Employees at any public Kansas university or college can now be fired for tweeting statements that could tarnish the school’s reputation thanks to a new policy that has raised free speech concerns, The Wichita Eagle first reported.
The Kansas Board of Regents, which oversees seven state universities and 26 community and technical schools, revised its relatively new social media policy so that any state school employee could get fired for improperly using social media — especially if what’s said is “contrary to the best interests of the employer.” Whether its using profanity in a YouTube video, writing a blog about a school’s improper handling of rape cases, quoting religious text, or commenting on your personal life on Facebook, any speech that could potentially embarrass the school is grounds for being fired.
“It’s too broad, it’s too vague, and it’s already causing people to chill themselves in the way that they use social media,” Doug Bonney, chief counsel and legal director for the American Civil Liberties Union of Kansas, told ThinkProgress.
The university first adopted a strict social media policy after a tenured journalism professor David Gutha sent an impassioned tweet in September criticizing America’s gun culture and blaming the National Rifle Association for the Washington Navy Yard shooting:
“#NavyYardShooting 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.”
Guth was suspended with pay for the tweet.
The board released the revised policy last week that was approved by the Kansas state attorney general. But critics say the social media policy tramples on the First Amendment and lacks the needed specificity for employees to feel protected. While the First Amendment doesn’t always guarantee protection for what employees say, free speech advocates worry the Kansas policy weighs the schools’ interests more than employees’ individual rights.
“Employers have great latitude in specifying the rules of the workplace. In this example, there needs to be closer scrutiny if [the Kansas Board of Regents is] limiting what professor can say about the world around us,” Ken Paulson, president of the First Amendment Center in Washington told ThinkProgress.
Schools, even those backed by state governments, can’t keep a teacher from criticizing the president of the United States because of academic freedom, Paulson said. But an employee, such as a secretary, who repeatedly insults the university’s president on Twitter could be fired and the First Amendment wouldn’t apply there. However, “the [Kansas Board of Regents] standard applied — ‘speech contrary to the interests of the university’ — is astonishingly broad,” Paulson said. “Unless you had access to every piece of information pertaining to the university, you would never know what affects its interests.”
Each school is responsible for implementing the policy. The ACLU’s concern, however is that supporters, and other employees talking to the media will trust the school to make sure teachers’ and employees’ speech is protected. “That’s the whole problem,” Bonney said. “With a policy as vague as this one, where you’re relying on the judiciousness and wisdom of others, that’s indicative of a First Amendment issue.” The ACLU of Kansas is currently investigating the board’s policy but hasn’t yet made any determinations.
Social media has blurred the lines between people’s personal and professional lives to the extent that when someone makes statements on their own time as a private citizen, it often becomes the concern of their employers. More and more companies are using social media activity — publicly posted pictures, blogs or tweets — to judge potential job applicants.
But the concern for government employees is the closer comments relate to their specific duties, the less they’re protected, Gene Policinski, chief financial officer of the Newseum Institute, told ThinkProgress. Statements that are a matter of public interest get more leeway than those that criticize an institution’s specific policy or official.
Kansas’ policy raises broader questions of how government institutions punitively treat potentially embarrassing information online. “At its heart, the Kansas policy exemplifies a larger problem afflicting all of government — the hair-trigger use of punitive authority whenever the agency’s public image is imperiled,” LoMonte wrote.
The university’s response to restrict all state employees’ speech on social media further strains the relationship between teachers and social media. The surge of social media use among students and teachers has led to a number of incidents where teachers have been fired or reprimanded for Facebook rantings or distasteful tweets. In April, a New Hampshire substitute teacher, Carol Thebarge, was barred from teaching at a local school unless she “unfriended” students from Facebook, even though she used it as a learning tool. A teacher in Georgia, Ashley Payne, was forced to resign in 2009 after a parent found pictures of the young teacher holding glasses of beer while on vacation. Payne sued, saying that she wasn’t given a choice and was unfairly dismissed, but a court ruled against her in 2011. Other more flagrant abuses and lapses of judgment range from educators on social media from teachers posting about their side jobs as bikini models to a New York University fellow insensitively down-playing a reporter’s sexual assault.
Given the uncontrollable nature of social media, more universities may be tempted to follow Kansas’ lead. “But there’s a broader philosophical question here,” Paulson said. “Is a public university, a place where the marketplace of ideas should be embraced, so concerned about potentially embarrassing tweets that it would shut down the free speech of its faculty?”