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.”