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April 2016


Faculty, free speech and social media: Let's avoid "Facebook firings" in the FA
Cynthia Eaton


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On September 16, 2013, University of Kansas journalism professor David Guth posted an anti-NRA tweet after the mass shooting at the Washington, D.C., Navy Yard. On September 20, the university placed Guth on administrative leave.

In August 2014, the University of Illinois at Urbana-Champaign rescinded a job offer to Steven Salaita, American Indian studies professor, in reaction to the "uncivil" tone of his anti-Israel tweets.

There have been so many "Facebook firings" that "Facebook firings" has become common parlance.

Questions about the limits of academic freedom and free speech are being raised with increasing frequency as more faculty communicate via social media. When are faculty expressions covered by the First Amendment and when are they not? How far into social media does academic freedom extend? Answers to such questions, as can be seen in various recent legal cases, depend on the specifics of each case.

The specific type of social media matters too: If a professor says something provocative on Snapchat, sends it to colleagues who also happen to be friends and it disappears within moments, is that expression protected by the First Amendment? And what would that expression be, anyway? It carries the feel of direct speech, but it's not direct speech. It is conveyed in text, but it's not printed text.

Last year PLOS One published research on the state of social media policies in higher ed, revealing that the most common administrative concerns are appropriateness of content, use of a civil and professional tone when representing the institution and whether posts comply with the law. Unfortunately, decisions about what's appropriate, civil or professional in tone don't typically fall in the employee's favor.

In the 2006 Garcetti case, for example, the Supreme Court found that public employees have no First Amendment protections for speech made in an "official" capacity. Justice Anthony Kennedy wrote, "We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

Other recent Court decisions indicate that even when public employees speak as citizens, the employers' interests tend to trump the rights of employees. Policies such as the one passed by the Kansas Board of Regents after the Guth controversy, for instance, mean that all state teachers (K12 and higher ed) can face discipline for social media postings that are "contrary to the best interests of the employer."

Given the above, we share the following suggestions for your consideration when using social media both on and off campus:

  • Learn and utilize the privacy settings offered by each social media platform. With settings so only approved friends/individuals can access your information, you have a bit more control over who sees your postings. With most platforms, some information always remains public: know what that is and be mindful of what you put there.¬†

  • But keep in mind that all social media postings are easily shared/saved and disseminated. Thus, you should refrain from criticizing or airing frustrations about colleagues, students or college policies. These types of postings are common—we've all seen them—but that doesn't mean they will necessarily be protected as free speech if one social media "friend" takes umbrage and decides to make them public.

    If you decide to take to social media to vent your frustrations, keep your tone as professional and civil as possible. Abide by the old adage: If you wouldn't like to see it as a headline on the front page of the New York Times, don't post it.

  • Secure your accounts by choosing passwords that aren't easily guessed. Avoid using children's or pets' names, birthdays or addresses. The most common passwords in 2015 were the same as in previous years: 123456 (give or take a few numerals), password, qwerty, football, baseball and abc123.