Dean Rodney A. Smolla, Washington and Lee University School of Law
April 29, 2010

The academic freedom rights of university professors are usually discussed in the vocabulary of the First Amendment.  Professors at public universities have freedom of speech rights derived from the First Amendment that they may assert against their university employers.  Professors at private universities do not have First Amendment rights against their employers in the literal sense, because private universities are not state actors subject to First Amendment constraints.  However, at most private universities professors are granted the equivalent of First Amendment freedoms, through university policies and customs that adopt academic freedom norms parallel to those that bind public universities.

While academic freedom is typically conceived as a free speech concept, the structure of copyright law, particularly the “work-for-hire” doctrine, also speaks to academic freedom values.  The “work-for-hire” doctrine was explored on these pages in March 2010, in an article by Professor Justin Hughes.  True Authors and the Work-for-Hire Doctrine – Part I.  The 1976 Copyright Act in Section 201(b) provides that “in the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author … and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.”

One of the definitions of “work made for hire” is “a work prepared by an employee within the scope of his or her employment.”  Since university professors are often required to conduct and publish research as a condition of employment, the scholarly works of professors are ostensibly works for hire, in which copyright vests in the university, not the professor.  Notwithstanding the surface logic of this position, there is a thin but assertive line of judicial decisions recognizing a “professor’s exception” to the work-for-hire doctrine, an exception that reverses what the literal words of the Copyright Act seem to impose, placing copyright ownership in the professor, not the university.  See Dreyfuss, The Creative Employee and the Copyright Act of 1976, 54 U.Chi.L.Rev. 590, 597-98 (1987); Simon, Faculty Writings: Are They “Works for Hire” Under the 1976 Copyright Act?, 9 J. College & University L. 485, 495-99 (1982).

Before exploring the rationale for this professor’s exception, however, a First Amendment interlude is in order.  In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court held that in determining whether a government employee’s speech is speech “as a citizen on matters of public concern,” and thus subject to First Amendment protection, the critical inquiry is whether the speech of the government employee is speech required by the employee’s job – speech that falls within the official duties of the employee as part of the job description for the position the employee occupies.

If the speech is required as part of the employee’s job description, the Court held, the employee will be deemed to be speaking “as an employee” and not “as a citizen.”  Under Garcetti, such “do it for the boss” expression will be deemed subject to the rules and restrictions established by the government in its capacity as an employer, which means an employee can be disciplined or even fired for violating the rules established by the employee’s governmental supervisors.

Justice David Souter authored a dissenting opinion in Garcetti generally attacking the Court’s ruling as too restrictive of the speech rights of government employees.  In the course of his dissent he honed in particularly on the speech of one class of government employees: university professors.  Noting that the Court’s ruling appeared “spacious enough” to sweep within its domain public university professors, Justice Souter stated that he had “to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to official duties.’”

Justice Souter’s point seemed to strike home, and the Court’s majority opinion answered Justice Souter’s “hope” by appearing to concede at least the possibility that Justice Souter was correct.  The Court left open the potential for future recognition of an “academic freedom loophole” that might in the future exempt public university professors from the scope of the ruling in Garcetti.

“There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence,” the majority opinion conceded.  Keeping all options open, the Court stated: “We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”

This intriguing exchange in Garcetti signals, at the very least, that the Court remains acutely sensitive to the importance of safeguarding the academic freedom interests of public university professors.

Unlike the role of the professor in the classroom, in which the Garcetti v. Ceballos notion of speech “on the job” is at least a plausible fit, the ­outward-looking expression of professors does not sit at all comfortably within the Garcetti model.  Research, scholarship, public service, and the almost infinite array of other externally focused activities conducted by faculty members is certainly often a requirement of their job as university professors.  Colleges and universities differ in their emphasis on these different components of academic life.  Some follow “teacher-scholar” models, others “scholar-teacher models.”  There are examples in which one or the other function entirely predominates, and a wide variety of gradations in between.  Virtually all of higher education treats external expression as, at minimum, a permissible element of a faculty member’s life, and at many of the nation’s research-centered institutions, scholarship is the single most important component of decisions to hire, promote, and grant tenure to faculty.

At the same time, it has always been the understanding that a professor’s research and a professor’s outward expression of his or her thought “belongs” to the professor, and is understood as speaking “for the professor,” and not “for the university.”

The idea that there perhaps should be a “professor’s exception” to the Garcetti rule in free speech law parallels nicely the long-existing professor’s exception to the work-for-hire doctrine in copyright law.  As Judge Richard Posner, a former and formidable academic, wrote in Hays v. Sony Corporation of America, 847 F.2d 413 (7th Cir. 1988):

Although college and university teachers do academic writing as a part of their employment responsibilities and use their employer’s paper, copier, secretarial staff, and (often) computer facilities in that writing, the universal assumption and practice was that (in the absence of an explicit agreement as to who had the right to copyright) the right to copyright such writing belonged to the teacher rather than to the college or university.  There were good reasons for the assumption.  A college or university does not supervise its faculty in the preparation of academic books and articles, and is poorly equipped to exploit their writings, whether through publication or otherwise….

Judge Posner’s judicial colleague, Judge Frank Easterbrook (also a former University of Chicago law professor), similarly recognized the professor’s exception in Weinstein v. University of Illinois, 811 F.2d 1091 (7th Cir. 1987), in a case that also drew parallels to academic freedom concepts.  In Weinstein, Judge Easterbrook wryly quipped that the complaining professor was not fired in retaliation for the slant of his views.  “He was fired for not having any views, at least none recently in print.”

As Judge Easterbrook’s quip suggests, conscientious universities may demand scholarly productivity of faculty members, and typically make decisions on whom to hire and whom to fire (prior to tenure) on the basis of quantitative and qualitative judgments regarding that productivity.  Universities in turn serve the classic ideals of scientific and artistic freedom by limiting their judgments on such matters to scholarly quality, not scholarly viewpoint.  If this First Amendment tradition calls for the fashioning of a “professor’s exception” of some sort to the tough-minded “scope of employment” rule of Garcetti, the same values inform the need for a professor’s exception to the tough-minded work-for-hire doctrine in copyright law.