Law is Unclear Whether Public College Faculty Have Free Speech Rights in Classroom

Professors at public universities have no right to freedom of speech when they teach, lawyers for the State of Florida argued in a court filing last week. Over the past few days, many academics have expressed outrage, describing Florida’s stance as a direct, troubling attack on academic freedom. Some have even called it fascist.

But there’s genuine uncertainty over the extent to which the state can dictate what state-college instructors teach, two law professors told The Chronicle.

As college instructors themselves, they obviously had a stance. Yet they admitted that existing law and precedent isn’t entirely clear. “It remains more of an open question than those of us who are academics would like it to be,” said Frederick Schauer, a First Amendment scholar at the University of Virginia’s School of Law.

The court filing was in defense of the state’s Individual Freedom Act, commonly known as the “Stop WOKE Act,” which bars instructors at public institutions from teaching certain ideas related to race, racism, and sex, and which at least two groups of students and professors have sued over.

“The curriculum used in state universities and the in-class instruction offered by state employees” count as the Florida government’s “own speech,” the lawyers wrote. Therefore: “The First Amendment simply has no application in this context.”

“It’s a powerful argument if you can get it accepted,” said Timothy Zick, a professor who teaches about the First Amendment at the William & Mary Law School. “The First Amendment just drops out of the picture.”

But will the argument be accepted?

Florida’s filing discusses a 2006 Supreme Court decision in Garcetti v. Ceballos. In that case, the court decided 5 to 4 that state employees didn’t have First Amendment rights while they were doing their jobs. (Schauer gave the hypothetical example of an anchor at a public TV station needing to read their script, as part of their job.) But Supreme Court justices at the time deliberately left unanswered the question of whether that principle extended to college classrooms.