For decades, the Supreme Court has kept vigil over the campuses of state universities as, in the words of one memorable 1995 ruling, "peculiarly the marketplace for ideas." No opinion, the Supreme Court has emphasized, is too challenging or unsettling that it can be banned from the college classroom.
Forget the classroom—professors today are fortunate if they can be safe from punishment for an unkind word posted from a home computer on a personal, off-campus blog.
The Kansas Board of Regents triggered academic-freedom alarm bells across America last month with a hastily adopted revision to university personnel policies that makes “improper use of social media” grounds for discipline up to and including termination. (While the board this week ordered a review of the policy, it remains in place.)
While described as a restriction on “social” media, the policy is nothing of the sort. By its own terms, the policy is an assertion of college authority over “any facility for online publication and commentary.” (Kansans, think twice before pushing “send” in the comments section of this article.) The breathtaking sweep of the regulation evidences an eagerness to control the off-the-clock lives of employees that is itself cause for suspicion. The policy purports to create two categories of online speech. The first category is speech made “pursuant to” or “in furtherance of” official duties, and is subject to essentially complete regulation. Penalties up to firing may be imposed for any speech deemed “contrary to the best interest” of the institution.
All other online speech is punishable if it adversely affects the workplace, but only after passing a “balancing analysis.” The balancing test weighs the institution’s interests in “efficiency” against the employee’s interest in addressing matters of public concern.
These categories roughly track the Supreme Court’s employee-speech jurisprudence. But the Kansas regulation dangerously oversimplifies the law of employee First Amendment rights in ways that invite abuse. The Court’s 1968 ruling in Pickering v. Board of Education marks the headwaters of public employee First Amendment protection. There, in the case of an Illinois teacher fired for a letter to the editor about a school bond issue, the court coined its “Pickering balancing test” to determine whether employee speech may lawfully be punished.
The test requires weighing “the interests of the teacher, as a citizen, in commenting upon matters of public concern” against “the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.”
Pickering was curtailed in the 2006 ruling, Garcetti v. Ceballos, involving a California prosecutor fired over an internal memo critical of the way the police department handled evidence. The Garcetti case essentially recognized that, when a dispute involves speech contained in an official work assignment, that is the government’s speech and not the individual’s. Accordingly, the individual cannot claim a First Amendment violation if the speech displeases a supervisor, and no balancing of interests is necessary.
Although some lower courts have expansively applied Garcetti in dubiously supportable ways, it’s essential to recognize just how narrow the Garcetti decision really is.
Properly understood, Garcetti applies only where the speech itself is a work assignment—not where the speech is about work responsibilities. Prosecutor Richard Ceballos lost his First Amendment case because his speech came in a memo he was assigned to write. The same message in an interview with the Los Angeles Times—or on Facebook, for that matter—might well have been protected.
Indeed, the Supreme Court painstakingly made the distinction in Garcetti between speech that “concerned the subject matter” of an employee’s work (which remains highly protected) versus speech “pursuant to” official duties, which Garcetti left unprotected.
Importing the Garcetti standard into the employment policies of Kansas universities raises two principal legal concerns. The first is why Garcetti language belongs in a policy about off-hours social media activity at all. Few positions at a university require creating social media as part of official job duties. For the few that do, the Kansas policy is unnecessary. If you are the employee in charge of managing the university’s Facebook page, doing that job badly has always been grounds for removal.
Enactment of a new regulation suggests something more—a desire to extend authority over social media activity that is not a part of the employee’s job. The portentous descriptive—that the college may freely regulate speech “in furtherance of” official duties—is especially ominous for employees (read: faculty) for whom speaking and publishing is an expected credential-builder.
A researcher at Hawaii Pacific University recently created the “Faculty Media Impact Project” (call it “Klout for Kollege”), which attempts to measure individual professors’ influence by online references to their work, including mentions on social media. (Evidencing the blurry line between professors’ online visibility and their institutions, Southern Methodist University recently issued a news release boasting of its No. 2 national ranking—far outdistancing No. 17 Harvard—in the inaugural “impact” scores.)
No university employee, particularly not a teaching employee, can be sure of the boundaries where speech “in furtherance of” official duties ends and personal speech begins. That’s a problem.
Restrictions on the content of speech must be so clear and so specific that a speaker can be certain he is protected. Otherwise, speakers will censor themselves for fear of crossing indistinct boundaries.
The second and more legally intriguing concern is whether Garcetti can legitimately be applied to teaching faculty without running afoul of academic freedom.
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