A University of Kansas professor’s case involving a divisive Twitter comment has raised a host of new legal questions about how far employers can go in holding workers accountable for what they say on social media, according to experts in employment law.
The university announced Friday it was placing journalism professor David Guth on administrative leave for a comment he posted after a mass shooting earlier in the week at the Navy Yard in Washington.
His tweet read: “The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.”
Mike Selmi, who teaches employment law at George Washington University in Washington, D.C., said the substance of what Guth said matters more than the fact it was made on social media.
While the university has a policy governing political expressions by faculty and unclassified staff, the issue may not be as simple as that — especially regarding public employees who usually enjoy stronger First Amendment protection than private-sector employees.
“It’s a complicated area, and the law is evolving somewhat,” he said. “Generally under the current law, if the public employee is speaking as part of their official duties, then their speech is not protected. If it’s outside of his official duties, then there is a level of protection the Supreme Court has found, and you basically balance the individual’s right to speak out on matters of public importance … against the effect it has on the employer, including the workplace.”
Gary Brunk, executive director of the American Civil Liberties Union of Kansas and Western Missouri, said he didn’t like Guth’s comment, but he strongly believes it is protected speech.
“I think what the university has done is appalling,” Brunk said. “It’s one thing to do something that’s a clear threat to another person, but he just expressed an opinion.”
Donna Whiteman, general counsel for the Kansas Association of School Boards, said public employers have the right to police the behavior of their faculty, but courts would probably set a different standard for K-12 and higher education faculty.
“The legal standard is yes, employees have free speech rights, but they also are working in an environment where they are considered to be working with students,” Whiteman said. “It’s a little different in K-12 than college level. It’s going to be judged on a case-by-case.”