Expert Speech

At a time when academic freedom is a hotly contested topic in public discourse as well as within universities themselves, this article addresses its meaning as a First Amendment right. It draws on my recent book, Academic Freedom: From Professional Norm to First Amendment Right, which Harvard University Press published in August 2024. In preparing this book, I read hundreds of legal decisions that raised issues of academic freedom and free speech at universities. My research convinced me that American courts have clearly recognized a First Amendment right of academic freedom but, as judges themselves have often complained, have not elaborated its meaning or its relationship to the First Amendment generally. I concluded that a convincing analysis of academic freedom as a First Amendment right depends on differentiating it from First Amendment rights of free speech that apply to all citizens.

I also realized that the classic statement about academic freedom as a professional norm, the influential 1915 Declaration of Principles by the American Association of University Professors (AAUP), provides a compelling justification both for differentiating academic freedom from general rights of free speech and for connecting it to the widely recognized First Amendment interest in the production and dissemination of knowledge. As the 1915 Declaration stresses, academic freedom protects professors in performing their essential function of pursuing knowledge and conveying the results of their expert study to students, colleagues, and the broader society. Professors cannot perform this function if they are subject to discipline for reaching scholarly conclusions that offend others.

I. Judicial Development of Academic Freedom

The Supreme Court did not recognize academic freedom as a First Amendment right until its 1957 decision in Sweezy v. New Hampshire. New Hampshire state courts had held Paul Sweezy, a well-known Marxist economist, in contempt for refusing to answer questions about the content of his guest lecturer at the University of New Hampshire or about the activities of the Progressive Party. In reversing Sweezy’s conviction, Chief Justice Warren’s plurality opinion maintained that the state had violated his constitutionally protected “academic freedom and political expression.”

In its 1967 decision, Keyishian v. Board of Regents, the Supreme Court more specifically identified academic freedom as “a special concern of the First Amendment” while holding unconstitutional state laws and regulations directed at subversive advocacy. Subsequent cases have frequently repeated this phrase, but they have not elaborated how academic freedom is “special.” Perhaps due to this lack of clarity, decisions reached inconsistent results. Yet, it is possible to draw meaningful conclusions from the case law.

Teaching and Scholarships

Since the initial decisions recognizing academic freedom as a First Amendment right, which protected teaching about Marxism from investigation and regulation by the state, many decisions have maintained that this right covers the content of academic speech. In Kerr v. Hurd (2010), for example, the court held that academic freedom applies to the claim by a professor of obstetrics that his department chair had fired him for advocating vaginal delivery instead of unnecessary cesarean procedures. At least where views by a professor are well within the range of accepted academic opinion, the judge stressed, they should be protected by the First Amendment right of academic freedom. Other decisions have agreed that the First Amendment right of academic freedom extends to pedagogical decisions by professors, protecting only those they found justified on academic grounds.

Some judges have limited academic freedom to the content of academic speech. One court rejected a challenge by professors to a state law that made the use of aborted fetal tissue in academic research a felony. One of the professors used mixed cell cultures derived from aborted fetal tissue to study Alzheimer’s disease. While acknowledging that the use of fetal tissue in research “could lead to speech” in scholarship or in the classroom, the court in Trustees of Indiana University v. Curry (2019) emphasized that “a desire to obtain an input into speech does not convert regulation of conduct into regulation of speech.” The court observed that the law did not prevent the professors from saying, writing, or teaching anything, including references to results obtained from research using aborted fetal tissue in states and nations that allowed it. Not limiting the protection of academic freedom to the content of speech, other decisions have applied it to protect from disclosure of confidential information used in research, such as the names of patients in medical studies and of members of the Irish Republican Army who gave oral histories.

Intramural and Extramural Speech

Beyond teaching and scholarship, courts frequently have invoked the First Amendment right of academic freedom to cover “intramural” speech by professors about university affairs. They have, for instance, protected opposition to a foreign exchange program, and a proposal for a revised curriculum that would redress the perceived imbalance between theoretical and practical courses in a school of mass communications. A few cases have applied the First Amendment right of academic freedom to protect the “extramural” political speech of professors outside the university, whether Marxist or conservative, but judges overwhelmingly have decided these cases through the general First Amendment right of free speech.II. Ignoring Academic Freedom

II. Ignoring Academic Freedom

Complicating the analysis of academic freedom as a First Amendment right, many decisions have not referred to academic freedom in circumstances to which it clearly applies. While academic freedom has been extensively recognized as a First Amendment right of professors, it has also been extensively ignored. In cases reviewing legislation that prohibited teaching evolution and required teaching “creation science,” the Supreme Court did not even address academic freedom issues raised by litigants and lower courts. Instead, it held that these laws produced an unconstitutional government establishment of religion.

Far worse, courts have often relied on other areas of First Amendment law to deny protection to academic speech that would have been provided had they applied the First Amendment law of academic freedom. Two good examples come from the First Amendment law governing public employees. First, speech by public employees is protected by the First Amendment only if it is about a matter of “public concern.” Many courts have found that academic speech by professors at public universities is unprotected because it is not about a matter of public concern, such as “abstract theorizing,” criticism of administrators “designed to make the university better,” and claims by professors that universities violated academic freedom in denying tenure. Other courts have defined public concern more broadly to include such speech.

Second, and even more potentially harmful to the societal interest in the pursuit of knowledge, in Garcetti v. Ceballos (2006). the Supreme Court held that speech by public employees “pursuant to their official duties” is not protected by the First Amendment. Yet the most fundamental official duties of professors are scholarship and teaching, the core functions of professors protected by the First Amendment right of academic freedom since the 1950s. In Garcetti itself, the Supreme Court explicitly left open whether the official duties test applies to professors. Subsequent lower court decisions have reached inconsistent results, sometimes finding an “academic freedom exception” for professors, sometimes not.

III. Institutional Academic Freedom

Beginning in the late 1970s, and with a similar lack of clarity, courts extended the First Amendment right of academic freedom to universities as institutions as well as to professors. These cases often quoted or cited Justice Frankfurter’s concurring opinion in the Sweezy case as the foundation of institutional academic freedom. After warning against “governmental intervention in the intellectual life of a university,” Frankfurter quoted a South African statement that identified “the four essential freedoms of a university — to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”

Justice Powell’s opinion in the famous 1978 affirmative action case, University of California v. Bakke, was the first time that a Supreme Court justice explicitly applied the First Amendment right of academic freedom to a university. Subsequent cases have recognized institutional academic freedom in numerous contexts. For example, in a unanimous 1985 decision, Regents of the University of Michigan v. Ewing, the Supreme Court treated the decision of a faculty committee to dismiss a student on academic grounds as a legitimate exercise of the university’s academic freedom. “When judges are asked to review the substance of a genuinely academic decision,” the opinion observed, “they should show great respect for the faculty’s judgment.”

IV. A Distinctive First Amendment Right

Much of the current confusion, uncertainty, unconvincing analysis, and unsatisfying results in judicial decisions could be resolved by treating academic freedom as a distinctive First Amendment right that protects the expert speech of professors. This distinctive right is necessary to protect the function of professors in promoting the societal interest in the production and dissemination of knowledge. The expertise of professors that contributes to this goal extends beyond specialized knowledge within their academic disciplines to matters of educational policy. On the other hand, this justification for academic freedom does not extend to speech by professors unrelated to their expertise, whether about the university or about external political issues. The non-expert political expression of professors should be governed by the same general First Amendment principles of free speech that apply equally to all public employees or citizens.

Although the function of academic freedom in protecting the expert speech of professors is the fundamental justification for its recognition as a distinctive First Amendment right, this right also plausibly applies to safeguard the university’s interest in making educational decisions that contribute to the production and dissemination of knowledge. Yet just as the academic freedom of professors should not extend to speech unrelated to expertise, institutional academic freedom should not extend beyond the educational decisions of universities. Some university decisions are based on institutional commitments to social rather than educational values, such as denying recruitment facilities on campus to organizations whose employment or environmental policies contradict standards established by the university. These decisions are outside the scope of institutional academic freedom, though they may be covered by general First Amendment protections for institutional autonomy, just as the political speech of professors may be covered by general First Amendment protections for free speech rather than by academic freedom.

A distinctive First Amendment right of academic freedom, rooted in the educational functions of professors and universities, promotes the societal interest in advancing knowledge while recognizing the equality of political speech as a general First Amendment right.