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Public v. private: Speech issues differ

Regents right to revisit policy

By The Mercury

Freedom of speech has become a major coffee-shop topic the past few weeks, regionally as the Kansas Board of Regents policy on social media use has come under fire — and nationally with a huge flap over the comments made by Phil Robertson, one of the bearded stars of the hit TV show “Duck Dynasty.”

Let’s note one crucial difference immediately.

The regents’ decree (from which they now may be backing away) involved limiting what university staff and faculty could say on social media — under threat of suspension or firing.

That policy concerns public employees.

The flap over Robertson’s tirade in a magazine article — a self-described Christian conservative, he basically equated gays to terrorists and practitioners of bestiality, along with claiming that blacks were better off under “Jim Crow laws” — takes free speech in a different direction, since the A&E Network, which airs “Duck Dynasty,” is a private company.

A&E quickly heard a massive protest from gay-rights and other advocacy groups, along with plenty of complaints from ordinary folks who found Robertson’s remarks outrageous.

So the network suspended Robertson, leaving the popular show in limbo.

But that wasn’t the end of it, as like-minded religious groups formed up behind Robertson and bombarded A&E with threats of a boycott.

As a private company concerned almost entirely with the bottom line, A&E looked at both sides, defended Robertson’s right to free speech and reinstated their star.

The bottom line (literally): “Duck Dynasty” is a huge money making enterprise for A&E, which is co-owned by Walt Disney Co. and Hearst Corp.

According to Forbes magazine, the show generated $400 million in merchandise sales and $80 million in ad sales for the first nine months of 2013.

A television network COULD fire Robertson for offensive comments, but chose not to because the show makes money.

It’s not quite so simple for the Kansas regents, despite statements that they’d been assured by the state attorney general’s office that the social media policy was constitutional.

We can’t know for sure how a court would rule, but the entire process would be both unpleasant and divisive to our university communities.

Backing up to a sound and sensible position probably is a wiser course for the regents.

The late Supreme Court justice Thurgood Marshall, writing the majority opinion in the case Rankin vs. McPherson, said this: “Vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees’ speech.”

One primary aim of the First Amendment has been to protect what legal scholars call the “marketplace of ideas.”

Why even be far enough down this road that the legality of the regents’ policy has become a serious topic of discussion?

We’re relieved to see everyone revisiting the entire idea.

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