Tuesday, October 25, 2011
Another Case on Garcetti and the Speech of Academics
Thanks to Eugene for posting about a recent district court opinion applying Garcetti to the speech of an academic who appears to have been pressured and punished by his institution, LSU, for publicly stating views (about what he believed to be the Army Corps of Engineers' responsibility for flooding in the wake of Katrina), and then for disclosing that LSU had pressured and punished him for doing so. I haven't looked closely yet at the opinion, but here's a key quote from the decision:
Van Heerden was not acting within his official job duties....Viewing the facts in the light most favorable to van Heerden, the Court cannot say he was acting under his official job duties because genuine issues of material fact still exist. The actions of LSU administrators when dealing with van Heerden make clear that, whatever the formalities of his job description or the general parameters LSU sets for all its academics’ relations with the media, LSU considered van Heerden to be acting outside his employment when he spoke on Katrina-related matters with the media. LSU administrators repeatedly warned van Heerden not to speak with the media.
To reiterate a point I have made often in my writings on First Amendment institutionalism, whether the court or the law are right in this area or not, and whether this professor should have any legal recourse or not, we are of course quite free to call attention to LSU's conduct and to criticize it for failing in its institutional mission. As the excerpt from the decision notes, most of the relevant facts concerning LSU's behavior were undisputed. For those of us who care about universities in particular, or about central speech institutions in general, we might even view it as a kind of civic duty to engage with and criticize behavior like this, whether we are members of that institution or not.
I do thank the university for one thing. It has offered another excellent reason for the Crimson Tide to kick LSU's ass in a couple of weeks.
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