The Joplin Globe, Joplin, MO


December 30, 2013

Max McCoy, guest columnist: Free speech? Not at Kansas universities anymore

— My next tweet could get me fired. The Kansas Board of Regents has adopted a new social media policy that makes it a firing offense for faculty or staff to use social media in such a way that is “contrary to the best interests of the university.”

Also forbidden is anything that might impair efficiency, disrupt discipline or cause disharmony among co-workers.

As an associate professor of journalism at Emporia State, a regents institution, I am risking suspension or even termination by criticizing the policy on Twitter, Facebook or my personal blog.

And to show just how serious the regents are about this, the social media policy is listed directly under the one that allows dismissal for a felony conviction.

The regents have, in effect, criminalized free speech. This is the Voter ID law of academic freedom being tested here in Kansas — it’s a “fix” for a nonexistent problem that will create hardships for tens of thousands and have a chilling effect on free speech at public campuses across the state.

Until now, I’ve never used Twitter or Facebook or (my) blog or any form of social media to criticize my department, my university or KBOR (the Kansas Board of Regents). Neither have any of the instructors I know and work with. If we use social media at all, it is in the same way most people use it (hey, look what I’m having for breakfast!) or as a tool to keep in touch with our students about class work.

What, then, has led to this draconian, and clearly unconstitutional, policy?

Back in the fall, after 13 died at the Navy Yard shootings, a University of Kansas journalism professor by the name of David Guth tweeted some foolish things about the National Rifle Association. In his anger, he said, “The blood is on the hands of the #NRA.” Next time, he said, it should be their children who are killed in a mass shooting. For good measure, Guth called upon God to curse the NRA.

It was a lot of vitriol for 140 characters.

The backlash from conservative groups was swift, and Guth was suspended. He wasn’t fired, however, and is expected to take a planned sabbatical in the spring. Guth’s tweet was horrible, insensitive and poorly written to boot.

Frankly, the tweet was stupid.

But the action by the Kansas Board of Regents is stunningly stupid. That’s what I’d like to believe, at least, because if it isn’t stupidity, then it is something far worse: a deliberate attempt to squelch free speech and trample academic freedom at public institutions of higher education across Kansas.

Although the regents said the policy was vetted for legality, I doubt it would stand a Constitutional challenge. Not only is it vague, overly broad and subject to abuse, but the case law cited to prop it up is insufficient for the job. The Supreme Court has consistently found in favor of free speech and academic freedom, short of speech that incites violence or causes material disruption in the classroom.

What the regents are attempting is to impose a corporate model of social media policy on higher education, one in which your employer can punish you for that embarrassing photo of you and a 32-ounce of something alcoholic in a red Solo cup, or that disparaging tweet about the boss’s toupee. All authoritarian systems, from Disney to North Korea, attempt to suppress speech. For a private employer, American law allows some limits to be placed on that speech, although First Amendment protections still apply outside the workplace.

But for a public employer, such as the Kansas Board of Regents, the rules are different. The Supreme Court has repeatedly found that, at public institutions, academic freedom flows from the First Amendment.

This isn’t so at private schools, corporations and so forth. So the issue of both free speech and academic freedom at public institutions in Kansas is really a First Amendment issue.

The Supreme Court has declared, “the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools (Widmar v. Vincent, 1981).”

 In a 1967 case, Keyishian v. Board of Regents, the Court said academic freedom is a special concern of the First Amendment, calling it a “transcendent value to all of us and not merely to the teachers concerned.”

The above citations, by the way, came from a Dec. 20 letter sent to Fred Logan, chair of the Kansas Board of Regents, and collectively signed by the Foundation for Individual Rights in Education (FIRE), a conservative group; the American Civil Liberties Union, a group conservatives love to hate; and the National Coalition Against Censorship, an alliance of non-profit organizations. What a triumvirate. The letter asks KBOR to immediately rescind the policy and to reaffirm the value of free speech on campus.

There’s a lot of language in KBOR’s policy about balancing the responsibility of employees with their free speech rights, but I can tell you from long experience that this is a dodge typically used by politicians when they want to curb inconvenient speech — especially when the truth is involved. This results in favoring only popular speech, the kind of speech that is unlikely to give offense and the kind of speech that is unlikely (to borrow a phrase from Mark Twain) to ever break a chain or free a human soul.

Today, social media is still in its infancy, but it is playing an increasingly important role in human affairs. From the Arab Spring to the rise of Citizen Journalism to the selfies we know we all take and send to friends, social media is changing the way we live. Someday — and someday quite soon — social media might be the primary means that human creatures use to share controversial research or a new form of poetry or the next big scientific idea.

If Martin Luther King Jr. had been held to the standards established by the Kansas Board of Regents, he might never have shared his dream of the promised land (because it would create disharmony). Virginia Woolf might never have written about “A Room of One’s Own” (because it challenged male authority). And Albert Einstein might never have revolutionized physics because it would not have been in the best interests and efficiency of the Swiss patent office.

The point comes down to this: We must protect all Constitutionally permissible speech — even horribly insensitive tweets — because we must create an environment that is conducive to the free exchange of ideas.

I often tell my students that a free society can be judged on how well it protects unpopular speech. For higher education in Kansas, the judgment of history might be very harsh indeed.

Max McCoy is an associate professor of journalism at Emporia State University and a former investigative reporter for The Joplin Globe.

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