We don’t know what we can’t say

By A Contributor

When the Kansas Board of Regents unanimously approved minor on Wednesday revisions to its policy that lets a university fire a staff or faculty member for intemperate use of social media, it did so with enough information to know that it was implementing poor policy.

Kansas’ public universities are now the only universities in the United States with a punitive social media policy. Job applicants who teach and research topics that could be controversial — public health, for example, or politics — would be foolish to overlook that restrict-ion. Why Fred Logan, the regents’ chair, proclaims other-wise is a mystery. 

Maybe it’s worth taking a step back to ask why the staff and faculty of public universities should be allowed to tweet or post on YouYube anything we want. Workers in the private sector don’t get that kind of protection, so why should we?

First, we don’t think public speech should be unlimited. No one is allowed to give a speech that incites violence. No university employee should be permitted to divulge a student’s personal information. That’s not just the staff who thinks so: those limits are already the law. The regents added those prohibitions into their policy anyway.

The kind of speech we’re concerned about is speech that touches on public issues, what’s called political speech. It doesn’t have to be over the top, such as suggesting that immigrants be shot from helicopters. (That was a Kansas legislator’s idea.) But a university employee has the right to speak up when she dislikes the way tax dollars are being spent on campus.

Back to the bigger point. Why should a K-State staffer get a privilege that a private employee surrenders?

The difference is private ownership versus public owner-ship. Businesses may establish their own rules. One of them typically prohibits speech that reflects poorly on the business. That’s why A&E could drop Phil Robertson from “Duck Dynasty” after he promoted under-age marriage and disparaged gays in an interview. (A&E later rehired him.)

When the employer is the government, however, the rules are different. We decided long ago that we the people don’t want the government telling us what we cannot say. So important is this freedom that it’s the First Amendment to the Constitution.

As a public employer, the State of Kansas and the Board of Regents may make no law that abridges our freedom of speech. It’s right there in the Bill of Rights; you may substitute any government agency where it says “Congress.”

You’ve probably heard the regents laud their revised policy because it says that nothing in it shall betray the First Amendment. That’s nice, but it’s just window dressing because the regents aren’t allowed to betray the First Amendment. But describing your rule as just doesn’t make it so.

Here’s another way to think of it. If the regents passed a rule prohibiting my colleagues from traveling faster than the speed of light, each of us would obey the rule. Not because the regents told us to, but because it’s impossible to violate a law of physics.

It’s unconstitutional to violate the Constitution, but even well-meaning political appointees can unintentionally pass a rule that does so. That’s one reason we have courts of law.

One of those courts could strike down the regents’ policy for its vagueness. The regents use harmony and loyalty as standards that, once breached, could lead to termination. So how can I tell before I click “send” if my tweet will damage workplace harmony? Who decides if a staffer’s Facebook post weakens her co-workers’ loyalty to K-State?

The U.S. Supreme Court is not a fan a vague rules, particularly those that “broadly forbid conduct or activities which are protected by the Federal Constitution.”  Writing in Coates vs. Cincinnati, Justice Hugo Black explained that a law is unconstitutional if “a person of common understanding” can’t figure out what it prohibits.

While it’s hard to know what the regents are trying to keep us from saying, it’s easy to see something disturbing. If this policy had been in place before the infamous tweet from the University of Kansas professor, KU could have been put under enormous public pressure to fire him. If silencing unpopular speech wasn’t the real reason for the regents’ decision, it will be the result.

The next step would be testing the rule before a judge. A faculty member could seek an injunction on the basis that it limits his ability to teach.

Students will be the losers in departments that offer courses in social media. A colleague who teaches one of these class-es, and whose dissertation explores the use of social media in the classroom, has two Twitter accounts: one professional, one private. She has decided to cut back, way back, on her private account to protect her job.

If she, or another instructor with a similarly compelling story, were to make her case before a judge, the result may be the one that faculty and staff have sought for months.

It’s embarrassing for a professor, and it should be shameful for someone entrusted with a university’s oversight, when she cannot practice what she teaches for fear of losing the very job that instructs students how to become practitioners of social media themselves.

And all because we don’t know what we cannot say.

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