A dangerous challenge to free speech in Kansas

05/13/2014 8:27 PM

05/13/2014 8:27 PM

If the Kansas Board of Regents votes to approve changes to its social media policy today, it will adopt language that declares compliance with the First Amendment. But the same vote would affirm a rule that could potentially turn some tweets and Facebook posts into offenses worthy of firing.

That’s a challenge to free speech.

What concerns me is the policy that a professor or staff member could be fired if a social media post is construed as keeping a university from operating efficiently.

My fellow faculty members are trying to figure out what that means. We think we have a clue from what we suspect was the regents’ motivation: the tweet from a University of Kansas professor that criticized the NRA after the Navy Yard shootings in September.

The policy that will be voted on today has undergone some revisions from an original draft, though not enough to make any significant improvements in faculty free speech rights.

Here’s an example of our confusion. The Regents have already decided that a firing offense is one that “impairs discipline by superiors or harmony among co-workers, (or) has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary.”

Who will judge the loyalty of my Facebook post?

Plenty of faculty feel that criticizing the spending priorities of their bosses could now jeopardize their careers. The board’s chairman, Fred Logan, said at a committee meeting in April that suggestions that an instructor could be fired for criticizing a university president were “ludicrous.” But there’s no such protection in the rule he approved.

In another example, we are trying to figure out what kind of speech, in the board’s words, “adversely affects the university’s ability to efficiently provide services.”

Would it be challenging a powerful political lobby that brings nationwide criticism upon a university? Perhaps, if responding to the public has an adverse affect on services.

It’s easy to see if this policy had been in place before the infamous tweet, KU could have faced enormous public pressure to fire the professor. If silencing unpopular speech wasn’t the reason for the regents’ decision, it will be the result.

The regents cite their lawyers’ vetting of the policy as the reason it passes constitutional muster. Yet U.S. Supreme Court decisions show that their position may be untenable on free speech grounds.

Here’s an example. After a professor has shared on social media an idea that frustrates authorities, the university is required to decide if she made clear in her tweet that she was not speaking for her university. Sounds easy, but how on social media do you disconnect your professional life from the postings of your friends who identify you?

In 1971 Hugo Black explained that a law is unconstitutional if “a person of common understanding” can’t figure out what it forbids. Writing in Coates vs. City of Cincinnati, he continued, “Likewise, laws which broadly forbid conduct or activities which are protected by the Federal Constitution, such as, for instance, the discussion of political matters, are void on their face.”

The regents’ broad policy makes no exception for speech on political topics. No matter how the regents defend their rule, it’s the rule itself that is the problem. If it is not repealed before a court strikes it down, unpopular speech will be limited in Kansas.

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