Some of the most troubling cases that come through our door at the Student Press Law Center are not stories about students at all — they are stories about the faculty advisers who become “collateral damage” when schools and colleges realize that they cannot safely attack student journalists directly.
The leading faculty voice in support of employee free-speech rights on campus, the American Association of University Professors, came out this week with an authoritative assessment of the state of faculty speech rights — in a word, the state is lousy — and with some “best practices” for campuses that are interested in fostering the free and open discussion of ideas, no matter how controversial.
The AAUP report, Protecting an Independent Faculty Voice: Academic Freedom after Garcetti v. Ceballos, assesses the impact of the Supreme Court’s damaging 2005 Garcetti ruling, which held that government employees enjoy no First Amendment protection for comments they make in the line of their official duties. Basically, if a journalism adviser goes to the City Council to complain that her garbage wasn’t picked up, she’s protected against retaliation; if she goes to the Board of Regents to complain that the student newspaper is being censored, the First Amendment likely offers no refuge after Garcetti (though the students themselves may have a case that the retaliation infringes their rights).
The AAUP report notes the sad anomaly that Garcetti risks muzzling the very speakers who have the most valuable first-hand knowledge of their subject: “[A]s the cases stand now, one could argue that the less of a stake you have in your institution’s shared governance, the freer you are (as a First Amendment matter) to criticize how it is governed, and vice versa.” Fortunately, the report notes, some campuses, such as the University of Minnesota — whether motivated by altruism or by self-interest in faculty recruitment — are enacting institutional protections that go beyond the bare minimum that remains under the U.S. Constitution.
Both for faculty and for students, the best solution may be the market solution. Just as it is difficult to imagine today why any student who had any other choice would voluntarily risk victimization by the random disciplinary enforcement policies at Clark College or James Madison University, perhaps there will be a day when the most sought-after faculty recruits refuse to entertain offers from schools with inadequate free-speech safeguards.