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.