Burnham v. Ianni: The Eighth Circuit Forges Protection for the Free Speech Rights of Public University Professors Outside the Pickering-Connick-Waters Analysis

Abstract

INTRODUCTION|For over thirty years, the United States Supreme Court has struggled to determine how to protect the free speech rights of public educators when the speech occurs outside the classroom. Even though courts have failed to specifically distinguish the rights of educators in secondary education from the rights of educators in higher education, courts are generally willing to offer significant protection to free speech under the theory of academic freedom. |However, courts have also tried to analyze the speech of faculty at public colleges and universities based on the faculty's status as a "public employee." Recently, in Burnham v. Ianni, the United States Court of Appeals for the Eighth Circuit evaluated the expressive nature of two photographs of two history department faculty members at the University of Minnesota at Duluth ("UMD"). The Eighth Circuit found that the photographs were posted in the UMD History Department as part of a display to publicize the interests of the faculty members, and, therefore, the expressive quality of the two photographs was protected free speech under the First Amendment...