Justice Anthony M. Kennedy wrote in the majority opinion, “[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” He added that free-speech protections would be in effect if the employees “participat[ed] in public debate.”
However, Justice John Paul Stevens wrote in a dissenting opinion, “It is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description. . . . The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one’s employment is quite wrong.”
The decision sidestepped the issue of whether the standard applied to public employees in an academic setting. University of Virginia Law Professor Robert M. O’Neil said in the May 31 Inside Higher Education, “Once you have drawn this kind of distinction, which ostensibly runs across the whole gamut of a public employee’s speech, and having merely hinted that academic speakers and therefore academic freedom may somehow be different, creates only a slim reed on which to hang a public university professor’s desire to speak out.”
Posted June 2, 2006.