Minnesota Law Review

Note, Reconciling the Public Employee Speech Doctrine and Academic Speech After Garcetti v. Ceballos

In 2006, the Supreme Court held in Garcetti v. Ceballos that public employees are not entitled to First Amendment protection for speech arising from their official duties. The Court declined to address whether Garcetti’s holding applied to academic speech, and consequently, lower courts are unclear about whether academics employed by public universities are entitled to First Amendment protection for speech arising from their official duties. This Note argues that given the principle of academic freedom and the purpose of the modern public university, applying the public employee speech doctrine to academic speech is inappropriate because a public university is more similar to a forum for the dissemination of ideas than a traditional public employer, which the government created for the purposes of disseminating a coherent government message. This Note proposes using the public forum doctrine to regulate academic speech instead of the public employee speech doctrine. Using this doctrine would balance the interests of the public university in regulating academic speech and academics’ free speech rights. This approach would also uphold the principle of academic freedom, and a public forum approach is more consistent with First Amendment jurisprudence.

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