By David L. Hudson, Jr., First Amendment Scholar, and Melemaikalani Moniz, Legal Intern
April 26, 2017
The U.S. Supreme Court severely reduced the level of free-speech protection for public employees across the country when they issued a little more than a decade ago in Garcetti v. Ceballos (2006). The decision, a “Dred Scott” decision for public employees, erected a categorical rule that public employees receive no free-speech protection for any official, job-duty speech – no matter how important to the public.
Garcetti changed settled law. For decades, the Supreme Court used a two-part test, known as the Pickering test or the Pickering-Connick test, to evaluate public employee free-speech cases. First, a court asked whether a public employee spoke more on a matter of public importance (called “public concern”) or was the speech more properly characterized as a private grievance. If the employee spoke on a matter of public concern, the court then balanced the employee’s right to free speech against the employer’s countervailing interests in workplace efficiency. This test provided stability to the law and allowed public employees a fighting chance in many cases.
Then, the Garcetti ruling added an additional barrier that has proved too imposing for many public employees. Many attorneys refer to the phenomenon of being “Garcettized.” The decision has chilled speech on the part of would-be whistleblowers and other employees who wish to speak out against corruption or wrongdoing.
A key question is whether the Garcetti decision should apply when public college and university professors teach, write, research, and otherwise engage in academic freedom. A professor’s job is to teach, write, and research. All of this could potentially fall under Garcetti’s long arm of “official job duty speech.”
In his dissent in Garcetti, Justice David Souter opined that Garcetti could cause damage to the speech rights of public university professors, writing: “I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to . . . official duties.’” In response, Justice Anthony Kennedy – the author of the majority opinion in Garcetti – avoided deciding the question: “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.”
Professor Sheldon Nahmod warned in a 2008 article in the First Amendment Law Review, “Academic Freedom and the Post-Garcetti Blues”: “If Garcetti is taken seriously and read broadly, then all such speech and scholarship, inherently made pursuant to official employment duties, is unprotected by the First Amendment from discipline imposed by elementary, secondary, and higher level educational officials.”
Garcetti threatens the speech of college and university employees. The Ninth U.S. Circuit Court of Appeals ruled in Demers v. Austin that Garcetti does not apply to the academic work of professors. The appeals court explained:
We conclude that Garcetti does not—indeed, consistent with the First Amendment, cannot—apply to teaching and academic writing that are performed “pursuant to the official duties” of a teacher and professor. We hold that academic employee speech not covered by Garcetti is protected under the First Amendment, using the analysis established in Pickering.
The Fourth Circuit reached a similar result in Adams v. Trustees of the University of North Carolina-Wilmingon. “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,” the 4th Circuit wrote. As I explained in a previous commentary, this decision, like the Demers decision, protects academic freedom.
Hopefully, the U.S. Supreme Court will clarify that Garcetti does not apply to scholarship, teaching, and similar exercises of academic freedom.
 547 U.S. at 438 (J. Souter, dissenting).
 Id. at 425.
 Sheldon Nahmod, Academic Freedom and the Post-Garcetti Blues, 7 First Amend. L. Rev. 54, 56 (2008).