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I’ve now learned two things about New York Times readers. They don’t believe in God, but they do believe in, and in fact, worship, democracy. They also believe that democracy’s imperatives – one man one vote, majority rule, freedom of speech, the right to petition, respect for individuals and their opinions – should apply always and everywhere. (The religious of course believe the same thing about God’s imperatives.)
Of the 440 responses to my column about student First Amendment rights (I said they didn’t have any) only 37 were on my side. The other 403 were decidedly (and sometimes vehemently) hostile, and their hostility was often directed at my assertion that even when schools teach the history and principles of democracy, they have no obligation to institute or adhere to democratic procedures in the classroom or in the general conduct of school business. A number of respondents agreed with Adriane’s insistence that “The constitution governs the entirety of the United States” including schools and universities, and the notion that it “can be selectively applied is ludicrous.” Shouldn’t it be the case, asks chun li, that “institutions within a democracy be themselves … democratic?”
The syllogism underlying these comments is (1) America is a democracy (2) Schools and universities are situated within that democracy (3) Therefore schools and universities should be ordered and administered according to democratic principles. But democracy is a system of political organization, not a model for organizing every aspect of daily life. Democracy gives a particular set of answers to traditional questions in political theory: Who governs? How are the mechanisms of government to be established? By what process can they be altered? What are the safeguards against abuses of government power?
Democracy’s answers to those questions are markedly different from the answers that would be given by the proponents of other systems – theocracy, monarchy, oligarchy, tribalism, feudalism – and central to those answers is the obligation of the state to safeguard the rights (enumerated and unenumerated) of its citizens, including the right to assemble and speak freely. The point at issue is do citizens enjoy those rights in any or all contexts, or do they enjoy them only in those contexts in which they are participating in the political process – voting, speaking in public forums, writing letters to the editor, etc.?
My answer would be the latter, and it is also the Supreme Court’s answer (with some qualifications) in series of cases stretching from Pickering v. Board of Education (1968) to Garcetti v. Ceballos (2006). The issue posed in these cases is whether a public employee is limited in his or her right of free speech by an employer’s interest in promoting the efficiency of the unit’s operation. Are employees who speak in ways disfavored by their employers to be regarded as citizens exercising their inalienable rights or as workers subject to the discipline of their superiors? The Court says it depends, and fashions a test. When an employee “speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest . . . a federal court is not the appropriate forum in which to review the wisdom of a personnel decision . . . in reaction to the employee’s behavior.” Indeed, even if the speech does touch on matters of public concern, the Court must still “balance the First Amendment interests” against the interest in the “effective and efficient” operation of public business (Connick v. Meyers, 1983).
To be sure, the application of the test will deliver different results in different situations, but the principle is clear, and it is firmly enunciated by Justice Steven Breyer in Garcetti: “[J]udges must apply different protective presumptions in different contexts, scrutinizing government’s speech-related restrictions differently depending upon the general category of activity.”
In short, First Amendment rights do not travel as a matter of course; they can be trumped by the procedures and protocols of both public and private organizations and institutions, and they often are. Kaia asks, “If the First Amendment rights of teachers are limited in their places of work, to what extent are the same rights limited for U.S. Citizens in other fields?” The limitations will vary according to the practices and customs of the enterprise, but by and large the limitations will be a fact of everyday life, and while an employee might be able to make a case to a superior for more latitude in speaking, that case will likely never be made before a court, unless the restriction or the disciplinary action that accompanies it can be shown to be an act of discrimination aimed at someone because of his or her gender, race, ethnicity, age or religion. (And in some contexts – religious organizations, for example – even discriminatory actions of that usually forbidden kind may pass constitutional muster.)
So when Eliot Malmuth (in a July 11 letter to the editor), says that he doesn’t see “any mention of schools, or age, or any location” in the “clear language of the Constitution” and concludes “You can’t abridge free speech, period,” he is wrong as a matter both of fact and law. Ted Connelly gets it right: “Obviously behavior within the framework of an institution (school, office, laboratory, office, factory, hospital, family, cocktail party, pub, rock concert, parliament, court, whatever) . . . must be governed differently from the behavior of a citizen operating politically.”
Of course nothing prevents employers, public or private, from granting First Amendment rights they could have lawfully withheld. Some industries, influenced by various theories of management, have greatly expanded the areas in which their employees may speak up and participate in decision-making. But they are under no legal obligation to do so; they are just making a judgment as to what might work to improve the rate of production and, down the road, the bottom line.
The same holds for education. Teacher Alex Dillon reports, “I do all I can to encourage and support students expressing themselves” but adds, “I don’t do it because they have a right to do it. I do it . . . for pedagogical . . . reasons.” I myself don’t do it (except in very controlled circumstances) for different pedagogical reasons, and while Mr. Dillon and I might differ in our teaching philosophies, we are agree in our understanding of what the law and the Constitution do and do not require. As Sean Garrick says, “Instructors, teachers and facilitators may decide that there are some ‘liberties’ in a classroom, but these are not present a priori.”
Some respondents saw a contradiction between my denial of students’ right of expression and the fact that those same students can vote, drive, marry, and fight for their country. “Prof. Fish, is it O.K. to deny students … the right to speak up for themselves even when they are old enough to vote and can be sent off to war?” I don’t know if is O.K. in some moral or philosophical sense, but it is certainly O.K. legally. Again the relevant distinction is between the duties and freedoms that belong to citizens when they are acting in the political sphere and the restrictions that may come along with employment or the condition of being a student. You might believe that there should be no such distinction, but in real life and in the law, there is.
And then there is the question, if the free speech rights of students can be abridged, why can’t they be assaulted or harassed? (“According to your logic, why should abuse or harassment rise to the level of constitutional notice?”) Because they are illegal, while curtailing, even silencing, student speech is not. There is a difference between saying that in a classroom context students don’t have a right to express themselves, and saying that in a classroom context students could legally be the objects of criminal actions. And just as students have the right not to be subjected to criminal assaults, so do they have a right (as I said in the original column) to competent, responsible instruction. And therefore they have the right to grieve if their teachers are unprepared, don’t show up, don’t give back papers, hijack the class for partisan purposes or otherwise fail to do the jobs they’re paid to do.
A few quick points in response to specific questions. Mark Lazenby asks whether I could be fired if my employer, Florida International University, disagreed with the opinions I have expressed in these two columns. No. It is generally the case that faculty members cannot be disciplined for speech they have uttered or written in precincts outside the university. (I know that some readers believed that the student who refused to take down the offending banner in Morse v. Frederick was in that category, but the Court disagreed.) I say “generally the case” because the rule does not apply to senior administrators, part of whose job is to present the institution to the public. They can lose their administrative posts (although not their faculty positions) if they are deemed to have placed the university in a bad light, as Larry Summers of Harvard found out.
Krista Kerber believes that my columns are themselves “a perfect illustration of 1st amendment rights.” No, they are an example of rights granted, not possessed. The New York Times can always decline to print what I write, although if you are reading this, it hasn’t done so yet.
Many worried that if schools and universities were not going to practice democracy even when they taught it, where were students going to get the hands on training that would turn them into good democratic citizens? I haven’t the slightest idea, and I am not obligated to have one. It’s not my job.
Finally, to all those readers who wondered if I was being ironic or attempting (and failing) to write satire on the model of Swift’s “A Modest Proposal,” the answer is, again, no. I meant every word.
Jon B. Eisenberg knows something so secret that the government will let him write it down only in a secure facility. 
