As with freedom of the press, academic freedom’s basis is in the First Amendment right of freedom of speech. Both have come under fire by those in power who have seen reporters and professors as standing in the way of their prerogatives. The U.S. courts have never looked at freedom of speech as an absolute right, but have looked to balance the First Amendment against other social interests, rights and principles. It is through extra constitutional means that academic freedom and freedom of the press become strong.

The courts have ruled in cases like Miller v. California [1973] that obscenity does not have a First Amendment right, or in Branzburg v. Hayes [1972] that a reporter cannot protect a source under freedom of the press. In both cases, the Supreme Court noted the limits it put on freedom of speech and agreed it might have a chilling effect. But the court noted that protecting children in the first case and ensuring a fair trial in the second are more important.

It took Daniel Schorr standing up for freedom of the press by releasing information in the government’s Pike Report about illegal CIA and FBI activities to put teeth into the First Amendment. But he eventually lost his job at CBS because of it. Alternatively, Judith Miller of the New York Times went to jail to protect her sources.

Until the early 1950s, the courts did not formally recognize academic freedom. Two cases, Sweezy v. New Hampshire [1952] and Keyishian v. Board of Regents [1952] changed this, but only for faculty at public universities. In the private sector, the AAUP 1915 and 1940 Statements of Principles of Academic Freedom are advisory only. The courts have ruled since there is no right to a position as a professor, free speech rights are not at issue. Again, only through collective action in the private sector has academic freedom survived. The Bassett Affair is a good example. Professor John Bassett of Duke spoke favorably about Booker T. Washington in 1903. When the university was about to fire him at the behest of white supremacists, the entire faculty threatened to resign.

The recent Garcetti v. Cebballos [2009] case has threatened to put public sector employees on an equal footing with private sector employees. The case involved an assistant district attorney who spoke out about a sheriff. The court ruled that a public employee speaking in an official capacity does not have free speech rights; therefore, an employer can discipline the employee for his speech. The court makes the argument that the employer has the right to evaluate the performance of their employees. The caveat for higher education in Justice Kennedy’s decision is Garcetti “may” not apply to teaching and research.

If academic freedom as a First Amendment right is under attack, what are our options?

First, the UUP contract and Title I, subsection 1, of the Policies of the SUNY Board of Trustees state: “It is the policy of the University to maintain and encourage full freedom, within the law, of inquiry, teaching and research. In the exercise of this freedom faculty members may, without limitation, discuss their own subject in the classroom; they may not, however, claim as their right the privilege of discussing in their classroom controversial matter which has no relation to their subject. The principle of academic freedom shall be accompanied by a corresponding principle of responsibility. In their role as citizens, employees have the same freedoms as other citizens. However, in their extramural utterances employees have an obligation to indicate that they are not institutional spokespersons.”

Second, campus policies cannot be in conflict with the trustees’ Policies. So we must work together with faculty governance and our administrations to ensure campus policies enhance academic freedom.

Finally, we must be willing to put our positions on the line to support our core beliefs. The courts have noted the important place academic freedom has as a critical public good, but they will not defend this freedom if we do not stand up and make them.