Public Universities, Controversial Speech, and the First Amendment: The Ninth Circuit Weighs In

By: Jackie Callahan

The Ninth Circuit Court of Appeals has held that a public university violated a professor’s First Amendment rights by restricting speech that addressed a matter of public concern. This case arose when the University of Washington adopted an official land acknowledgement statement to recognize that certain land on which the university sits was originally home to Indigenous people. When the university recommended that professors include the statement in their course syllabi, Professor Stuart Reges instead decided to parody the statement on his syllabus. After a number of student complaints, the university forcibly removed the statement from the syllabus and threatened disciplinary action against Reges.

Reges sued, raising claims of First Amendment retaliation and viewpoint discrimination. Initially, the district court ruled in the university’s favor and argued that its interest in mitigating the disruptive impact of the parody outweighed the professor’s First Amendment rights. However, the Court of Appeals for the Ninth Circuit recently reversed this decision, finding that the university violated the professor’s First Amendment rights when it took adverse action against him based on his views on a matter of public concern.

This ruling signifies a clear constitutional line that public universities cannot stifle a professor’s speech simply because it is controversial or may be considered offensive. Protecting the special environment of academia at public universities is central to the court’s ruling. The court majority noted that academic debate is fundamental to preparing students for the differing opinions and conflicts they will face when they leave the academic setting. It further noted that restrictions on speech deprive students of their right to engage in the “marketplace of ideas” and the university setting is one in which students and professors participate in speech they agree with, debate speech they disagree with, and protest speech they find offensive. It is not just agreement, but also debate and disagreement, that shapes the academic setting into a place of liberal education.

Had Reges’ speech amounted to a discriminatory and/or hostile environment for the students, the court may have ruled that the First Amendment did not protect such speech. But the court found that merely offensive and controversial language did not rise to the level of being unprotected. Since debate and disagreement are defining features of the higher education system, it ruled that student discomfort is not enough to outweigh a professor’s interest in speaking on a matter of public concern.

The decision of the Court of Appeals reflects long standing Supreme Court precedent. The Supreme Court has consistently ruled that safeguarding academic freedom through protection under the First Amendment is crucial to educating the future leaders of our nation. The Court of Appeals noted that faculty members specifically have a significant responsibility to carry this tradition forward by regularly challenging and debating the ideas of students in their classroom.

This decision is not without its challenges. The University of Washington undoubtedly felt pressure to respond to those who felt offended by the parody and to maintain an inclusive campus environment. At a time when campuses are balancing university neutrality, inclusivity, and differing political opinions, institutions of higher education could conclude that policies that attempt to limit speech are the best way to minimize friction. However, this decision reinforces the principle that public universities are a central place in the law of the First Amendment and a setting that fosters rigorous debate must remain at its core.

Should you have questions about how the First Amendment applies in your place of employment, please do not hesitate to contact our labor attorneys at (215)-656-3600.