When I talk with educators they are routinely surprised by how limited their free speech rights are (for previous coverage of First Amendment issues, click here). The courts have repeatedly narrowed the broad protection provided by the First Amendment so that now public employee speech must pass a number of tests before determining whether it is protected. However, a recent decision out of the federal 9th Circuit Court of Appeals may be changing that trend. See Demers v. Austin, 729 F.3d 1011 (9th Cir. 2013). Hit the jump for a discussion of the first few glimmers of change, along with a heavy helping of cautions…
In Demers, a tenured college professor claimed that he was retaliated against for distributing a pamphlet and draft chapters of a book he was authoring. The pamphlet was a response to proposed changes at the university and the book included statements critical of academia in general and the professor’s university in particular. The professor alleged that, after distributing these materials, his evaluations went from stellar to very negative and he was the target of multiple internal audits and official discipline. The professor brought suit, alleging violation of his First Amendment rights.
To understand the legal landscape in Demers, you must understand the continually shrinking sphere of protected speech for public employees. The First Amendment prohibits the making of any law “abridging freedom of speech.” However, very quickly courts realized that this broad prohibition runs into trouble when dealing with government control of its own employees. The first limitation came in 1968 in the U.S. Supreme Court case Pickering v. Board of Education (available here) where the Court held that only speech on matters of public concern would be protected by the First Amendment. The Court then further limited speech in Garcetti v. Ceballos (available here) where it held that not only must the matter be one of public concern but the individual must not be speaking pursuant to their official duties. Only by meeting these two substantial burdens could the public employees speech be protected.
In Demers, the university was quick to claim that the professor had clearly been speaking pursuant to his official duties because publishing books was part of his professional expectations and the he had sat on a panel specifically aimed at reviewing changes at the university. Instead of simply applying Garcetti and dismissing the case, as the lower court had done, the appellate court noted that Garcetti had expressly stated it was not addressing questions related to “speech related to scholarship or teaching.” Analyzing the importance of academic freedom, the Demers court held that Garcetti “does not — indeed, consistent with the First Amendment, cannot — apply to teaching and academic writing that are performed ‘pursuant to the official duties’ of a teacher and professor.” Therefore the appellate court reversed the dismissal of the case and sent it back to the lower court for further proceedings.
While Demers provides an exciting possibility for crafting additional protection for public employee free speech, there are a number of reason that Missouri educators should take caution. First and foremost, this decision involved a college professor. While the language of the decision is very broad and does not make any distinction, a court could possibly rule that Demers is good law but only applies to higher education. Second, this case was decided in the 9th Circuit Court of Appeals which has a history of being the most liberal Circuit in the federal system. The decision does site to a relatively similar, though more limited, decision from the 4th Circuit, there is no guarantee that the 8th Circuit (the Circuit covering Missouri) would adopt similar reasoning. Last but not least, the boundaries of what might qualify as sufficiently related to scholarship or teaching to avoid the Garcetti prohibition are about as vague as can be imagined. Even if Demers is someday extended to elementary or secondary teachers in Missouri, it will take several cases to determine the exact protection provided.
Even with all of the cautions, it is refreshing to see a court attempting to broaden public employee rights rather than limit them.