Wednesday, January 5, 2022

During December’s Staff Council meeting, two College of Law professors presented concise introductions to the concepts of free speech and academic freedom on college campuses. Professor Joe Yockey, past President of the Faculty Senate, explained academic freedom and its basic contours. Professor Todd Pettys explained freedom of speech and the framework that a court uses to assess the ways governmental institutions such as the university allow or restrict speech of employees of those institutions. Thanks to Staff Council Secretary Becky Keogh for the following summary of their remarks:

Academic Freedom

Professor Yockey started the presentation with background information on academic freedom and free speech.

  • This topic has been in the news lately. The Board of Regents (BOR) created a special taskforce to investigate how expression and speech were being handled on regent campuses. A recent BOR survey on these topics will be used to develop a training program.
  • Academic freedom and free speech are related but there are key differences:
    • Academic freedom refers to a specific way of doing things on a university campus and how the university should operate.
    • UI is here to educate and engage in research. Academic freedom is one of the fundamental principles supporting this broad mission.
    • Academic freedom is freedom for faculty and students to engage in teaching and scholarship in accordance with their desires and the requirements and principles relevant to their academic discipline, free from pressure and risk of penalization from non-academic actors, such as outsiders, university administrators, donors, trustees, and politicians. It is the approach of trying to advance knowledge, to the best of our ability, as effectively as possible through rigorous debate, scrutiny, and inquiry.
  • Historically, the alternative to academic freedom is indoctrination. Over time, an argument was made for the toleration of dissent as the most effective way to advance knowledge. For something to be true, it must be able to withstand scrutiny.
  • An example shared included a faculty member publishing information about run-off in rivers. Academic freedom allows the individual to share their findings and for others to question and demand proof.
  • UI supports academic freedom through tenure, policy, and value statements.

Free Speech

Professor Pettys continued the presentation to discuss free speech rights of government employees, including staff members who draw their paycheck from the government.

  • When a government employee has said something and the employer (government) has taken adverse action because of the speech, start with the following question:

Is this job performing speech?

When you say this, are you doing your job? Is it because of your job duties that you’re saying it? This is different than making statements about your job or all speech at your job.

If yes, first amendment protection does not exist.

  • Ruling on this topic: Garcetti v Ceballos Supreme Court decision from 2006. When people are doing their job when they speak, whatever the job performance, it is what the government is paying you to do. If the employer (government) is not happy with performance, the employer can act as it wishes.

If no, when you spoke, are you talking about a matter of some public interest?

  • Am I talking about a topic I can imagine reporters talking about? Examples include politics, religion, history, education, etc.
  • If speech is of a private matter, there is no first amendment protection (commenting on someone’s clothing, complaints about the coffee pot, etc.)

First amendment protection can occur when it’s not job performing speech and it is speech of some public interest.

  • Courts will weigh the employee’s interest in joining the conversation about the matter of public interest against the employer’s interest in running an effective and efficient workplace.
  • A hypothetical example was presented: Professor Pettys finds out the Dean is doing something terrible. He believes the public should know and writes a letter to the Daily Iowan.
    • Is this job performing speech? No, it is not Professor Pettys’ job to monitor college leaders and report on it.
    • Is it a matter of public concern? Yes, the public has an interest.
    • The court will weigh Professor Pettys’ interest in speaking vs the government’s interest in maintaining an effective workplace. The professor works with the Dean so if the speech is going to undermine workplace relationships, then the employer is entitled to say the employee is undercutting workplace values.
  • A second example was presented: a high school teacher disagreed with how the district was spending its money. They wrote a letter to the local paper with their opinions. The school district was upset and wanted to terminate the teacher.
    • Is this job performing speech? No, this teacher is a high school science teacher and it is not their job to comment publicly on things like bond issues.
    • Is it public interest? Yes, it’s taxpayer money and the news may report on it.
    • Will it undermine the work relationship? No, this teacher does not interact with the school board regularly and it does not prevent them from teaching the class.

Questions from Staff Council:

  • Can you elaborate on the Free Speech at Iowa FAQ regarding hate speech being protected?
    • Though there may shared agreement over what is considered hate speech, the Supreme Court has declared that even though it can be deeply offensive, it is still protected.
    • It is contrary to our goals of inclusiveness, but the Constitution does not allow punishing the speaker by expelling or firing them.
    • Harassment is not protected. This occurs when speech is severe and pervasive, and a reasonable person would find it intolerable.
  • What happens when someone is attacked, and it seems related to hate speech?
    • This is called incitement, where someone says something that provokes someone else to commit an illegal act of violence.
    • Incitement includes two parts:
      • When the person says what they said, did they intend to provoke someone to do something illegal?
      • Was there a great likelihood that is what would happen?
  • How do social media comments fit into this?
    • Work through the questions: Is it their job to be commenting? Is it a matter of public interest? Will workplace effectiveness be undercut by this?
  • Could you clarify understanding between hate speech and harassment?
    • Harassment is severe and pervasive. Speech being targeted at someone could be the beginning of a problem but may not be pervasive.
  • Could you speak to the complexities around free speech and someone’s position at the university and what they’re commenting on? Specifically, not representing the university’s position on pending matters of legislation.
    • Work through the questions again and understand university policy.
    • Before you start speaking, understand possible consequences.
    • The law allows the university to control its own voice and there are rules of who can speak for a particular unit. The Supreme Court also declares you do not lose your first amendment rights when you work for the government. These are where the questions of job duties, public interest, and workplace effectiveness come into play.
  • Does freedom of expression/speech mean you can say whatever you want? Shouting fire, etc.
    • No, but you can say a lot that many would be preferred not to be said.
    • The First Amendment does not protect obscenity, incitement or acts of violence, specific threat of physical violence or intimidation, incitement to break the law, the destruction of property, or harassment as defined by law and University policies. These categories have strict legal definitions.
    • It is a huge freedom in this country to be absolutely obnoxious with your voice.
  • What is an example of an “imaginative way” of creating the community we want when dealing with objectional speech?
    • This question should be a predominant question in every conversation where we’re talking about the kind of campus we want to build.
    • Many can be quick to say the remedy for speech we don’t like is more speech. This can be a lot to add on to someone who is already a target of hurtful speech. We need to find a way to express our disapproval without putting the burden on those experiencing the hurtful speech.
    • Keep putting additional thought into how best to model respectful disagreement about serious, controversial topics.