Trusteeship - November/December 2021 - 18

TAKEAWAYS
■ Academic freedom is often
misunderstood. It does not
simply give faculty the right
to say or teach whatever they
please. In practice, there is a
complex interplay between
academic freedom and First
Amendment principles of free
speech.
■ Public college and university
faculty are unique when it
comes to the First Amendment;
They act in three capacities:
citizens, government
employees, and faculty.
■ U.S. courts have not directly
ruled that academic freedom
is a constitutionally protected
right for faculty. The trend in
court rulings is to grant public
college and university faculty
less protection of academic
freedom than their private
university counterparts.
■ To avoid misunderstanding,
institutions should establish
clear definitions of academic
freedom by contract, in
institutional regulations,
policies, appointment letters,
faculty handbooks, and/
or collective-bargaining
agreements.
to what extent. This often involves the balancing
of individual rights with the rights of
others, including employers. Different types
of speech receive different levels of protection.
Political speech is given the highest level
of protection. Commercial speech, such as
advertisements or solicitations, receives a
lesser degree of protection.
Differing Roles of Faculty
Faculty members working at state colleges
and universities are unique when it comes
to the First Amendment. They act in three
capacities: citizens, government employees,
and faculty. The following is a brief analysis
of the law applied to each capacity.
Faculty as Citizens
Rule 1: Regulating the Content of Speech
In general, any attempt by the government,
which includes state universities, to restrict
or regulate a citizen's speech based upon the
content of the speech, will be stuck down
unless the government can show: (1) it has
a " compelling state interest " in restricting or
regulating the speech and (2) the method used
to restrict or regulate the speech is " narrowly
tailored " to only limit speech that undermines
the government's expressed interest.
Rule 2: Regulating Speech for Reasons other
than Its Content
If the government attempts to regulate or
restrict speech based upon considerations
other than the content, those restrictions will
be upheld so long as they further " an important
or substantial government interest. "
Rule 3: Time, Place, and Manner Restrictions
The government always has the right to
restrict the time, place, and manner of
speech if those restrictions:
■ Are not based on the content of the
speech;
■ Serve a significant governmental interest;
■ Are narrowly tailored to only address the
government interest being protected; and
■ Provide alternative venues for speech.
18 TRUSTEESHIP NOV.DEC.2021
Faculty as Government Employees
As government employees, state university
faculty give up some of the protections they
have as citizens. The Supreme Court in the
1986 Pickering case established the initial
framework for determining whether the
First Amendment protects a government
employee's speech from employer discipline.
Under that framework, the first step
is to determine if the employee is speaking
in the course of their job duties or as a
private citizen, and whether the speech
addresses a matter of public concern. The
Supreme Court has held that a matter of
public concern is one " relating to any matter
of political, social, or other concern to
the community. "
If an employee is speaking both as a
private citizen and about a matter of public
concern, the court then balances the
employee's speech rights against the public
employer's right to maintain efficiency,
integrity, and discipline in the workplace.
If the court finds the employer's interest
outweighs the employee's interest, the disciplinary
action will not violate the First
Amendment. This weighing of employee
versus employer interest is known as the
Pickering Balancing Test.
Conversely, if an employee is either
not speaking as a private citizen or is not
speaking about a matter of public concern-for
example, expressing internal
work grievances-there is no First Amendment
protection and the employee can
be disciplined without violating the First
Amendment.
The Supreme Court in the 2006 Garcetti
case modified the Pickering Balancing Test
by ruling that a government employee
speaking in connection with their official
duties can never be speaking as a private
citizen. Consider the example of a state
employee who is asked to appear on a television
show to discuss his work but chooses
instead to use the opportunity to criticize
public officials over homelessness in the
city. Even though he may be acting as a
private citizen and discussing a matter of
Trusteeship - November/December 2021

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