It takes guts to take on your employer for violating your free speech rights. But Dr. David Demers, a tenured associate professor at the Edward R. Murrow School of Journalism (Murrow) at Washington State University (WSU), was not about to let university administrators punish him for speaking out. On September 4, 2013, the United States Court of Appeals for the Ninth Circuit in Demers v. Austin (Case No. 11-35558) found that a pamphlet Dr. Demers had written concerning how Murrow could be improved was protected by the First Amendment. Dr. Demers sent the pamphlet to the head of WSU, who was outside of his chain of command. He also wrote a book critical of WSU and Murrow’s administrators. This irked the new interim head of Murrow and others in the administration. Over the three-year period that followed, Dr. Demer’s evaluations plummeted, he faced two unique internal “audits,” and he was denied other opportunities within Murrow. Dr. Demers, a staunch defender of faculty self-governance and first amendment protection for academic speech, sued these WSU administrators for retaliation in response to exercising his First Amendment rights.
The officials fought back, claiming that Dr. Demers’ speech was not protected by the First Amendment under a 2006 United States Supreme Court ruling, Garcetti v. Ceballos, 547 U.S. 401 (2006). In Garcetti the Court held “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,” Id. at 421.
U.S. Supreme Court Justice Souter dissented out of concern for whether this new rule would cover speech related to scholarship or teaching. To address Justice Souter’s concern, the Court reserved that question for future determination.
In a strongly worded opinion issued in Demers, the Ninth Circuit found that the Garcetti rule does not apply to teaching and writing on academic matters by teachers employed by the state. Judge William Fletcher wrote the opinion, which discussed at length why and how the First Amendment had to protect academic freedom. In essence, Judge Fletcher wrote that teachers and students must always be free to inquire, to study, and to evaluate in order to advance our civilization, without fear of reprisal from the state.
The Ninth Circuit held that Garcetti does not apply, but whether academic employees’ speech will always be protected under the First Amendment must be determined under a two-part test from Pickering v. Board of Education, 391 U.S. 563 (1968). Under that test, the employee first must show that his speech addressed “matters of public concern.” The Ninth Circuit found that Dr. Demers’s plan for improving the Murrow School did discuss a matter of public concern.
The second part of the test involves balancing the interests of the state as an employer in promoting the efficiency of the public services it performs, with the employee’s interest in commenting upon matters of public concern. The Ninth Circuit remanded resolution of this balancing to the District Court. Because the Ninth Circuit has not previously addressed the application of Garcetti to teaching and academic writing, the Ninth Circuit found that the individual defendants were entitled to qualified immunity because they could not have sufficiently understood the status of the law on whether and how Garcetti might apply to a professor’s academic speech. Qualified immunity still allows the District Court to determine whether Dr. Demers is entitled to the injunctive relief he asked for in his lawsuit.
In issuing its decision, the Ninth Circuit joined the Fourth Circuit in finding that Garcetti does not apply to teaching and academic writing. However, other Circuits have held that Garcetti does apply to academic speech. Only the U.S. Supreme Court will be able to resolve this split between the Circuits.