Last issue’s column asked whether and under what circumstances a faculty member can be called to account based on the content of speech or the impact speech has on listeners. I provided some illustrative examples of what I termed “intemperate faculty speech” and promised that in this issue I would offer legal and practical advice on what to do when faculty members assert a constitutionally protected right to speak their minds.
First principle: Context matters. Not all faculty speech is created equal. In keeping with the doctrine of academic freedom, courts accord greater deference to faculty speech the closer its nexus with classroom activities. As stated in 1957’s Sweezy v. New Hampshire, the Supreme Court recognizes the faculty’s prerogative to determine “what may be taught” in their classrooms and “how it shall be taught.” Judges tread warily when invited to censor or sanction faculty members whose pedagogy pushes the limits of propriety.
What about other contexts? What if a professor publishes a controversial article? What if she writes an intemperate letter to the editor in the local newspaper that identifies her as a faculty member but relates to a matter of community concern having nothing to do with the college? What if she assails a trustee by name and accuses the trustee of a conflict of interest related to the trustee’s vote on a controversial college measure? Permutations are endless. Legal analysis is complicated by the Supreme Court’s controversial 2006 decision in Garcetti v. Ceballos, which held that public sector employees “are not speaking as citizens … [when they] make statements pursuant to their official duties” and are therefore not constitutionally protected from discipline. The court in Garcetti specifically reserved judgment on whether faculty members at public institutions are covered by the ruling. If you serve as a board member at a public institution, you should consult counsel for advice on whether Garcetti applies to your institution. Garcetti, however, doesn’t change and may even reinforce the general precept that context matters, and that faculty members generally enjoy the largest measure of free-speech protection the closer their speech relates to their essential duties as teachers and scholars.
Second principle: Content doesn’t (or shouldn’t) matter. This is perhaps the most difficult principle to accept intellectually and to operationalize, particularly for board members. No matter how outrageous a faculty member’s utterances might strike the dispassionate listener—insert your most nightmarish reference to Hitler, bigotry, or sexual depravity here—we run into potential trouble if we justify our impulse to regulate on distaste for the words chosen. Courts view with suspicion any decision based on “the content of the message” and have repeatedly held that content-based regulation of speech “cannot be tolerated under the First Amendment.” (Quotations are from the Supreme Court’s 1984 decision in Regan v. Time, Inc.)
This segues naturally to our third principle: Develop a thick skin for what might euphemistically be described as “robust” debate. Imagine a faculty member makes a statement you find odious. The statement is widely broadcast through the news media and becomes a subject of controversy among members of the campus community. The board should not hesitate to express its disagreement. But at the same time, it must recognize that faculty members arguably have the right to express even offensive views. Take comfort from Justice Louis Brandeis’ famous 1927 dictum in Whitney v. California: “The remedy to be applied is more speech, not enforced silence.”
Fourth and final principle: Heed measured advice. Institutional officials may advise against punishing a faculty member out of a well-founded fear that punishment will precipitate unflattering press coverage and may bring on litigation that the institution is likely to lose. Free-speech issues will galvanize faculty sentiment and may conceivably invite scrutiny from external organizations. The president, the general counsel, the director of media relations, and other officials often have experience that board members lack in assessing and reacting to a potentially incendiary situation. When emotions are highest, the need to heed the objective judgments of campus officials is most acute.