Boston Lawyer BlogFree Speech at College: What are Professors’ Rights?
In the past couple of years, college campuses have dealt with a range of free speech challenges that have become increasingly difficult to navigate amid a polarized political climate and heightened government scrutiny. As campus leaders and a vital bridge between students and the administration, college professors are uniquely positioned to cultivate free speech while helping to foster an inclusive campus environment. The challenge for professors, however, is determining how to exercise this influence while safeguarding their own academic freedom and careers. While the summer is in full swing and college campuses are still several weeks away from welcoming students back, it is never too early for college professors to refresh themselves on the basic boundaries and limitations of their own free speech rights.
What rights do I have as a professor at a public college or university?
The First Amendment protects a wide range of speech and applies to many different forms of expression beyond just speaking and writing, including visual expression, such as art, theater, or messages depicted on clothing, and symbolic speech, such as burning a flag. The First Amendment does not protect all speech, though; there are narrow categories of unprotected speech which include obscenity, true threats, and the incitement of imminent lawless action.
Professors at public universities, like all government employees, are protected by the First Amendment and Article 16 of the Massachusetts Declaration of Rights. As we have previously discussed, this protection applies when a public university professor speaks on a matter of public concern. Professors generally do not receive free speech protections for speech involving private matters, such as personal grievances or internal workplace complaints. While speech must address matters of public concern to be protected, whether a public university professor’s speech is protected also depends on the context in which they speak. Generally, if a public university professor is speaking as a citizen, not an employee, on a matter of public concern, that speech is protected. Whether one is speaking in a private capacity as a citizen versus within their scope of employment can often be a blurry line. As subject matter experts, professors may speak on matters of public concern by posting on social media platforms, as we have discussed previously, by authoring op-eds, or appearing on podcasts. While these fora may implicate both a professor’s views as a citizen and as a representative of an academic institution, courts have looked at a number of factors in deciding whether First Amendment protections apply, including the place and time where the speech occurred (i.e., whether the professor spoke on their own time and at home) and whether the professor spoke pursuant to their official job duties.
The right to speak on matters of public concern as a citizen is generally protected even when such speech involves criticism of the professor’s own university, as was the case for one of our former clients, a public university professor whose contract was terminated after he criticized the university’s handling of racist incidents. If a public university professor is speaking on a matter of public concern within their scope of employment, however, that professor is typically not insulated from employer discipline. Some courts have indicated that an exception to this rule may exist where public university professors are speaking through their scholarship or teaching. The Supreme Court has repeatedly emphasized the importance of safeguarding academic freedom, and several federal circuit courts, including the Ninth Circuit and Fourth Circuit, have taken a step further by applying a balancing test (the Pickering-Connick analysis) to whether scholarship or instructional speech is protected rather than deeming it unprotected employee speech.
Courts have still imposed some limitations in protecting speech under academic freedom principles. Professor speech that is not germane to the subject matter being taught is generally less protected from university discipline than speech integral to the subject of the class. For example, in Bishop v. Aronov, the Eleventh Circuit upheld a public university’s reprimand of a professor who spoke about his unrelated personal religious views unprompted during a course lecture on exercise physiology. Similarly, in Edwards v. California University of Pennsylvania, the Third Circuit upheld a public university’s decision to restrict a professor’s choice of classroom materials, criticize his teaching performance, and suspend him without pay after the professor was found to have taught from a non-approved syllabus and interjected his unrelated religious beliefs into a course on educational media.
Public universities can discipline professors who speak in their private capacities on matters of public concern if there are institutional goals that outweigh the importance of the speech. For example, a professor’s speech may infringe on the rights of others, such as when speech creates a hostile environment for their colleagues or students in violation of antidiscrimination laws. In addition, a professor’s private speech may also face limits if it discloses confidential information, such as student academic records or university proprietary information.
What protections do I have as a professor at a private college or university?
Professors employed by private universities are not directly protected by the First Amendment. Instead, private university professors’ speech rights may be created and governed by their employment contracts, collective bargaining agreements, and university-wide policies. Private universities often have academic freedom policies that protect professor speech related to scholarship and academic instruction, and which may be enforceable under state contract law. Academic freedom policies are typically incorporated into faculty handbooks, which courts have held may create enforceable contract rights.
Additionally, private university professors’ speech rights may also be protected by state and federal statutes. One such statute is the Massachusetts Civil Rights Act (MCRA), which protects individuals from interference with their constitutional or legal rights through threats, intimidation, or coercion. Under the MCRA, suits can be brought against private individuals and entities, not only the government. The Supreme Judicial Court has made clear that cancelling a contract because one party to the contract exercises their constitutional rights is a form of threats, intimidation, or coercion that is prohibited by the MCRA. Our firm represents a former Emerson College professor who sued the school after it terminated her employment because of her criticism of the school’s response to pro-Palestinian campus speech.
Certain types of speech are protected by other federal and state statutes. Many laws regulating the workplace (for example laws prohibiting discrimination, wage retention, providing for medical and family leave, requiring accommodations for disability or pregnancy, or laws aimed at ensuring safe workplaces) protect employees’ rights to raise concerns about violations of those laws. The National Labor Relations Act (NLRA) protects “concerted activity” aimed at improving working conditions. “Concerted activity” includes communications among workers about their work conditions. The Massachusetts Equal Pay Act (MEPA) protects employees’ rights to discuss their salary with one another.
If you are a college professor and you are concerned that your free speech rights may have been violated, or you have another workplace legal concern, contact our employment attorneys at (617) 742-6020.
* Our blogs are written by the firm’s attorneys, without the use of AI or ghostwriters
