A Roundup of 2011's Faculty First Amendment Rights Case Law
January 5, 2012
Last year saw a handful of important cases related to university faculty First Amendment rights in the courts. Particularly, a number of cases dealt with the application of the United States Supreme Court case Garcetti v. Ceballos, 547 U.S. 410 (2006). Yesterday marked the first day of the annual meeting of the American Association of Law Schools; tellingly, the theme of this year's meeting is academic freedom, and the AALS notes that after Garcetti, the "zone of protected professorial speech is shrinking."
We have written about this worrying case many times before. To recap, Garcetti deals with when, precisely, the government acting as employer may regulate its employees' speech. Breaking with prior precedent, the Garcetti Court ruled that when public employees engage in expressive activity pursuant to their official duties, that speech is normally not protected by the First Amendment. The Court in Garcetti declined to apply its holding to public university professors; Justice Kennedy's majority opinion states that the Court "need not, and for that reason do[es] not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching."
Following Garcetti, FIRE and other organizations (most notably, the American Association of University Professors) worried that courts might apply Garcetti to public university professors anyway. Our worrying has proven to be with good reason: Some courts have held that Garcetti applies to public university professors, and other courts have held just the opposite. This is a truly unsettled area of law.
In February, the United States District Court for the Northern District of Illinois issued a disappointing decision in Capeheart v. Hahs, 08-1423, 2011 U.S. Dist. LEXIS 14363 (N.D. Ill. Feb. 14, 2011). FIRE has written about this case before. Loretta Capeheart is a tenured associate professor of justice studies at Northeastern Illinois University (NEIU) in Chicago. She was a vocal anti-war advocate who spoke out in support of members of the Socialist Club of NEIU when they were arrested by campus police for protesting a CIA recruitment event in early 2007. Subsequently, Capeheart was passed up for a promotion, which she attributes to her political involvement. She filed suit in the United States District Court for the Northern District of Illinois. The court later dismissed her lawsuit, applying Garcetti v. Ceballos and holding that her political activity was pursuant to her "official duties" and therefore not protected by the First Amendment. On December 8, however, the United States Court of Appeals for the Seventh Circuit heard oral argument in Capeheart's appeal, and we hope for a good decision in the coming year. The AAUP filed an excellent amicus brief on behalf of Capeheart, and it can be found here.
On the positive side, in April the United States Court of Appeals for the Fourth Circuit issued a landmark decision in Adams v. Trustees of the University of North Carolina - Wilmington, et al., 640 F.3d 550 (4th Cir. 2011). Professor Mike Adams is a conservative columnist who sued the University of North Carolina-Wilmington (UNCW) when his bid for promotion failed. He sued in the United States District Court for the Eastern District of North Carolina, alleging a number of claims, including First Amendment viewpoint discrimination and retaliation. The suit was dismissed on the university's motion for summary judgment, but on appeal, the Fourth Circuit reversed the lower court's dismissal of the First Amendment speech claims, noting that "the district court applied Garcetti without acknowledging, let alone addressing, the clear language in that opinion that casts doubt on whether the Garcetti analysis applies in the academic context of a public university." The Fourth Circuit then held that, as a matter of law, Adams had been speaking as a citizen upon a matter of public concern, and remanded the case to the district court for further proceedings. Joined by the AAUP and the Thomas Jefferson Center for the Protection of Free Expression, FIRE had filed an amici curiae brief with the Fourth Circuit in July of 2010 urging this result. FIRE's detailed analysis of the ruling is available here.
In October, the United States District Court for the Middle District of Louisiana ruled in favor of Ivor van Heerden, an engineering professor at Louisiana State University (LSU) who claims he was fired as a result of comments he made that were critical of the U.S. Army Corps of Engineers for their design and construction of the levees that broke following Hurricane Katrina. FIRE has written about this case before. When LSU filed a motion for summary judgment, it cited Garcetti for the proposition that his comments about the levees were pursuant to his employment and therefore unprotected by the First Amendment. The court disagreed and denied that part of the summary judgment, noting that, partly because LSU warned van Heerden not to speak with the media, when he did speak with the media it was unauthorized, outside the scope of employment, and thus protected by the First Amendment.
In December, the Idaho Supreme Court upheld the lower court dismissal of Habib Sadid's lawsuit challenging his firing from his tenured professorship at Idaho State University. We wrote about Sadid's lawsuit when it was filed in 2009. A representative for the American Federation of Teachers characterized the decision as a "massive win," because while Sadid's claims were dismissed, the court held that his speech was not made pursuant to his official position, and that his speech was on a matter of public concern. In so holding, the Idaho Supreme Court was implicitly affirming the lower court's reliance on the application of Garcetti by the United States Court of Appeals for the Ninth Circuit in Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009). The AAUP also filed a brief in support of Sadid, also applying Eng.
To wrap up, 2011 demonstrated widely disparate applications of Garcetti. To what extent a public university professor's speech is protected by the First Amendment remains unsettled. We look forward to a decision by the Seventh Circuit in Capeheart, but unless and until the Supreme Court clarifies its academic exception in Garcetti, things will remain muddled.
FIRE has a survey of 2011's student First Amendment caselaw here.