Freedom of Speech in USA
for Professors and
Other Government Employees

Copyright 2000 by Ronald B. Standler

Table of Contents

Introduction

1. In my essay on academic freedom in the USA, I argued that the legal concept of academic freedom in the USA was mostly an illusion.
   
   
2. The essay that you are now reading continues the theme of the above essay: first by reviewing the U.S. Supreme Court cases involving freedom of speech of government employees, then by discussing a few cases in lower federal courts involving university professors. These cases contain the official interpretation of the First Amendment to the U.S. Constitution.
   
   The First Amendment to the U.S. Constitution only provides for freedom of speech against regulation by the federal or state government (e.g., a state university). A private employer (e.g., a private university) has no legal requirement to honor the First Amendment. Therefore, the law discussed in this essay only applies to professors in state universities, teachers in public schools, and other professionals who are employed by a state or federal government.
   
   
3. The next essay in this series contains a review of cases under state law involving wrongful termination of employment of a learned professional, because he/she chose to follow an ethical principle of his/her profession, instead of his/her manager's direction.

Pickering

Pickering v. Board of Education, 391 U.S. 563 (1968).

1. Are "the statements ... directed towards any person with whom [plaintiff] would normally be in contact in the course of his daily work as a teacher"? The Court mentioned that "personal loyalty and confidence" are necessary for "close working relationships", but not for the relationship between teacher and either the Board of Education or the superintendent of the schools. 391 U.S. at 569-570, also n.3.
   
   
2. Is there an issue of "maintaining either discipline by immediate supervisors or harmony among coworkers"? 391 U.S. at 570.
   
   
3. Did plaintiff's statement's have a "detrimental" effect or impact on the "actual operation of the schools"? 391 U.S. at 570-571, 573, also n.1 at 580.
   
   
4. Is the issue on which plaintiff spoke "a matter of legitimate public concern"? 391 U.S. at 571. "This Court has also indicated ... that statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors." [citations omitted] 391 U.S. at 574.
   
   
5. Did plaintiff's public statements "impede the teacher's proper performance of his daily duties in the classroom"? 391 U.S. at 572-573, also n.5.
   
   
6. Did the plaintiff's speech include "false statements knowingly or recklessly made by him"? 391 U.S. at 569, 573-574 (citing the libel standard in New York Times v. Sullivan, 376 U.S. 254 (1964) and its progeny).
   
   
7. Not mentioned in Pickering, but mentioned in later cases, is the issue of the time, manner, and place of plaintiff's speech. Givhan v. Western Line Con.Sch.Dist.,439 U.S. 410, 415, n.4 (1979); Connick v. Myers, 461 U.S. 138, 153 (1983)("Employee speech which transpires entirely on the employee's own time, and in non-work areas of the office," was more worthy of protection than speech in the office.).

  More importantly, the question whether a school system requires additional funds is a matter of legitimate public concern on which the judgment of the school administration, including the School Board, cannot, in a society that leaves such questions to popular vote, be taken as conclusive. On such a question free and open debate is vital to informed decision-making by the electorate. Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operations of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.

Pickering, 391 U.S. at 571-572.

The final paragraph of the opinion of the Court says:

  In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. Since no such showing has been made in this case regarding appellant's letter, ... his dismissal for writing it cannot be upheld and the judgment of the Illinois Supreme Court must, accordingly, be reversed and the case remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Pickering, 391 U.S. at 574-575. [footnote omitted]

Pickering's progeny

Perry v. Sindermann, 408 U.S. 593 (1972).

Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977).

1. He called a local radio station, and mentioned the contents of a memorandum from the administration that established a dress code for teachers. The radio station reported this memo as a news item.
2. He made an obscene gesture to two female students who disobeyed him in the cafeteria.

to the radio station was "clearly protected by the First Amendment," and that because it had played a "substantial part" in the decision of the Board not to renew Doyle's employment, he was entitled to reinstatement with backpay.

Id. at 283.

The Court of Appeals, in an unpublished per curiam opinion, affirmed the District Court's unpublished decision. 529 F.2d 524.   Apparently, both the District Court and Court of Appeals saw this case as unremarkable and routine.

The U.S. Supreme Court stated:

There is no suggestion by the Board that Doyle violated any established policy, or that its reaction to his communication to the radio station was anything more than an ad hoc response to Doyle's action in making the memorandum public. We therefore accept the District Court's finding that the communication was protected by the First and Fourteenth Amendments. We are not, however, entirely in agreement with that court's manner of reasoning from this finding to the conclusion that Doyle is entitled to reinstatement with backpay.

429 U.S. at 284.

Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979).

  This Court's decisions in Pickering, Perry, and Mt. Healthy do not support the conclusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly. While those cases each arose in the context of a public employee's public expression, the rule to be derived from them is not dependent on that largely coincidental fact.

439 U.S. at 414.

summary of Pickering and its progeny

Myers

Connick v. Myers, 461 U.S. 138 (1983).

  Pickering, its antecedents and progeny, lead us to conclude that if Myers' questionnaire cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge. When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Perhaps the government employer's dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable.

Myers, 461 U.S. at 146. [footnote omitted]

Note that the U.S. Supreme Court is willing to defer to the decisions of managers, even if termination of someone's employment "may not be fair". This is well established law and is not particularly remarkable to attorneys. I include this quotation, because I think it will shock most laymen to learn that courts consider some rules and principles as more important than fundamental fairness to people.

We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.

Myers, 461 U.S. at 147. [citations omitted]

While as a matter of good judgment, public officials should be receptive to constructive criticism offered by their employees, the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.

Myers, 461 U.S. at 149.

Myers never claimed that the office should be "run as a roundtable". This observation by the Court is probably irrelevant, except to show the depth of the Court's loathing for freedom of speech of employees.

my views about Myers

only protect political speech?

efficient functioning of government

free speech sometimes offensive

free speech for teachers and professors

Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operations of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.

Pickering, 391 U.S. at 572.

  Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. 'The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.' Shelton v. Tucker, supra, 364 U.S., at 487.

385 U.S. at 603.

historical perspective on Myers

Post-Myers cases

Waters v. Churchill, 511 U.S. 661 (1994).

1. Perkins-Graham, and another nurse (Ballew) who overheard part of the conversation, claimed that Churchill criticized Churchill's superior, Waters, and stated that conditions were bad in the obstetrics department. As a result of this conversation, Perkins-Graham was no longer interested in transferring to the obstetrics department.
   
   
2. Churchill, supported by a physician (Koch) and another nurse (Welty) who overheard part of the conversation, claimed that Churchill actually said that staffing policies at the hospital "seemed to be impeding nursing care" and that care of patients at the hospital was "threatened". Further, Churchill encouraged Perkins-Graham to transfer to obstetrics.

Everyone agrees that respondent Cheryl Churchill was fired because of what she said in a conversation with co-workers during a dinner break. Given the posture in which this case comes to us, we must assume that Churchill's statements were fully protected by the First Amendment. Nevertheless, the plurality concludes that a dismissal for speech is valid as a matter of law as long as the public employer reasonably believed that the employee's speech was unprotected. This conclusion is erroneous because it provides less protection for a fundamental constitutional right than the law ordinarily provides for less exalted rights, including contractual and statutory rights applicable in the private sector.

511 U.S. at 695 (Stevens, J., dissenting) [footnote omitted].

Ordinarily, when someone acts to another person's detriment based upon a factual judgment, the actor assumes the risk that an impartial adjudicator may come to a different conclusion. Our legal system generally delegates the determination of facts upon which important rights depend to neutral factfinders, notwithstanding the attendant risks of error and overdeterrence.

511 U.S. at 696 (Stevens, J., dissenting) [footnote omitted].

Federal constitutional rights merit at least the normal degree of protection. Doubts concerning the ability of juries to find the truth, an ability for which we usually have high regard, should be resolved in favor of, not against, the protection of First Amendment rights.

511 U.S. at 696 (Stevens, J., dissenting) [citation omitted].

The need for governmental efficiency that so concerns the plurality is amply protected by the substantive limits on public employees' rights of expression. See generally Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Efficiency does not demand an additional layer of deference to employers' "reasonable" factual errors. Today's ruling will surely deter speech that would be fully protected under Pickering and Connick.

511 U.S. at 696-697 (Stevens, J., dissenting).

  The risk that a jury may ultimately view the facts differently from even a conscientious employer is not, as the plurality would have it, a needless fetter on public employers' ability to discharge their duties. It is the normal means by which our legal system protects legal rights and encourages those in authority to act with care. .... There is nothing unfair or onerous about putting the risk of error on an employer in these circumstances.

511 U.S. at 698-699 (Stevens, J., dissenting) [footnote omitted].

The dissenting opinion concludes:

  Government agencies are often the site of sharp differences over a wide range of important public issues. In offices where the First Amendment commands respect for candid deliberation and individual opinion, such disagreements are both inevitable and desirable. When those who work together disagree, reports of speech are often skewed, and supervisors are apt to misconstrue even accurate reports. The plurality, observing that managers "can spend only so much of their time on any one employment decision," ante [511 U.S. at 680], adopts a rule that invites discipline, rather than further discussion, when such disputes arise. That rule is unwise, for deliberation within the government, like deliberation about it, is an essential part of our "profound national commitment" to the freedom of speech. Cf. New York Times, 376 U.S., at 270, 84 S.Ct., at 721. A proper regard for that principle requires that, before firing a public employee for her speech, management get its facts straight.

  I would affirm the judgment of the Court of Appeals.

511 U.S. at 699 (Stevens, J., dissenting).

Earlier, the U.S. Court of Appeals, which was reversed by the plurality opinion of the U.S. Supreme Court, had a view similar to Justice Stevens:

We hold that when a public employer fires an employee for engaging in speech, and that speech is later found to be protected under the First Amendment, the employer is liable for violating the employee's free-speech rights regardless of what the employer knew at the time of termination. If the employer chooses to discharge the employee without sufficient knowledge of her protected speech as a result of an inadequate investigation into the employee's conduct, the employer runs the risk of eventually being required to remedy any wrongdoing whether it was deliberate or accidental.

977 F.2d at 1127 [footnote omitted].

We wish to make it very clear that we do not condone an insubordinate or troublemaking employee, but Cheryl Churchill's actions fall far short of the actions of an insubordinate or problem employee. From our reading of the record, her concern was also that patient health care was endangered due to the controversial cross-training policy that transferred a nurse trained in obstetrics to another department (pediatrics, orthopedics) where that nurse was inadequately trained to give appropriate health care and then recalling her back to the obstetrics department during the same shift. [citation omitted] In taking action to report this controversial practice, Churchill lived up to the highest ethics of her most noble profession. [citing Code For Nurses of the American Nurse's Association]

977 F.2d at 1125.

  Nonetheless, not every procedure that may safeguard protected speech is constitutionally mandated. .... A speaker is more protected if she has two opportunities to be vindicated--first by the employer's investigation and then by the jury--than just one. But each procedure involves a different mix of administrative burden, risk of erroneous punishment of protected speech, and risk of erroneous exculpation of unprotected speech. Though the First Amendment creates a strong presumption against punishing protected speech even inadvertently, the balance need not always be struck in that direction. We have never, for instance, required proof beyond a reasonable doubt in civil cases where First Amendment interests are at stake, though such a requirement would protect speech more than the alternative standards would.

511 U.S. at 670.

No one in this case suggested that the level of proof for a constitutional wrong should be "beyond a reasonable doubt" (i.e., the standard in criminal cases). Here, the Court is not considering strengthening protections for fundamental civil liberties, such as freedom of speech, but is further weakening those protections, despite the Court's empty words about the importance of the First Amendment.

  We have never set forth a general test to determine when a procedural safeguard is required by the First Amendment .... None of us have discovered a general principle to determine where the line is to be drawn. We must therefore reconcile ourselves to answering the question on a case-by-case basis, at least until some workable general rule emerges.

511 U.S. at 671.

Did it ever occur to the Court that their job may be to formulate a "workable general rule" that informs people of the precise scope of their fundamental constitutional liberties, as well as guides lower courts in consistently applying the law?

But when an employee counsels her co-workers to do their job in a way with which the public employer disagrees, her managers may tell her to stop, rather than relying on counterspeech.

511 U.S. at 672.

The Court's remark has nothing to do with the facts of this case! Churchill did not "counsel" her co-worker (Perkins-Graham). And Churchill's manager did not "tell her to stop". In fact, Churchill's manager terminated Churchill's employment, without first discussing the incident with Churchill. The Court of Appeals noted, in passing, that the hospital did not follow its own rules, when the hospital terminated Churchill without any warning. 977 F.2d at 1127, n.10.

But though a private person is perfectly free to uninhibitedly and robustly criticize a state governor's legislative program, we have never suggested that the Constitution bars the governor from firing a high-ranking deputy for doing the same thing.

511 U.S. at 672.

Again, the Court's remark has nothing to do with the facts of this case! Churchill was not a "high-ranking deputy of a state governor" who owed a duty of loyalty to the governor. Churchill was a nurse in a public hospital, who was concerned that management's policies were "impeding nursing care" of her patients. Those patients would probably agree that Churchill's opinions were matters of "legitimate public concern" that should be protected speech under the law stated in Pickering.

Government employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions.

511 U.S. at 674 [citing Pickering 391 U.S. at 572].

But, after Myers and this decision in Churchill, the public will get their information from ex-government workers who are unemployed. This is not the way to reward people who are contributing to the public debate that is essential to our democracy.

  We think employer decision making will not be unduly burdened by having courts look to the facts as the employer reasonably found them to be.

511 U.S. at 677.

That is certainly true. After Myers and this decision in Churchill, the government can readily fire employees for speaking on matters of public concern and the ex-employee receives little protection from the courts. But the Court's concern was misdirected. The government, as a powerful bureaucracy, does not need to be protected from "undue burdens". It is the employee, weak and standing alone, who needs protection from capricious termination of his/her employment. And it is the public who needs to hear unpleasant facts about decisions or policies of government managers, in order that the public can make an informed decision in our democracy. I believe that the U.S. Supreme Court's decision in Churchill was outrageously wrong.

Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996).

  During the term of his contract, Umbehr was an outspoken critic of petitioner, the Board of County Commissioners of Wabaunsee County (Board), the three-member governing body of the County. Umbehr spoke at the Board's meetings, and wrote critical letters and editorials in local newspapers regarding the County's landfill user rates, the cost of obtaining official documents from the County, alleged violations by the Board of the Kansas Open Meetings Act, the County's alleged mismanagement of taxpayers' money, and other topics. His allegations of violation of the Kansas Open Meetings Act were vindicated in a consent decree signed by the Board's members. Umbehr also ran unsuccessfully for election to the Board.

  The Board's members allegedly took Umbehr's criticism badly, threatening the official county newspaper with censorship for publishing his writings. In 1990, they voted, 2 to 1, to terminate (or prevent the automatic renewal of) Umbehr's contract with the County. That attempt at termination failed because of a technical defect, but in 1991, the Board succeeded in terminating Umbehr's contract, again by a 2 to 1 vote. Umbehr subsequently negotiated new contracts with five of the six cities that he had previously served.

518 U.S. at 671.

1. terminating a contract of an independent contractor or
2. prevention of the automatic renewal of at-will government contracts

Application to Professors

  Plaintiff claims that the real reason his contract was not renewed and his grievances were rejected or interfered with is because he refused to inflate his grades or lower his expectations and teaching standards. He contends that, in response to student complaints that homework assignments were too time consuming and that plaintiff's courses were too hard, defendants first threatened not to renew plaintiff's contract unless he appeased the students and then carried out their threat when plaintiff refused to lower his standards. This, plaintiff says, interfered with his academic freedom which, plaintiff maintains, is protected by the first amendment.

  It is important to note what plaintiff's first amendment claim is and to separate speech from action. Plaintiff has not contended that he was retaliated against simply because he advocated that the university elevate its standards. .... Plaintiff's complaint instead is that he was retaliated against when he refused to change his standards.

  We will assume for purposes of this opinion that plaintiff's refusal to lower his standards was a substantial motivating factor, see Mount Health Board of Education v. Doyle, 429 U.S. 274, 283-284, (1977), in the decision not to renew his contract. We nevertheless conclude that plaintiff has failed to state a constitutional claim.

  Whether a school sets itself up to attract and serve only the best and the brightest students or whether it instead gears its standard to a broader, more average population is a policy decision which, we think, universities must be allowed to set. And matters such as course content, homework load, and grading policy are core university concerns, integral to implementation of this policy decision. [citations omitted] To accept plaintiff's contention that an untenured teacher's grading policy is constitutionally protected and insulates him from discharge when his standards conflict with those of the university [footnote omitted] would be to constrict the university in defining and performing its educational mission. The first amendment does not require that each nontenured professor be made a sovereign unto himself. [citations omitted]

Lovelace v. Southeastern Massachusetts Univ., 793 F.2d 419, 425-426 (1stCir.1986).

conclusion about professors

Conclusion