A divided U.S. Supreme Court severely narrowed the free speech rights of government employees in a ruling Tuesday in a whistle blower case. In doing so, the court touched on but largely sidestepped the question of whether the restrictive standard applies to employees of public colleges, in a way that concerned some proponents of academic freedom but heartened others.
Tuesday's ruling  came in a case, Garcetti v. Ceballos (04-473) , in which the U.S. Court of Appeals for the Ninth Circuit had largely upheld the longstanding view that when public employees made statements about "matters of public concern" in their official capacities, they were protected by the First Amendment. But the Supreme Court's decision to take the case of Richard Ceballos, a Los Angeles deputy district attorney who was demoted and transferred after criticizing a local sheriff's conduct to his supervisors, had led many observers to suggest  that the court intended to reconsider that precedent.
Indeed, that's what happened Tuesday, in a case that was first argued before Justice Sandra Day O'Connor retired but not resolved before she left. It was then reheard in March after Justice Samuel A. Alito joined the court, which prompted speculation  that the remaining justices had been evenly divided. Tuesday's 5 to 4 ruling, which was written by Justice Anthony M. Kennedy, with dissenting opinions by Justices David Souter and Stephen Breyer, bore out that speculation, as Alito cast the deciding vote.
"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," Kennedy wrote in the majority opinion, which was joined by Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas.
Kennedy added: "Ceballos did not act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing filings. In the same way he did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case. When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee. The fact that his duties sometimes required him to speak or write does not mean his supervisors were prohibited from evaluating his performance."
As the Supreme Court prepared to hear the Ceballos case last year, several academic groups filed a friend of the court brief  in which they expressed concern that undermining the protection of a public employee's work-related speech would undercut the federal courts' traditional deference to academic freedom. “The most valuable contributions that most university scholars and teachers make to public debate and understanding typically derive from their academic disciplines or fields of expertise,” the American Association of University Professors and the Thomas Jefferson Center for the Protection of the First Amendment said in their brief. “Thus, any suggestion that ‘matters of public concern’ many not encompass job-related expression of professors would undermine the special protections the Court has given academic freedom for the past 50 years.”
In his dissent Tuesday, Justice Souter said that the majority's stance could do just that. What the majority considers to be "beyond the pale of the First Amendment," Souter writes, "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 the First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write 'pursuant to official duties.'" Souter draws the latter part of that quotation from the Supreme Court's 2003 decision in a University of Michigan affirmative action case, one in a long line of cases that expressed the court's commitment to "safeguarding academic freedom, which is of transcendant value to all of us and not merely to the teachers concerned," as the court put it in a 1967 case involving the State University of New York.
Kennedy’s opinion contained a response to Souter’s half-statement, half-question about the potential threat to academic freedom. “Justice Souter suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value,” Kennedy wrote. “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.”
Legal scholars and experts on academic freedom read the exchange between Souter and Kennedy slightly differently. David Rabban, a law professor at the University of Texas School of Law who is serving as general counsel of the American Association of University Professors, an appointed position, described it as a "good sign" that "in a decision that otherwise narrows the free speech of public employees generally, they recognize that there are special concerns that apply in the academic context." He added: "They made a special point of not applying it in the university context, which to me is significant and positive."
Other advocates for free speech and inquiry in academic settings seemed to draw little solace from the fact that the court put off for another day the question of whether to apply the narrower free speech protection to professors. “Once you have drawn this kind of distinction, which ostensibly runs across the whole gamut of a public employee’s speech, and having merely hinted that academic speakers and therefore academic freedom may somehow be different, creates only a slim reed on which to hang a public university professor’s desire to speak out,” said Robert M. O’Neil, director of the Thomas Jefferson Center and a professor of law at the University of Virginia.
The court’s decision, if applied to employees of public higher education, could have some odd ramifications, O’Neil suggested. By seeming to grant First Amendment protection to speech that is not directly related to an employee’s work but not to speech that is job-related, he said, the court has created a situation in which “the degree in protection varies inversely with the speaker's expertise and with the potential value to society and the government of having the benefit of such speech.” Under this scenario, a chemist or philosopher who testified at a state legislative hearing by criticizing a plan to restructure the state’s community college system would be protected by the First Amendment, but a political scientist who is an expert on community college governance might not.
When reached Tuesday, O’Neil was hurriedly reworking a chapter of a book he’s writing on academic freedom – the manuscript is due Thursday. “Up to this point, it has assumed that academic speech, particularly within a professor’s field of expertise, would be First Amendment protected,” he said. “But I’m going to have to say now that you’d better not count on it.”