Defense of Free Speech in Reges vs Cauce
This document includes excerpts from the US Court of Appeals for the Ninth Circuit for the case of Reges vs Cauce, et al. These excerpts include the eloquent prose defending free speech on campus. The full ruling is available here.
Recognizing that debate and disagreement are hallmarks of higher education, the panel held that UW violated the First Amendment in taking adverse action against Reges based on his view on a matter of public concern.
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debate and disagreement are hallmarks of higher education. Student discomfort with a professor’s views can prompt discussion and disapproval. But this discomfort is not grounds for the university retaliating against the professor. We hold that the university’s actions toward the professor violated his First Amendment rights.
The public university occupies a central place in the law of the First Amendment. The First Amendment protects the free exchange of ideas. The university is a primary generator and repository of ideas, a place in which unfettered academic debate and open discourse promotes the search for truth and prepares students for a discordant world lacking in orthodoxy. When we place limits on what professors may say or impose punishment for the views they express, we destock the marketplace of ideas and imperil future generations who must be exposed to a range of ideas and readied for the disharmony of a democratic society.
This special relationship between the First Amendment and the university is firmly enshrined in precedent. Because “[t]he classroom is peculiarly the ‘marketplace of ideas,’” academic freedom is “a special concern of the First Amendment.” Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603 (1967); see also Grutter v. Bollinger, 539 U.S. 306, 329 (2003) (“We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.”); Healy v. James, 408 U.S. 169, 180–81 (1972) (“[W]e break no new constitutional ground in reaffirming this Nation’s dedication to safeguarding academic freedom.”).
The Supreme Court has thus long reiterated that under the First Amendment, “[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.” Keyishian, 385 U.S. at 603. Faculty at universities play a significant role in driving the development of ideas in our country; that important responsibility cannot be carried out without the protections that the First Amendment affords. See id. (“Scholarship cannot flourish in an atmosphere of suspicion and distrust.” (quoting Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (plurality opinion))). Indeed, “[t]o impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.” Id. (quoting Sweezy, 354 U.S. at 250).
This is not merely because such a restraint would stifle academic thought and advancement, but because “the Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas.” Id. (alterations omitted). The Supreme Court said many years ago that “[t]eachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” Sweezy, 354 U.S. at 250. This central teaching of First Amendment law remains just as relevant today.
The First Amendment’s commitment to academic freedom is, of course, not without some costs. Open discourse often “induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949). But if these are downsides, they are considered too fleeting to outweigh the foundational values underlying the First Amendment’s protections for academic speech. “Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508 (1969). This “hazardous freedom . . . is the basis of our national strength and of the independence and vigor of Americans.” Id. at 508–09.
These important First Amendment principles guide our analysis of UW’s response to Professor Reges’s speech. The UW community was free to regard Reges’s speech as disrespectful, self-aggrandizing, or worse. We do not doubt the sincerity of their objections. Students, faculty, and staff at the University honored the traditions of the First Amendment by speaking out against Reges and his views, as was their right. But Reges has rights, too. And here, we conclude that UW violated the First Amendment in taking adverse action against Reges based on his views on a matter of public concern.
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If student anxiety or outrage toward a professor’s academic speech could justify restricting what a professor says, then universities would cease to occupy any “special niche” in our First Amendment traditions. Grutter, 539 U.S. at 329. Student discontent that leads university administrators to censor professors would “cast a pall of orthodoxy over the classroom.” Keyishian, 385 U.S. at 603. And the tides of popular campus sentiment would drown out dissenting viewpoints, with the adverse reactions of students and staff operating as an impermissible “heckler’s veto” that restricts speech based on a hostile audience reaction. See Meinecke v. City of Seattle, 99 F.4th 514, 522 (9th Cir. 2024). If criticizing land acknowledgments creates disruption on campus and warrants investigation and reprimand, what other views would cause offense and be excluded next? All of this would be contrary to long-established First Amendment precedents, which protect academic freedom to promote the development of ideas and expose students to a range of views. See Keyishian, 385 U.S. at 603; Sweezy, 354 U.S. at 250.
Under Pickering, therefore, avoiding the disruption on college campuses “that necessarily accompanies controversial speech, ” Dodge, 56 F.4th at 782 (brackets and quotations omitted), cannot justify the suppression of the very diversity of views that is central to the mission of higher education. Some types of government employers depend on command and control. But under the First Amendment, a public university’s oversight of academic speech lacks any comparable justification. We said fifty years ago that “[t]he desire to maintain a sedate academic environment, ‘to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,’ is not an interest sufficiently compelling . . . to justify limitations on a teacher’s freedom to express himself on political issues in vigorous, argumentative, unmeasured, and even distinctly unpleasant terms.” Adamian, 523 F.2d at 934 (quoting Tinker, 393 U.S. at 509). That time-tested observation resolves the Pickering analysis in Reges’s favor.
The dissent’s focus on student “distress” fails for the same reason, as it would allow students’ emotional reactions to academic speech to “cast a pall of orthodoxy over the classroom.” Keyishian, 385 U.S. at 603. Although the dissent would hold that universities can retaliate against professors for their academic speech when it causes “distress” that impacts “student learning,” exposure to views that distress and offend is a form of education unto itself. As the Supreme Court has said, “[t]he Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection.” Id. (quotations and parentheses omitted). The dissent would seemingly grant college students the power to restrict their professors’ academic speech in the name of avoiding distress—a surefire way to silence unpopular or controversial speech that the First Amendment robustly protects.
last updated 01/16/2026