Phi Beta Cons

The Right take on higher education.

Professors’ Opinion Columns Not Protected by the First Amendment?


I spent the last 16 days participating in Operation Key Resolve, an annual military exercise in South Korea. While I was gone, I heard the bad news that a federal court had dismissed Mike Adams’ lawsuit against officials from the University of North Carolina-Wilmington (my colleagues and I at the Alliance Defense Fund represent Mike in the case). The most crucial aspect of the court’s ruling was its finding that Mike’s columns were work-related speech and not protected by the First Amendment because he mentioned that he was a columnist in his application to become a full professor at the University.

Let’s be clear about the facts. Mike did not “submit” his columns for consideration by his superiors. Instead, in a section of his application that asks him to describe his acts of “service” to his school and community, he noted that he was a writer and speaker on matters of public importance. In fact, the university — on more than one occasion — had publicly stated that Mike’s columns represented his writing only and did not — in any way — reflect the university’s views. The university made it clear that Mike’s writings were his alone.

And Mike was not the only professor whose service had an activist component. In fact, activism is and was common among his peers and is often lauded in connection with job evaluations. His peers’ written work not only included op-eds but also peer-reviewed scholarship with a distinct point of view — and again, all this work was not only considered but lauded as part of their function as active, productive members of the academic community (and rightfully so).

Professors — as part of their core job function — write and speak in a variety of forums and on a variety of topics. Whether they are engaged in peer-reviewed scholarship or more accessible forms of writing, they have a point of view. But under the court’s ruling, every single column, every single peer-reviewed article puts a professor at risk of punishment — unless, of course, they don’t mention that article or column in connection with any university application for employment or promotion. This places professors in a hopeless Catch-22. They’re supposed to publish (or perish), but if they publish, and the university doesn’t like their political viewpoint, they’ll perish anyway.

The court’s ruling represents a distortion of the Supreme Court’s holding in Garcetti v. Ceballos. While the Garcetti court sharply limited protection for “expression made pursuant to official responsibilities,” the Court also expressly reserved whether the doctrine had any application in the academic freedom context. In Mike’s case the trial court brushed straight past the Supreme Court’s reservations and left no refuge for academic freedom. 

It’s safe to say that this is not the last word on Garcetti and higher education. Stay tuned.


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