Kansas Regents provoke academic freedom firestorm with policy forbidding “improper” online speech

If members of the Kansas Board of Regents have a low tolerance for unkind online speech, they’d best keep their browsers closed. Plenty is coming their way.

Wrongheaded,” “travesty” and “absurdly broad … cartoonish” were some of the more tempered reactions Friday to a hurry-up “social media policy” that the Regents enacted this week, providing that university employees can be fired for online speech their supervisors deem “improper.”

The policy appears directly responsive to a controversy over a University of Kansas journalism professor’s mean-spirited Twitter post criticizing the National Rifle Association, a remark that earned him a semester-long suspension.

Members of the Regents, the governing board that sets policy for six state universities including KU, are facing a torrent of criticism after Wednesday’s vote to give supervisors greater disciplinary authority over what employees say on “any facility for online publication and commentary.” (The full text of the rule is available here.)

Under the policy, supervisors have essentially complete authority to punish speech made “in furtherance of” an employee’s official duties, and more limited authority — taking into account the First Amendment right to address matter of public concern — over all other online speech, including purely personal speech created during off-hours. Among the grounds for discipline: Speech that “impairs discipline by superiors or harmony among co-workers” or “adversely affects the university’s ability to efficiently provide services.”

The American Association of University Professors issued a statement denouncing the policy as “a gross violation of the fundamental principles of academic freedom that have been a cornerstone of American higher education for nearly a century.”

It was developed without faculty participation — indeed, in apparent defiance of faculty appeals for consultation — and makes a mockery of faculty members’ rights to speak as public citizens on matters of public concern, including speech about university affairs. … Under this policy a faculty member who dissents from university policies or simply disagrees with colleagues online may also be terminated for impairing ‘discipline’ or ‘harmony,’ vague criteria that all but invite gross abuse.

In a joint letter to the Regents chairman, the National Coalition Against Censorship (of which the SPLC is a member) and the Foundation for Individual Rights in Education, Inc., said the policy “is unacceptably broad and empowers university administrators to discipline faculty members for dissenting, unpopular, or even simply unwanted expression.”

Whether challenged on its face or as soon as it is used against an employee, the policy is certain to end up in federal court if not repealed. A state regulatory board cannot supersede federally protected constitutional rights, and the policy is vulnerable to challenge as vague, overbroad, and (if applied to teaching faculty) as an infringement on academic freedom.

A lawsuit can’t come soon enough. Policies of this sort perpetuate the toxic idea that it is the job of government employees to make their agencies look good, and that promoting a positive public image (even a falsely positive image) is a legitimate use of a government agency’s punitive authority.

It’s time for society to take a collective chill pill about online speech. The zeal to make sure that no negative comment on Facebook goes unpunished is causing policymakers to disregard common sense and a century’s worth of First Amendment case law. Equipping a manager with firing authority almost guarantees that it will be used, but that is the lazy and unimaginative way to manage. Minor social frictions and workplace annoyances — whether in the real world or the virtual world — are most constructively handled with conversation. People rarely get better at their jobs by being fired.

To read more about the First Amendment rights of public employees, see this article from the Winter 2013 SPLC Report, and the SPLC’s guide, “Student Media Advisers and the Law.”