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Kan. Regents' Social Media Policy Flawed, but Not for Free Speech

By William Peacock, Esq. on December 20, 2013 | Last updated on March 21, 2019

It all started with an inappropriate tweet by Kansas University Professor David Guth. Understandably upset over the shootings at the Navy Yard in Washington, D.C., earlier this year, Guth tweeted:

"The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you."

Yeah. A bit of a nightmare, PR-wise, for the board. The professor's tweet appeared to wish death upon the children of NRA members. Guth clarified that he had no such wish, but he was put on leave anyway (and has since returned). Meantime, the Kansas Board of Regents realized that they had no social media policy in place.

Whoops.

The New (Broad? Vague? Terrible?) Policy

After seeking the input and approval of Kansas Attorney General Derek Schmidt, the policy allows suspension, dismissal, or termination of any faculty or staff member who makes "improper use of social media."

Improper? That means making any communication that:

  • "directly incites violence or other immediate breach of the peace";
  • "when made pursuant to (i.e., in furtherance of) the employee's official duties, is contrary to the best interest of the university";
  • "discloses without authority any confidential student information, protected health care information, personnel records, personal financial information, or confidential research data"; or
  • "subject to the balancing analysis required by the following paragraph, impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impedes the performance of the speaker's official duties, interferes with the regular operation of the university, or otherwise adversely affects the university's ability to efficiently provide services."

Balancing test? Not a lawyer-drafted test without "balancing," right?

The "chief executive officer shall balance the interest of the university in promoting the efficiency of the public services it performs through its employees against the employee's right as a citizen to speak on matters of public concern, and may consider the employee's position within the university and whether the employee used or publicized the university name ... or otherwise created the appearance of the communication being endorsed, approved or connected to the university in a manner that discredits the university. The chief executive officer may also consider whether the communication was made during the employee's working hours or the communication was transmitted utilizing university systems or equipment."

Actually, This Isn't That Bad

Despite the criticisms of the policy as imperiling free speech, or being too vague, let's play devil's advocate for a moment.

Incites violence? No problems there, right? After all, inciting violence isn't protected speech. (And since the Board of Regents is a state agency, the First Amendment does apply.)

Pursuant to official duties ... contrary to the best interest of the university. Vague? A bit, but as the Regents noted to the Kansas City Star, the language tracks Supreme Court precedent. Here, it's pasted from Garcetti v. Ceballos, where a deputy district attorney was transferred and denied a promotion after questioning the credibility of a deputy sheriff. In other words, tweeting as part of your job on a KU-owned account, "KU's Poly Sci department is the worst in the country" would probably be covered. NRA rants? Probably not.

Confidential information.... Again, no problems there, right?

Sufficiently damaging to close working relationships.... Language directly from Connick v. Myers, where a D.A. was fired after circulating a questionnaire about (mis)management of the office. This is also where the court highlighted the line between private work matters (not protected), and "matters of public concern" (protected).

The policy is basically copied and pasted from SCOTUS precedent, and as long as the tweeting teachers are smart about social media (include a "tweets are my own" disclaimer, don't criticize the boss, etc.), their speech, and especially speech on "matters of public concern," should remain protected under the policy.

But Wait, the NLRA!

The policy isn't perfect, however, and it might even be invalid under the National Labor Relations Act. In the last year or so, the National Labor Relations Board has invalidated multiple social media policies, from companies like Costco, that lack exemptions for speech criticizing one's working conditions. That's right, speech regarding one's long hours, low wages, and other inhumane conditions (no more coffee?) may not be First Amendment-worthy (per the line of SCOTUS cases regarding government employers), but it could be NLRB-worthy.

Speak freely, unless you're from Kansas. Wait, I'm from Kansas. Either way, FindLaw for Legal Professionals on Facebook awaits.

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