“A Kind of Continuing Dialogue”: Reexamining the Audience’s Role in Exempting Academic Freedom from Garcetti’s Employee Speech Doctrine

The U.S. Supreme Court’s decision in Garcetti v. Ceballosput further restraints on public employee speech by exemptingfrom First Amendment protection speech made pursuant to the“official duties” of public employees. This limitation, if appliedto the speech of college professors, would constrain theiracademic freedom of instruction and scholarship by permittingoverbearing institutional oversight. This constraint would bedetrimental not only to the employed professors, but also totheir students and the post-secondary educational system as awhole. Courts should not apply Garcetti to academic freedomin the post-secondary education context, and they should avoidfurther limitations on professorial speech.This Note argues that Garcetti should not be applied tohigher education faculty by reconsidering the purpose of theuniversity and the role that students and colleagues play in theexpressive activities of professors. While many commentatorshave noted Garcetti’s potential detriment to the speaker, veryfew have considered the audience’s participation in bothinstruction and research. This Note accounts for the rights ofthose receiving instruction from, or engaging in scholarshipwith, the professor to argue that restraints on professorialspeech harm both the speaker and the audience.