Does academic freedom apply to Libelous speech?
A recent example run through Duke's Faculty Handbook
Note: This essay does not contain the views of my employer Duke University, but instead contains my personal views offered under academic freedom. Further, the analysis below is based on a hypothetical—the author of the essay in question is in fact, not a faculty member at Duke University.
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Several folks have written asking me if Academic Freedom would protect this substack essay written by Stacey Patton, a Faculty member at Howard University and Research Associate at Morgan State, if she were a Professor at Duke? The widely distributed and much-commented-on essay blames the Father of a 17 year boy for his son’s murder by another 17 year old boy who was convicted of the crime last week. The essay is now behind a substack paywall. What follows is a hypothetical analysis written to both answer reader questions, as well as to further discussion about academic freedom, using Duke as an example.
Chapter 1 of Duke University’s faculty handbook provides robust protections for faculty speech of all kinds, as well expectations and responsibilities for faculty behavior. The three types of faculty protections enumerated include the freedom to: (1) teach any pertinent topic in a course as they see fit; (2) publish research they have conducted; and (3) engage in constitutionally protected speech as a citizen. Note that these protections are summaries of the same ones outlined in the 1940 AAU/AAUP joint statement on academic freedom and tenure (see p. 14). I have reproduced verbatim the pertinent part of the Duke faculty handbook below, between the ******:
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Academic Freedom and Responsibility
Academic freedom is fundamental to the life of Duke University and its core pursuits of education, research, and service. In 2025, a faculty committee charged with reviewing Duke’s academic freedom policies recommended that the importance of academic freedom to the university be demonstrated by the policy’s placement in the first chapter of the Faculty Handbook [1].
Policy:
I. Academic Freedom
To teach and to discuss in their classes any aspect of a topic pertinent to the understanding of the subject matter of the course being taught.
To carry on research and publish the results subject to the adequate performance of their other academic duties.
To act and to speak in their capacity as a citizen without institutional censorship or discipline.
II. Mutual Obligations
The principles of academic freedom impose certain obligations both upon Duke University and upon members of the faculty. As members of learned professions, faculty members of Duke University should remember that in a deeper sense they cannot separate freedom as a member of the academic community from their responsibility as a privileged member of society. While the university will always protect freedom to espouse an unpopular cause, faculty members have a responsibility not to involve the university. Hence, when speaking, writing, or acting in the capacity of a private citizen, they should make every effort to indicate that they are not spokespersons or representatives of the university.
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The questions posed to me offline from several people have been some version of ‘could/would/should a faculty member at Duke be punished by the University for writing this piece?’
The short answer is no, not if Duke University followed its own rules in the faculty handbook, and so long as the post is constitutionally protected speech. The third aspect of academic freedom above “To act and to speak in their capacity as a citizen without institutional censorship or discipline” is quite broad. If the essay is constitutionally-protected speech then Duke would have no basis for punishing a faculty member for writing it, though the University can insist that the faculty member make clear they are not speaking for the University. If the father to whom the essay was directed sued the author of the essay for Libel and won, then the essay would no longer be constitutionally protected speech. It is unclear to me how/if a professor being found guilty of Libel could/would/should change Duke University’s ability to punish a faculty member for writing so judged. I do not know that much about libel law, the process, the timeline and so on.
A second level of analysis would ask whether this essay would fall under academic freedom protections due to the research and scholarly writings of the faculty member who penned the essay. If yes, then it is clear that Duke could not sanction or punish the faculty member if the university followed our own rules, even if it was judged libelous, in which case the punishment would be whatever the courts rendered in a civil procedure. It is plausible that the author of the essay could claim it fit into academic freedom protections based on her scholarly writing, given that she has written widely on the intersection of race, media, child and family policy, corporal punishment and related topics that are at least tangentially and in some cases directly related to the essay topic based on reading the titles of some of the published works (I have not read the work). I am not providing my personal views of the essay, because my point here is an attempt to analyze how the faculty handbook at Duke would apply to a faculty member’s writing of a substack essay.
When I served as the elected chair of the Academic Council at Duke from 2017-19, faculty members from time-to-time would ask my advice about something they were planning to publish. If a Duke faculty member brought this essay to me for a pre-read and advice I would ask them two questions. First, what is the primary point that you are trying to make in the essay? Second, is there a way to make that point by more directly talking about your scholarship and writing instead of focusing on this event that just occurred? For example, the essay author has written about how black homicide victims/families have been wrongly blamed for their own deaths in the past. An essay that started there could make the point that showing deference/extra grace to bereaved parents and the memory of the deceased should be universally applied, and that has not been the case in several high-profile cases of a black child being murdered. The author clearly believes race/racism is the key difference across cases and could make that case. Making the point in this way might be more in keeping with the balance of the rights of faculty to speak, with our responsibilities as a member of a privileged group in society as noted in the Duke faculty handbook.
Another important point is that staff are not named in the faculty handbook, because they are not faculty. I do not believe that staff could necessarily expect the academic freedom protections that faculty have if they wrote this essay. I have written about parsing academic freedom among faculty, staff and students. If I had my druthers, I would add the following two sentences to the faculty handbook:
“In order to affirm a culture of open expression, and robust debate, all Duke staff are free ‘To act and to speak in their capacity as a citizen without institutional censorship or discipline, so long as they make clear they are not speaking on behalf of Duke.’ When staff act in the role of teaching or research/scholarly activity, they enjoy the same academic freedom protections as do faculty.”
My point in writing this piece is to model a dispassionate application of the academic freedom policy for faculty at Duke University, which is easy when the speech in question is benign or non-controversial, but far more difficult when it is not.
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A final note is that I did not particularly want to write about this topic, because I served on a jury once that convicted someone of felony child abuse. This experience was agonizing. The conviction was later overturned on appeal due to a series of trial errors. Obviously, we often have trials whose verdicts turn into broader discussions, but my experience as a juror leads me to try and sit those discussions out if I can do so. Here I decided not to do so, with the reason being a desire to create discussion at Duke and beyond about academic freedom when many find speech objectionable.