BY ALAN SINGER

Academic freedom is often paired with freedom of speech, enshrined in the Bill of Rights as part of the First Amendment to the United States Constitution. But freedom of speech is not absolute, and neither is academic freedom. Academic freedom is bound by the same legal restraints as freedom of speech, but it comes with its own set of professional responsibilities. It is ensured by the collective power of faculty unions and professional organizations, not by law. In the United States today, both academic freedom and freedom of speech are under attack, and not for the first time. I am reminded of a statement by Benjamin Franklin at the close of the 1787 Constitutional Convention. When asked if the new government created a republic, Franklin responded, “A republic, if you can keep it.” In the same sense, academic freedom will only survive, if we can keep it.

According to the American Association of University Professors, academic freedom “protects the right of a faculty member to speak freely when participating in institutional governance, as well as to speak freely as a citizen.” Difficulties emerge when academics make statements not directly related to their areas of expertise, when people who are not technically academics claim the right to speak out on issues on campuses, and when campus groups invite speakers to speak on campus who are intentionally provocative or who are public figures involved in political issues.

Many Americans are familiar with the observation by Justice Oliver Wendell Holmes in the majority opinion in Schenk v. United States (1919) that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Speaking for a unanimous court, Holmes acknowledged that “in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done.” In this case, the Supreme Court was comfortable limiting Schenk’s freedom of speech. The Schenk decision has been modified, but never overturned.

Restrictions on free speech that impact academic freedom include prohibitions against purposely lying about someone, either in writing, considered libel, or in speech, considered slander. In 1939, Congress passed the Hatch Act limiting political activities by federal employees and workers on projects funded by the federal government. It banned membership in supposedly subversive organizations, which made it a weapon in the red scare purges of the late 1940s and 1950s and in attacks on left-wing labor unions. That act and its limitations on free speech are still in effect.

While federal labor laws protect an employee’s right to participate in “protected concerted activities,” in most states private sector employers can fire employees for any reason without legal recourse as “at-will” hires. Free speech protections do not cover employees accused of insubordination or creating a hostile work environment and, as Oliver Wendell Holmes Jr. quipped when he was on the Massachusetts Supreme Court in the 1890s in a case involving a fired police officer suing to be reinstated, “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”

In 1983, the decision for Connick v. Myers the Supreme Court ruled that free speech rights were not violated when a public employee was fired if the “public employee speaks not as a citizen upon matters of public concern, but instead as an employee.” In 1987 in Rankin v. McPherson, a divided court upheld the right of a public employee to make comments “unrelated to the functioning of the office” where “the danger to the agency’s successful functioning from that employee’s private speech is minimal.” But this ruling was by a 5–4 vote of a very different Supreme Court. These are very important rulings because Governor Ron DeSantis and the state of Florida have tried to restrict the freedom of speech and academic freedom of state university staff, claiming that they are always speaking in their capacity as public employees.

The academic freedom of university faculty, administrators, and students has been under fire from trustees and donors concerned about campus opposition to Israeli actions in Gaza. In some cases, they have defined antisemitism so broadly that any opposition to Israeli policies is automatically characterized as hate speech that should be banned from campus.

At the conclusion of the 1787 Constitutional Convention in Philadelphia, Benjamin Franklin addressed a letter to George Washington, the convention’s chair, that was read aloud to the assembly by James Wilson because Franklin, at eighty-one years old, was too ill and weak to read it:

“I confess that there are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them. For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that, the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others” (Franklin, 1787).

I think the defense of the United States Constitution by Franklin stands as the best defense of freedom of speech and academic freedom. Only through discussion and an exchange of ideas do we clarify what we believe and on “fuller consideration [. . .] change opinions even on important subjects.” And as Franklin probably would have added, academic freedom will only survive, if we can keep it.

Alan Singer is a historian and teacher educator at Hofstra University, Hempstead, New York. His most recent books are Social Studies for Secondary Schools, 5th edition (Routledge, 2024) and Class-Conscious Coal Miners (SUNY Press, 2024).