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Sorting out the legal issues of the regents' social media policy

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Last week the Kansas Board of Regents announced the names of a work group created to review the social media policy that the board approved last month. The policy, for those returning to campus from holiday hibernation, allows presidents of Kansas public universities to discipline, up to firing, employees for social media posts that conflict with the best interests of the university or its ability to provide services.

That the regents agreed to review the policy has done little to quiet those who have vocally opposed it. With the work group set to report back to the regents in April, that leaves at least four months, and quite possibly more, for it to sit in the regents' policy book in its original wording.

Distinguished professors from Kansas State University and Kansas University have asked the regents to suspend the policy while under review. Last week the faculty senate presidents of regents universities also asked the regents to suspend the policy.

The regents refused. Regents chairman Fred Logan explained their position, saying they had passed the new rules on social media use "in good faith."

Not everyone agrees. Philip Nel, a K-State distinguished professor of English, and a vocal critic of the policy who has helped organize multiple faculty responses to it, wrote in a recent blog post that he originally thought the policy "must have been a mistake." He writes:

Unlike previous Boards, this one had — for instance — been asking the Kansas Legislature to fund the state universities in Kansas. Adopting a social media policy that suspended freedom of speech and (in effect) eradicated tenure was surely because the hastily passed proposal was ill-considered.

His thinking has changed, though.

Before voting on its new social media policy, the Kansas Board of Regents ran it by the Kansas attorney general's office to make sure it stood on solid legal and constitutional ground. Confident in its constitutionality, the regents passed the policy unanimously in December.

The fact that the regents took the policy to the attorney general Nel takes as evidence that the policy was not a blunder or hastily crafted and little-thought-upon blip:

The policy is not a mistake, but a carefully executed plan to muzzle free speech. This is why the Board passed the policy as faculty and staff were grading exams and preparing to leave town (indeed, many had already left town). This is why, though the policy has been panned with near unanimity from both within and beyond Kansas, the Board is not backing down.

Logan said last week that he believed that the policy is a re-statement of existing law. But whether the policy could survive a legal challenge in court is an open question.

The constitutional issues involved are fairly nuanced and complicated. Although I suppose if these things were simple and straightforward, we wouldn't need courts or lawyers. In a conversation earlier this month with Rick Levy, a distinguished professor of law at KU, pointed to parts of the policy that could potentially be challenged on legal and constitutional grounds.

Levy, who is always careful when talking about the policy to point out that he is not expressing any opinion one way or the other, said, "Normally the state cannot discriminate or take action against speakers based on the contents of their speech." That's a core First Amendment protection. But there are some exceptions to it. One being speech that is, as Levy explains, "directed toward inciting imminent unlawful" behavior.

That provision to free speech comes with standards. Such speech must be likely to provoke unlawful conduct, and the speaker must have intended for the speech to incite unlawful behavior, Levy said. (Without those standards you'd get a lot of perverse legal and social outcomes. Imagine J.D. Salinger being on the hook for Mark David Chapman's murder of John Lennon because of Catcher in the Rye.)

The regents seemed to address speech inciting illegal behavior in their social media policy. Included in the types of improper social media are any posts that "directly incites violence or other immediate breach of the peace." But Levy said this "doesn't match the standard directly. It may be broader or permit action under broader grounds" because it "does not clearly require intent or likeliness" in its wording.

Another potential issue relates to the "void for vagueness" doctrine in constitutional due process. Under the doctrine people are "entitled to fair notice of whether your conduct is valid or not," Levy says.

The regents policy allows university heads to punish employees for any social media post that "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."

Under a constitutional challenge to the policy, the regents would have to prove this gives university personnel adequate information about what kinds of speech would cause them to be disciplined or fired, Levy said.

Finally, there's the question of whether faculty and employees at a university are subject to the same legal precedents under free speech law as other public employees. The regents policy appears to apply principles that came out of the Gracetti v. Ceballos Supreme Court decision, in which the court decided that when employees make statements "pursuant to their official duties" (very similar language can be found in the regents policy), they are not engaged in civic speech protected by the First Amendment.

Levy said that, because of language in the court opinion, lower courts have typically ruled that those principles don't apply to universities, where teaching and scholarship have a unique function among other government activities.

Head spinning yet? All this of course could be sorted out by regents once the work group reports back. If not, there's a chance it could go to court to be sorted out.

If you have your own legal opinions on the matter or, better yet, KU news tips, send them along to bunglesbee@ljworld.com.

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