Speech and expression

by Marjorie Heins, director of the Free Expression Policy Project, adjunct professor at New York University, and author of  Not in Front of the Children: Indecency, Censorship, and the Innocence of Youth. Her latest book is Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge.

Academic freedom is not as obvious a concept nowadays as it seemed when the Supreme Court first incorporated it into the First Amendment in response to McCarthy era investigations and purges of left-wing teachers and professors. Why, after all, should academics have privileges not given to workers in other jobs? Surely, academic freedom would not protect the instructor who is incompetent -- who denies the Holocaust in a history class, for example, or preaches creationism instead of teaching evolution in Biology 101.

The idea of academic freedom emerged more than a century ago, when professors who supported union organizing and other social causes were losing their jobs because corporate-dominated boards of trustees did not like their politics. One of the best-publicized firings was of the young professor Scott Nearing from the University of Pennsylvania. In response, prominent scholars got together and founded the American Association of University Professors (the AAUP). The AAUP’s 1915 “Declaration of Principles on Academic Freedom and Academic Tenure” argued that universities are different from businesses and professors are therefore different from other employees. The freedom they need in their teaching, research, and “extramural” speech (such as Scott Nearing’s advocacy for socialism and against child labor) are not matters of personal privilege but of broad public interest.

Or, as Justice Felix Frankfurter put it in a 1952 case, teachers are “the priests of our democracy” because it is their special task “to foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens.” It’s this notion that education is not just about rote learning but about “habits of open-mindedness and critical inquiry” that makes teachers essential to democracy.

But lofty ideals are vulnerable to political realities and, consumed by the Cold War tensions of the 1950s, most American schools and universities decided that academic freedom should not protect teachers suspected of communist sympathies unless they cooperated with loyalty investigations by renouncing their past political errors and “naming names” of others they had known in the radical movements of the 1930s and ‘40s.

by Jeremy Leaming

Since the Supreme Court issued its opinion in Citizens United v. FEC in early 2010 it has become painfully clear that the majority opinion was poorly crafted and based on wobbly assumptions about the effects of corporate bankrolling of elections.

In late May, retired Justice John Paul Stevens, who lodged a concurring and dissenting opinion in the case, offered a number of reasons why the high court should revisit the majority opinion's holding.

Before hitting upon those reasons, Stevens, in a speech at the University of Arkansas Clinton School of Public Service, noted that the majority decision reversed “a century of law [upholding campaign finance regulations]” and it authorized “unlimited election-related expenditures by America’s most powerful interests.”

The opinion, Stevens continued, placed an enormous “emphasis on ‘the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity’” and claimed that when it comes to political speech the government is barred from restricting speakers.

Plenty of constitutional scholars have argued that the majority opinion fleetingly trampled precedent in support of campaign finance regulation to unveil a new right for corporations to spend wildly on politicking.

But Harvard Law School professor Benjamin I. Sachs in a recent op-ed for The New York Times notes that it also tramples the cherished First Amendment principle that the government cannot force individuals to support politicians or political causes.

Specifically Sachs notes that the “vast majority of people who work in the public sector – state, local and federal employees – are required to make contributions to a pension plan.” And nearly every state makes it mandatory for workers to participate in those plans. Not surprisingly, Sachs notes workers have little say in how the pension plans are operated and that “pension plans invest heavily in corporate securities: in 2008, public pensions held about $1.15 trillion in corporate stock.”