This is so even though the First Amendment does not itself restrict discipline by private colleges (since the First Amendment only limits speech restrictions by the government, not by private institutions acting voluntarily), since collective bargaining agreements and other contracts between private colleges and their faculty commonly contain “academic freedom” provisions.

Contractual academic freedom provisions are commonly interpreted as providing at least as much protection as the First Amendment would accord professors at a state college.

For example, in Silva v. University of New Hampshire, 888 F.Supp. 293 (D.N.H. 1994), the court took a fairly expansive view of the First Amendment protection for a professor’s in-class speech.

Then, as an alternative basis for its decision, it also ruled in favor of the professor on his contractual “academic freedom” claim, concluding that his contractual academic-freedom rights under his AAUP agreement were at least as broad as his First Amendment rights.

It is possible that broad interpretations of professors’ contractual rights to academic freedom could survive even a shrinkage of the scope of professors’ constitutional protection under the First Amendment, since the contracts mention academic freedom, whereas the First Amendment does not expressly mention, or protect, academic freedom at all.

But given the ambiguity of what “academic freedom” means even in the contractual setting (where it is shaped by custom and tradition as well as the First Amendment), and the tendency of some judges and arbitrators to treat contractual and constitutional protections as coextensive, a shrinkage of the scope of First Amendment protection may lead to some erosion in the scope of contractual academic freedoms as well.

Ideally, stifling conformity in an academic institution would be damaging to its reputation, and government control would not be necessary. Regrettably, even the president of a prestigious university can be run out of town for politically incorrect remarks and the university remains prestigious.

It should not make a difference if it was in a memo to supervisors or to the newspaper. The latter I think would seem more egregious and unacceptable to the employer than the former.

I agree with the dissent that this is just wrong to say if it is within your duties then you’re not protected. It would have been better if they just said that the speech did not implicate the 1st amendment, because the speech was not whistleblowing protected speech, based on the speech not the job, and just leave it there.

I don’t know the facts, but I think this sounds more like wrongful termination, not 1st amendment or whistleblowing. So although the outcome is probably right the opinion’s holding appears to be conservative activism which is not accurately supported by authority or sufficient legal argument.

1. Does today’s ruling apply to professors’ speech (maybe, maybe not, says the court; special considerations may apply to the academic setting); and

2. Does today’s ruling allow whistle-blowers who blow the whistle OUTSIDE their official job duties to be punished if the crafty public employer redefines such whistleblowing as a job requirement (no, says the court, because that would be a pretext, and what matters is the “practical” scope of an employee’s job duties, not what an employer says; but the court never explains how to distinguish between practical and nominal job duties).

The fact that these questions are even open means that public employees whose free speech rights are violated will often not be able to find attorneys to represent them, because public employee speech cases are only financially worth bringing when the law is not open to dispute but rather quite clear.

Where the law is unclear, the defense of qualified immunity (which applies to First Amendment and constitutional cases but generally not to statutory cases such as Title VII and other antidiscrimination cases) will bar an attorney from any fees and the client from any damages.

And no attorney will take such a case.

First Amendment cases are already not as financially feasible to take as other kinds of federal cases, such as discrimination cases.

This will exacerbate the disparity.

The courts are not exactly clogged with First Amendment cases as it is. There are way more Individuals with Disabilities Act cases against school districts, for example, than there are First Amendment cases involving those districts.

Professors’ classroom speech is generally part of their official job duties.

Do we really want a rule where people whose jobs are most devoted to expressive purposes have the least First Amendment protection as a result?

And would a professor’s research be deemed to be in his official capacity?

Historically, the Pickering balancing test was applied in a more speech-protective fashion for professors and teachers than for employees in more regimented professions.

Now, ironically, the reverse may be true.

Interesting hypothetical: Under this precedent, could an employer deprive whistleblowers of the free-speech protection they would otherwise enjoy under the Supreme Court’s public-employee speech jurisprudence by defining the whistle-blowing itself as a job requirement (official capacity speech)?