Maybe Florida Really Can Muzzle Its College Professors
(Bloomberg Opinion) -- The University of Florida struck a blow against academic freedom last week by prohibiting three professors from testifying in a lawsuit claiming the state’s new election laws are discriminatory. But that doesn’t necessarily mean that the university’s action is a violation of the professors’ free speech rights. A court should find the decision unlawful, but might not.
There’s a difference between academic freedom and free speech. As explained by former Yale Law School Dean Robert Post in a classic work, these two freedoms are based on different principles, and involve freedom from different kinds of constraints.
Academic freedom is based on expertise. It protects scholars from university administrators and boards of directors and others who might constrain them from expressing their views. Under commonly accepted principles of academic freedom, professors must be able to express themselves on all kinds of issues, whether within their expertise or beyond their expertise, without sanction or pressure from the university that employs them.
Free speech, in contrast, extends beyond experts or scholars. It guards every citizen’s right to expression, a right necessary to both democracy and human self-realization. It protects everyone against the government. It isn’t limited to useful communications or even to truthful ones.
In the context of state universities, things get tricky. Under existing constitutional doctrine, state universities are treated as state actors, which means the First Amendment applies to them. So when a state university takes steps against a professor for speech that is not part of his or her job, the constitutional standards that apply should be the same as those that apply to other state employees, whether they are high school teachers or cops or district attorneys (all categories considered by Supreme Court cases).
Nonetheless, courts have recognized that state universities still have to function as universities. So state universities are allowed to use accepted academic standards to make academic decisions about hiring, firing and promotions, even if that could be seen as restricting the free speech of professors who promote ideas that colleagues see as lacking in scholarly credibility.
If the University of Florida were a private institution, it would be legal for it to tell professors that, as a condition of their employment, they can’t participate in litigation against the university. At the same time, it would be an egregious violation of academic freedom. A private university that did what the University of Florida has done would come under tremendous criticism and pressure from the broader academic community. For the most part, that’s how academic freedom is maintained in the U.S. – by reputation and pressure, not by statute or constitutional law.
When it comes to a state actor regulating the conduct of employees, the general First Amendment principle is that the state may restrict speech of employees when they are acting in the course of their employment – but not when they are acting as citizens in the public interest. The principle should protect the Florida professors, who would not be acting as employees of the University of Florida when they participated in litigation and testified in court.
In a 2014 case, Lane v. Franks, the Supreme Court held that a state employee is engaging in protected citizen speech when testifying truthfully in court. The professors were supposed to testify as part of their participation in the election-law suit, which would appear to bring them under the protection of the Lane decision.
Yet the university – acting on behalf of the state – can be expected to argue that it isn’t prohibiting the professors from expressing their opinions. Rather, the argument will go, the university is just prohibiting the professors from engaging in a particular type of conduct that is adverse to the interests of the university, namely participating in a lawsuit against the state and the governor. From this perspective, it matters that the professors weren’t just randomly subpoenaed. They were going to be experts testifying for one side, and presumably compensated for their time in doing so.
Conceivably a federal district court – or even the Supreme Court, should the issue make its way that far – could accept that distinction. The idea would be that, when acting as an employer, a state agency can bar its employees from participating professionally in a private lawsuit against the state. Framed that way, the outcome would sound less outrageous as a matter of constitutional law. It would still be a disaster for academic freedom.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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