There’s more to life than copyright

It is a hard lesson for me to learn, but there are other issues related to scholarly communications besides copyright.  Today’s news has focused attention on free speech issues for academics.  Now we have talked about free speech as it is impacted by copyright, and some interesting examples of how copyright can be welded to censor disfavored speech can be found here and here.  But for a moment I want to focus on another aspect of free speech and scholarly communications on campuses.

Recently there has been a lot of interest in the scope of free speech rights for professors at public universities.  In 2006 the Supreme Court handed down a decision called Garcetti v. Cabellos which held that a public employee (a District Attorney) was not entitled to First Amendment protection for his speech related to his position.  In short, he could be fired because of things he said publicly that were related to his job.  This caused a great deal of anxiety for academics at public university, since it seemed to provide a loophole to avoid the academic freedom that is so cherished, but fuzzily defined, on our campuses.

Garcetti was followed by a number of decisions that did apply its ruling to employees of public universities, which increased the concern and brought the American Association of University Professors into the discussion.  One oddity of those decisions is that the opinion in Garcetti is itself skeptical about whether the ruling should be applied to academics.

Today comes news of a decision in the Fourth Circuit Court of Appeals, reported here and here, that reverses this trend and asserts that Garcetti should not be applied to professors.  In a dispute where a tenured associate professor claims to have been denied promotion over blog posts and newspaper columns he wrote expressing conservative, Christian-oriented viewpoints, the 4th Circuit held that such speech was protected by the First Amendment and that Garcetti did not mean that an academic could be punished for unpopular speech.

It is important to realize that this case was not decided by the ruling this week; it was remanded to District Court.  The Appeals Court held that it was improper to dismiss the case because of Garcetti and the presumption that a public university professor’s speech was not protected, but the university may still be able to prove that promotion was denied for a different, acceptable reason.  Only if the professor shows that he was actually denied promotion because of what he wrote will there be a First Amendment problem.  But I want to consider a couple of interesting (I hope) questions raised by the Appeals Court’s decision.

First, if a public university professor’s speech is protected, as we always thought before Garcetti, how about his or her right NOT to speak?  The flap going on in Wisconsin over a public records request to see the e-mails of a professor who has apparently taken a political stance unpopular with the current state government raises the issue of how far free speech should go to protect the decision to not speak, or not have one’s speech disseminate beyond those for whom it was intended.

There is a fairly long history of the Supreme Court recognizing and upholding the right not to speak based on the First Amendment.  Some of these are “ventriloquism” cases, where courts have held that the state cannot put words in someone’s mouth by requiring them to say specific words, like the Pledge of Allegiance or a motto on a license plate.  But there is also jurisprudence upholding a right to decide how to distribute one’s own speech.  In fact, in Harper & Row v. Nation Enterprises the Supreme Court argued that copyright was congruent with free speech partly because it supports the right to not speak publicly until one decided to do so.  Given the strong First Amendment rights for state-employed academics affirmed by the Fourth Circuit, finding a more complete negative right to determine if, when, and where protected personal communications are published is entirely plausible.  We shall see if that reasoning has an impact in Wisconsin.

Another point that is raised by this decision on academic free speech is who it applies to.  Does it apply only to faculty, including, presumably, librarians with faculty status?  Or could it apply to librarians and other staff as well?  One of the effects of the technological revolutions we have seen lately is that many more of us – include yours truly – are able to communicate widely and advocate for policies and legal interpretations that may be controversial.  It is interesting that the professor’s scholarship that was at issue in the 4th Circuit was in non-traditional forms like blogs and newspaper columns.  The shift in scholarly communications, and libraries’ more deep involvement in scholarly communications issues, raises the question of academic freedom protections for non-faculty and the scope of free speech rights in this newly developing dialog.