Lawrence and Douglas County

Lawrence and Douglas county

Employment law still catching up to social media

September 22, 2013

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The advent of social media platforms like Twitter and Facebook have raised new questions about the separation between a person's personal and professional life.

But experts in employment law say the case of a Kansas University professor who was suspended this week after posting what some considered to be offensive remarks on Twitter raises a whole host of new legal questions about how far employers can go in holding employees accountable for what they say or do in the realm of social media.

“A lot of times it really depends on what the substance of the communication was,” said Mike Selmi, who teaches employment law at George Washington University in Washington, D.C. “The fact that it was on Twitter doesn't matter, except that it means it wasn't purely private.”

On Friday, KU announced that it had placed journalism professor David Guth on administrative leave for a Twitter comment he posted following a mass shooting earlier in the week at the Navy Yard in Washington.

His tweet read: "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."

KU does have a policy governing political expressions by faculty and unclassified staff which says, in part, "Faculty and staff should therefore endeavor to be accurate, restrained, and respectful of other opinions, and should indicate that they are not speaking for the University.”

But Selmi said the issue may not be as simple as that, especially regarding public employees who, he said, typically enjoy stronger First Amendment protection than private-sector employees.

“It's a complicated area, and the law is evolving somewhat,” he said. “Generally under the current law, if the public employee is speaking as part of their official duties, then their speech is not protected. If it's outside of his official duties, then there is a level of protection the Supreme Court has found, and you basically balance the individual's right to speak out on matters of public importance ... against the effect it has on the employer, including the workplace.”

Gary Brunk, executive director of the American Civil Liberties Union of Kanas and Western Missouri, said that while he did not like the comment Guth made, he strongly believes it is protected speech.

“I think what the university has done is appalling,” Brunk said. “It's one thing to do something that's a clear threat to another person, but he just expressed an opinion.”

Donna Whiteman, general counsel for the Kansas Association of School Boards, said public employers – including educational institutions – have the right to police the behavior of their faculty. But she said courts would probably set a different standard for K-12 and higher education faculty.

“The legal standard is yes, employees have free speech rights, but they also are working in an environment where they are considered to be working with students,” Whiteman said. It's a little different in K-12 than college level. It's going to be judged on a case-by-case.”

Comments

ChuckFInster 1 year, 7 months ago

Given Guth's disciplinary issues in the past and the newest black eye he has given KU I see little value in keeping someone like that on the payroll.

elliottaw 1 year, 7 months ago

This isn't even a new story outside of Lawrence, he didn't give anyone a blackeye, people can say what they want

Armstrong 1 year, 7 months ago

It was on Yahoo and MSN yesterday. Read something besides LJW

NewKansan 1 year, 7 months ago

He's tenured and well-respected in his field (at least he was prior to this incident). Not even close to be enough of a reason to fire him. Everyone needs to calm down and stop overreacting.

Hoots 1 year, 7 months ago

It was on one of the shows on Sirius Radio Friday. I didn't listen to the show but it was a main topic.

Jayhawks64 1 year, 7 months ago

Peter, So is Selmi saying if Guth said what he wrote in the classroom, he is not protected, but since this is outside of the classroom he is?

Peter Hancock 1 year, 7 months ago

I believe what he's saying is that employers have more authority to govern a person's behavior in the workplace than outside the workplace.

Satirical 1 year, 7 months ago

The_Big_B...

I would care if a KU professor picketed with the Westboro Baptist Church during the day, and taught at KU at night. In my opinion it would make that person unfit to teach at KU and give KU a bad name. One could argue the same about Prof. Guth.

jafs 1 year, 7 months ago

Why?

A person's activities outside the job aren't really anybody's business but their own, as long as they don't affect job performance, right?

Satirical 1 year, 7 months ago

Jafs,

I think there is a difference in holding private views and public views. If Prof. Guth didn't express his opinions publically, I am doubt there would be an issue. However, when one makes public hate speech, and works in a public sector job, I think it is reasonable for some accountability since it is likely for his action to reflect poorly on the University for hiring a bigot. That would be my argument for the nexus between the speech and employment.

Satirical 1 year, 7 months ago

vertigo..

If Shirley Phelps is someone who holds the anti-gay signs, I think her employment status should be questioned.

However, Ms. Phelps isn't in a position of educating our children, like Prof. Guth. Additionally, the state prison system isn't doesn't need to worry nearly as much about a public image as does a state run University. So, the harm to the employer may be negligible, thus not giving cause for any adverse employment action.

Satirical 1 year, 7 months ago

vertigo..

They are all somebody's child.

Arguably, the harm to the University was to its reputation. A lot of people might think twice about attending a University if they had a professor who made racist or hateful comments. I know I would.

Shardwurm 1 year, 7 months ago

Unless he was a Conservative. Then you'd demand his firing.

oldexbeat 1 year, 7 months ago

KU needs to state what their policy is concerning comments by professors in newspapers, private blogs, private tweets, private letters, and emails. I know that KU worked hard to protect under First Amendment rights a anti-gay professor and his letters in the LJWorld. I don't think there is a difference with this case, except the obvious -- NRA power in Kansas.

There are rules to be followed in this case and none of them involve blackmail by state politicos. And the regents should be saying -- there are policies to be followed.

Satirical 1 year, 7 months ago

oldexbeat...

Did this "anit-gay" KU professor explicity wish for death of the children of this group, and ask for God to damn this group, as did Prof. Guth?

jafs 1 year, 7 months ago

Most "anti gay" folks say loudly and often that gay people are in fact damned and going to hell.

Some of them beat gay people to death for being gay.

Satirical 1 year, 7 months ago

jafs...

Did the "anti-gay" KU professor to which oldexbeat was refering engage in such behavior?

jafs 1 year, 7 months ago

I have no idea, since I don't know the person he was referring to.

Satirical 1 year, 7 months ago

jafs...

You seem to have a habit of trying to hijack a conversation when you don't understand the context. I am happy to engage in thoughtful dialogue, and it is easier if we are talking about the same thing.

Lisa Medsker 1 year, 7 months ago

Apparently, you didn't understand the different context in which a college professor functions as opposed to a "teacher". So?

fiddleback 1 year, 7 months ago

oldexbeat and Satirical -- Indeed, the critical difference is that Burkhead did not engage in hate speech, defined as "a communication that carries no meaning other than the expression of hatred for some group, especially in circumstances in which the communication is likely to provoke violence." His editorials attempted to communicate the reasoning behind his disapproval and intolerance of homosexuals. KU was right not to react or disassociate from Burkhead.

Their current reaction of putting Guth on leave is in response to what is, in its essence, hate speech, with no other content than to directly confront and provoke a group and spitefully wish death and suffering upon them. The risk of retaliation in the immediate aftermath makes his leave seem like a fitting precaution.

Randall Barnes 1 year, 7 months ago

Freedom of Speech The right, guaranteed by the First Amendment to the U.S. Constitution, to express beliefs and ideas without unwarranted government restriction.

the First Amendment to the U.S. Constitution reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Liberty275 1 year, 7 months ago

Yeah, but that was written when you could only print one page at a time. These days you type something and it goes to a hundred million screens. Twitter is not what our first congress had in mind when they wrote the first amendment.

LOL. That's as dumb an argument against free speech as it is against owning a modern rifle.

Satirical 1 year, 7 months ago

For those advocating for free speech in this instance, do you think Paula Deen was treated unfairly?

Satirical 1 year, 7 months ago

Policital speech is fine. Hate speech is not.

I am not sure how the law would come down on this issue, because it seems there is very little nexus to his job, but I think it is reasonable and forseeable that when someone makes hate speech, especially public hate speech, it affects his/her job as an employee in the public sector.

*Note: I am not using the common, not the legal definition, of "hate speech."

Liberty275 1 year, 7 months ago

Guth would already be fired in the public sector, but he is afforded due process before being deprived of his job by the government. I think the only real problem he has to face is referencing KU in his twitting signature, if he indeed does that as has been reported. That might get him a reprimand of some sort.

He has additional protections Paula Deen doesn't, so ot's kije comparing apple's and oranges. Also, we have no legal definition of hate speech.

Satirical 1 year, 7 months ago

Liberty275...

I agree Paula Deen's situation is not identical in every way to Prof. Guth's but that doesn't not mean there aren't similarities as well; such as people's reaction.

The question behind my question is whether people's opinion is based on principle or on the object of the speech, i.e. is it okay when a liberal uses hate speech against a conservative group, but not vice versa?

Liberty275 1 year, 7 months ago

For the record, I think both are entitled to say what they will. But the food network or whatever isn't bound by the first Amendment, while a state school is. Certainly the speech is roughly as hateful either way, but the difference hinges on the employer.

The opinions on this board are based mostly on R, D and L. Republicans are outraged, Democrats like his underlying message so they will ignore or tacitly approve the hate in his twit. The L's don't really care what he said, but see the hatefulness as petty fear, and support his right to hate and speak as he sees fit.

Hate and words are protected by the constitution. We should make him go back to work now.

Satirical 1 year, 7 months ago

Liberty275...

Since you think that most people's reactions are based on their political affilitation, rather than on principle, why did you challenge my comment as if it the difference between Prof. Guth and Paula Deen doesn't matter? It clearly does. My point was to illumiate the hypocrisy.

Also, hate words/speech is not protected by the Constitution. See "fighting words."

jafs 1 year, 7 months ago

Generally, the 1st amendment applies to government, not the private sector. There can be and often are consequences for speaking in the private sector.

I guess the difficulty is that KU is a state institution, and as such, could possibly be considered as government, or at least connected to it.

question4u 1 year, 7 months ago

Guth's problem is that he isn't a state legislator acting in his official capacity. If he were, then he would be free to talk about using automatic rifles to kill immigrants from helicopters (Virgil Peck) or send emails about the President of the United States with the beginnings of biblical curses that end "May his children be orphans and his wife a widow" (Mike O'Neal).

Satirical 1 year, 7 months ago

question4u...

Prof. Guth not being a state legislator isn't a problem, it is a benefit in my opinion. We can vote those idiots out of office. We can't do the same with Prof. Guth.

Lisa Medsker 1 year, 7 months ago

What was said that was racist or bigoted? How is this NOT in the lap of the NRA? You have been arguing semantics through this entire thread, (Speaking of hijacking conversations), and NOT ONE factual statement about how Prof. Guths Tweet was out of line, until you put your own spin on it. You look very much like one of those who is just waiting for someone to "offend" you, as if "being offended" gave you special rights. So. How about something backing up your claims of racism and bigotry?

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