Author’s Note: Thanks to William Creeley of FIRE for allowing me to use his brilliant article from The Torch as a template to write this one.
Some told us we should just give up. Others told us we should simply accept the federal judge’s decision and resign ourselves to the fact that the First Amendment is now dead on our college campuses. But the Alliance Defense Fund took my case to the United States Court of Appeals for the Fourth Circuit in January. And, last week, they issued a landmark defense of First Amendment rights for faculty at public colleges and universities. For the first time in years, I’m getting love mail from liberals.
In my original complaint filed against the University of North Carolina at Wilmington in 2007, my attorneys with the Alliance Defense Fund alleged that my application for promotion had been denied in part due to the conservative political viewpoints expressed through my work as a columnist. In a ruling issued in March of 2010, the federal district court rejected our claims. With respect to my First Amendment retaliation charge, the district court found that because I had included the conservative columns in my application for promotion, the content of the columns became speech "made pursuant to (my) official duties"—and thus not protected by the First Amendment.
In support of the holding, the district court cited the Supreme Court's ruling in Garcetti v. Ceballos, 547 U. S. 410 (2006), in which the Court ruled that public employees do not enjoy First Amendment protections when engaging in speech pursuant to their official duties. Under Garcetti, the district court determined that the columns could not be cited as grounds for retaliation in violation of the First Amendment.
The district court's reliance on Garcetti was particularly disturbing because it was not an isolated event. It was just the latest in a series of Garcetti-based rulings for public university faculty members. The problem with Garcetti is that in lessening First Amendment protections for public employees generally it has a far greater impact on faculty members.
Put simply, faculty members are required to speak regularly on a broad range of issues in order to fulfill service and research requirements. It should go without saying that our duties differ greatly from those of police officers, fire fighters, and employees for the Department of Motor Vehicles. That is probably why Justice Anthony Kennedy inserted a crucial caveat into the majority opinion he penned in Garcetti, writing: