A&A: Prof worried about free-speech rights regarding Facebook post

Q: I’m curious about the protection of my free speech rights as an untenured, racially underrepresented professor at a public university. I posted a comment about my encounter with a coworker, related to my views about racial micro aggression and the recent national unrest about law enforcement. I didn’t directly identify my coworker and privacy settings are restricted to be viewed by my friends only (although some friends shared the post). I also clearly stated that I was 100% in support of peaceful dialogue about race relations in US and hopeful that we can rise above the hateful reactions. My friends on know my profession as the name of my institution is posted on my profile.

Although, I have no control over who shares this post, and I teach about these topics in my professional work, is there any cause for concern–apart from the awkward interactions that may result should my coworkers (who are not friends with me on FB) come across this post through mutual friends who may also be employed? Overall, the comments have been made and noted in public forum at my institution and is a focus campus-wide lately. Just wondering.

A: The First Amendment, with some exceptions, generally prevents the government from limiting citizens’ speech. Employers, with some exceptions, generally have the ability to limit what their employees can say on behalf of the company or while engaged in work functions. Thus, an interesting dynamic is generated when, as in your situation, the government is the employer.

As a threshold matter, it is important to note that citizens do not surrender their First Amendment rights by becoming government employees. The First Amendment is binding on public institutions. See Widmar v. Vincent, 454 U.S. 263, 268–69 (1981) (“With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.”); Healy v. James, 408 U.S. 169, 180 (1972) (internal citation omitted) (“[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’”).

Indeed, the need to protect the free speech rights of government employees arguably is most true at institutions of higher learning, where the U.S. Supreme Court has indicated that academic freedom is a “special concern of the First Amendment,” adding that “[o]ur nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.” Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967).

It sounds like your concern is whether your employer could limit your ability to post on social media—and in particular to post about your job. Generally speaking, a public institution’s attempts to limit its employees’ speech is subject to a balancing test. Pickering v. Board of Education, 391 U.S. 563 (1968). In Pickering, the Court held that while teachers as public employees do not enjoy the complete protection of the First Amendment because of the government’s “interests as an employer in regulating the speech of its employees,” a balance must be struck between “the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. at 568. However, the Court made clear in Pickering that the negative impact of the teacher’s expression must be substantial and material. If the teacher’s speech “neither [was] shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally,” then “the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public,” and the teacher’s speech enjoys First Amendment protection. Id. at 568, 573. (Importantly, Pickering concerned a high school teacher’s expression. The balance may tip even more in favor of protecting the speech of faculty at institutions of higher learning.)

Additionally, given that you indicated you teach on a subject related to your comments, the Supreme Court recently explicitly reserved the question of whether its most recent jurisprudence regarding the expressive rights of public employees is applicable to faculty expression concerning scholarship. Garcetti v. Ceballos, 547 U.S. 410, 425 (2006) (“expression related to academic scholarship or classroom instruction” may “implicate[] additional constitutional interests … not fully accounted for by this Court’s customary employee-speech jurisprudence”). Lower courts, including the Ninth Circuit, have recognized Garcetti’s reservation with respect to faculty speech. See Demers v. Austin, No. 11-35558, 2014 WL 306321, at *1 (9th Cir. Jan. 29, 2014) (“We hold that Garcetti does not apply to ‘speech related to scholarship or teaching’ Id. at 425. Rather, such speech is governed by Pickering v. Board of Education, 391 U.S. 563 (1968).”)

If your concern relates to whether you could be liable for your comments, in general, speech that constitutes opinion, as opposed to demonstrably false representations of fact, is protected under the First Amendment.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.