Okay, before I get started, let me make absolutely clear that I did not write this post in pursuit of my official duties. You’ll see why.
The other day, faculty members at the University of California, Davis, received a memorandum from the Committee on Academic Freedom and Responsibility concluding,
In light of the present deep economic recession and dramatic cuts under discussion at UC Davis, faculty participating in shared governance are in a position in which they may voice strong views and concerns that could lead to lawful but punitive reaction by the administration, including denial of merits and even dismissal. Given the legal and policy realities at hand, we highly recommend that you use caution, restraint, and judgment in your speech and actions in all job-related duties.
Where did that come from? you might ask. Well, it seems to have gone like this.
1. Mr. Ceballos blows a whistle and gets a demotion.
On March 2, 2000, Richard Ceballos, a deputy district attorney for Los Angeles County, wrote a memorandum complaining of inaccuracies in an affidavit for a criminal case. Afterward, he claimed, his superiors subjected him to retaliatory personnel measures, including denial of promotion. He sued, saying among other things that his First Amendment rights had been violated.
The case went to the Supreme Court, whose majority decided, in its 2006 opinion Garcetti v. Ceballos, that
When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.
Why public employees, particularly?
When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom. See, e.g., Waters v. Churchill, 511 U.S. 661, 671, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994) (plurality opinion) (“[T]he government as employer indeed has far broader powers than does the government as sovereign”). Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services. Cf. Connick, supra, at 143, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (“[G]overnment offices could not function if every employment decision became a constitutional matter”). Public employees, moreover, often occupy trusted positions in society. When they speak out, they can express views that contravene governmental policies or impair the proper performance of governmental functions.
These restrictions don’t touch all of a public employee’s speech, the Court goes on to say, just speech produced in pursuit of official duties.
The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy…. That consideration–the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case–distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline. We hold 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.
So if in the course of doing his duty a DA discovers a flawed affidavit containing inaccuracies, he daren’t mention it unless he’s sure his superiors will be happy to hear about it.
In a dissent, Justice Souter wrote, among other comments, that this troubled him because of its potential application to university professors.
This ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor, and I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write “pursuant to official duties.” See Grutter v. Bollinger, 539 U. S. 306, 329 (2003) (“We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition”); Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589, 603 (1967) (“Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. ‘The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools’ ” (quoting Shelton v. Tucker, 364 U. S. 479, 487 (1960))); Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957) (a governmental enquiry into the contents of a scholar’s lectures at a state university “unquestionably was an invasion of [his] liberties in the areas of academic freedom and political expression–areas in which government should be extremely reticent to tread”).
Responding to Souter for the majority, Justice Kennedy noted,
Justice Souter suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value. See post, at 12-13. There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.
Which is to say, well, wait and see.
2. Mr. Hong doesn’t get a merit increase.
In 2006, Professor Juan Hong, a full professor in the department of Chemical Engineering and Materials Science at the University of California, Irvine, sued the UC, alleging that he had been denied a “merit” because he had criticized the administration. You see, in the UC, even after tenure, professors are reviewed by their departments and administrators to determine if they’re eligible for an increase of pay owing to merit. For full professors, the interval is normally every three years. If an application for a merit is successful, the professor goes up in “step”—i.e., in the case of Professor Hong, from Professor Step III to Professor Step IV.
According to the court’s opinion, the reviewing faculty found that Hong’s “research activities [were] not at the level commensurate with the rank of Full Professor, Step IV”, and administrators did not overturn the faculty.
But Hong believed he had been denied his merit because he’d criticized the administration and his department, amongst other things objecting because he “felt it was the department’s obligation to its students to staff courses with experienced faculty, rather than younger, transient lecturers”.
In Hong v. Grant [pdf], Judge Cormac Carney ruled that it didn’t really matter why Hong had been denied his merit, because even if he had been denied on account of his statements, rather than on account of a modest research record, it would have been acceptable under Garcetti v. Ceballos.
Mr. Hong is under professional obligation to actively participate in the interworkings and administration of his department, including the approval of course content and manner of instruction.
If I follow the logic correctly, Hong is obliged to participate in the administration of his department. But the definition of “actively participate in the interworkings and administration of his department” appears here to be, “say only those things which won’t lose you a merit increase.”
Now so far, the implication of the case seems to be, don’t say anything bad about how the administration runs the university. None of this seems to touch utterances in the classroom or research. But it doesn’t exclude them, either. As Carney notes, “In the University of California system, a faculty member’s official duties are not limited to classroom instruction and professional research.” Which is to say, official duties include serving on committees and suchlike in addition to classroom instruction and professional research. The clear implication of this sentence is that classroom instruction and professional research would be covered under Garcetti, unless they were specifically exempted by such precedents as Souter cited.
The AAUP is involved in the Hong appeal, as is the Thomas Jefferson Center for the Protection of Free Expression.
107 comments
June 15, 2009 at 4:16 pm
Vance
I’m trying to parse the causality in the Committee’s statement at the top. Are they saying that, due to budget cuts, the university may do bad things, increasing the chance that you will criticize them? Or that the university is likelier to use any comments as a pretext for firing?
June 15, 2009 at 4:26 pm
eric
I might call it an intriguing ambiguity.
June 15, 2009 at 6:11 pm
jrc
The Faculty Code of Conduct
Part I:
5. the right to be judged by one’s colleagues, in accordance with fair procedures and due process, in matters of promotion, tenure, and discipline, solely on the basis of the faculty members’ professional qualifications and professional conduct.
Very Kantian distinction between public and private reason being implied by the University here. The question of the legality of their (threatened) actions hinges on what constitutes “professional conduct.” Apparently, participating in “shared governance” counts.
It is somewhat disturbing to me that when acting as a private citizen (that is, when not working for the University) professor’s are guaranteed complete freedom of dissent (which dissent cannot be used to deny promotions or as a cause for dismissal), but when they are actually working for the University, they lose their protection to say what they think and defend the integrity of the education they provide. Odd.
jrc
June 15, 2009 at 6:56 pm
ben
The quoted paragraph following “why public employees, particularly?” is a masterpiece of misapplied (or perhaps mendaciously applied) reasoning. For instance:
“Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.”
(The text we are invited to confer over is hilariously useless as support for the contention.) I … that’s why? But that is quite stupid! (And has absolutely nothing to do with whether the employee is speaking pursuant to his official duties, or, as far as I can tell, as a citizen, but as regards the latter I would find Ceballos’ treatment equally unjust were he a private employee, so, wev) Of course some things have to be accepted in order for things to be done; you can’t argue about every last little thing forever. Why this means that you can reprimand someone for saying something not to your taste is not immediately obvious, especially given that in this case the provision of public services—you know, justice’s being done, and all that—would have been impeded by the Ceballos’ keeping mum.
I would assume that there was more and better argumentation to the court’s conclusion elsewhere in the opinion, but the last time I condescended to read its output I was frankly shocked by its low quality, so I might have to avoid finding out for my blood pressure’s sake.
And of course:
“Public employees, moreover, often occupy trusted positions in society. When they speak out, they can express views that contravene governmental policies or impair the proper performance of governmental functions.”
They remain public employees in fact regardless of whether they speak out qua public employees, so we have here something that would have struck Frederick II as a bit excessive.
June 15, 2009 at 11:03 pm
teofilo
It’s okay, ben. Maybe they’ll nominate you next time there’s an opening.
June 15, 2009 at 11:19 pm
saintneko
In other words, don’t make your bosses look like fools.
What a sad, sad ruling.
June 16, 2009 at 5:29 am
kevin
Only skimmed the excerpts from the ruling, but doesn’t this violate several whistleblower protection laws?
Say, if some employee of the California Public Utilities Commission discovered a flaw in the gas lines that could likely result in a disaster, but the budget-conscious bosses waved him away from pressing the repairs — if he went to the press with his information and alerted the public that way, it’d be fine for the bosses to get back at him and deny him promotion down the line? Sheesh.
Sleep the sleep of angels, Californians.
June 16, 2009 at 5:40 am
rea
There’s another side of this issue, of course, as you will understand if you consider whether firing John Yoo would violate his first Amendment rights.
June 16, 2009 at 7:08 am
Michael Bérubé
Good thing this post has nothing to do with your official duties, Eric! I’ve now written mine, and oddly, mine has nothing to do with my official duties, either. Let’s spread the word! In a way that has nothing to do with our official duties, of course.
June 16, 2009 at 7:33 am
silbey
Ve vill tell you vhat your ‘official duties’ are, Herr Rauchway. (/obligatory Nazi reference).
June 16, 2009 at 8:03 am
Chris
Unfortunately, I think silbey is right; saying that this post is unrelated to your official duties doesn’t make it so. Drawing the line between your official and private actions may be second-guessed by a court regardless of such a routine disclaimer, and of course, the resulting uncertainty merely expands the chilling effect Souter warned of.
June 16, 2009 at 8:22 am
LizardBreath
I think Ceballos was straightforwardly decided rightly. If you back away from the “More protection of speech is always the right answer under the First Amendment” reaction (which is generally a good one, but I think leads people astray in this case), the arguments for it seem to me to be persuasive.
What you have in Ceballos is someone whose job involves, almost exclusively, speech. What he does for a living is write things and say things. His bosses have to be able to evaluate his performance somehow, and manage him in response to that evaluation; if he’s doing a good job, reward him, if he’s doing a bad job, discipline or fire him.
Another way of putting that is that his bosses have to be legally entitled to look at something he’s written, decide that it is evidence that he is doing his job badly (or, rather, that the writing of whatever it is constitutes doing his job badly), and respond to that by taking some employment action against him, or they have no authority over how he performs his duties at all. Whether they’re right or wrong about that evaluation in any particular case — whether the written work was good or bad work — shouldn’t be a matter for the courts: the point is that it’s professional work-product, and the employer has to be able to respond to it as such.
OTOH, I think drawing a line between speech and writing that is professional work-product, and so not shielded from disciplinary employment action by the First Amendment, and speech and writing that is not professional work-product, is fairly easy in most contexts.
I blogged about this at Unfogged a couple of years back — I’ll go find the link.
June 16, 2009 at 8:27 am
LizardBreath
Here’s my Unfogged post.
June 16, 2009 at 8:55 am
eric
But LB, there’s nothing in your argument that distinguishes the interest of private from public employers. Yet the Court does. Which was the bit that ben battened onto.
June 16, 2009 at 9:00 am
eric
kevin, I think the thing that stops this violating a whistleblower law is that Ceballos didn’t blow the whistle in public. The Court leaves open the possibility that had Ceballos made his objections to a third party or publicly, he might have been protected.
Which, btw, is why this post should be protected: this is pretty public, and plenty of you are third parties.
June 16, 2009 at 9:10 am
Mike
While I agree that quote is a bit bogus, isn’t there a necessary distinction between public and private employers? First Amendment rights only apply to restrictions as applied by the government. If a private employer fires you for your speech, that’s entirely within their rights (unless such an action violates some other statute). However, if your official speech as a public employee is protected, they have no recourse to fire you at all for your statements, as doing so would be government retaliation to your speech. I think that’s clearly untenable.
I don’t mean to defend the actions of Ceballos’s and Hong’s superiors, but (at least for Ceballos) I don’t think it’s appropriate to claim First Amendment rights were violated.
June 16, 2009 at 9:10 am
LizardBreath
The distinction between public and private employers is that the First Amendment doesn’t do anything at all to protect the employees of private employers from retaliation for speech — a private employer is unquestionably allowed to do whatever they like, employment-wise, to you for speaking on or off the job, without the First Amendment acting as any bar. (Similarly, in Hong, the case only got as far as it did on a First Amendment claim because Hong worked for the University of California. If he’d worked for Stanford, the First Amendment wouldn’t apply at all.)
Any First Amendment issue is going to be about what protections government employees have against employment action that employees of private employers don’t get. There are some — a government employer can’t retaliate against its employees for off-the-job speech (like a letter to the editor), and can’t retaliate against its employees for on-the-job speech that doesn’t affect the workplace (that case is Pickering).
Which, btw, is why this post should be protected: this is pretty public, and plenty of you are third parties.
Not really. The line isn’t so much public or non-public, it’s more part-of-your-job or not, and as an academic, it’s really hard to say when you’re off the clock. (Much easier for almost any other profession.) You’re protected by tenure, but if you were badmouthing U C Davis on this blog, I wouldn’t rely on First Amendment protection, rather than tenure, to protect you from employment retaliation.
June 16, 2009 at 9:11 am
LizardBreath
I crossed with Mike, who’s exactly correct.
June 16, 2009 at 9:19 am
eric
The distinction between public and private employers is that the First Amendment doesn’t do anything at all to protect the employees of private employers from retaliation for speech — a private employer is unquestionably allowed to do whatever they like, employment-wise, to you for speaking on or off the job, without the First Amendment acting as any bar.
So what work is that passage about public employees being regulatable because they hold “trusted positions in society” doing?
The line isn’t so much public or non-public
Isn’t section IV of Kennedy’s opinion meant to exempt public complaint, or recognize the validity of whistle-blowing?
And as to “as an academic, it’s really hard to say when you’re off the clock”, how does that fit with Kennedy’s saying, “We reject, however, the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions”?
June 16, 2009 at 9:27 am
eric
LB, Your general point that when someone’s work product is speech, they can be evaluated or punished by the quality of that speech, seems inoffensive on its face — but it really does seem to founder on the two cases here.
With Ceballos, you have an affidavit to be used in prosecution in which there are misrepresentations of fact. All parties admit that it’s pursuant to Ceballos’s duties that he say something about the affidavit. But under the Court’s decision, and your take on it, his duty is to say only that which will not get him demoted. This seems a strange definition of duty.
I feel on even firmer ground saying the same thing about Hong. His duties include serving on committees that participate in the governance of the university. He must, as a matter of professional obligation, participate in debates there. But under the court’s ruling, and your take on it, his obligation is in fact to say only that which will not get him punished.
Even more than in the case of Ceballos, this seems obviously absurd. It means that the entire Academic Senate has no real purpose. Isn’t it a fundamental rule of statutory construction that laws mean things? How can the Regents’ order that the faculty be “empowered to determine academic policy, set conditions for admission and the granting of degrees, authorize and supervise courses and curricula, and advise the administration on faculty appointments, promotions and budgets” mean anything under the Hong decision?
June 16, 2009 at 9:45 am
LizardBreath
So what work is that passage about public employees being regulatable because they hold “trusted positions in society” doing?
That sentence is a ‘moreover’, following a sentence which explains that government employers are like private employers in that they have a legitimate need to control their employees. The ‘trusted positions in society’ language is, I think, intended to flesh out how serious that need is.
Isn’t section IV of Kennedy’s opinion meant to exempt public complaint, or recognize the validity of whistle-blowing?
No, it’s meant to distinguish whistle-blowing that’s protected by statute, labor codes, or “rules of conduct and constitutional obligations apart from the First Amendment”, from a general First Amendment protection for employment-related speech. Kennedy’s saying that just because it’s clear that a kind of speech should be protected somehow for policy reasons doesn’t necessarily mean it’s protected by the First Amendment — we need other protections as well.
And as to “as an academic, it’s really hard to say when you’re off the clock”, how does that fit with Kennedy’s saying, “We reject, however, the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions”?
Here, you know better than I when you’re off the clock. I don’t have a confident sense of when an academic speaking in public (e.g., your teledonetics) is doing their job as an academic, and when they’re just speaking as an individual. But I have the impression that Eric Rauchway, teledon, is at work, doing what U C Davis pays him for, when he makes an appearance on TV. I’m a state employee as well, but if someone asked me to appear on TV because of my blogging (unlikely, but work with me), that would unambiguously not be what I get paid by my home state to do. I’m sure that I would have First Amendment protection against employment retaliation if I appeared on TV to talk about politics, because such a TV appearance is not part of my job, but I’m not sure that you would, because it is (I think, at least in some sense) part of yours.
But that’s not something your employer did to shut you up; the breadth of your job description (which, for tenured academics, I understand is something along the lines of “teach your classes, assist in the administration of the institution, but primarily do what you see fit to increase the sum of human knowledge”) is inherent in the nature of academic work. (Oh, it’s blurrier for a history prof than for a computer scientist — I’d figure that someone in a technical field would be able to make a much stronger argument that any given speech was on their own time rather than part of their job.)
June 16, 2009 at 10:00 am
LizardBreath
But under the Court’s decision, and your take on it, his duty is to say only that which will not get him demoted. This seems a strange definition of duty.
Don’t think about duty, think about protection. The First Amendment protects the right to speak regardless of content — to say whatever you like, offensive, inoffensive, true or false. (There are restrictions, like defamation, but generally that’s the principle.) Once we start evaluating speech as good or bad in order to determine whether it should be protected, we are conceding that it is not protected by the First Amendment — if it were, we wouldn’t be entitled to evaluate it. (Identify certain things about it — time, place and manner — but not whether we approve or disapprove of the content.)
Now imagine another prosecutor in Ceballos’s office who’s an incompetent, Deballos. Deballos keeps on writing memos about how this that and the other document filed by the office is a tissue of lies. But he’s wrong, and he’s incompetent, and all of these memos are going to get the office into trouble if they get out into public — they’re going to lose cases because defense attorneys will be able to wave around nonsensical memos asserting that the prosecution’s case is based on lies. It has to be possible to fire Deballos for his incompetent memo-writing, right? If you couldn’t, you couldn’t run an office.
The only difference between Ceballos and Deballos is that Ceballos was right and Deballos was wrong. First Amendment protection isn’t for speech so long as it’s right or useful, it’s for speech regardless of content. If you have to analyze the content to decide whether it should be protected, it’s not protected.
Now, Ceballos had a duty as a professional to write the memo he did, and his employer seems to have been unethical and stupid to have disciplined him for it. But that doesn’t make the memo protected by the First Amendment.
June 16, 2009 at 10:09 am
eric
Don’t think about duty, think about protection
But I want to think about duty, because as you say, the decision turns on the definition of what’s pursuant to duty. And the interpretation of duty here seems to be, say what will please your superiors, and nothing else.
As for Ceballos/Deballos, I don’t know what the rules are for DA’s, but professors can be sacked for incompetence.
And I’m thinking about duty because it seems to me your interpretation of the law as it applies to a given job needs to leave that job intact. Here you’re reducing the jobs of being a DA and a university prof to “agreeing with superiors” or at least “not antagonizing superiors”.
June 16, 2009 at 10:10 am
eric
And I’m still curious as to whether you think Hong interprets the Academic Senate out of existence, and if this seems like a flaw in its logic to you.
June 16, 2009 at 10:20 am
LizardBreath
But I want to think about duty, because as you say, the decision turns on the definition of what’s pursuant to duty.
It does, but perversely from the point of view of the argument I think you’re making.
What you say on your own time, pursuant to no employment duty whatsoever, is protected by the First Amendment. You can say whatever you like, and the government won’t come after you for it, whether or not you are a government employee, and whether or not the government is considering employment action against you or any other form of sanction. If your speech is not part of your employment, and you have no professional duty to engage in it, you are absolutely (leaving aside defamation and so forth) protected.
On the other hand, if you are a government employee and you have an employment related duty to speak, then that speech, mandated by duty, is not protected by the First Amendment. An employment related duty to speak is, necessarily, an employment-related duty to speak competently and usefully (rather than incompetently and harmfully), and so it must be subject to evaluation by the employer as competent and useful. Once you’re saying that the employer is entitled to evaluate the value of the speech, you’re outside the First Amendment, which is for protecting speech regardless of our beliefs as to its value.
As for Ceballos/Deballos, I don’t know what the rules are for DA’s, but professors can be sacked for incompetence.
If their on-the-job speech were consistently protected by the First Amendment, they couldn’t be.
June 16, 2009 at 10:22 am
LizardBreath
And I’m still curious as to whether you think Hong interprets the Academic Senate out of existence, and if this seems like a flaw in its logic to you.
The Academic Senate is still there, it’s proceedings are just not protected by the First Amendment. Think about a private university with a similar Academic Senate. That wouldn’t have any First Amendment protections, but it could still function, right?
June 16, 2009 at 10:25 am
eric
See, I think the problem here is in construing the work-product as speech. It’s not. The work product is the opinion, which is conveyed through the medium of speech.
If Ceballos had incompetently formed an opinion, he could be demoted. But he’d be punished then for his incompetent reasoning, or incompetent application of legal principles—not for the expression of that reasoning or those principles.
Here, Ceballos’s opinion is not (let’s assume) incompetently formed or expressed. So he can’t be punished for incompetence. He can only be punished for expression. Ixnay, says I.
June 16, 2009 at 10:34 am
LizardBreath
Think about disagreement, rather than incompetence. I used to work for a private law firm, and I would sometimes put forth a perfectly competent legal theory, and get told by a partner “No, we’re doing it this other way.” At which point (after arguing as much as I thought appropriate) I’d drop my theory, and do what I was told instead (subject to my ethical obligations as a professional, but that’s not important here). If I’d insisted on doing things my way, or on writing memos to the file explaining how the partners were wrong, I’d have gotten fired for that, competently done or not.
Now I work for the state. And I’m still not entitled to write screeds to the file explaining how my superiors are wrong, competently or not, without suffering employment action for it. By virtue of their superior position in the office hierarchy, they’re entitled to control the work I do just as a private employer would be, and that includes controlling what I say in the context of doing my job. (Being overcontrolling would be bad management and annoying, but wouldn’t be a violation of the First Amendment.)
I don’t think your distinction between opinion-formation and expression of that opinion works usefully in this context. If you’re attached to it, can you spin it out for me some more?
June 16, 2009 at 10:36 am
eric
The Academic Senate is still there, it’s proceedings are just not protected by the First Amendment.
It sounds like its proceedings serve no purpose at all, LB. Suppose your administration wants to hire lots of non-tenure-track lecturers You set up an Academic Senate committee on, say, the brilliance of hiring of non-tenure-track lecturers. And you wave the Hong decision before them. What’s the point of that Academic Senate committee, again? Not actually to form an opinion, but simply to sign off on a decision already made. Which is not what the Regents’ order says.
June 16, 2009 at 10:38 am
eric
Think about disagreement, rather than incompetence.
See, you want to stop annoying disagreement. But in doing so, you’re preventing the competent expression of ethical objections — precisely what Ceballos appears to have been doing. This is too high a price to pay.
June 16, 2009 at 10:41 am
eric
Think about a private university with a similar Academic Senate. That wouldn’t have any First Amendment protections, but it could still function, right?
First, it appears there ain’t one. Maybe for this reason? But if there were, its ability to function would depend on the administration allowing its members to form and express independent opinions without fear of retaliation.
I mean, think of the obvious parallel. If the US Senate’s oversight committees could only issue opinions that were exactly what the executive branch wanted to hear, what oversight function would they be serving, now?
June 16, 2009 at 10:43 am
LizardBreath
And you wave the Hong decision before them. What’s the point of that Academic Senate committee, again? Not actually to form an opinion, but simply to sign off on a decision already made.
Well, the people on the Academic Senate committee aren’t protected by the First Amendment, but they’ve still mostly got tenure, right? So they make the decision they think is right, and accept the possible consequences (loss of merit pay); if they trust the good will of the employer, they’re in good shape — if not, they have to be cautious. That’s the relationship most employees are in with their private employers (which is why protections such as unions, tenure, and so forth are necessary and desirable) and I don’t see a strong argument that the First Amendment is intended to make the employment relationship between government employers and employees fundamentally different than that between private employers and employees.
Private universities have faculty input on these sorts of administrative questions and it’s workable, isn’t it, despite unquestionably lacking this sort of First Amendment protection?
June 16, 2009 at 10:46 am
eric
they’ve still mostly got tenure, right?
I think this might be a problem for your argument.
June 16, 2009 at 10:46 am
LizardBreath
See, you want to stop annoying disagreement. But in doing so, you’re preventing the competent expression of ethical objections — precisely what Ceballos appears to have been doing. This is too high a price to pay.
When you say it’s too high a price to pay, it’s a price that every single employee of a private employer pays, and yet the earth continues to turn on its axis. Why should a government employee be subject to less management control over the manner in which they do their work than a private employee?
June 16, 2009 at 10:47 am
eric
That’s the relationship most employees are in with their private employers
Yeah, another problem here is the assumption that the university administration is the agent for the employer. I’m not sure this is true. The Regents are the employers, but the Regents have set up both the administration and the senate to run the university.
June 16, 2009 at 10:49 am
LizardBreath
I think this might be a problem for your argument.
Nope. My point about tenure is that there are other mechanisms beyond the First Amendment that make it possible for an employee to speak freely — it is not sufficient to say that “These people should be able to speak freely” and from that alone to conclude that “their speech must be protected by the First Amendment”.
June 16, 2009 at 10:49 am
eric
Why should a government employee be subject to less management control over the manner in which they do their work than a private employee?
Just for the sake of argument, perhaps because “Public employees, moreover, often occupy trusted positions in society”, which include for example the administration of justice, in which we have a greater public interest than we do in whether a private law firm makes tons of money.
June 16, 2009 at 10:50 am
LizardBreath
Yeah, another problem here is the assumption that the university administration is the agent for the employer.
I’m not clear what follows from that for your argument.
June 16, 2009 at 10:50 am
eric
it is not sufficient to say that “These people should be able to speak freely” and from that alone to conclude that “their speech must be protected by the First Amendment”
That’s fine, so long as we don’t go from “their speech is not protected by the First Amendment” to “their speech is not protected” — which is where these decisions seem to go.
June 16, 2009 at 10:51 am
eric
I’m not clear what follows from that for your argument.
I should think that the court doesn’t get to delegate the rights of employers to the administration.
June 16, 2009 at 10:53 am
eric
Aaaand, I gotta go do some official duties now…. sorry.
June 16, 2009 at 10:53 am
LizardBreath
greater public interest than we do
And you think that it’s obvious that that public interest is served by reducing the capacity of governmental employers and managers to control the work they supervise? Caballos is a sympathetic whistleblower with a charismatic job, but if his on-the-job speech is protected by the First Amendment, so is that of every clerk at the DMV.
June 16, 2009 at 10:54 am
LizardBreath
I should think that the court doesn’t get to delegate the rights of employers to the administration.
The employers have delegated the right to take whatever disciplinary action was taken against Hong to the administration, or the case would have taken a very different posture. This issue doesn’t go anywhere.
June 16, 2009 at 10:56 am
LizardBreath
That’s fine, so long as we don’t go from “their speech is not protected by the First Amendment” to “their speech is not protected” — which is where these decisions seem to go.
No. There’s tenure, there’s whatever protection principles of academic freedom gets you, there are contractual protections, there are policies of the university. There are all sorts of sources for protection for speech other than the First Amendment.
June 16, 2009 at 11:00 am
LizardBreath
Huh. Ran on a bit there — I’ll drop it until you get back.
June 16, 2009 at 11:19 am
dana
LB, you would seem to be correct to me, except that the excerpt eric quotes doesn’t talk about the Hong decision and then go on to clarify that while such speech is not protected by the first Amendment, it is protected by UC’s merit policies regarding tenure or by regulations protecting whisteblowers. I’m more than a little concerned that it’s a legitimate distinction without a practical difference.
June 16, 2009 at 11:29 am
LizardBreath
I’m more than a little concerned that it’s a legitimate distinction without a practical difference.
It may be — I’m arguing that to the extent there’s a real practical problem here, it should be solved by changing the policies of the UC, or passing a statute. The Hong situation probably does require some sort of solution; I just don’t think the solution lies in constitutional law.
June 16, 2009 at 12:47 pm
eric
Okay, let me take a step back here because, as should be obvious by now, I Am Not A Lawyer.
But. You, and SCotUS, want to provide to public employers something of the same discretion in disciplining or firing employees that private employers enjoy. So you say, okay: a public employer doesn’t have to observe First Amendment protections of employee speech when that speech is required in the course of someone’s duties. This lets us out of many frivolous lawsuits.
The problem that I see is, by allowing public employers latitude to discipline or fire employees on the basis of speech uttered in the course of duty, you imperil the performance of that duty. I.e., you can punish Ceballos for telling his superiors there’s a problem with the affidavit on which the prosecution depends. It’s Ceballos’s duty as a DA to point this out. But if he does his duty, he will suffer.
Now, in the case of a private employer, there’s no pressing public interest in a scenario like this. A private law firm can fire or punish employees any time or any way it likes; the only thing at stake is whether the private law firm makes or loses money. If it wants to punish people for doing a good job, presumably it will lose money, and its partners will be poorer: but it doesn’t matter to the public.
But there is a pressing public interest that there not be prosecutions based on (say) false affidavits. The problem here is that with Garcetti you’ve made it nearly impossible for a DA to point out that a prosecution depends on a false affidavit. Here’s Balkin, who Is A Lawyer:
Because we really don’t want state power to be abused, we really want to protect the right of employees to blow the whistle. And if our interest is in the smooth execution of the state’s duties, we had rather have the whistle blown privately to superiors rather than a big mishegoss made by going to the press.
I concede the point that we want public employers to be able to discipline or fire employees without having to go to court each time. But I do think that perhaps it ought to be on the basis of competence, not on the basis of undesirable speech. On the merits, let’s say Ceballos was competent. He should not therefore be punishable. On the merits, your hypothetical Deballos was incompetent. He should be punishable.
(And we need not stick only with the public-employee equivalent of charismatic megafauna. To use your example, a DMV clerk who realizes someone is being inappropriately deprived of a driver’s license should be able to point this out to superiors without fear of being sanctioned.)
LB, you’ve asked, what about the non-First Amendment protection we afford to such people? Presumably there are lots more protections in universities than there are in a DA’s office, let alone the private sector — protections like, say, tenure and academic freedom.
The problem here is, not everyone in a university is tenured. Indeed, increasingly, fewer and fewer people are even tenurable—which is one of the things Hong pointed out that allegedly got him in trouble. Moreover, as both Bérubé and I noticed, Garcetti leaves the way open to restricting academic freedom—and in Hong a judge seems to have moved a little in that direction.
You can argue, if you like, against tenure and academic freedom on the grounds that they’re obstacles to the smooth provision of a public trust, and maybe a lot of people would agree with you. But not me, I guess it could go without saying.
June 16, 2009 at 1:00 pm
Ahistoricality
they’ve still mostly got tenure, right?
Yeah. Even though there’s lots of pressure on untenured tenure-track faculty to undertake service (and often slots reserved for untenured faculty on Senates), most of them know better than to take on a duty that, by definition, puts them in conflict with their supervising faculty and administration.
Some of us don’t know better, and have suffered for it.
June 16, 2009 at 1:53 pm
LizardBreath
The problem that I see is, by allowing public employers latitude to discipline or fire employees on the basis of speech uttered in the course of duty, you imperil the performance of that duty. I.e., you can punish Ceballos for telling his superiors there’s a problem with the affidavit on which the prosecution depends. It’s Ceballos’s duty as a DA to point this out. But if he does his duty, he will suffer.
The thing is, mostly, he won’t suffer for doing his duty. In a normally functioning workplace he’ll point out that there’s a problem with the affidavit, and his supervisors will say “Shit, how’d that happen? Good catch!” He will suffer for doing his duty only when his workplace is broken — when his superiors are incompetent or dishonest. If things are that bad, going to the papers seems like a reasonable option, and that’s protected by the First Amendment.
I concede the point that we want public employers to be able to discipline or fire employees without having to go to court each time. But I do think that perhaps it ought to be on the basis of competence, not on the basis of undesirable speech. On the merits, let’s say Ceballos was competent. He should not therefore be punishable. On the merits, your hypothetical Deballos was incompetent. He should be punishable.
If that is the standard, then we have to go to court each time. Deballos, incompetent or not, can file a lawsuit in which a court must determine if he was incompetent and fireable, or competent and protected, and that’s the kind of determination that can’t be made without a whole lot of fact-intensive litigation.
To use your example, a DMV clerk who realizes someone is being inappropriately deprived of a driver’s license should be able to point this out to superiors without fear of being sanctioned.
Should he be able to tell teenagers trying to get learner’s permits that no one should learn to drive until they’re twenty, regardless of the law in that state, without fear of discipline? Part of the DMV clerk’s job is to speak to the public on behalf of the state, and if the clerk can’t be required to abide by public policy in their speech, that’s a management problem.
Tenure and academic freedom are wonderful things, and to the extent they’re being eroded that’s very bad. But they’re entirely distinct from what should be regarded as protected under the First Amendment.
June 16, 2009 at 1:59 pm
kevin
Wow, this thread has been busy today.
I have nothing substantial to add, but given the post title, I thought I’d contribute a mascot idea: The Fleischer University Fightin’ REDACTED.
June 16, 2009 at 2:26 pm
eric
If that is the standard, then we have to go to court each time
LB, if you can play the “normally functioning workplace” card, then so can I: no, in a normally functioning workplace, we would not.
I think, basically, we’re not going to agree on this. I know I’m not a lawyer, and so can be said not to know what I’m talking about, but I feel reasonably comfortable siding with Balkin, Lederman, and as you yourself pointed out, Lemieux, as well as whatever part of 2006-era LizardBreath it was that was “somewhat disturbed by the company [she's] keeping here”, and I’ll rest with that.
June 16, 2009 at 2:27 pm
eric
Wow, this thread has been busy today.
Well, it’s mainly me arguing with LB, really.
June 16, 2009 at 2:42 pm
LizardBreath
Fair enough — we can agree to disagree. (That’s only enraging when Holbo does it, right?)
It’s funny, there are some topics where I believe that my opinion is so self-evidently compellingly correct that if I simply repeat myself often enough, no one could possibly disagree. Looking up at the thread, this appears to have been one of those topics — my apologies for the volubility.
June 16, 2009 at 2:56 pm
JPool
LB,
You make very convicing points (or at least points that are convincing about the need for universal unionization, or The Revolution or some such), but they seem to assume the complete abscence of whistle-blower legislation. In particular the examples you give your 1:53 pm suggest that there’s no difference between whistle-blower speech and any other kind of speech. So fine, the first ammendment is worthless here, but the only reason to rule that internal communications or grievance proceedures are exempt from w-b protection is to preemptively gut whistle-blower laws. Your argument that in most work places this wouldn’t happen is strange, since I would think that the point of legal protections is to prevent the exceptional but nasty cases. I also don’t see how the idea that certain kinds of work related speech are or can be protected would require any more court findings than present, it just wouldn’t presume the outsome of a wrongful terrimation suit on those grounds.
June 16, 2009 at 2:58 pm
JPool
Ah, missed the peaceful resolution.
June 16, 2009 at 3:00 pm
LizardBreath
So fine, the first ammendment is worthless here, but the only reason to rule that internal communications or grievance proceedures are exempt from w-b protection is to preemptively gut whistle-blower laws.
I don’t think either of the cases under discussion did this, did they? If they did, that’s very bad. I believe both cases are limited to First Amendment protection, rather than protection under w/b statutes.
June 16, 2009 at 3:09 pm
potchkeh
If that [sc., competence] is the standard, then we have to go to court each time.
Maybe, but the standard before Ceballos was not competence/incompetence, but whether the employee’s expression was on a matter of public concern (or some such formulation); still might require litigation, but not of a particularly fact-intensive variety. Seems to me like a workable threshold for First Amendment protection, and one that addresses the major policy concerns here without interfering too much with the ability of management to manage.
June 16, 2009 at 3:11 pm
Jake
LizardBreath’s points are completely consistent with whistleblower protections. Whistleblower protections are what should have, well, protected Ceballos when he blew the whistle. Similarly, whatever employment contracts exist at universities should protect academic freedom.
Getting fired from your job because you said something that made your supervisor look bad is a labor law problem, not a constitutional problem.
June 16, 2009 at 3:25 pm
Jake
… or so it seems to me. Aren’t there laws prohibiting government employees from – as employees – advocating for the election of a particular candidate? If the First Amendment applies to the speech of government employees as employees, don’t those laws have to go away? Should they?
June 16, 2009 at 3:39 pm
Robert Halford
I’ve never worked professionally on these issues, but I did follow Ceballos pretty closely. LB is right here, in my view, about the First Amendment analysis, and I agree with most of the moves she makes in her legal analysis. However, I disagree strongly that Ceballos was rightly decided, and I certainly do not think that it was “transparently” rightly decided.
Most work-related speech by public employees did not have First Amendment protection even before Ceballos, and does not have protection now. That is, the general rule was (and is) that a public agency can fire or discipline an employee for work-related speech — as, indeed, any workplace, public or private, must do. Write an incompetent legal memo, or a bad article pre-tenure, and you can be fired. That rule seems quite obviously correct. There was, however, a relatively narrow exception for speech by a public employee related to a matter of public concern — that’s the Pickering exception, still in place — that allows first amendment protection against retaliation by a public employer for speech by one of its employees related to a public concern. In other words, the government can’t fire you SOLELY because you criticize government actions in a matter of public concern, even if you’re criticizing the government agency you work for.
The only question in Ceballos and its progeny is whether there’s an exception to the exception — that is, whether or not you can still have Pickering protection for speech that you engage in that’s related directly to your job. That is, does the right you’d have to criticize your government agency over a matter of public concern suddenly evaporate just because the area of criticism is something directly related to, or performed within the course of, your job responsibilities? The Court says your the ordinary ability to criticize the government does vanish when the criticism is specifically related to your work, but it’s not remotely obvious why that should be the case.
Defenders of the majority opinion in Ceballos like to drag out a parade of horribles about the inability of a public agency to manage itself in the absence of discipline, but the reality of the parade of horribles to the facts of the case or the real world is highly questionable. Again, the question isn’t whether all, or even most, “incompetent” speech would be protected — it clearly wouldn’t be — but whether the employee’s usual right to criticize the agency you work for vanishes when that criticism arises as part of your job. But it’s totally not clear why that should be the case — ordinarily, one might think that government employees would be able to provide the MOST useful criticism of governmental agencies specifically within those areas related to their jobs. And, in any case, the deterrent effect on public employee speech may be very significant. (I think this is the point about “duty” that Eric is raising above — the Ceballos rule creates a perverse system in which the employees who have both the knowledge and the obligation to criticize the government receive no first amendment protection for doing so, while employees without knowledge or a duty to speak receive first amendment protection.)
The “Deballos” example isn’t really persuasive, either, because even if Ceballos had come out the other way, an incompetent Deballos still could easily have been fired — as long as the firing is BECAUSE of the incomptence, not the criticism per se. Now, I know that LB’s fear will be of people gaming the system. Could there be some incompetent or crazy public employee who tries to cover up the real reasons for his firing by sending off a bunch of totally wrong memos criticizing this boss on nutcase grounds? Sure, but so what — if there are legitimate grounds for the firing, the firing is still legitimate on First Amendment grounds. And there is no real reason to think that there are more crazy Deballoses out there than there are righteous Ceballoses who need protection — and it’s that protection, after all, that the First Amendment would provide.
Could this lead to a frivolous claims in some wrongful termination cases, brought by incompetent employees who are trying to game the system? Sure, but big whoop — that’s why we have a legal system. The Hong case is a pretty good example; even before Ceballos, all the UC had to do was to show that Hong’s denial of merit pay was based on his job performance, not on his criticism of university policies. That’s an ordinary employment case where the issue is whether or not a firing was pretextual, not the end of civilization. As in all areas of the law, the “establishing this right will lead to more lawsuits” argument is only persuasive if you don’t think the substantive right matters. (For example, I doubt that many here would argue that sexual harassment claims should be banned just because many employees bring frivolous sexual harassment claims).
Wow, that was way more than I’d meant to write.
June 16, 2009 at 3:42 pm
JPool
I believe both cases are limited to First Amendment protection, rather than protection under w/b statutes.
I haven’t read either finding. I was going off of eric’s 9:00 am.
The Hong ruling is even more confusing, since it seems to go unnecessarily out of its way (they could have just ruled that Hong didn’t prove his case) to say “academic freedom, schmacademic freedom.” There may indeed be no constitutional protection for this, but just breech of contract or something. If however we were to go back and pick up your contention that as an academic it’s hard to tell if you’re on the clock or not, this would seem to amount to: you better hope you have tenure and don’t care about your salary, because you’ve just signed away all of your institutional speech rights.
June 16, 2009 at 3:55 pm
Robert Halford
The Jack Balkin post on this issue that Eric linked to above is really worth reading, and pretty obviously correct.
June 16, 2009 at 4:02 pm
essear
It’s funny, there are some topics where I believe that my opinion is so self-evidently compellingly correct that if I simply repeat myself often enough, no one could possibly disagree.
For whatever it’s worth, after reading all of what you wrote I found it hard to believe that anyone would continue to disagree. Though it does appear, to a non-lawyer, that you and Halford disagree about the nature of Pickering, which may be what this hinges on?
June 16, 2009 at 4:31 pm
Robert Halford
Yeah, I think Essear may be right that the disagreement hinges on different views about the nature of Pickering speech protection — basically, I think that this was extremely marginal protection, and left public employers tons of leeway to manage their offices even before Ceballos.
The old, pre-Ceballos test was basically (and I’m getting this from Marty Lederman) “First, was the employee’s speech on “a matter of public concern”? If not, then the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. If, however, the speech was on a matter of public concern, then the First Amendment question is whether the government entity had an adequate justification for treating the employee differently from any other member of the general public.”
The old, pre-Ceballos rule clearly would have protected almost all firings by a state agency based on incompetent work, and certainly didn’t insulate public employees from being fired for being disagreeable or for performing shoddy work. It did, however, provide a narrow exception for speech related to a matter of public concern, where the government couldn’t show a compelling justification for suppressing the speech.
(This is what the Ceballos litigation turned on in the lower courts — whether the LA DA’s office had an adequate basis for suppressing the speech, and the Ninth Circuit quite rightly concluded that, on the facts of that case, Ceballos had raised enough of a question on that issue for the case to proceed to trial).
After Ceballos, though, there is a completely first-amendment-free zone for all speech performed in an employee’s official capacity. That rule leads to some pretty weird and uncomfortable consequences, some of which Eric has explored here. You don’t need the Ceballos rule to have public agencies function competently.
June 16, 2009 at 6:10 pm
Michael H Schneider
Don’t think about duty, think about protection. The First Amendment protects the right to speak regardless of content — to say whatever you like, offensive, inoffensive, true or false. (There are restrictions, like defamation, but generally that’s the principle.) Once we start evaluating speech as good or bad in order to determine whether it should be protected, we are conceding that it is not protected by the First Amendment — if it were, we wouldn’t be entitled to evaluate it.
Defamation is certainly one exception to this rule. One must look at the subject (public figure?) as well as the mind of the speaker (malice?) to determine First Amendment protection.
Another is obscenity (look at what’s expressed, if it’s obscene, no protection).
Another is commercial speech (if it’s commercial, less protection, IIRC).
Another is speech furthering a crime (saying “put the money in the bag. I have a gub” is not protected, if you’re robbing a bank)
At some point the exceptions have swallowed the rule, and we should be willing to entertain the notion that we can look at what’s said, and who is saying it, and why, to distinguish the prosletizing DMV clerk from the DA who reasonably believes that the interests of justice and the smooth functioning of democracy require something to be said.
June 16, 2009 at 10:21 pm
ben
All parties admit that it’s pursuant to Ceballos’s duties that he say something about the affidavit.
Which more or less makes him damned either way: say something, and he can be demoted; say nothing, and it’s evidence that he must not be very good at his job. One reason how “duties” are construed matters seems to be: if his not saying anything about the falsities in the affidavit were not relevant to his job performance, surely a case could be made that his saying something is not really relevant to his pursuing his official duties—if Ceballos had been a courier, for instance, who happened to read the affidavit, then his pointing out the inaccuracies would be independent of his fulfilling his duties, as would his not so pointing out. This seems perverse: precisely because Ceballos’ job involves evaluating such things, he can’t actually evaluate them at all!
LB may be right as to the first amendment, but it is a crazy situation.
June 17, 2009 at 8:31 am
Chris
The thing is, mostly, [Ceballos] won’t suffer for doing his duty. In a normally functioning workplace he’ll point out that there’s a problem with the affidavit, and his supervisors will say “Shit, how’d that happen? Good catch!” He will suffer for doing his duty only when his workplace is broken — when his superiors are incompetent or dishonest.
I think you have a very idealistic view of prosecutors’ offices – or maybe I just have a very cynical one. I would expect their motto to be “Get more convictions, if possible, with grace; if not, by any means get more convictions” (to paraphrase a translation of an old Roman saying). If he finds a problem in the affidavit his superiors are likely to say either “Shit, let’s hope the defendant/court doesn’t find out about this” or “Shit, now that we know this it would be clearly unethical to conceal it from the court; thanks a lot for torpedoing our case, Ceballos”, and in either case Ceballos goes on their shit list, however unfair that may be since it wasn’t his blunder.
If you want to call that incompetent or dishonest, go ahead, but I’d also call it the normal functioning of a prosecutor’s office. If Ceballos expects that kind of reaction, then he has to choose between serving his superiors and serving the public (assuming, of course, that you accept the principle that the public interest is not served by having law enforcement agencies break the law in order to pursue other lawbreakers). If he chooses the latter, he shouldn’t be fired for it – although whether that protection should arise from the First Amendment or from whistleblower statutes is a separate issue.
June 17, 2009 at 9:17 am
ben
If you want to call that incompetent or dishonest, go ahead, but I’d also call it the normal functioning of a prosecutor’s office.
You might call it the normal, dishonest functioning of a prosecutor’s office.
June 17, 2009 at 9:39 am
Vance
If he chooses the latter [i.e., serving the public], he shouldn’t be fired for it – although whether that protection should arise from the First Amendment or from whistleblower statutes is a separate issue.
Right, and it sounds from the discussion above like it’s been established that the First Amendment doesn’t provide this protection. So, is there such protection, and where does it come from? In the case of government employees (whether prosecutors or professors), we the public have a clear interest in protecting them
this way.(Private university professors, and schoolteachers too, I’d say.)
June 17, 2009 at 11:28 am
LizardBreath
I think you have a very idealistic view of prosecutors’ offices – or maybe I just have a very cynical one.
I’m not a prosecutor, but I am a litigator, which gives me a not-quite-insiders perspective. And while I’m generally cynical about lawyers, and about prosecutors as well, there are some types of bad behavior that are IME very rare, and straightforward lying in court documents is one of them. Lawyers will mislead, will avoid harmful information, will do all kinds of very bad things. But generally, if a lawyer is affirmatively putting forth something as true in a litigation context, you can be pretty sure (not absolutely sure, but pretty sure) that they don’t know it to be false.
June 17, 2009 at 11:30 am
ben
The line between merely avoiding harmful information and positively putting forth false information is no doubt a source of comfort to many who don’t deserve it.
June 17, 2009 at 11:44 am
nick
Souter, quoted by eric in his post: “This ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor, and I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities…”[several case citations follow]
LB, downthread: “Tenure and academic freedom are wonderful things, and to the extent they’re being eroded that’s very bad. But they’re entirely distinct from what should be regarded as protected under the First Amendment.”
this seems a very stark contrast. as a professor, and NotALawyer, let me ask: what would ground academic freedom if not the First Amendment?
June 17, 2009 at 12:47 pm
Vance
Jim Henson long ago illustrated what can happen to academics who don’t express approval of
Wilkins Coffeeuniversity policy. (via Farley)June 17, 2009 at 1:51 pm
essear
as a professor, and NotALawyer, let me ask: what would ground academic freedom if not the First Amendment?
It had better be something other than the First Amendment, if you want it to apply at private universities.
June 17, 2009 at 2:01 pm
eric
I tried to summarize the case for academic freedom’s grounding outside the First Amendment here.
June 17, 2009 at 2:03 pm
LizardBreath
I read nick’s comment, and started typing a response, and then looked up and found out that essear had pre-emptively plagarized it. Quit that, would you?
Like essear says, if professors at Harvard have academic freedom, while I’m not sure where it comes from, it doesn’t come from the First Amendent.
June 17, 2009 at 2:08 pm
eric
David Souter and Lee Bollinger appear to disagree with you.
June 17, 2009 at 2:14 pm
Vance
Seriously, could you point us to the steps from “Congress shall make no law … abridging the freedom of speech” to “Employers in certain domains shall make no internal policy abridging the freedom of speech”? I don’t doubt they’re well-trod, but I can’t see them.
June 17, 2009 at 2:16 pm
eric
Was that addressed to me? If so, no; I can only read Souter and Bollinger, both of whom are supposed to know, claiming that they’re there. I imagine I’d have to brush up on Bollinger’s work and the citations Souter gives if I really want to understand this. But I have to give time to my official duties, you know.
June 17, 2009 at 2:23 pm
Vance
It was, and that’s OK. This might be one of those penumbramanations.
June 17, 2009 at 2:40 pm
LizardBreath
I can only read Souter and Bollinger, both of whom are supposed to know, claiming that they’re there.
Doesn’t your linked post itself point out that academic freedom is much older than the First Amendment? Clearly, they’re conceptually related — both are in some sense about insuring a free open exchange of ideas. But that doesn’t mean that speech that isn’t protected by the First Amendment (scholarship at Harvard that the Harvard administration dislikes) isn’t protected by principles of academic freedom.
June 17, 2009 at 2:41 pm
eric
I think it’s older than the First Amendment. But I’m not a lawyer.
June 17, 2009 at 2:49 pm
LizardBreath
You’re a historian and an academic, which qualifies you to say that people talking about academic freedom as a principle predates the Bill of Rights, (which I believe it does, but I’d have to do some historical research to confirm), so it can’t arise out of them. And it qualifies you to say that academic freedom is a principle that scholars at private institutions believe does or should protect them against retaliation for unpopular scholarship by their employers. And it qualifies you to say that academic freedom as a principle applies to scholars outside the United States.
As a lawyer, I can tell you that the First Amendment has since 1791 protected people from action by the US government (and more recently by state governments) to keep them from speaking freely. If academic freedom has any application outside the US, or before 1791, or to actions by non-governmental actors, it has to have a basis other than the First Amendment.
June 17, 2009 at 3:31 pm
andrew
I haven’t read it in a few years, but Thomas Haskell’s article on academic freedom in Objectivity is Not Neutrality makes a case for justifying academic freedom outside of the first amendment. Both as a historical argument and as an argument that such a justification offers stronger protection than just a first amendment justification.
June 17, 2009 at 3:32 pm
andrew
(If I’m remembering correctly, that is.)
June 17, 2009 at 6:41 pm
nick
OK, here’s Berube’s weblog, from January 27, 2006–draft of a talk on “academic freedom”–concluding paragraph:
“It may not be written into the Bill of Rights—you know, the real one, the one in the Constitution. It is far younger than the rights enumerated there, and more fragile. But together with freedom of speech, freedom of religion, freedom of assembly, freedom of the press, freedom to petition the government for a redress of grievances, and the freedom of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, academic freedom is an aspect of procedural liberalism that is one of the cornerstones of a free society. If you believe in the ideals of the open society and the intellectual legacies of the Enlightenment, you should believe in academic freedom—and you should believe that it is a freedom worth defending.”
June 17, 2009 at 8:52 pm
eric
nick, my read on academic freedom is basically Haskell’s and, I believe, the AAUP’s — that it well predates the Constitution, contra Bérubé. But there may be some aspect of US jurisprudence in which it isn’t, in which it’s derived instead from the First Amendment.
June 17, 2009 at 9:25 pm
nick
yes, that’s what I’m wondering about: predates, postdates, or derives from?
AAUP, notes on 1940 statement: “[T]here have been relevant developments in the law itself reflecting a growing insistence by the courts on due process within the academic community which parallels the essential concepts of the 1940 Statement; particularly relevant is the identification by the Supreme Court of academic freedom as a right protected by the First Amendment….[they then cite the 1967 decision you cited in your post, eric.]
Parallels, not converges on–hmmmmm. The original grounding would seem to be principles of free inquiry in the interest of the common good. So I’m not sure you (or I) disagree with Bérubé. “Predates” is tricky: Enlightenment principles in general predate any specific verbal expression of them, no? In any case, that’s as much as I know….
June 17, 2009 at 9:27 pm
rootlesscosmo
I Am not A Lawyer either. I did however work for many years in the railroad industry, which thanks to some antiquated oddities Federal Employers’ Liability Act, Railway Labor Act, and others) tends to turn its union activists, like me, into “sea lawyers.” One form this takes is representing fellow-railroaders in discipline hearings, in which the employer is both prosecutor and trier of fact. (Describing the appeal procedure is, believe me, a sure cure for insomnia.) All this is by way of setting the scene for a conversation I had many times with other railroaders who wondered why they couldn’t assert their Fifth Amendment right to remain silent when they were the accused in these settings. I used to answer, “Because the Constitution stops at the property line.” That is, as I understand it, the employer-employee relationship, absent any specific proviso to the contrary (in labor law, laws against discrimination, whistle-blower protection statutes or whatever) is “employment at will.” (Eric wrote upthread in the case of a private employer, there’s no pressing public interest in a scenario like this. Think about railroad tank cars leaking toxic chemicals.) The problem in the Ceballos and Hong cases–and I agree it’s a problem, for the reasons Bérubé gives–is that the exercise of academic freedom has been traditionally considered outside that rule. And it seems to me (still Not A Lawyer) that the Court is saying, and LizardBreath is explaining, that without a new act of the legislature explicitly shielding academic speech from the “employment at will” rule, that traditional exception won’t withstand an employer’s decision to ignore it. To repeat: I think this is a bad thing with likely very bad consequences, but I think the remedy is with the legislature.
June 17, 2009 at 10:50 pm
essear
This is maybe getting somewhat off-topic, but I think there’s a case to be made that “academic freedom” should be broadened beyond universities to some extent. There have been cases of government censorship of research scientists (e.g. Jim Hansen as documented extensively by Mark Bowen, or other examples in Chris Mooney’s books) that are particularly egregious. Such cases don’t exactly fall under what I understand to be “academic freedom”, since these are employees of government agencies rather than universities. Narrowly, I would say that government scientists should be able to report the results of their research freely. (They might or might not be able to choose research topics as freely as academics would, but once the research is done, higher-ups shouldn’t be able to suppress the results.) More broadly, I think sometimes the results of such research have such obvious and important policy implications that the researchers have an obligation to make public statements about their work that go beyond simply stating the results, and they should be able to make such statements regardless of whether the policy implications make their bosses uncomfortable.
This sort of freedom seems like a close cousin of academic freedom, but maybe not quite the same thing. It would be nice if there were a solid legal foundation broad enough to encompass both sorts of protection. I don’t know if there is. But it clearly is unrelated to First Amendment rights.
June 17, 2009 at 11:07 pm
Not Prince Hamlet
What LB said.
And, seriously, the Hong case? The facts as recited by the court scream “toxic colleague,” and he admitted that he had no grants and mediocre publications (at best). His faculty colleagues recommended against granting a merit increase and the administration upheld their recommendation. To get from those facts to “the definition of ‘actively participate in the interworkings and administration of his department’ appears here to be, ’say only those things which won’t lose you a merit increase’” is an awfully tendentious reading. There is a difference between actively participating in governance and using whatever channels you can think of to try to make people do things your way, even after a decision has been made in accordance with the appropriate rules.
But “Juan Hong” is a great American name.
June 18, 2009 at 4:47 am
LizardBreath
The facts as recited by the court scream “toxic colleague,” and he admitted that he had no grants and mediocre publications (at best).
Heh. I wasn’t going to go there, but that’s what the case looked like to me.
And huh, looks like I was wrong about the age of ‘academic freedom’ as a principle. I had ignorantly imagined it going back to the medieval universities. But my general point is still the same — if it has anything to do with the employment relationship between a private employer and a private employee, like the professors at Stanford, it can’t come from the First Amendment.
June 18, 2009 at 7:34 am
Michael Bérubé
The facts as recited by the court scream “toxic colleague,” and he admitted that he had no grants and mediocre publications (at best).
But apparently the decision didn’t turn on this. Judge Carney: “If a public employee’s speech is made in the course of the employee’s job duties and responsibilities, the speech is not protected under the First Amendment. Because all of Mr. Hong’s criticisms were made in the course of doing his job as a UCI professor, the speech is not protected from discipline by University administrators.” And as LB explains in the CT thread, this holds regardless of whether Hong is a toxic colleague or a saint. You can be disciplined or dismissed for statements you make in the course of doing your job as a professor at a public university. First they came for the toxic colleagues, and I said nothing, etc.
So whatever our disagreements about Garcetti v. Ceballos, I don’t see anything here that challenges my conclusion, namely: start revising your faculty handbooks now so that their definitions of academic freedom cover your on-the-job statements. As for the age and origins of AF, I thought it had to do with Lehrfreiheit, which is why I said that stuff about the Enlightenment.
June 18, 2009 at 7:38 am
Michael Bérubé
Oh yeah: almost forgot. The AAUP has a post-Garcetti subcommittee working on this, and will issue a report in the fall — complete with proposed handbook language, according to AAUP senior counsel Rachel Levinson.
June 18, 2009 at 8:23 am
LizardBreath
So whatever our disagreements about Garcetti v. Ceballos, I don’t see anything here that challenges my conclusion, namely: start revising your faculty handbooks now so that their definitions of academic freedom cover your on-the-job statements.
That sounds absolutely correct — I’d think that faculty handbooks from private colleges would probably be the place to start on this, given that they never had any First Amendment protection from their employers. I’ve been arguing purely about whether it’s a good decision, not about whether its effects on academics at public colleges are something to worry about, which I agree they probably are.
June 18, 2009 at 9:24 am
YoloMike
As an untenured faculty member at Davis, I think the real problem is not with the Supreme Court decisions (so well discussed above) but with the UC community’s clear retreat from a robust sense of common purpose. I don’t know enough institutional history to explain why this has happened, but I suspect that it has something to do with the fracturing of the UC funding structure, in which individual researchers are rewarded for tailoring their professional lives to the requirements of outside granting agencies. As a result, there is no real sense of shared investment in the university.
Whatever the cause, one result of this is the “toxic colleague” or the “crank”, who spend all their time insisting on their rights and lose sight of what those rights might productively be used for (in terms of the greater public good). I have no doubt that there are many faculty members (many of them on this blog!) who are fighting the good fight, but I have seen many more who couldn’t care less whether their principled stands actually further any identifiable university or social goal. The campus administration perpetuates the cycle of alienation: feeling itself obligated to run this fractious place, it adopts absurdly authoritarian positions and defends them with specious reasoning. The conflict between faculty and administration thus comes to a head over ferociously disputed points of law, as here.
I think that if we keep pursuing this model of the university community, one defined by rights and their violation, we will see further atrophy of the university in terms of relevance and power. Can’t we focus our interventions elsewhere, even if it hurts some of our individual interests?
June 18, 2009 at 10:00 am
Not Prince Hamlet
But apparently the decision didn’t turn on this.
Yes and no. When a trial court judge looks at a case in which the only real question is whether the plaintiff is going to lose on summary judgement or at trial, they’re more likely to construe the law a little more broadly than they might on more difficult facts in order to punt the case on SJ and avoid wasting everyone’s time.
First they came for the toxic colleagues, and I said nothing, etc.
Eh, no offense intended, but from outside the world of tenure that looks a little too much like “it’s just to risky to allow anything bad to happen to any tenured academic ever.” If you take the position that no lines can be drawn between obnoxious crankishness and legitimate dissent on governance issues because the slope is too slippery, people are more likely to conclude that the whole system is flawed than that you’re right, IMO.
Lurking somewhere in the background here is the idea that university governance is a little bit like separation of powers among the three branches of the federal government, where there are some unwritten understandings and fuzzy norms that are best addressed by compromise rather than litigation at the margins.
June 18, 2009 at 10:24 am
JPool
NPH,
You seem to want to have this both ways. Hand One: The court has no role here and should stay out of employers decisions about their employees. Hand Two: This guy is obviously a jerk. The court was right to make sure he didn’t get any more money.
No one here is saying that Hong even had a case. The fact that his colleagues recommended against an increase suggests to me that he didn’t, but I don’t know. The thing is the court ruled preemptively that he couldn’t have a case because the University in fact has the right to discriminate against him for saying things they didn’t like. It’s not [those of us who think this whole thing is wonky] who are claiming that you can’t draw a line between obnoxiousness crankishness and legitimate dissent, it’s the court that ruled that UC gets to decide what legitimate dissent is.
June 18, 2009 at 10:58 am
Not Prince Hamlet
You seem to want to have this both ways. Hand One: The court has no role here and should stay out of employers decisions about their employees. Hand Two: This guy is obviously a jerk. The court was right to make sure he didn’t get any more money.
A few points.
First, I’m not saying that the law should never intervene in employers’ decisions about their employees. I’m saying that whistleblower protection is appropriately handled by statute and contract, not as a matter of constitutional law.
Second, there does need to be a large zone in which employers don’t get second-guessed on management issues. Sometimes that will allow injustice to happen, but letting every workplace crank litigate every employer decision they don’t like will allow injustice too (not just injustice to the employer, but injustice to the crank’s colleagues).
Third, I referred to the facts of the Hong case not to say “he’s a jerk, screw him” but to be realistic about how courts decide cases. Courts decide cases based on the facts in front of them. Yes, they think about the implications of their decisions beyond the immediate facts, but (1) trial courts do that less than appellate courts, and (2) easy cases are more likely to be dealt with in a perfunctory way than hard cases. This thread is worrying a lot about the implications of a broad reading of the Hong decision on a different, and more sympathetic, set of facts. I’m suggesting that a more sympathetic facts might lead to a different decision (though probably not on Constitutional grounds).
Fourth, it’s worth noting that faculty participating in university governance are playing a role more like other sorts of employees than when they’re teaching or publishing. These cases aren’t addressing the content of faculty members’ scholarly work.
June 18, 2009 at 11:05 am
LizardBreath
JPool: You’re right — it doesn’t matter, when it comes down to it, whether Hong is a crank. Mostly, it comes down to the fact that some government entity has to decide whether his speech is obnoxious crankishness or legitimate dissent. And once the government is determining whether it likes your speech or it doesn’t, there’s not, IMO, a compelling argument for making the courts rather than the employer the arbiter of what speech is good and what is bad.
June 19, 2009 at 8:51 am
Chris
And once the government is determining whether it likes your speech or it doesn’t, there’s not, IMO, a compelling argument for making the courts rather than the employer the arbiter of what speech is good and what is bad.
Yes, there is. The court doesn’t take Hong’s criticism of the university’s administration personally. The university’s administration is highly likely to.
The fact that the people being criticized are the ones ruling on the legitimacy of the criticism is (or should be) a huge red flag.
But why is any government organization making that call in the first place? Isn’t it better to allow a few obnoxious cranks than to create a pretext for cracking down on dissent? At least, the authors of the Bill of Rights seem to think so.
As for NPH’s argument about how courts decide cases – IANAL, but I hope you’re wrong. If the university never claimed that the real reason they fired Hong was because he was a jerk, then the court shouldn’t have considered that Hong might be a jerk. If the university *did* claim that and Hong denied it, then the university’s true motivation was a factual issue that should have been tried, not guessed at. Deciding on a legal issue that is determinative regardless of the disputed facts is a legitimate use of summary judgment. Reaching factual conclusions on a hunch is not.
June 19, 2009 at 9:40 am
Not Prince Hamlet
Fired?
June 19, 2009 at 9:59 am
LizardBreath
But why is any government organization making that call in the first place? Isn’t it better to allow a few obnoxious cranks than to create a pretext for cracking down on dissent?
If you’re trying to run an organization, no. I’m a government employee. I’m about three levels down from where policy decisions are made. I might be smarter and more sensible than the elected official who’s my ultimate boss (I am almost certainly more sensible than his predecessor, or at least less likely to get caught having sex with hookers), but no one voted for me. If my opinion about what policies our office should be pursuing differs from his, it’s not reasonable to say that he shouldn’t have the power to put a sock in it and do what I’m told, rather than expressing my dissent.
June 19, 2009 at 10:05 am
Vance
I suspect that should be
it’s not reasonable to say that he shouldn’t have the power to tell me to put a sock in it and do what I’m told, rather than expressing my dissent.
June 19, 2009 at 12:49 pm
LizardBreath
Your suspicions have been substantiated.
June 19, 2009 at 1:10 pm
Vance
On the other hand, your superior rightly does have the power to put a sock in it and do what you’re told.