I’ve got a column on today’s Inside Higher Ed that looks from a constitutional-law perspective at how badly the Kansas Board of Regents overreached in trying to make just about anything an employee says on the Internet grounds for disciplinary action, including firing.
As I explain in the essay, the Supreme Court made what should have been understood as a minor exception to the First Amendment in a 2006 case called Garcetti v. Ceballos, recognizing that government employers can punish workers who do their jobs disobediently, even if the work includes speaking. Instead, Garcetti is becoming the exception that swallowed the rule, and is inviting incursions even into employees’ off-the-clock speech in their personal lives, such as the policy the Kansas Regents adopted Dec. 18.
It took a gutsy stand from University of Kansas Provost Jeff Vitter, who publicly bucked his Regents bosses, to turn things in a healthier directions. The Regents are now promising to entertain revisions to the policy to more clearly respect First Amendment boundaries.
Based on the universal condemnation of the Kansas policy — and the enactment of “social media privacy” laws in at least 10 states since 2012 that prohibit employers from demanding to see the non-public portions of employees’ social media sites — we are finally locating the public’s gag-reaction point.
If adults are going to teach kids sensible use of social media, maybe it’s time to start exhibiting sensible behavior ourselves — starting with not freaking out every time a teacher puts a PG-13 photo on her Facebook page or a professor makes an offensive comment on Twitter. It’s hypocritical to tell your child that what a bully says about her on Ask.fm is insignificant, and then fire an employee for a momentary slip on a personal Twitter page. We should stop asking whether it’s constitutionally permissible to punish people for online “image crimes,” and start asking whether it’s right.