Author(s): Chris Jay Hoofnagle
Abstract: The matter of public concern test is the threshold inquiry courts use to determine whether a public employee’s expression falls within the bounds of constitutionally protected speech. This test has been extended into the realm of academia, and it is now used to determine the First Amendment value of professors’ expression as well. Under the test, a professor’s expression must relate to a matter of political, social, or other concern to the community to gain protection under the First Amendment.
What expression qualifies as a matter of political, social, or other concern to the community? For many reasons, this is a difficult question to answer both in ordinary public employment situations and in academia. Indeed, this article includes many cases where different courts (and different Justices) view the same set of facts, and come to opposite conclusions on whether the expression at issue pertained to a matter of public concern. This article will trace these free speech cases arising in the academic environment in order to determine what expression falls within the ambit of public concern and what expression does not. Despite the gray areas between public and private concern, an analysis of these cases can elucidate trends and provide insight for the professor-plaintiff attempting to evaluate a free speech case.
Public concern cases involving professors tend to arise in one of four different contexts: faculty expression concerning the internal affairs of the institution; faculty expression motivated by personal interest; faculty expression made in private and not shared with the public; and vulgar or derogatory language employed by faculty in the classroom. In this article I will argue that, in each of the four contexts, courts have not always been sensitive to the special differences between ordinary public employment and employment at an institution of higher education. Also, in all four contexts, it is clear that the matter of public concern test does not encompass the traditional notions of protection offered by academic freedom.
To explain the trends in public concern jurisprudence, it is helpful to review the history of constitutional protection for public employee free expression. Part II of this article will review the rise of First Amendment protection for academic freedom, the development of the public concern test, and academic standards for free expression. Part III will describe the current procedural hurdles that plaintiffs and defendants must maneuver when a professor’s free speech rights are being litigated. Part IV contains an analysis of public concern cases in terms of the four categories listed above. Finally, Part V presents academic criticism of the matter of public concern test and alternative legal standards for determining the First Amendment value of professors’ expression.
Professors must exercise caution when relying on the First Amendment or academic freedom to shield their expression from retaliation because the only academic speech likely to enjoy protection under the Constitution is speech on matters of public concern. The matter of public concern test does not encompass the traditional notions of protection offered by academic freedom. And, even if a professor is successful in showing that the speech in question pertains to a matter of public concern, the professor’s case must still survive Pickering balancing, qualified immunity challenges, and other procedural hurdles. Courts applying the matter of public concern test to faculty speech sometimes are insensitive to the special context of higher education. As a result, professors must consider that important expression in the academic environment may appear as inconsequential to a judge. This insensitivity and difference in worldviews results in less protection for free speech, and as a result, it endangers academic freedom.
Cases applying the matter of public concern test to faculty speech are highly fact-sensitive. But some generalizations can be made about public concern cases to help faculty evaluate their free speech rights:
(1) Many important internal affairs issues are not matters of public concern. To be protected, expression on internal affairs issues must directly affect the public’s perception of quality of education. As a result, faculty speech on many important, quality-affecting issues is not protected by the First Amendment.
(2) Faculty expression that is motivated by purely personal interest will not enjoy First Amendment protection. Courts will also reject First Amendment claims by faculty who use public issues as a pretense to air their personal grievances. However, faculty who have mixed motives of personal and sincere public interest may have their speech protected.
(3) Professors do not have to publicize their expression in order to enjoy First Amendment protection. Private expression on matters of public concern is protected by the First Amendment.
(4) Professors who use vulgar or derogatory language should exercise caution because an institution or court might not consider the context or speaker’s intent carefully. As a result, professors cannot rely on First Amendment protection for vulgar or derogatory speech. Sexually-explicit expression that is motivated by pedagogical purposes has, however, been found to relate to a matter of public concern.
Keywords: First Amendment, public concern, higher education, free expression, public employee