Free Speech Rights and Academic Freedom:
Whose Rights Are They Anyway?

Often the question is raised—Why do speech and expression rights matter?

Core values underlying speech protection under the First Amendment have instrumental value because they may promote truth and fact finding, engage people to participate in discussions in the democratic process, and make for better decisions.

These rights also have intrinsic value that promote human dignity and individual liberty and autonomy. In short, the protection of speech rights advances the public good by serving as a tool to express opinions in society as a whole and to advance democratic accountability through discussion and debate with others in our deliberative democracy. Speech rights also help individuals realize and develop their character and potential and encourage self-fulfillment and self-expression, which can advance human dignity.

As Justice Holmes said in 1919, “[t]he ultimate good desired is better reached by a free trade in ideas [and] the best test of truth is the power of the thought to get itself accepted in the power of the market.”¹

Indeed, the consequence of the “marketplace of ideas” metaphor is that society benefits from a broad range of ideas and expression that can serve in a self-government system as a “checking function” on governmental overreach, and authoritative decision-making. Free speech rights, in addition, empower minority viewpoints to have access to ongoing societal debates.

The Supreme Court has found that First Amendment speech rights are within the “primacy” of rights under the Constitution. From Justice Holmes’s diverse marketplace of ideas concept in 1919 to the present, the Supreme Court has elevated speech rights to an almost absolute or libertarian viewpoint.

Today it applies the broadest interpretation in its application and enforcement of speech freedoms. It has only permitted four exceptions to its expansive approach: defamation, obscenity, speech incident to or part of a crime, and direct, imminent threats that have the potential or do in fact incite violence or harm. Even “hate speech” as vile, obnoxious, and hurtful as it may be, is protected speech if it does not fall within one of the narrow and highly restrictive exceptions.

These rights start from the “liberty of consciousness”—the liberty of one’s own thoughts and feelings—to speak passionately in public on any topic.

The Supreme Court over a long time, also, has dealt with speech in educational institutions, including students and faculty rights. Academic freedom for faculty has had an important history. Many consider academic freedom as a constitutionally protected subcategory under the First Amendment’s speech freedoms, going well beyond just an academic norm.

The concept goes back to medieval European universities.² In the more modern era, German universities protected faculty rights to discover new knowledge, to teach, and to engage in research within the university. This freedom for thought and speech was considered a public good. The freedom was first considered by the Supreme Court in 1952 in a dissent by Justice Douglas, who noted “[w]here suspicion fills the air and holds scholars in line for fear of their jobs, there can be no exercise of free intellect.”³

In another case the same year, Justice Douglas and Justice Frankfurter, both former law professors, linked academic freedom to the Constitution’s First Amendment speech rights and to the advancement of democracy. Justice Frankfurter observed that “no totalitarian government is prepared to face the consequences of creating free universities.”⁴

A later opinion by Chief Justice Warren more directly connected the vital role that academic freedom plays in advancing democracy. “Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain maturity and understanding; otherwise, our civilization will stagnate and die.”⁵

Today, in 2026, the question is being raised anew. Is there a viable academic freedom right for faculty, and if so, how clear, fixed, and understood is that right?

As the 21st century began, a descriptive interpretation would be that individual faculty members have academic freedom rights to teach, to research, and to write within one’s professional expertise and academic field in the classroom if their opinions and viewpoints were relevant and germane to the subject matter of the assigned course. This constitutional rule would apply to individual faculty at public educational institutions under the First Amendment. Private institutions generally adopt these rights as normative understandings and standards within the private institution, as the First Amendment does not restrict private entities from setting their own rules.

More recently, it appears that some courts are limiting the right to teach, to research, and to engage in scholarly activities beyond the traditional roles of teaching, research, and scholarship. For example, academic freedom rights are now at risk for faculty activities that go beyond the classroom and scholarship that include “shared governance” responsibilities and other faculty conduct.

Indeed, in 2006 in the Garcetti v. Ceballos case,⁶ the Supreme Court ruled, in a non-educational setting, that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes. The Constitution therefore does not insulate those communications from employer discipline.”⁷ In short, if public employees are speaking or acting within their “official duties,” public employees have no First Amendment rights under the Constitution. Those rights, the Court ruled, belong to the government employer.

Importantly, Justice Souter, in dissent, sounded an alarm that this holding should not apply to academic freedom rights in educational institutions.⁸ The majority Court’s opinion responded in a less than enthusiastic comment regarding academic freedom. “There is some argument … related to academic scholarship or classroom instruction that are not fully accounted for by this Court’s customary employee-speech jurisprudence.” The Court then noted that questions regarding academic freedom were not being decided in this case.

Thus, the Court’s language portends that in future cases the Court may or may not apply academic freedom rights to public faculty employment disputes. The Court has not decided another academic freedom case since its language in Garcetti, which reintroduced the critical distinction between government-employer speech and personal-employee speech.

The most positive ruling from Garcetti is that federal courts might protect core academic activities such as classroom teaching and academic scholarship, but not beyond those traditional roles. Examples beyond the “core” might include the following: individual faculty engaged in “shared governance” duties, including faculty committees, assignments regarding hiring, tenure, and promotion decisions, administrative work, and public appearances outside the university such as social media podcasts, op eds, and tweets online. These decisions might come down to how “core” these actions are and whether they come within the “official duties” of the faculty member.

Some federal courts already have ruled that Garcetti does not apply to educational institutions. Others have applied Garcetti’s “official duties” limitations on speech rights and denied speech protections to faculty.⁹

In those cases where speech is defined outside the “official duties,” where the faculty member is speaking as a private citizen, the speech still may not be protected under the First Amendment. If the subject matter of the speech is of a private interest rather than one of a “public concern,” or if the speech reasonably could be seen as substantially disruptive, it may be found without First Amendment protection. Cases have determined the “disruptive” standard to include speech regarding sexual matters or creating hostile or discriminatory learning environments.¹⁰

In conclusion, the Garcetti government speech doctrine has significant implications for eroding the speech rights of individual faculty in the educational context. This occurs when the government as employer decides its speech and expression in the public workspace should predominate over that of individuals.

Several states are exercising this government speech approach by noting that in public institutions, it is the board of trustees, the state’s higher education commission, the state legislature, or even the governor who set state policy, not the appointed leadership of the institution or the faculty. Some courts even have held that if there are academic freedom rights, they belong to “the university,” not the faculty. Once it is determined that the challenged speech is “government speech,” the individual has no First Amendment protection since the government employer is not restricting or censoring speech deemed private under the Constitution. In short, the speech right belongs to the government employer.

As more states embrace the government speech doctrine, we shall see how the courts and ultimately the Supreme Court decide whose rights are protected. The stakes for public educational institutions are high. The cherished values that underlie the First Amendment speech freedoms are at risk.

E. Thomas Sullivan, JD, is president emeritus and professor of law and political science emeritus of the University of Vermont and a member of the AGB Board of Directors.