In this week’s Pope Center Clarion Call, Prof. Donald Downs (author of Restoring Free Speech and Liberty on Campus) writes about the lawsuit UNC-Wilmington professor Mike Adams has brought against the school, arguing that its refusal to promote him was grounded in hostility to his writings.
Downs doesn’t think the case is black-and-white, but worries that the district court’s ruling in favor of UNCW (the case is on appeal to the Fourth Circuit) represents further erosion of First Amendment protection for speech by public employees.
I don’t think this is an easy case, either. We have here a collision between the First Amendment (or at least “First Amendment values” of uninhibited free speech in the public realm) and another consideration that has, unfortunately, been given short shrift for most of the last century — freedom of contract. I’m strongly inclined to say that employers and employees, public and private, should be free to enter into whatever contracts as they mutually agree. Professor Adams thought he deserved a promotion — a modification of his contract with the university — but the UNCW administration didn’t agree. Should that decision be overridden in the courts because Adams’s writings bothered the administrators? Does the First Amendment mean that public employees can never suffer any adverse consequences because of things they’ve said or written?
Suppose we turn this case around so that the professor who wants the promotion is a rabid, hard-left socialist whose posts on, say, the Daily Kos, cause heartburn among the school’s administrators. Would it be a blow to free speech if they told him that he won’t get the promotion because his outside writings are such an embarrassment? Or would it be a sensible and harmless exercise in freedom of contract?