First Amendment

A Case of First Impression in the Second Circuit: Court Rules Garcetti Defense Not Applicable to Professor’s Claim of Academic Freedom

September 8, 2023

By Howard M. Miller

Freedom of speech in the public employment arena presents a double-edged sword; on the one hand, freedom of speech is one of the most cherished values that undergirds the proverbial marketplace of ideas in a university setting but can also cause a public university to wade into a thicket of unsettled case law when it comes to denying tenure or otherwise undertaking any type of adverse employment action against an outspoken faculty member.

A major defense available to most public employers in a First Amendment retaliation case is the so-called “Garcetti defense.” In Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the Supreme Court held that when public employees engage in speech as part of their official duties, such speech is not protected by the First Amendment. This happens, for example, when a high school department chair makes an internal complaint about school curriculum. See Schulz v. Commack Union Free Sch. Dist., No. 21-CV-5646-RPK, ––– F.Supp.3d ––––, ––––, 2023 WL 2667050, at *7 (E.D.N.Y. Mar. 28, 2023).[1]


Read More >> A Case of First Impression in the Second Circuit: Court Rules Garcetti Defense Not Applicable to Professor’s Claim of Academic Freedom

The De-Evolution of Post-Garcetti Public Employee Speech Regulation in Higher Education

August 3, 2023

By Seth F. Gilbertson and Ariyana DeWitz*

In 2006, the Supreme Court’s decision in Garcetti v. Ceballos granted public employers’ broad discretion in regulating their employees’ work-related speech.[1] Before 2006, under the so-called Pickering Connick test, employees who were speaking as citizens about “matters of public concern” were only subject to limited restrictions when the government employer’s interest in effective workplace operations outweighed the employee’s free speech rights.[2]

Read More >> The De-Evolution of Post-Garcetti Public Employee Speech Regulation in Higher Education

Recent Cases Demonstrate the Need for Caution When Disciplining Students

December 8, 2022

By James E. McGrath, III

Two cases were decided at the end of November 2022 concerning institutions of higher education disciplining students for alleged misconduct.

In Matter of Mozdziak v. SUNY Maritime, 2022 NY Slip Op 06759 (Nov. 29, 2022), the New York State Appellate Division, First Department overruled the State University of New York Maritime College’s determination, which had affirmed its disciplinary hearing board’s expulsion of a student upon findings that he engaged in misconduct. The student was alleged to have carved a racial epithet into a dormitory elevator door. Two students made a joint, unsworn written statement alleging that they had witnessed the student engage in this misconduct. Notwithstanding that these two students who wrote the statement did not testify at the hearing, their two-sentence statement was credited over actual alibi witnesses who testified that the student was elsewhere when the claimed misconduct occurred.

Read More >> Recent Cases Demonstrate the Need for Caution When Disciplining Students

Is a Censure a Form of Censorship Under the First Amendment?

April 4, 2022

By Seth F. Gilbertson

In Houston Community College System v. Wilson, the Supreme Court of the United States recently addressed the scope of impermissible retaliation under the First Amendment in the context of a dispute between the members of the governing board of an institution of higher education. In a unanimous decision authored by Justice Gorsuch, the Court held that verbal censure by one’s fellow board members alone does not give rise to an actionable First Amendment retaliation claim. 

Read More >> Is a Censure a Form of Censorship Under the First Amendment?

Does an Instructor Have Rights in a Student’s Class Notes?

February 9, 2012

Officials at California State University and University of California have recently instituted new policies that affect the ownership and sharing of notes taken in the classroom by students.  These new policies have raised questions about whether students or their instructors actually own the copyrights to class notes.  While the sale of class notes is clearly prohibited in California by both university policy and the California Education Code, some argue that it is the students who possess the copyright in their notes and that the policies unconstitutionally restrict the students’ free speech. Websites like Notehall, NoteUtopia, CollegeNoteShare, and (now defunct) have allowed students to buy and sell their class notes online for years. Student Reported for Selling Class Notes According to reports, California State University recently sent a cease and desist to Notehall after at least one student was reported to student judicial affairs for selling notes on the website.  The cease and desist letter cites both the university’s policies and the California Education Code as prohibiting the selling, distributing or publishing class notes for a commercial purpose.  Following the letter, Notehall has blocked students from CSU and UC from registering with the website. New Policy at UC Berkeley In December, the University of California, Berkeley instituted a new policy (available here (pdf)) restricting the sale of course notes.  The policy, which went into effect last month, states that the instructor may have a copyright interest in the students’ class notes:

“class notes and recordings are based on the intellectual effort of the instructor, who has an interest in protecting this effort and ensuring the accuracy of any public representation of his/her work. When notes or other recording of instructors’ presentations are sold or shared, they may infringe on the copyrights of the instructors and may violate the campus prohibition on unauthorized commercial activity.”

While the policy does allow students enrolled in the same class to share their notes with others “currently enrolled” in the class, the instructor can specifically limit this sharing.  Further, the policy appears to prohibit the sharing of class notes from semester to semester. The policy also emphasizes the prohibition on commercializing class notes set forth by Section 66450 of the California Education Code.  This section of the code states that no one, including an enrolled student, can:

“prepare, cause to be prepared, give, sell, transfer, or otherwise distribute or publish, for any commercial purpose, any contemporaneous recording of an academic presentation in a classroom or equivalent site of instruction by an instructor of record. The prohibition applies to a recording made in any medium, including but not necessarily limited to, handwritten or typewritten class notes.”

UC Berkeley Cease and Desist Templates In addition to the new policy, UC Berkeley has also provided to instructors a set of cease and desist letter templates that can be downloaded, modified, and sent to students or third parties accused of selling class notes.  On the cease and desist website, the university more clearly sets forth its understanding of an instructor’s rights to a student’s class notes:

“As an instructor, you retain the copyrights to your class materials.  This right stems from Federal law and is dictated by the University of California Policy on the Ownership of Course Materials and UC Berkeley campus policy on Course Note-Taking and Materials. Unless you inform your students otherwise, students enrolled in a course may take notes and share them with other students enrolled in the class during the same semester.”

Notably, the cease and desist website does refer instructors to the Creative Commons if they are interested in instituting a less restrictive policy on class notes.

UC Berkeley Professor Questions With New Policy

According to Jason M. Schultz, an assistant clinical professor of law at UC Berkeley and director of the university’s Samuelson Law, Technology & Public Policy Clinic, this is an issue of federal copyright law and constitutional free speech, which trump the California Education Code and the university policies:

“Instructors have almost no intellectual property rights to what students write down in class, he said. Faculty members may have intellectual property in the books they write, articles they publish and even possibly in the lecture notes they write for themselves, but students own the copyright on their own notes, he said.”

(via Do Students Have Copyright to Their Own Notes?). Do Instructors Have a Copyright Interest in Student Notes? Whether the instructors and/or the students have any copyrights in class notes likely depends on the amount of original expression found in each student’s notes.  A student who is effectively transcribing the instructor’s lecture or presentation has contributed very little or no original expression or intellectual property to the transcription, and the instructor likely retains a copyright interest in these notes. On the other hand, if the student is simply writing or typing original thoughts (such as observations, conclusions, questions, hypotheses, derivations, etc...), as he or she listens to the lecture, the student alone likely possesses a copyright interest in these notes. In between the two is a continuum that includes, among others, the student that merely condenses or outlines the lecture, and the student that transcribes only portions of the lecture while adding the occasional original thought. Whether either students or the note-sharing websites will challenge the university policies or the California Education Code remains to be seen. For More Information:

Internet Broadcast of High School Sporting Events

September 11, 2011

Case: WIAA. v. GANNETT CO., Docket Number 10-2627 (7th Cir. 8-24-2011) What happened: As the governing body for middle and high school athletic programs in Wisconsin, the Wisconsin Interscholastic Athletic Association (WIAA or Association) sponsors statewide post-season tournaments. In 2005, WIAA contracted with American-HiFi, a video production company, to stream its tournament events online. Under this contract, American-HiFi has an exclusive right to stream nearly all WIAA tournament games. Gannett argued that the First Amendment forbids WIAA, as a government agency, from granting exclusivity with respect to the right to stream video of its athletic contest performances. Decision: Governmental entities can grant exclusivity in performances. There is no First Amendment problem in WARF doing what it did. Interesting quote: Among other reasons for denying the First Amendment claim here, the Court noted the devastating impact that claim's like Gannett's claim here could have on the normal business of other governmental entities:

[T]he Wisconsin Alumni Research Foundation (WARF)patents innovations made by the scientific community at the University of Wisconsin at Madison. The University relies on a private party, WARF, to solicit and obtain third-party licensing fees. The revenue from these agreements is substantial: WARF currently pays an average of $45 million annually to the University and has returned $1.07 billion to the school since 1928. See generally Wisconsin Alumni Research Foundation, (last visited Aug. 19, 2011). Gannett’s claim here would cast a shadow over the commercial licenses that WARF sells, by implying that the First Amendment requires it to dedicate its inventions to the public. No case has ever come close to holding this.