Faculty "Extramural" Speech
Investigating and sanctioning faculty for participating in public discourse violates the First Amendment, principles of academic freedom, and university policies.
Faculty at public and private universities communicate in a variety of contexts: in the classroom, through their scholarship and at professional events, during faculty meetings, and on social media. The rights and principles that apply to faculty expression are somewhat complicated. Faculty at public universities, which are bound by the First Amendment, enjoy different rights than those at private universities, where the First Amendment does not generally apply but where employment contracts and principles of academic freedom provide protection for faculty speech. Faculty expression in the classroom and scholarly endeavors, which lie at the core of the academic mission, may be subject to different standards than speech at faculty or committee meetings. And faculty speech on social media or in other public fora enjoys protections that differ from these other expressive activities.
I want to focus on faculty speech that occurs outside academic settings, for example on social media or in the press. The literature refers to this as “extramural” speech, in part to distinguish it from teaching, scholarship, and the “intramural” expression that occurs at internal committee meetings and other governance events.
The scope of protection for extramural speech is a vitally important matter, not just to individual faculty but to the academic enterprise and public discourse as a whole. However, identifying or defining the scope of protection for faculty public expression is difficult.
Consider an example of faculty extramural speech, posted on X by Jonathan Brown, the Alwaleed bin Talal Chair of Islamic Civilization at Georgetown University, just a few hours after the United States bombed Iranian nuclear facilities: “I hope Iran does some symbolic strike on a base, then everyone stops.” [This was indeed what President Trump announced was likely to occur, and did in fact occur, without American casualties.]
What followed the post has become a familiar pattern.
Conservative activists highlighted and criticized the speech. The post was flagged by the Libs of TikTok X account, which characterized Prof. Brown’s post this way: “Professor at Georgetown University @ Georgetown says he hopes Iran strikes a U.S. base.” [Prof. Brown explained on X that “I deleted my previous tweet because a lot of people were interpreting it as a call for violence. That’s not what I intended. I have two immediate family members in the US military who’ve served abroad and wouldn’t want any harm to befall American soldiers… or anyone!”]
Prof. Brown’s post was next quickly denounced by Republican members of Congress, who demanded Prof. Brown be immediately terminated from his faculty position based on this single social media post. It so happened that Georgetown’s president was scheduled to testify before a House committee - another increasingly common occurrence. Representative Randy Fine (R-FL) posted: “This demon [Prof. Brown] had better be gone by then. We have a Muslim problem in America.” Virginia Foxx, a North Carolina Republican House member, asked Georgetown’s president at the hearing: “Is this person really suited to be educating the next generation of American diplomats?”
Bowing to the political pressure, Georgetown’s president informed concerned Republicans on the House committee that “[w]ithin minutes of our learning of that tweet, the dean contacted Professor Brown, the tweet was removed, we issued a statement condemning the tweet, Professor Brown is no longer chair of his department and he’s on leave, and we’re beginning a process of reviewing the case.”
The government could not jail, fine, or indeed take any other adverse action against a citizen who posted Prof. Brown’s comment or something similar (as many undoubtedly did). Don’t university faculty have the same speech rights as any other citizen? The short answer is that they don’t. However, extramural speech is protected to some extent by a combination of the First Amendment, academic freedom, and university policies.
At public universities, faculty enjoy limited First Amendment rights. Under settled First Amendment doctrine concerning the speech rights of government employees, faculty extramural speech like Prof. Brown’s is covered by the First Amendment only when the faculty members is communicating as a citizen about a matter of public concern.
When he is on social media, Prof. Brown is generally speaking as a citizen.
The subject of his post, the U.S.’s war with Iran, is undoubtedly a newsworthy matter (which is how courts generally define “matter of public concern”).
But under First Amendment doctrine, Prof. Brown does not automatically win his case. Rather, he could still be disciplined or terminated if the disruption his post caused in his classes or on campus more generally outweighed his right to communicate about the war with Iran. (This is called the “Pickering balancing test,” named for a Supreme Court case confirming that a high school teacher had a First Amendment right to criticize the school district’s handling of its finances.)
I suspect there is zero evidence that this single comment caused or will cause the kind of disruption Pickering requires. If Prof. Brown worked at a public university, he probably should win his case (although he would suffer the reputational and other costs of being subject to investigation and potential discipline, not to mention likely online harassment).
The speech of faculty at both public and private universities may also be protected under principles of academic freedom. For nearly a century, academic freedom has been understood to include the right of faculty members to participate in public discourse.
As the Association of American University Professors observed in its 1940 statement on the scope of academic freedom, faculty must be free from “institutional censorship or discipline” when “they speak or write as citizens.” Academic freedom is a murky subject with many complications. It suffices to say that it has long been understood to extend to faculty extramural speech. The AAUP statement recommends that professors speak with moderation in their extramural speech and clarify that they are speaking in their personal capacities. Beyond that, however, the AAUP’s statement places no substantive limits on faculty extramural expression. For example, faculty are not limited to posting about their scholarship or areas of expertise but can engage the public on all matters of public concern.
Georgetown is a private university, so the First Amendment does not apply to Prof. Brown’s speech. However, academic freedom principles presumably do, and as noted they explicitly protect faculty extramural speech. Further, the university’s free speech policies, which are based in part on academic freedom principles, may also support protecting speech like Prof. Brown’s.
Unfortunately, as we learned a few years ago when Georgetown suspended and investigated Ilya Shapiro, a job candidate who posted something critical about the nomination of Ketanji Brown Jackson to the Supreme Court, some of the university’s policies fall short of robust protection for faculty extramural speech. One would hope, perhaps unreasonably in this political climate, that free speech advocates on the right who were incensed by the university’s handling of Shapiro’s case would support Prof. Brown’s right to post his comments.
Although Georgetown has certainly not covered itself in free speech glory recently, its policies on free speech suggest Prof. Brown will prevail. According to the university’s “Policy on Speech and Expression”:
Georgetown University is committed to free and open inquiry, deliberation and debate in all matters, and the untrammeled verbal and nonverbal expression of ideas. It is Georgetown University’s policy to provide all members of the University community, including faculty, students, and staff, the broadest possible latitude to speak, write, listen, challenge, and learn. . . . Individual members of the University community have the right to judge the value of ideas, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting those arguments and ideas that they oppose. . . .
Faculty extramural speech can be problematic. Surely a faculty member who incited violence on campus or threatened someone with violence could be disciplined. Like similar policies, Georgetown’s recognizes narrow limits:
The freedom to debate and discuss the merits of competing ideas does not mean that individuals may say whatever they wish, wherever they wish. The University prohibits expression that violates the law, falsely defames a specific individual, constitutes a genuine threat, violates the University’s harassment policy, or unjustifiably invades substantial privacy or confidentiality interests.
Prof. Brown’s post does not implicate, much less violate, any of these limits. To be sure, other internal university policies and procedures may also apply to Prof. Brown’s speech. Georgetown’s policy mentions “appointment letters, confidentiality agreements or policies, professional conduct policies, [and] HR policies.” However, the policy also states that any speech restrictions in these materials “are narrow exceptions to the general principle of freedom of expression, and it is vitally important that these exceptions not be used in a manner that is inconsistent with the University’s commitment to a free and open discussion of ideas.”
Prof. Brown’s cryptic post shows not only how complicated faculty extramural speech is as a concept, but also how precarious its protections can be. Even at public universities, the type of “balancing” Pickering requires can be used as a pretext to dismiss faculty based on their controversial speech. If courts do not require a strong basis in evidence for the “disruption” inside or beyond the classroom, faculty can be dismissed based on the content of their expression. Academic freedom principles should protect most extramural speech, but courts may have difficulty understanding and applying them. Finally, as noted, university policies may speak in terms of robust discourse but be applied in speech suppressive ways.
It seems to be a common misperception that faculty waive or surrender their expressive rights when they accept academic appointments. That is far from the case, and normatively we should not want it to be. Faculty contributions to public discourse offer important insights, especially when they are based on learning and expertise. Even when they are not related to expertise, faculty extramural statements are deserving of protection as statements by citizens on public issues. University administrators should protect this expression to facilitate a healthy academic environment dedicated to free inquiry. In our present political environment, it is especially important that they not surrender to pressure from Congress or political actors who have been transparent about wanting to punish faculty for disfavored political views. They should, in short, live up to their policies on free expression.