Red-state speech laws pose an existential threat to academic freedom  

In 2022, Florida’s Stop WOKE Act sharply restricted classroom discussion of race and gender. In defending the law, state officials argued that there is no “purported right to academic freedom,” that university curricula and instruction are “government speech,” and that by regulating it, the state “has simply chosen to regulate its own speech.”  

The District Court described this position as “positively dystopian” and issued a preliminary injunction barring enforcement. The case is now before the Eleventh Circuit Court of Appeals, which heard oral arguments last June. 

Two years ago, Indiana adopted a statute requiring public universities to deny tenure or promotion to faculty deemed “unlikely to foster a culture of … intellectual diversity.” 

Indiana’s attorney general argued that, as state employees, the four professors who challenged the law must follow the state’s direction on the “subject matter” and “perspectives” taught. “To the extent any purported right of academic freedom exists,” he added, “the right belongs to universities as institutions, not to individual state employees.” 

Florida and Indiana attorneys cited the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos. In that case, the court held by a 5-4 vote that “when public employees make statements pursuant to their official duties,” the First Amendment does not protect them from employer restrictions. 

When Justice David Souter warned in dissent that applying that rule to professors would “imperil First Amendment protection of academic freedom,” however, the majority left open whether its holding should apply to........

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