Cost of Information

Chronicle reports on recent court decision stating, effectively, that a public employee can’t exercise first amendment speech rights if the credibility of the speaker is based upon the employee’s position (yeah, take that whistleblowers!).

First the context:

As an associate professor of mechanical engineering at the University of Wisconsin at Milwaukee, Mr. Renken says he felt obliged to speak out about his belief that administrators there were mishandling a National Science Foundation grant to him and several colleagues. When the university subsequently reduced his pay and returned the grant, he sued, alleging illegal retaliation.

Because he is a tenured faculty member, and he viewed the public university’s use of public funds as a matter of clear public interest, Mr. Renken figured his complaints qualified as legally protected free speech.

Now the punch line:

“In order for a public employee to raise a successful First Amendment claim, he must have spoken in his capacity as a private citizen and not as an employee,” the court said.

The professor, the AAUP, and others see this as a breach in the wall of protection they claim is provided by Academic Freedom.  However, referring to the 1915 Declaration of Principles, I do not see a case to be made here, as the utterances were within the confines of the professor’s job.

The term “academic freedom” has traditionally had two applications—to the freedom of the teacher and to that of the student, Lehrfreiheit and Lernfreiheit. It need scarcely be pointed out that the freedom which is the subject of this report is that of the teacher. Academic freedom in this sense comprises three elements: freedom of inquiry and research; freedom of teaching within the university or college; and freedom of extramural utterance and action. The first of these is almost everywhere so safeguarded that the dangers of its infringement are slight. It may therefore be disregarded in this report. The second and third phases of academic freedom are closely related, and are often not distinguished. The third, however, has an importance of its own, since of late it has perhaps more frequently been the occasion of difficulties and controversies than has the question of freedom of intra-academic teaching. All five of the cases which have recently been investigated by committees of thisAssociation have involved, at least as one factor, the right of university teachers to express their opinions freely outside the university or to engage in political activities in their capacity as citizens.


The 1940 Statement of Principles clarifies, but does not change the view towards utterances:

College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.[4]

Therefore, I think that an academic freedom argument is rather weak in this case and certainly misses the bigger issue, that of public employees right to speak, entirely.

To give my next paragraph the proper context, see this passage from the court decision:

In order for a public employee to raise a successful First Amendment claim, he must have spoken in his capacity as a private citizen and not as an employee.“[W]hen 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.”Morales v. Jones, 494 F.3d 590, 595 (7th Cir.2007) (quoting Garcetti v. Ceballos, 126 S.Ct. 1951, 1960 (2006)). Determining what falls within the scope of an employee’s duties is a practical exercise that focuses on “the duties an employee actually is expected to perform.”Id. at 596 (quoting Garcetti, 126 S.Ct. at 1962).“Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes.”Garcetti, 126 S.Ct. at 1962. Only if Renken was speaking as a citizen and not as an employee, will we “inquire into the content of the speech” to ascertain whether his speech touched on a matter of public concern to determine whether it is protected speech. Speigla v. Hull, 481 F.3d 961, 965 (7th Cir.2007) (citations omitted).

The opinion seems to be written from a context that as an employee to a “private” employer, an employees rights to discuss information from the job place are indeed limited.

However, I think the court misses the point here.  As an employee of a “public” employer (i.e. us), such an employee not only work for us, the public, but for themselves as taxpayers.  Any decision to restrict the freedom to speak in this context is based upon erroneous understanding of who exactly the public “is”.   (Note the years of the citations for precedent).   Managers within a public agency are not the employers, we are.  And we deserve to hear the viewpoints of our employees.  Unless of course we subscribe to the ole’ industrial management doctrine and then we truly do deserve an ineffective, inefficient, noncompetitive government.

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