Third Circuit Clarifies Pickering: Speculation and Routine Complaints Are Insufficient “Disruption” to Punish Off‑Campus Faculty Speech

Introduction

This precedential decision from the U.S. Court of Appeals for the Third Circuit addresses the constitutional limits on a public university’s response to a faculty member’s off‑campus, extramural speech. Jason Jorjani, a philosophy lecturer at the New Jersey Institute of Technology (NJIT), was not renewed after media attention to his controversial views about race, immigration, and politics and to his role in founding the “AltRight Corporation.” NJIT cited disruption and policy violations; Jorjani alleged First Amendment retaliation.

The District Court granted summary judgment to NJIT, holding that the university’s interest in mitigating disruption outweighed Jorjani’s speech interests under the Pickering balancing test. The Third Circuit vacated and remanded, concluding NJIT failed, on this record, to show actual or reasonably predicted disruption sufficient to outweigh the First Amendment interest in Jorjani’s off‑campus, private‑citizen speech on matters of public concern. The court also affirmed the denial of Jorjani’s discovery bid to pierce attorney‑client privilege, holding there was no waiver.

The panel (Judges Krause, Matey, and Phipps; opinion by Judge Matey) stakes out an important clarification: at public universities, generalized disapproval by students and faculty, and a modest increase in routine administrative tasks (calls and emails), do not by themselves amount to the kind of “disruption” needed to tip the Pickering scales against an employee’s off‑campus speech.

Summary of the Opinion

Framework: The court applies the familiar three‑part Pickering/Connick test for public employee speech: (1) speaking as a citizen; (2) on a matter of public concern; and (3) employer’s adequate justification under Pickering’s balancing.
No “extramural” or “malice” carve‑outs: The court rejects requests to create an exception for extramural speech and clarifies that “malice” is a defamation‑specific concept, not a general prerequisite for First Amendment protection.
Citizen speech/public concern: The parties agreed (and the court agreed) that Jorjani spoke as a private citizen on matters of public concern.
Pickering balance: NJIT failed to show sufficient disruption. The record showed, at most, some disapproving emails and calls (with no precise numbers), faculty open letters, and an anecdote about one dropped class—insufficient to establish impaired discipline, close‑working‑relationship breakdowns, impeded duties, or interference with operations.
University context: “Employee harmony” concerns carry less weight in higher education, where debate—even sharp debate—is integral to academic life.
Result: The court holds that on this record the First Amendment protects Jorjani’s off‑campus speech against employer discipline under Pickering, vacates the summary judgment, and remands for further proceedings on causation, the same‑decision defense, and qualified immunity.
Privilege ruling: The court affirms the District Court’s denial of waiver, holding the investigative report was factual and not privileged and that counsel’s participation in contract discussions did not waive privilege.

Factual and Procedural Background

Employment: NJIT hired Jorjani in 2015 as a philosophy lecturer; his contract was twice renewed.
Extramural activity: He co‑founded the “AltRight Corporation,” spoke at conferences, and published “Against Perennial Philosophy” on AltRight.com, advancing controversial racial and eugenic theories. He did not disclose these affiliations as required by NJIT policy.
Media event: In 2017, after a secretly recorded conversation arranged by “Hope Not Hate,” the New York Times published an op‑ed and video featuring Jorjani’s remarks predicting that by 2050 Europe would place Adolf Hitler on banknotes alongside Napoleon and Alexander, and criticizing liberal democracy.
Institutional response: NJIT administrators denounced his statements as antithetical to the university’s values, placed him on paid leave, and retained outside counsel to investigate policy and ethics compliance.
Investigation: The law firm concluded he failed to disclose outside roles under New Jersey ethics rules, cancelled classes beyond illness, exhibited nonresponsiveness, and (in the firm’s view) inaccurately claimed the Times video was misleadingly edited.
Non‑renewal and suit: NJIT declined to renew his contract. Jorjani sued, alleging First Amendment retaliation. The District Court granted summary judgment to NJIT on Pickering balancing grounds. The Third Circuit vacated and remanded.

Analysis

1) Precedents Cited and Their Influence

Pickering v. Board of Education, 391 U.S. 563 (1968): The foundational balancing test—courts weigh the employee’s interest, as a citizen, in commenting on matters of public concern against the government’s interest, as employer, in efficient service. The Third Circuit applies Pickering to off‑duty, off‑campus faculty speech.
Connick v. Myers, 461 U.S. 138 (1983): Defines “public concern” and emphasizes context, content, form. Here, speech on race, immigration, and politics is paradigmatic public concern.
Rankin v. McPherson, 483 U.S. 378 (1987): Time, place, and manner matter; off‑duty, private comments receive strong protection absent concrete workplace impact.
Waters v. Churchill, 511 U.S. 661 (1994) (plurality): Employers may act based on reasonable predictions of disruption, but not on speculation; there must be a reasonable belief grounded in fact.
United States v. National Treasury Employees Union (NTEU), 513 U.S. 454 (1995): Heightened concern where the government’s predictive harms are speculative or broad; supports the insistence on evidence rather than conjecture.
Lane v. Franks, 573 U.S. 228 (2014): Reaffirms that public employees may speak as citizens even on matters related to work if not pursuant to official duties; supports application of First Amendment protection beyond the workplace.
City of San Diego v. Roe, 543 U.S. 77 (2004) (per curiam): Confirms Pickering’s applicability to off‑duty speech, albeit finding the speech there (commercial sexual conduct) not of public concern.
Matal v. Tam, 582 U.S. 218 (2017): The “proudest boast” that the First Amendment protects “the thought that we hate” underscores the protection of unpopular views.
Snyder v. Phelps, 562 U.S. 443 (2011): Even offensive speech addressing public issues receives core protection.
Third Circuit authorities:
- Gorum v. Sessoms, 561 F.3d 179 (3d Cir. 2009): States the public employee retaliation elements and applies Pickering in an academic setting.
- Dougherty v. School District of Philadelphia, 772 F.3d 979 (3d Cir. 2014): Burden-shifting after protected speech; “same action” defense.
- Fenico v. City of Philadelphia, 70 F.4th 151 (3d Cir. 2023): Applies Pickering to off-duty social media posts by an officer; emphasizes race commentary as public concern and the need for evidence of disruption.
- Munroe v. Central Bucks School District, 805 F.3d 454 (3d Cir. 2015): Guides factors for “disruption,” including discipline, harmony, duties, and operations—used here to measure NJIT’s proof.
- Kunda v. Muhlenberg College, 621 F.2d 532 (3d Cir. 1980): Distinguishes discretionary academic determinations (e.g., tenure/promotion) from disciplinary actions based on speech; the former receive deference not applicable here.
Other circuits:
- Locurto v. Giuliani, 447 F.3d 159 (2d Cir. 2006): Racially offensive expression is still within the First Amendment’s core when addressing public concerns.
- Blum v. Schlegel, 18 F.3d 1005 (2d Cir. 1994): Universities depend on the public dissemination of controversial speech, informing the balance.
- Bauer v. Sampson, 261 F.3d 775 (9th Cir. 2001): “Close working relationship” concerns are less forceful in academia; vigorous exchange is part of college life.
- Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021): Students have an interest in hearing contrarian views; disciplining faculty for offense alone risks suppressing debate.
Privilege authorities:
- In re Chevron Corp., 650 F.3d 276 (3d Cir. 2011): Purely factual investigations are not privileged legal advice.
- Rhone-Poulenc Rorer Inc. v. Home Indemnity Co., 32 F.3d 851 (3d Cir. 1994): No waiver absent using privileged communications as a sword in litigation.

Collectively, these precedents lead the Third Circuit to insist on concrete, non‑speculative evidence of disruption and to discount generalized offense or ordinary administrative burdens as insufficient under Pickering—particularly in the university context.

2) The Court’s Legal Reasoning

Scope of Pickering: The court emphasizes that Pickering governs public employee speech, including off‑duty and extramural speech. It declines to craft a special exception insulating all extramural speech from balancing.
“Malice” is not a freestanding requirement: The Pickering reference to “malice” arose in a defamation context. Where defamation is not at issue, malice is not required for speech protection.
Citizen speech/public concern satisfied: Both sides agreed (and the court agreed) that Jorjani spoke as a private citizen on topics of race, immigration, and politics—paradigmatic matters of public concern.
Balancing the interests:
- Employee’s interest: Off‑campus speech on core political and social issues carries significant First Amendment weight, irrespective of its popularity. Time, place, and manner (a pub conversation and public writings, not classroom instruction) amplify the speaker’s constitutional interest.
- Employer’s interest: NJIT’s claimed “disruption” was thin. The record reflected:
  - Unspecified “some” calls and “possibly” fifty emails; no evidence of staffing strain or operational breakdown.
  - Faculty denunciations and open letters—hallmarks of debate, not operational impairment.
  - An anecdotal student dropping a class; no showing of protests, policy noncompliance, grading bias, or inability to teach or supervise.
- Speculation vs. evidence: While employers may act to avert reasonably predicted harms, predictions must be grounded in reason and fact, not conjecture. Here, the record lacked concrete evidence of impaired discipline, disharmony affecting close working relationships, impeded duties, or interference with operations.
- University context matters: The court notes that “employee harmony” concerns have diminished force in higher education, where “vigorous exchange of ideas” and attendant tensions are routine and protected features of academic life.
- No reliance on competence-based rationale: NJIT did not substantiate that its decision turned on teaching competence or qualifications. Recourse to generalized “non‑denigrating environment” interests cannot justify disciplining protected speech absent concrete proof of impact.
Conclusion on protection: On balance, even the minimal interest in the off‑campus speech outweighs NJIT’s meager showing of disruption. The District Court erred by holding otherwise at summary judgment.

3) Issues Reserved for Remand

Causation: Whether Jorjani’s protected speech was a substantial or motivating factor in the non‑renewal.
Mt. Healthy “same‑decision” defense: Whether NJIT would have declined to renew the contract even absent the speech, based on alleged ethics nondisclosures, class cancellations, and nonresponsiveness found in the investigative report.
Qualified immunity: Whether individual defendants are shielded from damages because the law was not clearly established in the context presented.

4) The Attorney‑Client Privilege Ruling

Investigative report not privileged: The report was a factual investigation devoid of legal advice; its disclosure did not waive privilege.
No subject‑matter waiver: Counsel’s participation in contract discussions did not amount to reliance on privileged communications to prove a claim or defense; therefore, no waiver extended to related communications or work product.

Impact and Implications

A. For Public Universities and Colleges

Concrete disruption required: Institutions must document specific, non‑speculative disruption—e.g., measurable interference with operations, substantiated breakdowns in close working relationships essential to duties, significant impediments to teaching, or policy noncompliance—before discipline will outweigh off‑campus speech interests.
Offense and controversy are not “disruption”: Student or faculty disapproval, petitions, op‑eds, and routine upticks in calls or emails generally will not suffice on their own.
Academic setting reduces “harmony” weight: The “close working relationship” factor is muted in higher education, where debate and disagreement are expected features; institutions should be cautious invoking “employee harmony.”
Title VI/IX compliance must be evidence‑based: Universities remain obligated to prevent discriminatory harassment. But disciplining faculty for protected speech requires proof of actionable harassment or concrete operational impact, not abstract concerns about “hostility.”
Policy and training implications:
- Revise speech and social media policies to track Pickering and avoid viewpoint‑based triggers.
- Create an evidence checklist before taking action: quantify complaints, identify operational impacts, document duty impairments.
- Separate investigations: Distinguish speech‑based concerns from bona fide performance or ethics violations; avoid appearing to pretextually rely on non‑speech grounds.

B. For Faculty and Other Public Employees

Off‑duty, off‑campus speech on public issues is strongly protected: Even highly unpopular or offensive views remain within core protection, subject to the employer’s showing of real disruption.
Disclosure and compliance still matter: Failure to comply with ethics or outside‑activity policies, or to meet instructional obligations, may independently support adverse action under the Mt. Healthy defense.

C. For Litigators

Pleading and proof under Pickering: Develop detailed records on disruption or its absence—numbers, dates, staffing, policy compliance, duty performance. Mere assertions will not carry summary judgment.
Discovery strategy: Separate factual investigative materials from legal advice; be mindful that disclosing factual reports typically does not waive privilege.
Qualified immunity posture: Plaintiffs will argue that it was clearly established that off‑campus speech on public concerns cannot be punished absent concrete disruption; defendants may respond that contours were fact‑specific and unsettled, especially in higher‑ed contexts.

Complex Concepts Simplified

Pickering balancing: A two‑sided scale. On one side, the employee’s right to speak as a citizen on public issues; on the other, the employer’s need for an efficient, disruption‑free workplace. The employer must show more than embarrassment or controversy—real impairment is the touchstone.
Public concern: Topics of political, social, or community importance (race, immigration, governance). Private grievances generally do not qualify.
Citizen vs. employee speech: Speech made as part of official duties can be unprotected (Garcetti v. Ceballos). The court here did not decide whether some scholarly or professional writings might be job duties; NJIT conceded citizen speech.
“Employee harmony” factor: Disruption includes breakdowns in relationships requiring loyalty and confidence. In universities, that factor usually weighs less because robust debate is integral to the mission.
Speculation vs. evidence: Predictions of harm must be reasonable and fact‑based (Waters; NTEU). Vague fears or unquantified complaints are insufficient.
Mt. Healthy defense: Even if speech is protected and causative, the employer avoids liability by proving it would have imposed the same adverse action for permissible reasons.
Qualified immunity: Shields officials from damages unless they violate clearly established law. Whether Pickering’s application to this fact pattern was clearly established will be addressed on remand.
Attorney‑client privilege and waiver: Factual investigations are not legal advice. Disclosing them does not automatically waive privilege; waiver requires using privileged communications to prove a claim or defense.

Key Takeaways

No “extramural” or “malice” carve‑outs: Pickering governs off‑campus speech; malice is a defamation‑specific concept.
Public concern speech retains robust protection: Even offensive viewpoints on race and politics are at the First Amendment’s core.
Evidence, not conjecture: Universities must show concrete disruption—mere complaints and condemnations are not enough.
Academic context tempers “harmony” claims: The nature of higher education reduces the weight of generalized collegiality concerns.
Process posture: Summary judgment for the employer on Pickering was improper here; the case returns to the District Court to resolve causation, same‑decision, and qualified immunity.
Privilege: Sharing a factual investigative report did not waive attorney‑client privilege; counsel’s involvement alone is not waiver.

Conclusion

Jorjani v. New Jersey Institute of Technology sharpens the Third Circuit’s application of Pickering in the university setting: public institutions cannot discipline faculty for off‑campus, private‑citizen speech on matters of public concern based on speculative harms, generalized disapproval, or minor administrative burdens. The decision underscores that, particularly in higher education, the vigorous exchange of even deeply unpopular ideas is a protected feature of the academic enterprise. At the same time, the court preserves space for universities to act on documented disruption or independent, non‑speech‑based grounds. On remand, the litigation will pivot to causation, the employer’s “same decision” defense, and qualified immunity. As a precedential opinion, this ruling will guide administrators, faculty, and courts across the Third Circuit in navigating the friction between campus values and constitutional constraints.