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Originally published Thursday, September 5, 2013 at 7:49 PM

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Court rules for free speech in former WSU professor’s lawsuit

A federal appeals-court ruling in a case involving Washington State University clarifies the free-speech rights of university professors.

Seattle Times higher education reporter

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A federal appeals-court ruling has found that a Washington State University professor who circulated a controversial proposal to revamp the school’s communications department was protected by the First Amendment.

A lawyer for the American Association of University Professors, which supported the former WSU professor in a brief, called it “a significant ruling protecting the academic freedom of professors at public institutions.”

Aaron Nisenson, senior counsel for AAUP, said the degree of free-speech protection afforded to university professors was thrown in doubt by a 2006 U.S. Supreme Court ruling, Garcetti v. Ceballos, which restricted the free speech of public employees.

“The question in the courts has been, ‘When is speech considered academic speech, that is protected?’ ’’ Nisenson said. “This was a significant case in that it further clarified when that speech is protected.”

The case involves David Demers, a former WSU communications professor, who distributed a two-page pamphlet in 2007 that outlined a plan to improve WSU’s Edward R. Murrow School of Communication. At the time, the future of the school was being debated.

Later, Demers — who now teaches at the Walter Cronkite School of Journalism and Mass Communication at Arizona State University — sued WSU in U.S. District Court, claiming administrators retaliated against him, in part by giving him negative performance reviews.

The district court said that Demers’ writings were distributed as part of his official duties and therefore were not protected under the First Amendment. That decision drew on the 2006 Supreme Court ruling which held that public employees acting or speaking in their official capacity were not protected by the First Amendment, Nisenson said.

Demers appealed to the Ninth Circuit Court of Appeals, which on Wednesday reversed some parts of the ruling.

In a statement he distributed by email, Demers called it “a great victory for those who cherish academic freedom, free-speech ideals and shared governance.”

Demers said professors should have the freedom to criticize administrators and their policies, and said the decision “bolsters the idea that free-speech protection for professors extends beyond their academic research programs and the classroom. It covers our service role, too.”

WSU spokesman Kathy Barnard said by email that the ruling “speaks for itself. It is worth noting that the court did not in any way find that WSU or its officials/employees engaged in any wrongdoing.”

The judges found that there was insufficient evidence to show retaliation. But they ruled that Deming’s pamphlet, along with the draft of a book he was writing, were protected speech because they addressed a matter of public concern.

Nisenson said the Supreme Court ruling in Garcetti has had a chilling effect on university professors and other public-sector employees. The AAUP has been campaigning to get public universities to adopt policies and procedures to protect academic speech, and has been successful at dozens of universities.

He said the case affects only colleges and universities in the Ninth Circuit, which includes Washington.

Katherine Long: 206-464-2219 or On Twitter @katherinelong.

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