Thursday, April 3, 2014

A Hill Too Far

William Allen White's telephone on the porch at Red Rocks, his home in Emporia, now a state historic site. No photos, no Facebook, and no Twitter, but this was smart communication for the sage of Emporia.

The Kansas Board of Regents will soon have the chance to defuse the time bomb it set ticking back in December by adopting a revised social media policy. If the board resists the urge to tinker with the revised policy, the regents will likely be lauded for listening to the collective voice of reason – and freedom.

Yet, there’s a problem.

Because the policy quotes a 74-year-old statement on how university professors ought to comport themselves, there’s a chance that vague language might still be used to discipline faculty and staff for vigorous participation in the rough-and-tumble marketplace of ideas.

The draft policy embraces a number of concepts I advocate, from changing the nature of the language from disciplinary to advisory, to affirming existing free speech rights. But the draft fails to match the consensus that we agreed upon at the first meeting of the group. The goal was to start from scratch in creating a new policy – and that it would be brief. KBOR made it clear, however, that any revision must be based on existing language, so the group changed direction.

The resulting draft is 482 words, and it’s accompanied by a deeply researched and heavily footnoted 16-page memo.

The memo reviews case law—and notes that recent appellate court decisions indicate the legal tide is turning in favor of continued, if not broader, Constitutional protection for free speech pursuant to official duties within higher education. This would include research, creativity, and commentary.

“In our view,” the memo says, “the principles of academic freedom would require protection from sanction for expressions in the areas of research, teaching, and shared governance, whether or not the First Amendment is interpreted to offer this protection.”

The memo goes on to make a case for the inclusion in the policy of the American Association of University Professor’s 1940 “Statement of  Principles," which reads in part that a university employee can be held accountable for being accurate, for expressing appropriate restraint, for showing respect for the opinions of others, and for making “every effort to indicate they are not speaking for the institution.”

While I agree with the spirit of the AAUP statement, and think it is a good idea to at least refer to it in the draft policy, I am uncomfortable using the actual language of the 1940 document to create policy.

Even though the policy is only offered as “advisory,” the wording will undoubtedly be used as a standard to judge—and certainly stifle—expression at public institutions of higher learning across the state. The wording of the statement is high-minded, but it makes for poor policy. In any discipline, there are debates about what is accurate; there are times when restraint is counter-productive; and some opinions simply do not deserve respect. Any attempt to refute established scientific fact, deny basic human rights, or curtail bedrock civil liberties should be met with derision.

The admonition to make “every effort” to indicate we are not speaking for our institutions is unwieldy and unfair. Must we truly exhaust all efforts to make it clear to our audiences that we don’t represent anyone else’s opinion but our own? If my blog say that I’m employed by Emporia State University, does that mean that every post must carry a disclaimer?

A suggestion from Frank LoMonte, executive director of the Student Press Law Center and a free speech advocate, makes much more sense.

Instead of an affirmative duty to disclaim representation, a caution against misleading statements would be better: “(Employees) should refrain from misleading statements creating the impression that personal speech is sponsored or endorsed by the institution.”

The AAUP statement is a significant document, and much beloved by academics, but it doesn’t carry the force of law. It relies on an understanding of the culture and tradition of higher education, something that politicians (and the politically-appointed regents) are unlikely to respect. My sympathies are shaped by my background as a journalist, but it is indisputable that a gentleman’s agreement is pale fire when compared to the force and breadth of the First Amendment.

Civil liberties lawyer Marjorie Heins has written a brilliant book, published in 2013 by New York University Press, about the Supreme Court and academic freedom. It’s called “Priests of our Democracy.” The book traces the anti-communist purges of the 1950s, and how loyalty oaths and other heinous instruments were used to keep academics in line before the civil rights revolution of the 1960s.

“While we should not ignore academic freedom as a matter of good educational policy governing private as well as public universities,” Heins writes, “I argue that we must defend the First Amendment principle of academic freedom as a limit on what government officials, including administrators of public institutions, can do to their teachers and students.”

The italics are mine, because therein lies the point.

I have had some heated debates with colleagues about the value of the 1940 statement, as it applies to the social media policy. I stick to my guns that it is no substitute, at least at a public institution, for demanding the full protection afforded by the First Amendment.

It is time to break free of the frame in which many politicians, especially in Kansas, have couched the public debate about everything from voter ID laws to religious freedom. The real aim is power and control, not concern over voter fraud or the religious liberties of minorities. Government’s desire to control social media is not about responsibility, but power – the power to stifle unpopular or inconvenient opinion.

Increasingly, we have seen our freedoms slip away, and if we do not choose the hill on which we are willing to die, we will be forced to make our last stand in the ditch of last resort.

The draft, while markedly different than the original, is still based on the existing language. It conforms to the KBOR’s directive that we review the existing policy and honor the board’s goal in creating the policy. Recommending no policy was not an option. We were also told that the board would not rescind the existing policy while we did our work, a move that I believe represented a lack of good faith.

We should have rejected these conditions, especially because the goal of the policy, no matter what KBOR may say otherwise, was clearly to make the exercise of free speech on public campuses in Kansas a fireable offense.

The existing policy was enacted after a KU journalism professor made an unwise and distasteful tweet about the NRA (and the board unwittingly made it possible, in the thermals of controversy, for the offending tweet to be read by a far wider audience than if they had just ignored it). The tweet was clearly a protected form of speech, but that tweet is never mentioned in the 16-page report that accompanies the draft policy.

I wish it were.

Increasingly, freedom of speech is becoming a privilege for only the rich and powerful. After Citizens United and McCutcheon v. FCC, who can doubt that average Americans are under attack? Our voices are being drowned out by bullhorns wielded by those with money and influence. Universities should be a bastions where ideas—even nutty or unpopular or sometimes offensive ideas—are safe from the attacks of the divisive politics that are on the verge of poisoning our democracy.

The social media work group should have said, this is the hill. We should have insisted KBOR suspend the policy while we do our work. Let there be no area that is off limits for our review. Honestly, I should have fought harder. We should have said there isn’t a need for a policy. There’s a danger even in labeling the policy a “social media” policy – why should social media be given special consideration over any other form of expression? What we’re really talking about is restrictions on off-campus speech, and that—as Frank LoMonte has suggested to me—is what we should call it.

The draft policy will be finalized tomorrow morning, at the last regular meeting of the social media work group, beginning at 8:30 am on the Emporia State campus. Much of the meeting is expected to be spent reviewing comments which were gathered from faculty, staff and students at all six KBOR universities. And, those comments have been overwhelming positive. The suggested revision has broad popular support.

But my prediction—and I hope I’m wrong here—is that after April 16, when the policy is presented to KBOR through one of its committees, the regents will take the policy and shoehorn in whatever punitive language they want, anyway.

Max McCoy is an associate professor of  journalism at Emporia State University. Contact him at

Sunday, March 2, 2014

The Weight

A collection of pen holders and nibs salvaged from the wreck of the steamboat Arabia, which sank in 1856.

At Friday's meeting of the Social Media Work Group, there was a change in direction. Instead of starting from scratch and writing our own policy to submit to the Kansas Board of Regents, which was the consensus after our first couple of meetings, we are now going to revise the language of the existing policy.

Co-chairs Kevin Johnson and Chuck Epp, who presented three versions of a draft policy based on existing language, said the change in course was necessary because our charge from the regents didn't include starting over. Of course, I was never comfortable with the charge given to us in the first place, especially the part about "honoring the goal" of KBOR in creating the policy in the first place, which was an overreaction to a distasteful but otherwise protected bit of free speech tweeted by a KU professor.

For those who are tuning in late, the 13-member work group was created by KBOR to recommend changes to a new policy that threatens employees with suspension or termination for "misuse" of Twitter and other social media. The policy empowers the CEO of each institution, typically the president or chancellor, to weigh the free speech rights of the employee against the best interests of the university--and then decide, based on his or her reaction alone, whether the expression reaches the level of a firing offense.

Nobody's been fired yet, but the policy is still in effect. Not only did KBOR refuse to suspend the policy while the group did our work, but it has apparently doubled down. In February, petitions from 13 faculty and student groups were presented asking the board to reconsider, and the response was less than warm. Board members said they were offended by the request and termed it "aggressive."

Interestingly enough, Emporia State has been in the thick of the controversy, even though we weren't involved in the original tweet. I teach journalism at ESU, of course, and co-chair Johnson is a professor of business and the university's general counsel. The person who presented the petitions asking the board to reconsider is Sheryl Lidzy, a Communications and Theatre faculty member who is also president of the Faculty Senate. She is, by the way, one of the most non-aggressive people I know.

Friday's meeting was also held at Emporia State, in the president's conference room on the second floor of Plumb Hall. It began at 8:30 and was about to wind up when I had to leave at 12:45, to teach class.
I asked Kevin if any of the regents had contacted him about changing the direction of the work group, and he said they hadn't, but that he did get input from ESU President Michael Shonrock (a disclaimer is in order here--I do some editorial consulting for the president).

Of the three draft versions of the policy presented--which ranged from a slight revision of the existing policy to a version that was only "advisory" in nature--the consensus of the group was to go with the advisory version.

There was some discussion of what constituted social media, and a call to strengthen protections for staff and others who aren't faculty, and these changes were made. Then Chuck Epp, a professor of public affairs and administration at KU, suggested adding a sentence that would specify the CEO of an institution has the authority to discipline, suspend, or terminate an employee who violates the policy--which seemed to me a giant step backward. When the suggestion met with resistance, Epp suggested changing the language to suggest the CEO has the authority to address these issues.

Note: Since posting, Chuck Epp has called to say he's concerned I've mischaracterized his suggestion. Chuck said the actual language he suggested was to "remind" employees that CEOs already have the authority to discipline, suspend, or terminate. My objection to the inclusion of such language remains the same. 

I argued against any language that would again force the CEO to weigh the issue. The social media policy should be consistent with other matters of speech, not in a special category in which the president or chancellor of a university is the designated monitor. If an employee knows that the top boss at the institution is going to pay particular attention to a form of speech, than a chilling effect on the medium is likely the result. 

After some back and forth with Chuck on this issue, in which he defended the idea, I suggested the group vote on it. Because the consensus seemed to be against the addition, Chuck said, there was no reason for a vote, and the idea was dropped. (I have noticed the work group seems particularly shy about voting on issues, and movement has so far been through informal consensus. I wonder if this is an attempt by the co-chairs to protect individual members from retaliation at their home institutions?)

Sometime in the coming week, the draft policy should be made accessible to all faculty, staff, and students at each of the six state universities. At Emporia State, the plan is to create a Web portal where public comments can be left. There will also be a provision for sending private messages to the group.

In the meantime, here's the entire text:


KBOR Policy 
Chapter II: Governance – State Universities 
F. Other 
7. Social Media Policy 

In keeping with the Kansas Board of Regents’ commitment to the principles of academic freedom, the Board supports the responsible use of existing and emerging communications technologies, including social media, to serve the teaching, research, and public service missions of Kansas universities. Each university shall adopt guidelines to advise all university employees on use of social media. The guidelines shall encourage the responsible use of social media by all employees.

Social media means any facility for online publication and commentary. 

The guidelines shall suggest ways in which social media technologies may be used to serve the university’s mission and shall encourage these uses. In doing so, the guidelines shall strive to assure all employees that improper use of social media shall not be interpreted to include any of the following: 

i the content of any academic research and other scholarly activities; 

ii the content of any academic instruction; 

iii the content of any statements, debate, or expressions made as part of shared governance at a university whether made by a group or employee; or, 

iv in general, any communication via social media that is consistent with First Amendment protections and that is otherwise permissible under the law.

The guidelines shall remind employees that their authorship of content on social media may violate existing law or policy and may be addressed through university disciplinary processes if it: 

i is intentionally directed to inciting or producing imminent violence or other breach of the peaceand is likely to incite or produce such action; 

ii violates existing employee policies addressing professional misconduct; 

iii discloses without lawful authority any confidential student information, protected health care 
information, personnel records, personal financial information, or confidential research data. 

The guidelines also shall advise employees that when using social media to speak as a citizen they should  be mindful of the balance struck by the 1940 Statement of Principles of the American Association of University Professors: 

"College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public mayjudge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution." 

These guidelines shall recognize the rights and responsibilities of all employees, including faculty and staff, to speak on matters of public concern as private citizens, if they choose to do so. 

This policy on use of social media shall apply prospectively from its date of adoption by the Kansas Board of Regents. 

So, there you have it.

Not exactly the vigorous defense of free speech and academic freedom I'd hoped for. In fact, I may have to vote against this recommended policy, if a vote is allowed -- and attach my own dissent. Somebody should point out that, really, we don't need a social media policy, just as we don't need a separate policy about "letters to the editor." As faculty and employees, we can't--nor would we want to--disclose grades or other information in a public forum, we can't release confidential information about our colleagues, and we can't tweet with the intent to incite violence.

The work group will gather comments and have another meeting--or two--before presenting our recommendation on April 16. Will our efforts have made any difference?

At the top of the blog post, there's a photo I took on my iPhone recently at the Arabia Steamboat Museum in Kansas City, Mo., and the vast collection of artifacts from the wrecked boat got me to thinking about the weight of history. How will future generations judge our actions regarding the pressing social issues threatening to tear Kansas apart--bills declaring "religious freedom" that are really aimed at promoting ignorance and intolerance,  the disenfranchisement of tens of thousands of Kansas voters because of a law ostensibly passed to prevent the near non-existent crime of voter fraud, the chilling effect of policies that effectively criminalize free speech at state universities?

Only time will tell.

Max McCoy is an associate professor of  journalism at Emporia State University. Contact him at


Thursday, February 13, 2014

Between a Rock and the Regents

Odysseus before Scylla and Charybdis
Henry Fuseli (Johann Heinrich Fussli), 1796.

Richard Levy said it best.

After giving a Constitutional law briefing to the 13-member group charged with recommending changes to the Kansas Board of Regents’ social media policy on Tuesday, Levy said that he saw the group as “standing between Scylla and Charybdis.”

In Greek mythology, Scylla and Charybdis are monstrous sea hazards on opposite sides of the Strait of Messina. Scylla was a rock (or a six-headed monster) and Charybdis a deadly whirlpool. Trying to avoid one meant surely being destroyed by the other.

Odysseus faced the challenge of the Strait of Messina by passing close to the rocks of Scylla and losing only a few sailors, rather than risking the loss of his ship in the whirlpool. Unlike Odysseus, however, the work group is unwilling to lose any sailors – and is attempting to sail around both obstacles. 

The group met for a little more than four hours at the KBOR offices in Topeka, and while we haven’t safely reached the shore, I think we could see it by the end of the meeting. The group arrived quickly at a consensus that we would abandon the language of the existing (and odious) policy and instead create something new to submit to the regents. Among the changes that gained tentative approval were:

t  The new policy would not be punitive in nature. Rather than punishing speech, the emphasis would be on proactive, rather than reactive, language. I especially like this approach, because it defangs KBOR’s obvious motive for the policy in the first place: to control (or at least have a chilling effect) on speech similar to the anti-NRA rant tweeted by KU journalism professor David Guth in October.

t  The guidelines for social media would be consistent with policies for other protected forms of speech, such as writing a letter to the editor on a matter of public concern. As a private citizen, as long as you’re not claiming to represent the position of your institution, be unafraid to voice your opinion. While the manner in which we communicate is changing, our Constitutional protections don’t.

t  The First Amendment rights of all employees, and the free speech and academic freedom rights of faculty, should be affirmed. An introductory section, perhaps, could explain the importance of such recognition to the various accreditation processes that all institutions are periodically subject to. There might even be a statement affirming the free speech rights of faculty, staff, and employees under the Kansas Constitution as well. 

t  The policy should strive for concision and clarity, and be the least restrictive possible. Much of the problem with the current policy is that it is so overly broad as to invite abuse by administrators—and also to be at risk for serious Constitutional challenges. 

t  Moving the social media policy from the section on suspensions and firings to another section, titled “Other.” This section includes the board’s statement on diversity and multiculturalism and guidelines for the use of controversial or sexually explicit material in class. 

The current policy, adopted Dec. 18, 2013, is under Chapter II, Section C6: “Suspensions, Terminations and Dismssals.” 

The manual spends fewer than 100 words in describing the policy for felony convictions and charges. The new, additional policy on “Improper Use of Social Media,” is 340 words long. A firing offense could be communication that is considered, in the judgment of the institution’s chief executive officer, to be “contrary to the best interests” of the institution. As a rule for permissible employee speech, as Levy point out, this standard is overly broad and invites a Constitutional challenge because an employee can never be certain, in the eyes of the university president or chancellor, what speech is prohibited.

“In practice, certain types of laws may be more or less likely to be unconstitutionally vague,” Levy wrote in a memo provided to the work group. “First, laws that depend on the subjective perceptions of someone other than the speaker are especially likely to be void for vagueness. If a violation turns on someone else’s perception, it is impossible for a speaker to know whether or not the speech is prohibited. Second, and conversely, laws that incorporate a ‘scienter’ requirement are usually not vague. A scienter requirement means that a violation must be knowing or intentional or at the very least, in ‘reckless disregard’ of the consequences. A scienter requirement thus means that people cannot be punished unless they are aware (or should have been) that they are violating the law, and thus protects people from inadvertent violations.”

Later, Levy wrote:

“Whether speech is contrary to the interests of the university depends on a complex weighing of factors within the judgment and discretion of the university administration. So does the assessment of whether the employee’s free speech interests outweigh the interests of the university as the employer. Neither standard uses a ‘scienter’ requirement that would limit application to knowing or intentional misuse of social media.”

Such vague standards, he said, could also “chill” protected speech; employees may refrain from engaging in speech that is unrelated to their job but clearly Constitutionally protected out of fear of unintentionally violating the rules, or from a feeling that unpopular speech is discouraged. Seems to me this chill factor is exactly what the regents were going for, to appease those who called for Guth’s head on a platter.

Levy also talked about the two cases most relevant to the policy, Pickering and Garcetti. Pickering (1968) was a Supreme Court decision that held a public school teacher could not be fired for writing a letter to the editor that criticized certain board of education policies, a matter of public concern. Garcetti (2006) held that the First Amendment does not protect the speech of public employees made in the performance of their duties. It stems from a memo by a prosecutor who questioned the credibility of an affidavit in a criminal case, and later said he was passed over for promotion because of it. 

In Garcetti, however, the high court specifically declined to address whether the standard would apply to scholarship or teaching. Levy said the case highlights the “uncertain relationship between academic freedom and the First Amendment.” Although some lower courts have addressed the issue, the Tenth Circuit Court of Appeals—which includes Kansas—has not.

The group also heard, via conference call, Frank LoMonte, the executive director of the Student Press Law Center, Arlington, Va., and a First Amendment attorney. LoMonte also addressed Pickering and Garcetti, outlined the broad free speech protections of public employees versus private ones, and explained why tone was important in any policy governing communications. 

If the tone of a policy was punitive in nature, LoMonte said, it is likely to have a chilling effect on protected speech. The issue in Garcetti was a communication that was a work product, and is really too narrow to be soundly applied in the overbroad Kansas policy.

LoMonte referred to his piece in Inside Higher Ed.

“While described as a restriction to ‘social media,’ the policy is nothing of the sort,” he wrote. “By its own terms, the policy is an assertion of college authoritiy over ‘any facility for online publication and commentary.’ … The breathtaking sweep of the regulation—it would confer jurisdiction over every online appearance, from an interview with Slate magazine to an academic article in a science journal—evidences an eagerness to control the off-the-clock lives of employees that is itself cause of suspicion.”

Some of the early discussion Tuesday morning was about the group’s charge to “honor the board’s goal in creating the policy.” I repeated my intent to disregard this part of the charge because, frankly, I believe the board’s goal was to suppress free speech and academic freedom. 

The group agreed that co-chairs Kevin Johnson, general counsel at Emporia State, and Charles Epp, a professor at the University of Kansas, would use the consensus as a starting point for writing a draft of the policy we will recommend. The draft will be taken up at the group’s Feb. 28 meeting and, by March 12, a preliminary policy should be in hand.

The goal is to make the preliminary policy available for review to all faculty, staff, and students at all 32 KBOR institutions of higher learning across the state. Comments will be fielded from faculty, student, and classifieds senates;  from emails to group members; and (if the technology can be implemented in time) on a web page that will allow comments, including anonymous comments, from the public at large.

After reviewing comments, the group will finalize the policy at its April 4 meeting. On April 16, the policy is scheduled to be presented to the KBOR Governance Committee. The work of the committee, of course, is strictly advisory in nature; it will be up to the regents to accept, or reject, our work.

I wish I could be optimistic that the regents will embrace our new policy.

Kevin Johnson is of the opinion that KBOR is likely to adopt, in good faith, the policy we suggest. I hope he’s right. But given the fact the board has been unwilling to suspend the existing policy while we do our work, I am not encouraged. We might lose the ship, with all hands. 

But I challenge the regents to prove me wrong.

Max McCoy is an associate professor of  journalism at Emporia State University. This blog represents his personal opinion on matters of public interest. Contact him at

Tuesday, February 4, 2014

Take the Sandwich?

While school mascot Corky remains vigilant, student worker Nathan Campbell clears snow from the entrance to Plumb Hall late Tuesday morning on the Emporia State campus. Classes were canceled--and university offices closed--at 12:30.

The next meeting of the social media work group is scheduled for 10 a.m. Tuesday, Feb. 11, at the board offices in Topeka. The group is charged with recommending changes to the Kansas Board of Regents policy on--what else?--social media.

The 13-member work group faces an April 16 deadline for getting recommendations to the regents. It's important work because the policy has been widely panned as one of the worst in the nation, and a threat to free speech for the thousands of faculty and staff at public universities here. What has been frustrating, however, is getting the group together in the face of some of the harshest winter weather we've had in years. Freezing fog? Enough said.

A meeting scheduled for Feb. 1 at Emporia State was canceled because of the weather. A makeup meeting was considered for this coming Saturday, but the chances of that grew increasingly unlikely, given the schedules of the work group members and the continuing winter storm threat. Co-chairs Kevin Johnson and Chuck Epp made the call to proceed to the next regular meeting on the schedule, Tuesday.

The meeting will be from 10 a.m. to 2 p.m at the KBOR offices in the Curtis state office building, which has a good view of the capitol building with its gleaming copper dome. Off on a tangent here, but the dome has been restored to the shine of a new penny as part of a $320 million capitol restoration project. Personally, I miss the weathered turquoise of the old dome. When I was a kid, it reminded me of the Statue of Liberty, because it was the same color. Sure, the dome should have been fixed to make it structurally sound. But cleaning it up? I don't think anybody would suggest polishing the Statue of Liberty, which is also made of copper sheet. Oh, well. Perhaps the dome will weather quickly to its former glory.

Okay, back on topic. At the work group meeting, we're scheduled to hear from Richard Levy, a Constitutional law professor at KU, and (by phone) from Frank LoMonte, the executive director of the Student Press Law Center, Arlington, Va.

We've also been told that because this is a lunch meeting, the board will provide a catered lunch, from the Classic Bean on Kansas Avenue. Taking a quick look at their online menu, it seems that a sandwich and side would run eight to ten bucks. Reasonable enough, I think (and the sandwiches sound fabulous). But, I haven't made up my mind whether I should eat the KBOR sandwich or not. Could it be seen as a conflict of interest?

Well, in this case, a sandwich may just be a sandwich. But, I tell my journalism students not to accept meals or other gifts from sources. The beverage, yes. You can take the (non-alcoholic) beverage, especially water. But meals? It can be seen as a conflict of interest. Certainly, take the meal if there's no other option--that was the case when I was embedded with a Missouri National Guard police company in New Orleans in the aftermath of Katrina. But what about this case?

I think I might just take my lunch--a nonfabulous but perfectly fine lunch, a sandwich made at home with perhaps a handful of chips. I end up paying for most of my meals when I travel on state business, anyway. And, I like to think it is a bit of solidarity with the thousands of regents employees across the state who, like me, usually eat lunch at their desks.

Max McCoy is an associate professor of  journalism at Emporia State University. Contact him at

Saturday, February 1, 2014

Weather Disrupts Schedule

Today's meeting of the social media working group was canceled because of bad weather. The group, tasked with recommending changes to the Kansas Board of Regents on its social media policy, was to have met from 8:30 to noon in Plumb Hall, the administration building.

While I was disappointed that we didn't have the meeting, because there is important work to be done, the cancellation was a wise move, considering the sheet of ice that descended on Emporia last night. Co-chair Kevin Johnson said in an email that the meeting might be rescheduled a week from today, on Saturday, Feb. 8. The group is also scheduled for a meeting from 10 a.m. to 2 p.m. Tuesday, Feb. 11, at the KBOR offices in Topeka.

Prof. Richard Levy, a Constitutional law professor at KU, was scheduled to speak to the group today, but that presentation will be moved to a later meeting. Frank LoMonte, a First Amendment lawyer and the executive director of the Student Press Law Center at Arlington, Va., is scheduled for a telephone conference with the group on Feb. 11.

Max McCoy is an associate professor of  journalism at Emporia State University. Contact him at 

Sunday, January 26, 2014

KBOR: Suspension is not an Option

A view of the capitol from the entrance to the Curtis State Office Building on Friday. The Curtis building houses the offices of the Kansas Board of Regents, among other state agencies.

The Kansas Board of Regents will not consider suspending its much-slammed social media policy while the work group appointed to recommend changes to the policy completes its work, I was told at the organizational meeting of the group Friday morning in Topeka.

That's a shame, because suspending the policy would have been a symbol of good faith from the regents to the faculty and staff of the state's six universities, community colleges and technical schools whose free speech rights are in jeopardy. In giving the 13-member work group its charge, KBOR President Andy Tompkins not only made clear that suspension wasn't possible, but that coming back with a recommendation of no policy was unacceptable as well.

KBOR Chair Fred Logan had already responded in the negative to a letter from more than 80 distinguished professors from Kansas State and the University of Kansas asking that the policy be suspended while the task force studied the issue, board president Andy Tompkins told me when I asked if the regents would hear a similar request from the work group. Tompkins made it clear the matter was closed, and in giving his charge to the group, limited it to three areas:

1. Review the Board's policy on improper use of social media.
2. As part of the review, honor the Board's goal in creating the policy while considering ways to address the concerns that have been expressed.
3. Present to the Board of Governance Committee any recommended revisions to the policy by April 16, 2014. 

As a member of the work group, selected to represent the concerns of faculty and staff system-wide, I have a problem with that part about honoring the regents' goal in creating the policy. So there would be no misunderstanding, I asked Tompkins if the policy was enacted as a reaction to an inflammatory anti-National Rifle Association tweet made by KU journalism professor David Guth following the Navy Yard shootings in September.

Tompkins said it was.

All right. How do I honor KBOR's goal in creating the policy when it was an admitted reaction to a stupid and insensitive tweet, but one clearly protected by the Constitutional guarantee of freedom of speech? The Supreme Court has ruled that unpopular speech on matters of public interest and debate deserve special protection. Guth wasn't speaking on behalf of the university, or pursuant to his official duties, and he was doing it on his own time. In addition, the high court has suggested that free speech on college campuses deserve special protection as the marketplace of ideas.

My concern was eased somewhat when co-chair Kevin Johnson suggested, early in the meeting, "let's start from scratch." Johnson is a professor and the general counsel at Emporia State.

Instead of attempting to modify the existing language, Johnson said, the group could prepare an entirely new social media policy to present to the board of regents. The policy might also be moved from the heading of "Suspensions, Terminations and Dismissals" and placed elsewhere, another suggested.

I was told--by two credible individuals who are in positions to know, but who did not wish to be named--that the regents enacted the policy in an attempt to forestall punitive action from the Legislature, because some powerful members had threatened to cut funding as punishment for the September tweet. If that's the case, I would have liked our regents to have shown more sand in the face of such bullying. Instead of defending faculty and staff, they agreed to do the dirty work themselves--even if it meant trampling free speech rights. My sources said that it was an understandable and pragmatic move on the part of the regents, but I disagree; when you give in to such blackmail, it only invites further abuse.

But the tone established at the work group on Friday was encouraging.

Johnson noted that the work of the group would be watched closely not only by the faculty and staff at regents institutions, but also by the national news media. It was important, he said, to establish a tone of openness and good faith. He cautioned members that they might be questioned by reporters, but he encouraged them to freely share their views with those outside the group.

"There are no secrets," Johnson said. "Everything we say is fair game... there are no restrictions, and you've got to speak your mind."

He stressed that the group is covered by the Kansas Open Meetings Act and the Kansas Open Records Act, that the public is welcome at every meeting, and that all records created or used by the group would also be public.

Johnson also said the group had "no formal budget."

Johnson and co-chair Chuck Epp, a KU professor of public affairs and administration, had prepared a suggested meeting schedule and timetable for work to be completed, which was adopted with some revisions to accommodate time conflicts.

Most of the group's meetings will be held on the Emporia State campus, because it is centrally located. The first meeting will be held from 8:30 to noon on Saturday, Feb. 1, in a room to be announced. At 9 a.m., Richard E. Levy, a Constitutional law professor at KU, is scheduled to give a 30-minute overview of the issues facing the group.

Frank LoMonte, a First Amendment lawyer and executive director of the Student Press Law Center, may also address the group, perhaps by telephone or Skype, at a later meeting. I suggested the group contact LoMonte, who wrote a scathing critique of the KBOR policy on Inside Higher Ed, and request a presentation.

Other scheduled meetings are:

t    10 am to 2 pm Tuesday, Feb. 11, at the KBOR offices in Topeka.
t    8:30 am to noon Friday, Feb. 28, at ESU.
t    8:30 am to noon on Monday, March 3, at ESU (if needed).
A final working meeting from 8:30 am to noon Friday, April 4, at ESU.

By March 12, the group plans to have a draft policy to share with every faculty and staff member--and the letter-writing distinguished professors--at all regents institutions. The internal committee deadline for the final draft is April 9, and the proposed revisions must be ready for the 8:30 am Wednesday, April 16, meeting of the Governance Committee, which precedes the regular KBOR meeting.

In a bit of irony, the group discussed setting up a Facebook account to gather opinions of faculty and staff across the state. The plan was put on hold pending questions of whether it would be an open or a closed account, and how it could be made accessible to the public to comply with the Kansas Open Records Act.

The work group is a diverse bunch, with two members each from the six regents universities and a representative of the KU Medical Center. In addition to the members I've already mentioned, it includes Julie Keen, who is the faculty senate president at K-State, Victoria Mosack, the senate president at Wichita State, and Browyn Conrad, president of PSU-KNEA, the collective bargaining unit at Pitt State. Administrators include Jeff Morris, a vice president for marketing at K-State; Richard Muma, an associate vice president for academic affairs at Wichita State; and Easan Selvan, KU's associate director of information technology. Kristin Rupp is the web master for Fort Hays State and Dacia Clark is president of the classified senate at Pitt State. Classified employees are non-teaching staff, such as administrative assistants and physical plant workers. Melissa J. Hunsicker Walburn is an assistant professor of informatics at Fort Hays and Mark Fisher is a professor in chemistry and molecular biology at KU Med Center.

Friday's meeting was probably the best start we could have hoped for, given the constraints the board has imposed. Frankly, I would have like to have met with the regents--or at least Chair Fred Logan--and asked in person for a suspension of the policy. It would have also been helpful  for some clarification of the regents' goal in creating the policy in the first place, because nothing I learned on Friday made it seem anything other than a punitive and ill-advised power grab.

Max McCoy is an associate professor of  journalism at Emporia State University. Contact him at 

Wednesday, January 22, 2014

Never a Disparaging Word

1 A small pointed missile shot or thrown as a weapon; poet. an arrow. ME. ▸ b A small pointed missile, usu. with a feather or plastic flight, thrown at a target in a game; in pl., the indoor game played with such missiles and a circular target. E20. -- Shorter Oxford English Dictionary

Consider this the first of a series of dispatches from the culture wars in Kansas.
I’ve been named to the 13-member work group to make recommendations to the Kansas Board of Regents on its new social media policy. It’s an assignment that I readily agreed to, even though I am only cautiously optimistic about the outcome.
Even as the work group prepares for its first meeting—at 10 a.m. Friday at the KBOR offices in Topeka, where board President Andy Tompkins will give us our “charge”—the policy remains in effect.
Under the policy, faculty and staff at any of the state’s 32 institutions of higher learning, including its six universities, may be suspended or even fired if they use Twitter, Facebook, or some other social medium  in a way deemed “contrary to the best interests” of their institution.
The policy was an over-reaction to an idiot tweet by a University of Kansas journalism professor following the Navy Yard shootings last October. The tweet doesn’t merit repeating here—you can find it elsewhere online if you’re interested—but suffice to say it was aimed at the National Rifle Association and its members, and the conservative backlash was predictable.
The regents new social media policy was passed a week before Christmas break, with no input from faculty. It immediately drew fire from across the country, and scores of eminent professors here in Kansas have urged KBOR to rescind the policy.
The concern is best stated by Frank LoMonte, executive director of the Student Press Law Center and an advocate for the First Amendment rights of students and educators. In a piece on Inside Higher Ed, he writes:
“The breathtaking sweep of the regulations—it seemingly would confer jurisdiction over every online appearance, from an interview with Slate magazine to an academic article in a science journal—evidence an eagerness to control the off-the-clock lives of employees that is itself cause for suspicion.”
The Supreme Court has for decades regarded state university campuses as bastions for ideas and free speech. The Court has also repeatedly ruled that unpopular speech about disputed matters of public interest—exactly the kind of thing that Guth tweeted—deserve special protection, as LoMonte points out.
If the policy isn’t changed, many—including me—expect it to be headed to a challenge in federal court. The policy is so broad that it effectively ends freedom of speech for faculty and staff, even when they’re off the clock and tweeting (or posting or blogging) their personal feelings about items of legitimate public interest.
Frankly, that’s unconstitutional.
Many of the rights we now take for granted, and which are generally recognized as contributing to the diversity and strength of our communities and our nation, were once unpopular propositions. Speech advocating these positions, from abolition to women’s suffrage, was the subject of targeted suppression by authorities.
Much of this suppression was carried out in the name of civility.
I’m old enough to remember the conversation of the adults around me during the late 1960s (but wasn’t yet old enough to vote until a decade later). Nearly all of them were white and working class, and even though they seemed to be somewhat sympathetic to the Civil Rights Movement, their most frequent criticism seemed to be that the leaders of the movement were so plain-spoken as to be perceived as rude or even offensive. Civil behavior dictated the people should know their place.
Problem is, civility is a product of time and taste.
And loyalty to petrified opinion—to paraphrase Mark Twain—never broke a chain or set free a single human soul. One generation’s idea of civility may be the yoke around the neck of the next.
We should have seen the kerfuffle with the Kansas Board of Regents over social media coming from a mile away. Remember back in Thanksgiving 2011, when a teen-ager named Emma Sullivan visited the governor’s office and then tweeted that he “sucked”—and the governor’s staff contacted Emma’s principal, and said principal demanded she write an apology?  Well, Emma had the last laugh because the incident created a national media storm and Brownback ended up apologizing to her because of his staff’s “overreaction.”
It made Kansas seem like some banana republic of a state where those in power are so sensitive to disparaging words that they’ll call your principal and have your bad behavior made a part of your Permanent Record.
Well, amp up the emotion by about a thousand percent because Guth’s idiot tweet was about (gasp) the National Rifle Association, mix in another couple of years of conservative fringe battiness, and you have the perfect storm in which the free speech rights of thousands of faculty and staff get trampled.  If we don’t behave, the regents will contact all of our principals, and it will be more than just our Permanent Record at stake—it will be our jobs.
People who want to take away your rights always talk about how important it is to be civil and polite and so forth, and they appeal to your loyalty as an American or an employee or a member of the Saturday Afternoon Study Club. We should all be nice little ladies and gentlemen. But that’s the way it is with power. What they’re really saying is, shut up!
So it is with the talk about balancing freedom of speech versus the responsibility of being a state employee. Some of the speech prohibited in the regents social media policy—the disclosing of confidential information about students, for example, or inciting violence—is amply covered by other laws and regulations. Responsibilities of employees are fully documented in employment contracts and elsewhere, such as in the voluminous and detailed reports one is required to complete as a faculty member, especially when going up for promotion or tenure.
But the real aim of the policy—like so much law coming out of Topeka and elsewhere these days—is never clearly stated. Given the context, it is clearly aimed at controlling speech about public matters that might cause offense or embarrassment to the regents. This, however, is precisely the kind of speech that should be—andis—protected by the highest law in the land.
Don’t get me wrong—I think there is a real need for civility today.
But I’m talking about true civility, in the Oxford English Dictionary first meaning of the word, as relating to citizenhood and civil power. The bipartisan mess in which our country (and state) has been mired in recent years is a result of a lack of such civility, a reluctance to accord those with different views any measure of legitimacy or shared power. It is the kind of incivility that was practiced by the Kansas Board of Regents in adopting the social media policy as a reaction to an insensitive and impolitic tweet.
Despite these misgivings, I will accept in good faith my membership in the board’s working group. I will make suggestions that I earnestly believe will benefit the long-term public good of institutions of higher learning in Kansas. And my first suggestion will be that KBOR rescind its social media policy while the group does its work.
Yes, Emma, suck is a bad word. But suppression is worse.
Max McCoy is an associate professor of  journalism at Emporia State University. Contact him at