Topeka A Kansas University law professor said Tuesday that the Kansas Board of Regents' new policy on the use of social media may be unconstitutional because of its vagueness and the chilling effect it could have on protected free speech.
“The Board of Regents policy is subject to the First Amendment,” KU professor Richard Levy.
Levy, who teaches constitutional law at KU, spoke to a group of higher education faculty members who were appointed by the Regents to review the controversial policy, which says faculty and staff members may be suspended or fired for making “improper use of social media.”
The Board of Regents adopted that policy in December in the wake of public uproar over anti-NRA comments that KU journalism professor David Guth had posted on Twitter.
Guth's comments prompted sharp criticism by Republican leaders of the Kansas Legislature. But the Regents' policy in response to that sparked even more outrage from the higher education community nationwide.
Levy said that because the Board of Regents is a public body, and the universities it governs are public institutions, any policies it adopts governing the speech or writings of university employees are covered by the First Amendment.
The Regents' policy spells out four ways that social media behavior can be deemed “improper.” One of those is if it is made “pursuant to ... the employee's official duties, (and) is contrary to the best interest of the university.”
Levy said that provision could pose problems, “if it's ever applied to research and scholarship particularly, but potentially also to teaching activities.”
Another standard in the Regents' policy concerns comments that “directly incites violence or other immediate breach of the peace.” Levy said that could be unconstitutional because it is too vague.
“One thing that shows up in a lot of cases is if the speaker has to guess how another person is going to react to their speech, that's a big problem,” Levy said. “Because you can never know how another person is going to react to your speech.”
Levy stressed that he was speaking as an individual, and not on behalf of KU. He also noted that as a KU faculty member, he is personally affected by the Regents' policy.
Levy's remarks capped a four-hour meeting of the faculty committee, which is expected to report back to the Board of Regents on its recommendations in mid-April.
Charles Epp, co-chairman of the panel and a professor in KU's School of Public Affairs and Administration, said there is a consensus in the group that any social media policy should be “advisory” in nature and not part of a discipline policy. He also said the group thinks the policy should reflect the importance and benefits of social media.
“There's wide agreement in the room that social media have lots of benefits for the missions of universities – in research, teaching and public service,” Epp said. “We think it's important to recognize those benefits and the importance of social media."