Balkinization: Academic Freedom of the Press: Is it Too Late for the New Fourth Estate?

Academic Freedom of the Press: Is it Too Late for the New Fourth Estate?

Guest Blogger

Lea Bishop

Denial of tenure for suspected political views. At-will termination. Ideological reviews. Classroom surveillance. Bans on expression of “political or ideological views and opinions.” Students trained to report violations to state officials.

This is the bill on the desk of Indiana Governor Eric Holcomb. Indiana’s pending “tenure reform” legislation is a First Amendment parade of horribles. Political orthodoxy. Viewpoint discrimination. Arbitrary dismissal. Vague standards. Chilling effects. Public discourse. Pure speech.

So why is no one talking about the Constitution?

First Amendment jurisprudence has long recognized that constitutional protection of counter-majoritarian viewpoints is the most essential bulwark of democracy. Ironically, tenure is precisely what that empowers judges to do so.

To realize this potential, however, legal scholars must offer the courts a justiciable theory of academic freedom. My proposed solution is to reframe university independence, academic research, and pedagogical autonomy as part and parcel of freedom of the press.

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Law professors easily spot the interplay between academic freedom and the First Amendment, yet courts have avoided reading the former into the latter.

Specialists meticulously distinguish the two concepts. The leading scholar, Bob Post, persuasively cautions that on current doctrine, the two norms conflict—though reconciliation is possible. The nuance is likely to elude judicial arbiters.

Public discourse defines “academic freedom” as a set of special privileges accorded to professors. This framing presents an inviting target to conservative criticism of “special rights,” and alienates libertarians who would otherwise be allies of free speech. A

All of this bodes poorly for the possibilities of judicial review to protect First Amendment interests in university autonomy. Unfortunately, constitutional review is urgently needed.

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I propose doing so through via the doctrinal framework of press freedom.

The fit is surprisingly easy. Investigation and publication are the central job description of tenure-track faculty. Professors research and report on matters of public concern, educate the public, sponsor debate, air dissent, and expose corruption.

Journalists seek out our commentary on every social and policy issue. We can do so with unique independence from corporate and political influence, because of university autonomy and tenure.

The professional norms of scholarly journalism continue to prioritize truth-seeking, empirical evidence, analysis, critical thinking and expertise. With the long erosion of traditional journalism, and declining confidence in mass media, the free-press university has never been more vital.

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The core mission of the modern research university has always been investigation and publication. This insight should transform how we talk about academic freedom.

No one suggests that press freedom is about job security for journalists. We do not defend its utility as a means to recruit and retain reporting talent, or to promote the outlet’s national reputation.

Instead, two centuries of political thought emphasize the value of a free and independent press to a free and democratic society. Defenders of academic freedom must do the same, emphasizing voters’ interest in access to reliable information, the watchdog role of politically independent scrutiny, and defense of liberty.

In doing so, faculty the accusation of financial self-interest and regain the moral high ground.

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My proposal goes beyond rhetorical analogy.

Judicial review of state intrusions on university autonomy and academic speech is urgently needed. Freedom of the press moors the misunderstood and endangered social value of academic freedom to an enduring constitutional anchor.

The central conceptual necessity is to emphasize the value of university independence to insulate academic reporters from state efforts to censor and punish political criticism. Framing academic autonomy as freedom of the press can accomplish this.

Helpfully, it highlights the need for strict scrutiny of means of controlling politically controversial scholarship, even when the legislation is viewpoint neutral on face.Press freedom doctrine has long rejected government demands for ideological “balance” or “equal time.” The government may not “put its thumb on the scale.”

Conceptually, this reframing can accommodate the collective nature of the right to university autonomy that Post emphasizes. At the same time, it centers the interests of the ordinary individual citizen in freedom of access to uncensored political information.

Most importantly, the free press framing preempts the deadly argument that faculty speech at public universities should be treated as “government speech,” entitling the state to regulate its content. When journalism is subsidized by state funding—as it is in many constitutional democracies—editorial independence is obviously essential.

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It is not necessary this year to resolve (or ignore) the ongoing debate about the best approach to academic freedom within the university. This year’s urgency is to cut short the mounting effort to silence political criticism through prescription, prohibition, punishment, and political capture.

Courts must call an end to the dangerous trend of political interference and censorship in universities. They can easily do so, simply by appreciating that eternal research, publication, and education missions of universities go hand-in-hand with free and independent journalism.

I explore these issues further at in Academic Freedom of the Press.

Lea Bishop is Professor of Law at Indiana University Robert H. McKinney School of Law. You can reach her by e-mail at lea.bishop@gmail.com.

Posted 10:30 AM by Guest Blogger [link]