcetti would directly conflict with the important
First Amendment values previously articulated by the Supreme Court.
. . .
We conclude that Garcetti does not — indeed, consistent with the First Amendment, cannot — apply to teaching and academic writing that are performed “pursuant to the official duties” of a teacher and professor. We hold that academic employee speech not covered by Garcetti is protected underthe First Amendment, using the analysis established in Pickering.
In so deciding, the Ninth Circuit joins the Fourth Circuit, signalling a reasonably strong movement in this direction.
What does this mean? It means that, for public university professors, their rights revert to what they were before Garcetti — to the Pickering-Connick test, rather than a blanket loss of rights to speak on job-related issues. This is hugely important: had then Ninth Circuit ruled the other way, then the state could fire professors at will if it didn't like, for instance, the stance that a history professor took about a historical event, or a political science professor took about a political dispute, or any professor took about an issue of academic governance on a committee.
I would argue it means more as well. As I noted above, the Pickering-Connick test is contextual and considers the importance of the speaker's interest in the speech and the circumstances of the speech. Demers stands for the position that a professor's interest in free speech in the academic environment is uniquely important and entitled to the highest level of First Amendment protection. The Ninth Circuit quoted the Supreme Court in Keyishian v. Board of Regents:
Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. "The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."
Demers therefore suggests that, in applying the Pickering-Connick test, courts should place great weight on a professor's right to free speech in the academic environment, and require the most exacting showing of the state's need for discipline before allowing censorship of its academic employees.
Some people are angered by the Pickering-Connick rule because they see it as giving public employees superior rights to private employees. Private employees, after all, can generally be fired for their speech, absent relevant contracts or statutes. I submit that it's better to see the rule as a limit on state power, not a special right granted to public employees. State officials have a long history of attempting to increase their power by limiting the boon of state employment to people who support them. The state's power to police speech should be scrutinized with great skepticism and even hostility.
What about David Demers? Well, he gets to go back to the district court to continue his lawsuit against the officials he says retaliated against him. But even though he won this victory for the rights of academics in general, his prospects for winning are grim. The Ninth Circuit also pointed out that though Demers may be entitled to injunctive relief, the officials he sued are entitled to qualified immunity, because before this ruling it wasn't clear what they could or couldn't do under Garcetti. See, state actors get qualified immunity unless their behavior violated a "sufficiently clear" right. Here it couldn't have until the Ninth Circuit clarified it. They couldn't let Demers profit. It wouldn't be civilized.
Last 5 posts by Ken White
- Free Speech Triumphant Or Free Speech In Retreat? - June 21st, 2017
- The Power To Generate Crimes Rather Than Merely Investigate Them - June 19th, 2017
- Free Speech, The Goose, And The Gander - June 17th, 2017
- Free Speech Tropes In The LA Times - June 8th, 2017
- I write letters - June 1st, 2017