Faculty free speech: Demers v. Austin

13 Feb

The U.S. Constitution should be cherished by every American. Here is information about the First Amendment from the Legal Information Institute:

first amendment: an overview
The First Amendment of the United States Constitution protects the right to freedom of religion and freedom of expression from government interference. See U.S. Const. amend. I. Freedom of expression consists of the rights to freedom of speech, press, assembly and to petition the government for a redress of grievances, and the implied rights of association and belief. The Supreme Court interprets the extent of the protection afforded to these rights. The First Amendment has been interpreted by the Court as applying to the entire federal government even though it is only expressly applicable to Congress. Furthermore, the Court has interpreted, the due process clause of the Fourteenth Amendment as protecting the rights in the First Amendment from interference by state governments. See U.S. Const. amend. XIV.
Two clauses in the First Amendment guarantee freedom of religion. The establishment clause prohibits the government from passing legislation to establish an official religion or preferring one religion over another. It enforces the “separation of church and state.” Some governmental activity related to religion has been declared constitutional by the Supreme Court. For example, providing bus transportation for parochial school students and the enforcement of “blue laws” is not prohibited. The free exercise clause prohibits the government, in most instances, from interfering with a person’s practice of their religion.
The most basic component of freedom of expression is the right of freedom of speech. The right to freedom of speech allows individuals to express themselves without interference or constraint by the government. The Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech. A less stringent test is applied for content-neutral legislation. The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or cause violence. For more on unprotected and less protected categories of speech see advocacy of illegal action, fighting words, commercial speech and obscenity. The right to free speech includes other mediums of expression that communicate a message. The level of protection speech receives also depends on the forum in which it takes place.
Despite popular misunderstanding the right to freedom of the press guaranteed by the first amendment is not very different from the right to freedom of speech. It allows an individual to express themselves through publication and dissemination. It is part of the constitutional protection of freedom of expression. It does not afford members of the media any special rights or privileges not afforded to citizens in general.
The right to assemble allows people to gather for peaceful and lawful purposes. Implicit within this right is the right to association and belief. The Supreme Court has expressly recognized that a right to freedom of association and belief is implicit in the First, Fifth, and Fourteenth Amendments. This implicit right is limited to the right to associate for First Amendment purposes. It does not include a right of social association. The government may prohibit people from knowingly associating in groups that engage and promote illegal activities. The right to associate also prohibits the government from requiring a group to register or disclose its members or from denying government benefits on the basis of an individual’s current or past membership in a particular group. There are exceptions to this rule where the Court finds that governmental interests in disclosure/registration outweigh interference with first amendment rights. The government may also, generally, not compel individuals to express themselves, hold certain beliefs, or belong to particular associations or groups.
The right to petition the government for a redress of grievances guarantees people the right to ask the government to provide relief for a wrong through the courts (litigation) or other governmental action. It works with the right of assembly by allowing people to join together and seek change from the government. http://www.law.cornell.edu/wex/first_amendment

Peter Bonilla explains why free speech rights on college campuses are important in a PolicyMic article. http://www.policymic.com/articles/3454/free-speech-on-college-campuses-a-must-especially-during-election-seasons/
See, Censorship of Free Speech on College Campuses Grows http://www.educationnews.org/higher-education/censorship-of-free-speech-on-college-campuses-grows/ https://drwilda.com/tag/free-speech-on-college-campuses-a-must-especially-during-election-seasons
For a good summary of faculty free speech rights, THE FREE SPEECH AND ACADEMIC FREEDOM OF FACULTY AT PUBLIC UNIVERSITIES http://www.alliancedefendingfreedom.org/content/docs/issues/school/Faculty-Free-Speech-and-Academic-Freedom-3.22.13.pdf

Scott Jaschik reported in the Inside Higher Ed article, Protecting Academic Freedom:

A federal appeals court has given a strong endorsement to the idea that faculty speech rights at public colleges and universities were not constrained by a 2006 Supreme Court ruling that limited the rights of some public employees.
The 2006 ruling, Garcetti v. Ceballos, concerned the Los Angeles district attorney’s office. Despite that, some courts have been applying the ruling to faculty disputes at public universities — while others have not. The new ruling – by the U.S. Court of Appeals for the Ninth Circuit – comes in a three-judge panel’s revised opinion on the case of David Demers, a tenured professor at Washington State University who says he was retaliated against with negative performance reviews for writings that criticized the administration.
The appeals court did not rule on the merits of the case, and as it did in its first look at the Demers suit, it said that his free speech wasn’t limited by the Garcetti ruling. But the language in the new ruling was quite strong – the kind of language many faculty advocates have been looking for.
The appeals court acknowledged that Garcetti set limits for public employees, but said there was no question that those limits should not apply in higher education.
“Garcetti left open the possibility of an exception,” the appeals court said. “In response to a concern expressed by Justice Souter in dissent, the court reserved the question whether its holding applied to ‘speech related to scholarship or teaching.’ Justice Souter had expressed concern about the potential breadth of the court’s rationale, writing, ‘I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities.’ ”
The appeals court added that “Demers presents the kind of case that worried Justice Souter. Under Garcetti, statements made by public employees ‘pursuant to their official duties’ are not protected by the First Amendment. But teaching and academic writing are at the core of official duties of teachers and professors. Such teaching and writing are a special concern of the First Amendment. We conclude that if applied to teaching and academic writing, Garcetti would directly conflict with the important First Amendment values previously articulated by the Supreme Court.”
Further the court noted that the First Amendment, as interpreted in other Supreme Court decisions, applies to faculty speech that may not be strictly scholarship or teaching, but may relate to discussions of college policy. “[P]rotected academic writing is not confined to scholarship,” the appeals court said. “Much academic writing is, of course, scholarship. But academics, in the course of their academic duties, also write memoranda, reports, and other documents addressed to such things as a budget, curriculum, departmental structure and faculty hiring.”
Robert O’Neil, former president of and professor of law at the University of Virginia, and an expert on faculty free speech issues, said via email that the latest decision from the appeals court added to the view he shares that Garcetti should not be applied to higher education. http://www.insidehighered.com/news/2014/02/13/court-ruling-takes-stand-faculty-free-speech#ixzz2tF8YHMWY

Here is the case summary by Breanna Thompson of Willamette College of law:

Demers v. Austin
Summarized by: Breanna Thompson
Date Filed: 09-04-2013
Case #: 11-35558
Circuit Judge Fletcher for the Court; Circuit Judge Fisher and Senior District Judge Quist
Full Text Opinion: http://cdn.ca9.uscourts.gov/datastore/opinions/2013/09/04/11-35558.pdf
Civil Rights § 1983: Garcetti does not apply to teaching and academic writing. Instead, the Pickering test should be applied which requires the employee to show that his or her speech addressed matters of public concern and that interest in voicing those concerns outweigh the State’s interest in promoting efficient public services.
David Demers was a tenured associate professor at Washington State University. He brought suit alleging that after distributing a short pamphlet and drafts of an in-progress book, the university retaliated against him in violation of the First Amendment. The district court granted summary judgment for the defendants by applying Garcetti v. Ceballos, and found that the drafts were distributed pursuant to Demers’s employment duties and therefore not protected under the First Amendment. Demers contended that the retaliation consisted of negative annual performance reviews with false information, conducting two internal affair audits, serving formal notice of discipline, preventing him from serving on committees. Demers argued that writing and distributing of the Plan was not done as an official duty, and even if it was, Garcetti does not extend to activity by a public teacher. The Ninth Circuit disagreed with the first argument, but agreed that Garcetti does not apply to this case. Garcetti held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” If this holding applied to academic writing, then it would directly conflict with First Amendment values which include academic freedom. Instead, teaching and academic writing is governed by Pickering v. Board of Education, requiring the employee to show that his or her speech addressed matters of public concern and that interest in voicing those concerns outweighed the State’s interest in promoting efficient public services. The panel concluded that the pamphlet did address a matter of public concern under Pickering, but that there was insufficient evidence to prove retaliation. Additionally, defendants were entitled to qualified immunity because of the uncertainty of Garcetti. AFFIRMED in part, REVERSED in part, and REMANDED. http://www.willamette.edu/wucl/resources/journals/wlo/9thcir/2013/09/demers-v.-austin.html

Ben Franklin states it best:

Benjamin Franklin (1706–90)

“Well, Doctor, what have we got—a Republic or a Monarchy?”“A Republic, if you can keep it.”


Center for Campus Free Speech

Free Speech Off Campus Must Be Protected

Column: Free speech sacks ban on college-athlete tweets

Student Press Law Center

Free Speech, Social Media and Community Colleges: Let the Clash Begin

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