explaining that “if it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated” and “a successful showing on the first factor mandates a successful showing on the second factor-whether the plaintiff will suffer irreparable harm”
How later courts described this case
- explaining that “if it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated” and “a successful showing on the first factor mandates a successful showing on the second factor-whether the plaintiff will suffer irreparable harm”
- holding that a professor "may have a constitutional right to use words such as 'pussy,' 'cunt,' and 'fuck,' but he does not have a constitutional right to use them in a classroom setting where they are not germane to the subject matter"
- recognizing that “learning institution has a strong interest in preventing” speech “that rises to a level of harassment—whether based on sex, race, ethnicity, or other invidious premise—and which creates a hostile learning environment”
- finding that a professor’s use of profanity in the classroom was not germane to the subject matter and that it was unprotected speech, and noting that vulgar or profane speech is not entitled to absolute constitutional protection
Written by the judges who cited it.
The opinion
DAVID A. NELSON, Circuit Judge,
concurring.
I concur in the judgment and in much of the court’s opinion. I am somewhat ambivalent, however, about our holding that the acts of insubordination committed by Professor Bonnell in publicizing his student’s sexual harassment complaint — a breach of confidentiality against which he had repeatedly been warned — like his promiscuous broadcasting of the screed in which he sought to justify both the classroom recitals of his own sexual escapades and the apparently gratuitous use of coarse language in the classroom, rose to the level of speech in which the professor was expressing himself “as a citizen” on “matters of public concern.”
The matters in question were obviously of intense concern to Professor Bonnell himself. As Bonnell explained in his apologia, he “tend[s] to get a tad defensive when people don’t just disagree with me, my values, my behavior, but who [sic] would also campaign for and delight in my utter destruction.” The professor was clearly not disposed to let himself be destroyed without a fight.
But an employee against whom disciplinary proceedings are brought for speaking on matters of personal concern is not always entitled to claim the highest degree of First Amendment protection for his speech. The key determinant of the type of protection extended to employee speech, as I understand what the Supreme Court held in Connick v. Myers, 461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983), is whether the employee speaks “as a citizen upon matters of public concern” or speaks “as an employee upon matters only of personal interest....” Id. at 147 , 103 S.Ct. 1684 . The dichotomy between “citizen” and “employee,” in this formulation, seems no less pertinent than the dichotomy between “public concern” and “personal interest.”
The record before us makes it evident, I believe, that Professor Bonnell was not speaking “as a citizen” in the ordinary sense of that term. .He was speaking, rather, “as an employee” with an absorbing personal interest in his raunchy classroom rhetoric, in his disgusted student’s demand that he be fired immediately, and in his own professional survival.
It would not be accurate to say, however, that Professor Bonnell confined himself to matters “only” of personal interest. The professor seems to believe in the virtue, if that is the word, of what Senator Moynihan called “defining devianey down.” Professor Bonnell further believes that his status as an intelligent and articulate academician and a “fine teacher” 1 means that the people who pay his salary have no right to require him to eschew scatological and sexual vulgarity that is not germane (at least in the view of those whose job it is to represent the taxpayers) to the content of the course he has been hired to teach. These and related beliefs to which Profes *828 sor Bonnell adheres are argued forcefully in his “Apology” — and whatever the merit of these somewhat curious beliefs, it seems to me that the Apology does touch on matters of public concern.
If our disposition of the appeal had necessarily turned on our answer to the question whether Professor Bonnell was speaking “as a citizen” upon matters of public concern, I should probably have swallowed hard — thinking uncharitable thoughts about the nature of the assignment given us — and answered in the affirmative. As it happens, however, the outcome of the appeal would be no different if we answered the question otherwise — -if we held, i.e., that Professor Bonnell was speaking “as an employee” upon matters only of personal interest. Either way, given the inevitable result of our balancing of the parties’ respective interests under Pickering v. Bd. of Educ., 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968), the order granting a preliminary injunction would have to be reversed. That being so, and in the absence of clear guidance from the Supreme Court on how Connick v. Myers is supposed to be applied in a “mixed speech” case such as this, my preference would be simply to assume the answer to the Connick question without undertaking to decide it. Just as hard cases make bad law, it seems to me that delphic questions can make bad law too. I prefer to duck such questions when I can.
That said, I reiterate my complete agreement with the outcome announced here. This, as I see it, is a case where the legitimate interests of the employer far outweigh those of the employee, and the decision to reverse the injunction granted by the district court certainly seems correct to me.
. The quoted evaluation of Professor Bon-nell's pedagogy comes from Bonnell himself. We have no reason to doubt the accuracy of his self-assessment.