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View Diary: In Defense of David Guth and Academic Freedom (32 comments)

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  •  he has a right to protected speech, (0+ / 0-)

    but not a right to be employed as a professor. that means that the state can discipline him if it has a sufficiently strong interest in prescribing that kind of conduct.  IOW, whether its protected speech is only the first step of the analysis, and certainly the least interesting one (because it is obviously protected speech).

    As the second circuit explained in Pappas v Guiliani:

    "At times, the right of free speech conflicts with other important governmental values, posing the problem which interest should prevail. The effective functioning of entities of government could be seriously undermined by its employees' unrestrained declarations of their views. For this reason, the employee's right of free speech is sometimes subordinated to the interest of the effective functioning of the governmental employer."

    or, its a balancing test.  purely as a predictive matter, I think the school can prevail here.

    •  No, you're wrong about the law (1+ / 0-)
      Recommended by:

      A balancing test might be employed if this were on-the-job speech which materially affected job functioning. But that doesn't apply to off-the-job speech about matters of public concern. In that case, if he has a right to protected speech, then he has a right to be employed. Or to be more precise, he cannot be fired merely for expressing his political views.

      The Pappas v. Guiliani case is not a university case, and it's not a Supreme Court decision, and it was one where Judge (now Justice) Sotomayor dissented, declaring that the majority opinion "glosses over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives just because it is confronted with speech it does not like." I'm virtually certain that the Supreme Court would not uphold a ruling like this, and I stand with Sotomayor.

      The Most Dangerous Man in America: Rush Limbaugh's Assault on Reason (

      by JohnKWilson on Sun Sep 22, 2013 at 08:32:55 AM PDT

      [ Parent ]

      •  If you look at Rankin, which is, I believe, still (0+ / 0-)

        controlling precedent, the Supreme Court might have upheld Pappas because in that case the the statements
        might have discredited police in the eyes of the public, and the government has an interest in the police not being perceived as racist.

        In this case it is hard to believe that anyone will view the Professor speech as reflecting the views of the University. Professors generally are not presumed to speak for their employers in their statements. Further, and related, it is hard to see how the statements will disrupt or harm the University.  Thus,  the University likely loses here.

        (Note that if we were talking about a dean instead of a professor, the result might well be different.)

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