Why defeating McCain matters

By Libby

I can sum it up in the six words represented by the acronym SCOTUS. The impact of these appointments span generations, not just terms of office. Does anyone really want to take a chance on tilting the court any further to the right than this?

When the U.S. Supreme Court two years ago limited the First Amendment protections available to public employees, faculty groups thought that they had dodged a bullet. While the decision didn’t go the way professors hoped, it specifically indicated that additional issues might limit its application in cases involving public college professors.[...]

The Supreme Court case that has set off this concern has nothing to do with higher education. Rather, in Garcetti v. Ceballos, the court ruled 5 to 4 that normal First Amendment protections did not protect Richard Ceballos, a Los Angeles deputy district attorney who was demoted and transferred after criticizing a local sheriff’s conduct to his supervisors. In his decision, Justice Anthony M. Kennedy wrote: “We hold that when 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.”

Employer discipline? For whistleblowing? I can't imagine a greater need for First Amendment protection than in exposing wrongdoing. Especially in our justice system. But now this ill-advised precedent is being applied more broadly.

In the current case, Juan Hong, a professor of chemical engineering at the University of California at Irvine, maintains that he was unfairly denied a merit raise because comments he made in faculty meetings offended superiors. Some of those comments concerned personnel decisions. More generally, Hong said that his department was relying too much on part-time instructors to teach lower-division courses, and that students were entitled to full-time professors.

The district court dismissed the suit, saying that these discussions were part of the “official duties” of professors, and thus under the Garcetti decision were not entitled to First Amendment protection. The court did not determine whether the lost merit raise was related to the comments, and the faculty groups’ brief focuses on the legal principles, not the specific cases.

I don't get the logic of that decision either. How is criticizing the administration part of the 'official duties?' Is it in the job description? The plaintiff's brief argues that "[t]he speech of university professors merits a special degree of protection...". I'd argue that every citizen deserves an unfettered degree of protection for dissent. But as the article notes, this isn't entirely unexpected.

While the brief expresses shock that the Garcetti decision would apply in higher education, the dissent in the 2006 ruling suggested just that possibility. Justice David Souter wrote that the majority decision “is spacious enough to include even the teaching of a public university professor, and I have to hope that today’s majority does not mean to imperil the First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to official duties.’ ”

I don't think it's all that much of a stretch to imagine a day when this decision is ultimately used to squelch all criticism of the government by any citizen. If we allow a Republican nominee to fill the next vacancy, and there will almost surely be one in the next term, I'd say it's more than just a little possible.