Caution: This Column Now Protected by the First Amendment

Mike Adams

4/11/2011 12:01:00 AM - Mike Adams

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:

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.

Before my case, Justice Kennedy's warning had been largely disregarded by courts. So my old friends at The Foundation for Individual Rights in Education (FIRE) joined with The American Association of University Professors (AAUP) and the Thomas Jefferson Center for Free Expression to file a brief urging the Fourth Circuit to reverse the lower court's decision to throw out my case. And the panel of three judges did just that.

The landmark ruling from the Fourth Circuit was welcome news for conservatives, liberals, and non-partisan supporters of the First Amendment alike. In reversing the district court's First Amendment holding, the Fourth Circuit panel made several key points.

First, the Fourth Circuit pointed out that the district court hadn't even acknowledged Justice Kennedy's carve-out for public faculty speech.

Second, the Fourth Circuit pointed out that just because I had included my columns in my application for promotion, that act alone did not transform them into speech made pursuant to my duties as a government employee. The court observed that "[n]othing about listing the speech on Adams' promotion application changed Adams' status when he spoke or the content of the speech when made."

Third, the court noted that while Garcetti may apply to public university faculty when their duties include "a specific role in declaring or administering university policy, as opposed to scholarship or teaching," the facts presented by my case don't merit such an application. Indeed, the court found that my case involved speech that was "intended for and directed at a national or international audience on issues of public importance” unrelated to any of my assigned teaching duties at UNCW or any other terms of my employment.

Fourth, the court noted that even though the speech was "unrelated to any of Adams' assigned teaching duties" and "was clearly that of a citizen speaking on a matter of public concern," it nevertheless implicated my right to academic freedom simply because it is understood that professors will provide such commentary as a function of their role as academics. The court addressed the intent of Garcetti in very clear language:

Applying Garcetti to the academic work of a public university faculty member under the facts of this case could place beyond the reach of First Amendment protection many forms of public speech or service a professor engaged in during his employment. That would not appear to be what Garcetti intended, nor is it consistent with our long-standing recognition that no individual loses his ability to speak as a private citizen by virtue of public employment.

Fifth, and perhaps most surprising to me, the Fourth Circuit commented on the district court's denial of the defense of qualified immunity to the university administrators named as defendants in my case. In that portion of the opinion, the judges rejected the argument that the impact of Garcetti was to so fundamentally alter the law that reasonable university administrators can't possibly know that faculty members continue to enjoy a First Amendment right to speak out about matters of public concern:

(T)he underlying right Adams asserts the Defendants violated - that of a public employee to speak as a citizen on matters of public concern - is clearly established and something a reasonable person in the Defendants' position should have known was protected.

This all means that soon my lawyers with the ADF will go back to court to argue for a trial on the facts of my First Amendment retaliation claim. But thousands of professors in the Fourth Circuit – most of whom do not share my views - have already won a major victory. Their free speech rights once again belong to them as individuals – and not to the state that employs them.

You’re welcome.