|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 firstname.lastname@example.org.