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Analogous to nervous cluelessness is something we might call “anxious gatekeeping.”   This is desire to police the borders of poetry, or of...

Tuesday, April 29, 2014

Social media (iii): Pickering v Garcetti

[Once again, I'm speaking only for myself. I'm at home blogging and not using any KU resources for this post. Also, I am not a legal scholar, so my opinions are based only a few minutes reading the SCOTUS decisions and on a brief but excellent presentation by a constitutional law prof. I attended on Sunday.]

A lot of the language of SMP is taken directly from the Pickering case. A school-teacher wrote a letter to the editor criticizing the school board. He sued when the board took reprisals against him. Phrases like "best interests" and "harmony" and "close working relationship" come directly from the Supreme Court Decision. The Court ruled in favor of Pickering (the teacher), arguing that he didn't work directly with the School board and that he was exercising his normal rights as a citizen to express an opinion on matters of public concern. Although the court ruled in favor of 1st amendment rights, in favor of Pickering, it did so in a way that acknowledged government's interests in regulating the speech of its employees in the name of efficiency, harmony, and best interests.

The other relevant case is Garcetti v. Ceballos, a much more recent one. (Pickering is from the late 60s). Here the court ruled against Ceballos, a prosecutor who had questioned a search warrant, to the great displeasure of his supervisor. What is significant here is the right of the govt. to control the speech of its employee while such employee is performing official duties. Here the Supreme Court ruled wrongly (in my opinion) but still aided 1st amendment rights in drawing a line between official duties and private speech. For example, Ceballos would have been protected (presumably) if he were writing a letter to the editor on his private time expressing a political opinion that his boss, Garcetti, didn't happen to like.

[Dissents to Garcetti pointed out that Ceballos was fulfilling a whistle-blowing function and that he was bound by ethical obligations as an officer of the court and an attorney. I agree with those dissents.]

Now academic freedom works very differently than speech acts in the context of the prosecution of crimes. It is not absolute freedom: I don't have the freedom (inherently) to teach my Spanish classes in French, or to grade my students on their knowledge of algebra. On the other hand, in the normal course of things I don't take direct orders about how I am to interpret Lorca from the provost or my chair. The court ruled specifically, in Garcetti, that their findings were not necessarily relevant to issues of academic freedom. Yet the KBOR also uses a lot of language taken directly from the Garcetti decision. The Regents includes attorneys who are smart and know what cases to cite, what the relevant case law is.

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The problem is that when I teach my classes, or write my articles, or blog, I am representing the university (in some sense) but not representing it (in another sense). The University doesn't care about the specific content of my writing or teaching. The University pays me to express my opinions, in the form of teaching and research. It doesn't really pay me to express its opinions. This is fundamentally different from the job of a prosecutor. I can see how the DA could tell her subordinates not to tell certain things to the press.

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Ironically, I think Pickering is more pernicious than Garcetti, even though Pickering was decided more correctly.

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