Skip to content
  • News
  • Events
  • Law Library
  • Giving
  • Alumni
  • Quicklinks

    • Academic Calendar
    • bCourses Overview
    • bCourses Link
    • Business Services
    • Schedule of Classes
    • View Evaluations
    • Identity Resources
    • RoloLaw
    • COVID-19 Protocols
    • Event, Catering and Food Policy
    • Emergency Info
    • Resource Hub for Faculty & Staff

    Support

    • Reporting Potential COVID-19 Cases
    • COVID-19 Remote Teaching Resources
    • Computing Support
    • Event Services
    • Faculty Services (Library)
    • Human Resources & Academic Personnel
    • Instructional Technology
    • Phones
    • Room Reservations
    • Resources to Respond to Sexual Harassment
  • Quicklinks

    • Academic Calendar
    • b-Line
    • Berkeley Law Facebook
    • Financial Aid
    • Faculty Profiles
    • Schedule of Classes
    • Teaching Evaluations
    • Final Exam Review Session Schedule
    • Exams
    • Final Exam Schedule
    • CalCentral
    • COVID-19 Protocols
    • Event, Catering and Food Policy
    • Emergency Info
    • Resource Hub for Students

    Student Services

    • Reporting Potential COVID-19 Cases
    • Student Services Office
    • Academic Skills Program
    • Student Organizations
    • Student Journals
    • Commencement
    • Frequently Asked Questions & Rule Clarifications
    • Bookstore
    • Wellness at Berkeley Law
    • Mindfulness at Berkeley Law
    • Registrar
    • University Health Services
    • Resources to Respond to Sexual Harassment
  • Search for People at Berkeley Law

Berkeley Law
    • Academics Home
    • Areas of Study
      • Social Justice and Public Interest
        • Curriculum
          • J.D. Path
          • LL.M. Path
        • Social Justice+Public Interest Community at Berkeley Law
          • Public Interest and Pro Bono Graduation
      • Business and Start-ups
        • Business Law Curriculum
        • Business Law Faculty
      • Law and Technology
        • Student Activities
        • Law and Tech Curriculum
        • Law and Tech Faculty
      • Environmental Law
      • Criminal Justice
      • International and Comparative Law
        • Centers, Clinics, and Programs
        • Faculty
        • Student Activities
      • Constitutional and Regulatory
      • Law and Economics
        • Faculty
        • Prospective Students
        • Visiting Scholars
        • Law and Economics Fellowship
    • J.D. Program
      • First-Year Curriculum
      • Concurrent Degree Programs
      • Combined Degree Programs
      • Berkeley-Harvard Degree Programs
    • LL.M. Programs
      • LL.M. Executive Track
        • LL.M. Executive Track Academic Calendar
        • Engage with Berkeley Law Online Courses
      • LL.M. Traditional Track
        • Current Academic Calendars
      • LL.M. Thesis Track
        • LL.M. Thesis Track Student Profiles
        • Current Academic Calendars
      • Courses
      • Certificates of Specialization
      • Application & Admission
        • Eligibility & Admission Standards
        • Application Instructions
        • Admissions Policies
        • Check Application Status
      • Tuition & Financial Aid
        • Cost of Attendance
        • Scholarships
        • Financial Aid
          • Financial Aid Checklist for LL.M./J.S.D. Students
        • FAQ Financial Aid
      • Professional Development
      • Admitted Students
        • Visas
        • Housing for LL.M. Students
        • Cancellation & Refund Policies
      • Join an Event & Connect with LL.M. Staff
        • Recruiting and Informational Events
        • Visit Us!
        • Contact Us
      • Meet Our Students
      • Meet Our Partners
      • Questions? Start Here
    • Doctoral Programs
      • J.S.D. Program
        • Application & Admissions
          • Eligibility & Admission Standards
          • Application Instructions
          • Check Your Application Status
        • J.S.D. Tuition & Financial Aid
          • Cost of Attendance for JSD
          • Robbins J.S.D. Fellowship
        • J.S.D. Student Profiles
          • Zehra Betul Ayranci
          • Ella Corren
          • Silvia Fregoni
          • George Lambeth Vicent
          • Sylvia Si-Wei Lu
          • Natsuda Rattamanee
          • Youngmin Seo
          • Abdullah Alkayat Alazemi ’21
          • Mehtab Khan ’21
          • Maximilien Zahnd ’21
          • Shao-Man Lee ’20
          • Alvaro Pereira ’20
        • Contact Us
      • Ph.D. Program – Jurisprudence and Social Policy (JSP)
        • Events Calendar »
    • Executive Education
    • Schedule of Classes
      • Two Year Curriculum Plan
    • Current Academic Calendars
      • 2022-2023 Academic Calendar
      • Past Academic Calendars
        • 2021-2022 Academic Calendar
        • 2020-2021 Academic Calendar
        • 2019-2020 Academic Calendar
        • 2018-2019 Academic Calendar
        • 2017-2018 Academic Calendar
        • 2016-2017 Academic Calendar
        • 2015-2016 Academic Calendar
        • 2014-2015 Academic Calendar
        • 2013-2014 Academic Calendar
        • 2012-2013 Academic Calendar
        • 2011-2012 Academic Calendar
        • 2010-2011 Academic Calendar
        • 2009-2010 Academic Calendar
        • 2008-2009 Academic Calendar
    • Registrar
      • Order of the Coif and Dean’s List
      • Academic Rules
        • Supplemental Academic Rules for Traditional and Thesis Track LL.M. Students
        • Academic Honor Code
        • Academic Rules Petition
        • Academic Rule 3.06 – applies to the Class of 2010 and before
        • Credit Hours
      • Registration
      • Transcripts
      • Verification of Attendance
      • Registrar’s Forms
      • Ordering a Diploma »
      • J.D. Academic Guidance
        • 3L Requirements FAQ
        • 3L Degree Worksheet
      • Registrar’s Student FAQ
      • Bar Information
        • State Bar Swearing-In Ceremony Information
    • Admissions Home
    • J.D. Admissions
      • Applying for the J.D. Degree
        • Ready to Apply
        • After You’ve Applied
        • FAQs
      • Entering Class Profile
      • Connect with Admissions
        • Meet Our Team
        • View the Prospectus
        • Webinars
        • Recruiting and Information Events
        • Contact LL.M. Admissions
        • Contact J.S.P. Admissions
      • Meet Our Students
      • Diversity at Berkeley Law
        • Diversity News
      • The Berkeley Experience
        • U.C. Berkeley Campus
        • Berkeley and the Bay Area
      • Concurrent & Combined Degree Programs
      • Faculty Admissions Policy
      • Financial Aid
        • Prospective and Entering Students
          • Entering Student Registration & Financial Aid Information
          • Financial Aid for International J.D. Students
          • Financial Aid for Undocumented J.D. Students
          • Legal Resident Information
        • Types of Aid
          • Scholarships
          • Loans
          • Work-Study
        • How to Apply
          • Financial Aid Checklist & Timeline For Incoming Transfer Students
          • Financial Aid Checklist & Timeline For Entering Students
          • Financial Aid Checklist & Timeline For Continuing Students
        • Fees & Cost of Attendance
          • Cost of Attendance Adjustments
        • PDST-Increase Offset Awards (PIOAs)
        • Forms
        • Loan Repayment Assistance Program (LRAP)
          • LRAP Eligibility Guidelines
          • LRAP Eligibility Calculator
          • How to Apply for LRAP
          • LRAP Application Forms
          • Public Service Loan Forgiveness (PSLF)
          • News & Updates
          • LRAP FAQs
        • Info Sessions & Presentations
        • Financial Literacy
        • Financial Aid – J.D. Concurrent Degree Programs
        • FAQ & Glossary
        • Requesting a Financial Aid Award for a Student
        • About Our Team
      • Outreach Partnerships
      • Admitted Students – First-Year »
      • Admitted Students – Transfer & Visitor Status »
      • For Current Berkeley Law Students
      • Admissions Policies
      • ABA Required Disclosures »
      • Our Role in Dismantling Systemic Racism
    • LL.M. Admissions
    • J.S.D. Admissions
    • Ph.D. (JSP) Admissions
    • Visiting Scholar and Visiting Student Researcher Admissions
    • Faculty & Research Home
    • Faculty Experts by Topic
    • Faculty Profiles
    • Deans Emeritus Lecturers
    • Recent Faculty Scholarship
    • Awards and Honors
    • Faculty in the News
    • Featured Research
    • Centers, Institutes & Initiatives
    • Experiential Home
    • Clinical Program
      • Apply to the Clinics
      • Death Penalty Clinic
        • About the Clinic
          • Faculty and Staff
          • Alumni
        • Clinic News
        • Projects and Cases
          • Death Penalty Clinic Amicus Curiae Briefs
          • Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors
        • Information for Students
        • Resources and Publications
          • Capital Defense Internships and Jobs
        • Donate to the Clinic
      • East Bay Community Law Center
      • Environmental Law Clinic
        • About the Clinic
        • Information for Students
        • Newsletters
        • Clinic News
        • Student Voices
        • Faculty and Staff
        • Alumni
        • Donate to the Clinic
      • International Human Rights Law Clinic
        • About the Clinic
          • Alumni
          • Faculty and Staff
        • Clinic News
        • Projects and Cases
          • Accountability and Transitional Justice
          • Promoting Human Rights in the United States
          • A Rights-Based Approach to Combating Poverty: Economic, Social & Cultural Rights
          • Counter-Terrorism and Human Rights
        • Independent Investigation of the Murder of Berta Cáceres
        • Living with Impunity: Unsolved Murders in Oakland and the Human Rights Impact on Victims’ Family Members
        • A New Border Vision
        • Who Will Be Left to Defend Human Rights? Persecution of Online Expression in the Gulf and Neighboring Countries
        • Resources and Publications by Focal Area
        • Information for Students
          • Student Self-Reflection
        • IHRLC 20th Anniversary
        • Donate to the Clinic
      • New Business Community Law Clinic
        • About the Clinic
        • Information for Students
        • Our Work
        • Services to California’s Central Valley
        • New Businesses
        • Events
        • Apply for Services
        • Donate to the Clinic
        • 2014 Fall Startup Workshop Series
      • Policy Advocacy Clinic
        • About Us
        • People
        • Clinic News
        • Juvenile Fee Abolition in California
          • COVID-19 Action on Juvenile Fees
        • Resources and Publications
        • Information for Students
        • Donate to the Clinic
      • Samuelson Law, Technology & Public Policy Clinic
        • About
          • Faculty and Staff
          • Clinic Alumni
          • Partners
        • Clinic News
        • Our Work
        • Information for Students
      • Clinical Program Annual Report
        • Annual Report Archive
      • The Brian M. Sax Prize for Excellence in Clinical Advocacy
        • Brian M. Sax
        • Recipients
    • Pro Bono Program
      • The Pro Bono Pledge
        • Definition of Pro Bono
      • Log Your Pro Bono Hours
        • Definition of Pro Bono
      • Student-Initiated Legal Services Projects (SLPS)
        • How To Apply
        • Current Student-Initiated Legal Services Projects
          • Animal Law and Advocacy
          • Arts and Innovation Representation
          • Berkeley Abolitionist Lawyering Project
          • Berkeley Immigration Group
          • Berkeley Law Anti-Trafficking Project
          • Berkeley Law and Organizing Collective
          • California Asylum Representation Clinic
          • Clean Energy Leaders In Law
          • Consumer Protection Public Policy Order
          • Contra Costa Reentry Project
          • DA Accountability & Participatory Defense Project
          • Digital Rights Project
          • Disability Rights Project
          • East Bay Dreamers Project
          • Environmental Conservation Outreach
          • Food Justice Project
          • Foster Education Project
          • Free The Land Project
          • Gun Violence Prevention Project
          • Homelessness Service Project
          • International Human Rights Workshop
          • International Refugee Assistance Project
          • La Alianza Workers’ and Tenants’ Rights Clinic
          • Legal Automation Workshop
          • Legal Obstacles Veterans Encounter
          • Name and Gender Change Workshop
          • Native American Legal Assistance Project
          • Palestine Advocacy Legal Assistance Project
          • Police Review Project
          • Political and Election Empowerment Project
          • Post-Conviction Advocacy Project
          • Reentry Advocacy Project
          • Reproductive Justice Project
          • Startup Law Initiative
          • Survivor Advocacy Project
          • Tenants’ Rights Workshop
          • Wage Justice Clinic
          • Workers’ Rights Clinic
          • Workers’ Rights Disability Law Clinic
          • Youth Advocacy Project
        • How to Start a New SLP
        • Inactive Student-Initiated Legal Services Projects
          • AI Legal Workshop
          • Berkeley Immigration Law Clinic
          • Berkeley Students in Support of Arts and Innovation
          • Civil Rights Outreach Project (CROP)
          • Community Restorative Justice Project
          • Juvenile Hall Outreach
          • Karuk-Berkeley Collaborative Legal
          • Local Economies and Entrepreneurship Project
          • Prisoner Advocacy Network
        • SLPS Champions
      • Berkeley Law Alternative Service Trips (BLAST)
        • Current Berkeley Law Alternative Service Trips (BLAST)
          • Atlanta
          • Central Valley
          • Hawaii
          • Mississippi
        • Inactive Berkeley Law Alternative Service Trips
          • Kentucky
          • Los Angeles
          • South Texas
          • Tijuana
      • Call for Necessary Engagement in Community & Timely Response (CNECT)
        • Berkeley Law Afghanistan Project
        • Current & Past CNECT Partners
          • Hub for Equity in Administrative Representation
          • Racial Justice Legal Research Bank Project
        • CNECT News
      • Independent Projects
      • Opportunities for LL.M. Students
      • Supervising Attorneys
      • Pro Bono Spotlights
        • Malak Afaneh ’24
        • KeAndra Hollis ’24
        • Maripau Paz ’24
        • Lucero Cordova ’23
        • Bharti Tyagi ’21
        • Benji Martinez ’23
        • Will Morrow ’23
        • Stephanie Clemente ’23
        • Francesco Arreaga ’21
        • Armbien Sabillo ’21
        • Kelsey Peden ’21
        • Jennifer Sherman ‘22
        • Professor Khiara M. Bridges
        • Professor Kristen Holmquist
      • Awards
      • Law Firm Pro Bono Programs
      • New York Bar Pro Bono Requirement
      • For Public Interest & Pro Bono Providers
    • Professional Skills Program
      • Legal Research, Analysis, and Writing Program
      • Elective Skills Courses
      • Advocacy Competitions Program
        • Tryout Procedures
        • Student Eligibility & How to Contact Us
        • Internal Competitions
          • McBaine Honors Moot Court
          • Halloum Negotiations Competition (Spring)
          • Halloum Business Competition (Fall)
          • Bales Trial Competition
          • Pahlke Internal Trial Competition (PINT)
          • The Pircher, Nichols & Meeks Joint Venture Challenge
        • External Competitions
          • Alternative Dispute Resolution (ADR) Team
          • Moot Court Team
          • Trial Team
        • Writing Competitions
        • 2021 ABA Negotiation Competition
        • Travel Reimbursements
        • Our Supporters
    • Field Placement Program
      • Testimonials
      • Judicial Externships
      • Civil Field Placements
      • Criminal Field Placements
      • Away Field Placements
        • Berkeley Law in The Hague
        • INHR Program
        • UCDC Law Program
      • For Supervisors and Host Organizations
        • BACE: Bay Area Consortium on Externships
      • How to Apply
      • Frequently Asked Questions
    • Startup@BerkeleyLaw
      • Law Students
      • Entrepreneurs
        • Resources
        • How to Start a Startup @ Cal
        • FORM+FUND
          • FORM+FUND Fall 2020 Video Library
          • FORM+FUND Fall 2021 Video Library
          • FORM+FUND Spring 2021 Video Library
        • BerkeleyBase
        • Startup Law Initiative
      • Investors
    • Domestic Violence Law Practicum
      • About the Director
      • How to Apply
      • Companion Seminar
      • Former Students
      • Impact of DVP
      • Domestic Violence Field Placement Internships
      • News
      • Photos
      • Student Writing
    • Veterans Law Practicum
    • Careers Home
    • For J.D. Students
      • Appointments and Drop-in Hours
      • Private Sector Careers
        • Explore Private Sector Careers
        • Find Private Sector Jobs
          • 2022 OCI: EIW & FIP
          • OCI Alternatives
          • SIP – Spring 2022
      • Public Interest Careers
        • Explore Public Interest
        • Find Public Interest Jobs
          • PI/PS Interviewing Resources
          • Using Interview Programs to Land Your 1L Summer Job
          • Post-Graduate Public Interest Fellowships
          • CDO PIPS Videos
        • Finance Your Public Interest Career
          • Summer Funding for PI/PS Internships & Judicial Externships
          • Berkeley Law Bridge and Public Interest Fellowships
      • Public Sector Careers
        • Federal Government Careers
        • State & Local Government Careers (incl. CA)
        • Careers in Policy/Politics
      • Judicial Clerkships
        • Application Instructions and Materials
        • OSCAR Resources
        • Clerkship and Interview Evaluations
        • Other Clerkship Resources
        • Videos of Clerkship Programs
        • State Court Resources
      • Judicial Externships
      • Academic Careers
        • FAQ
        • Further Reading
        • Alumni Contacts
        • Links
        • Webcasts
      • Alternative Careers
    • For LL.M. Students
    • For Employers
      • Berkeley Law Recruiting Policies
      • Employer Resources for Virtual Internship Programs
      • Non Discrimination and Non Harassment Policies
      • Grading Policy
      • Interview Programs
      • Posting Job Listings
      • Reaching Berkeley Law J.D. Students
    • PSJD »
    • For Alumni
      • Enrichment Opportunities for Recent Grads
      • CDO Online Resources
      • Alumni Resource Collection
      • Help the CDO
      • For Recent Graduate Job-Seekers
    • About CDO
      • CDO Staff News
    • Career Resource Library
    • Employment Outcomes
      • Employment Statistics
      • Judicial Clerkship Placement Statistics
      • 2018 Clerkship Yearbook
  • Racial Justice
Home Center Articles Research Berkeley Center For Law & Technology Research and Scholarship Law & Tech Research Portal Matters of Public Concern and the Public University Professor

Matters of Public Concern and the Public University Professor

Author(s): Chris Jay Hoofnagle
Year: 2004

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

Link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=494782

Topics: BCLT

Berkeley Law
  • Twitter
  • Youtube
  • Instagram
  • Flickr
  • Facebook
  • LinkedIn
  • About
  • Getting Here
  • Contact Us
  • Job Openings
  • ABA Required Disclosures
  • Feedback
  • For Employers
  • Accessibility
  • Nondiscrimination
  • Privacy Policy
  • UC Berkeley

© 2022 UC Regents, UC Berkeley School of Law, All Rights Reserved.

Notice – Berkeley Law COVID-19 Protocols