Magazine article Academe

Appeals Court Expands Protections for Academic Speech

Magazine article Academe

Appeals Court Expands Protections for Academic Speech

Article excerpt

The Ninth Circuit Court of Ap- peals recently issued an important decision that vigorously affirms First Amendment protections for academic speech by faculty members. Demers v. Austin arose when Washington State Univer- sity disciplined professor David Demers after he distributed a pamphlet that made proposals to change the direction and focus of the Murrow School of Communi- cations. Demers sued the univer- sity, alleging that the university's actions violated his First Amend- ment rights. The trial court applied the Supreme Court's analysis in the 2006 Garcetti v. Ceballos case, under which speech made pursu- ant to a public employee's official duties is not protected by the First Amendment. The trial court ruled in favor of the university, finding that in preparing and distributing the pamphlet Demers was act- ing pursuant to his official duties and that accordingly, under the Garcetti analysis, his speech was not protected.

When Demers appealed to the Ninth Circuit Court of Appeals, the AAUP joined with the Thomas Jefferson Center for the Protection of Free Expression to file an amicus brief supporting him. The brief argued that academic speech was governed not by the Garcetti analysis but instead by the balance test established in the 1968 case Pickering v. Board of Education. In this test, courts first determine whether a profes- sor is speaking on a matter of public concern and then whether the professor's speech outweighs the state's interest in an efficient academic workplace. The cir- cuit court agreed with the brief's argument.

In its ruling, the circuit court emphasized that "the Supreme Court has repeatedly stressed the importance of protecting aca- demic freedom under the First Amendment," quoting a 2003 ruling in which the Supreme Court explained, "We have long recognized that, given the impor- tant 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. …

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