Schedule

• Friday April 5

  Alfred Lerner Hall, Columbia University (Lerner 555)

  2920 Broadway, New York, NY 10027

  9:00AM – 9:30AM EDT

  Registration

  9:30AM – 9:45AM EDT

  Welcome

  • Jameel Jaffer, Knight Institute

  9:45AM – 11:00AM EDT

  Panel 1: Duty and Dissent: Public Employee Speech Rights and Their Limits

  How should we manage political conflict within the public sector? If an individual employee dissents from a policy decision, what rights to free expression do they have, and what rights should they have? Are there sectors of the government where the appearance of objectivity or unanimity is more important than the individual right to dissent? And what of collective protest, and of the rights of public employees to unionize? 

  Panelists

  • Kate Andrias, Columbia Law School and Columbia Labor Lab
  • Frank LoMonte, CNN and University of Georgia School of Law
  • Teague Paterson, American Federation of State, County and Municipal Employees, AFL-CIO
  • Daniel E. Walters, Texas A&M University School of Law

  Moderator

  • Ramya Krishnan, Knight Institute

  View Paper Abstracts

  Democracy at Work: The First Amendment, the Public Sector, and the Right to Strike

  Kate Andrias

  This paper will explore First Amendment questions surrounding public employee unions. In response to the increased activity of public employee unions, particularly in education, cities and states have sought injunctions against strikes and some have enacted new laws limiting picketing on public property, reducing union resources, and restricting the scope of bargaining. Analyzing these legal battles, and drawing on comparative experience and social science research about the role unions play in promoting democracy, Andrias argues that public sector bargaining and strikes deserve First Amendment protection. Though there is virtually no possibility this Court will adopt such a reading, worker movements and political actors can and should engage in First Amendment lawmaking from below.

   

  Forced Unanimity and the First Amendment

  Frank LoMonte

  This paper will argue that school board, city council, and other government board members should be able to publicly express dissent from the consensus of the board. Increasingly, policymaking boards across the country are enforcing “One Board” or “One Voice” rules that constrain the speech of elected or appointed members. In response, LaMonte asserts that the public’s right to receive information overrides any attempt to purport an impression of unanimity—as that carries no particular weight in First Amendment analysis.

  Hide Paper Abstracts

  11:00AM – 11:15AM EDT

  Break

  11:15AM – 12:30PM EDT

  Panel 2: Students, Teachers, and the Politics of Speech in Schools

  What limits can a democratically elected government legitimately place on conduct and content in the classroom? When do those limits become illegitimate interferences with First Amendment rights and values? And whose rights should be prioritized when classroom rules become contentious—the teacher, the student, or the community? 

  Panelists

  • Derek Black, University of South Carolina School of Law
  • Heidi Kitrosser, Northwestern Pritzker School of Law
  • Caroline Mala Corbin, University of Miami School of Law
  • Emerson Sykes, ACLU

  Moderator

  • Nadine Farid Johnson, Knight Institute

  View Paper Abstracts

  Distorting Public Education

  Heidi Kitrosser

  This paper uses the current wave of new and proposed restrictions on the teaching of race and gender in public schools to explore the “anti-distortion” principle in free speech doctrine. Under this principle, the government may not condition funding on requirements that distort the nature of the funded expression. This paper outlines challenges to this principle and argues that by understanding how courts can methodically apply the anti-distortion principle, we can further understand the Court’s view on the true “nature” of public education.

   

  Public School Teachers as Public Employees

  Caroline Mala Corbin

  This paper argues that the Garcetti rule, which prevents public school teachers from challenging government control of classroom speech, is premised on the mistaken assumption that the First Amendment only protects the speaker. It does not. Instead, the First Amendment protects the free flow of speech for both speakers and audiences. As a result, this paper asserts that the Garcetti rule should be retracted, especially in an era where speech in public schools—as seen through curriculum bans on topics like sexual and gender identity—is under fire.

  
  
  

  Hide Paper Abstracts

  12:30PM – 1:30PM EDT

  Lunch

  Will be provided.

  1:30PM – 2:45PM EDT

  Panel 3: Academic Freedom and the First Amendment

  What is the substance, and what are the limits, of the right to academic freedom in public universities? Can democratically elected governments, or legitimately appointed university administrators, place limits on the rights of professors to express themselves—in their classrooms, their research, the workplace, or in the polity more broadly? Do students have rights not to hear certain types of speech from their professors? Is academic freedom a unique case, and if so on what grounds? 

  Panelists

  • Charlotte Garden, University of Minnesota Law School
  • David Rabban, University of Texas School of Law
  • Ellen Schrecker, Yeshiva University
  • Jeremy C. Young, PEN America

  Moderator

  • Katy Glenn Bass, Knight Institute

  View Paper Abstracts

  Our Public Servants and Public Concerns

  Charlotte Garden

  This paper explores when and how the First Amendment should protect the speech of public educators. While most public employees receive no First Amendment protections in their duties, many circuit courts have concluded that the First Amendment does protect aspects of faculty teaching and scholarship. While the courts have often defaulted to the Pickering-Connick test to determine what speech is permissible, this paper argues that the Pickering-Connick test is ill-suited to resolve First Amendment disputes involving faculty speech. Instead, it considers alternative approaches, such as the delegation of certain workplace decisions and due process concerns to faculty or university administrators.

  Hide Paper Abstracts

  2:45PM – 3:00PM EDT

  Break

  3:00PM – 4:15PM EDT

  Panel 4: Protecting—and Punishing—Whistleblowers

  What role do whistleblowers play in democracy, and what role should they play? Do we want to incentivize whistleblowing, or merely tolerate it? What protections currently exist for public employees who seek to blow the whistle on abuse, corruption, or illegality in their workplaces, and what are their limitations? Should we seek to distinguish between whistleblowers who reveal objective problems, and those who merely object to a government policy?

  Panelists

  • Kathleen Clark, Washington University in St. Louis School of Law
  • Carrie DeCell, Knight Institute
  • Ronald Krotoszynski, University of Alabama School of Law
  • Sarah Milov, University of Virginia

  Moderator

  • Sam Lebovic, George Mason University and Knight Institute

  View Paper Abstracts

  Holding a Better Constitutional Balance

  Ronald Krotoszynski

  This paper analyzes the failure of the courts to constitutionally protect government employee speech, and takes into account the critical role that whistleblowing has in fair elections and self-governance. Whistleblowing speech often provides the public with information essential to holding governments accountable—yet, the judicial failure to protect this speech is a global one. This paper outlines that this issue is not unique to the United States, pointing to cases in Canada and Australia, and concludes that the courts must protect public employees’ ability to blow the whistle on misconduct. 

   

  Gags and Grievances: The Labor Origins and Whistleblowing in Early 20th Century Civil Service Reform

  Sarah Milov

  The 1912 Lloyd-La Follette Act was a major civil service reform that protected the speech of federal employees and continues to provide critical labor protections today. This paper locates the origins of this forgotten piece of civil service legislation in battles over the right of postal workers to organize and to share information with Congress. Whistleblower protections in the 1978 Civil Service Reform Act—the most substantial overhaul of the structure of the federal workforce—are indebted to late 19th and early 20th  century struggles over the right of public employees to form unions and to share information with Congress. 

  Hide Paper Abstracts

  4:15PM – 4:30PM EDT

  Closing Remarks

  • Sam Lebovic, George Mason University and Knight Institute
  • Katy Glenn Bass, Knight Institute