In this week's Pope Center Clarion Call, Professor Donald Downs (author of Restoring Free Speech and Liberty on Campus) discusses the lawsuit UNC-Wilmington professor Mike Adams has brought against the school, in which he argues that its refusal to promote him was grounded in hostility to his writings and thus an infringement upon his First Amendment rights. Downs doesn't think the case is clearly black or white, but worries that the district court's ruling in favor of UNCW (the case is now on appeal to the Fourth Circuit) represents a further erosion of First Amendment protection for speech by public employees. I don't think this is an easy case either. We have here a collision between the First Amendment (or at least "First Amendment values" of uninhibited speech in the public realm) and another consideration that has, unfortunately, been given short shrift for most of the last century -- freedom of contract. I'm strongly inclined to say that employers and employees, public and private, should be free to enter into whatever contracts as they mutually agree. Professor Adams thought he deserved a promotion (a modification of his contract with the university), but the UNCW administration didn't agree. Should that decision be overridden in the courts because Adams' writings bothered the administrators? Does the First Amendment mean that public employees can never suffer any adverse consequences because of things they've said or written? Suppose we turn this case around so that the professor who wants the promotion is a rabid, hard-left socialist whose posts on, say, The Daily Kos, cause heartburn among the school's administrators. Would it be a blow to free speech if they told him that he won't get a promotion because his outside writings are such an embarrassment? Or would it be a sensible and harmless exercise in freedom of contract?
- July 21, 2010