Yesterday, the Fourth Circuit Court of Appeals handed down its decision in Mike Adams v. The Trustees of the University of North Carolina-Wilmington and held that a professor’s opinion columns and public speeches were fully protected by the First Amendment, even when submitted as part of an application for promotion (full disclosure: I represent Adams and argued this case in January). The university denied Adams’s promotion to full professor despite the fact that he was an award-winning teacher (often receiving the highest marks in the department), had more scholarly publications than the vast majority of his colleagues and more publications than his current and previous department chair at equivalent stages in their careers (indeed, no one with a similar publication record had ever been rejected for promotion), and had rendered service to the university sufficient to win one of the university’s most-coveted service awards.
As part of his promotion application, Adams submitted his peer-reviewed publications to satisfy the “research” component of the promotion, also submitted a book that was a compilation of his essays, and noted that he performed “service” to the university and community through his public speeches and Townhall.com columns. In response, his colleagues unleashed a torrent of bile (in writing) regarding the viewpoints in his columns while considering his promotion application. Additionally, the chancellor of the university herself had initiated a secret investigation of Adams for his alleged “transphobia.” When explaining the promotion denial to Adams, his department chair indicated that one reason for the denial was that his colleagues found his “service” had undefined “negative effects” on members of the department.
The district court did not consider this evidence, however, holding (under Garcetti v. Ceballos) that the speeches and columns were not protected by the First Amendment because he mentioned them in his promotion application, rendering them “official” speech. This was a disastrous ruling for academic freedom, essentially stripping any and all free speech protection from any professional publications (after all, professors are supposed to publish as part of their job duties). In other words, “publish or perish” became “publish and perish.” The AAUP was sufficiently alarmed to write an excellent amicus brief supporting Mike’s appeal, a brief both FIRE and the Thomas Jefferson Center joined.
Thankfully, the Fourth Circuit reversed, holding that Mike’s columns were his private expressions on matters of public concern. But the Court — critically — also went on to note that Garcetti by its own terms did not apply to university professors’ publications. This decision is the most recent — and clearest — expression of professors’ post-Garcetti free-speech rights, and the Chronicle of Higher Education was exactly right to call the case a “big win” for “advocates of free faculty speech.”
Writing as his blog, Professor Volokh, however, says he’s “not sure what to think about this decision,” given that a judge and jury may have difficulty separating legitimate academic evaluations of scholarly quality (such as a determination that a work was “badly reasoned or inconsistent with accepted academic knowledge”) from impermissible discrimination based on “hostility to the ideas that the candidate expresses.” While judges and juries may face some tough calls — as they so often do in civil (and criminal) law — there is a world of difference between an argument about, say, the scientific conclusions in a given peer-reviewed paper and a call for a secret investigation of a professor simply because a group called the “Gender Mutiny Collective” doesn’t like the content of that professor’s columns. There’s a large difference between an argument over the methodology of a paper researching the link between abortion and breast cancer and a claim that pro-life views caused “negative effects” on a department.
In one case, there is at least the appearance of a scholarly process. In Mike’s case, however, the assault on his viewpoint was direct and explicit. The existence of potential hard cases is not sufficient reason to carve out sweeping exceptions to traditional First Amendment case law, rendering virtually all professors’ teaching, scholarship, and public pronouncements part of their “official duties” and unprotected by the First Amendment.
Mike’s case now moves back to the trial court, so it is far from over. But no matter what happens at the court below, the Fourth Circuit’s decision yesterday strikes a decisive blow for academic freedom and the marketplace of ideas.