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The Puzzle of Academic Freedom in the Age of Social Media

By Jason Walta, NEA Office of General Counsel

July 2014

The Internet, and particularly social media, is perhaps the most powerful tool in human history for the dissemination and discussion of ideas. It is no wonder, then, that academics spend an increasing amount of their scholarly lives online. But what has emerged in recent years is a confounding puzzle over whether it is less—or more— regulation of the Internet’s ground rules that truly supports academic freedom.

On the one hand, faculty have clearly seen their speech and academic freedom diminished by schools’ imposition of social-media and other policies. Indeed, just recently, a federal appeals court upheld the dismissal of a tenure-track professor at the University of South Dakota for referring to a colleague as a “back-stabbing sneak” in an email (http://goo.gl/1TAHBL). The university successfully argued that the dismissal was justified because the email violated a broadly worded “civility” policy for faculty. (The administrators who wrote that policy are perhaps unaware that a great deal of heated academic debate can be less than civil—such as one philosopher recently calling another’s book “mind-numbingly repetitive, toe-curlingly pretentious, and amateurish in the extreme” in the pages of an Oxford philosophy journal [http://goo.gl/PvzSYd].)

Another high-profile example came earlier this year, when the Kansas Board of Regents announced a strict new social media policy that applies to all faculty in the state’s public universities, community colleges, and technical colleges. The new policy was handed down shortly after the University of Kansas suspended David Guth, a tenured journalism professor, for posting on Twitter this criticism of the National Rifle Association: “#NavyYardShooting 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.

Under the Kansas Regent’s policy (http://goo.gl/7BwYmR), faculty face discipline for statements on social media that are “contrary to the best interests of the employer.” As many have rightly noted (http://goo.gl/t2NpX9), such a policy would have a profoundly stifling effect on academic freedom. After all, how can an academic freely discuss important or controversial topics—such as the role of guns in society—knowing all too well that it is a fireable offense to say something the school later decides is not in its “best interests”?

Unfortunately, as a result of the Supreme Court’s long war of attrition against the constitutional rights of public employees, the Kansas Regents' vague and stifling social-media policy is probably enforceable. The Court’s decision in Garcetti v. Ceballos (2006)—which I’ve discussed in this column before—holds that a public employee is entitled to no First Amendment protection at all for speech made “pursuant to” her job duties. And, even when a public employee speaks as a “citizen” rather than as an employee, the Roberts Court’s decisions have made clear that the employer’s interest in maintaining order and efficiency will trump the First Amendment rights of employees.

Yet, as troubling as this trend may be, it is far from clear that academic freedom necessarily benefits from a completely unregulated, Wild-West approach to social media and the Internet. In an eye-opening article entitled “Why Women Aren’t Welcome on the Internet” (http://goo.gl/Mkyivs), writer Amanda Hess described how women routinely face gendered threats, abuse, and harassment—often from anonymous sources—that discourage them from fully participating in online discussion and communities.

That is true for women scholars, as well. For example, when Mary Anne Franks, a feminist law professor, appeared on a popular legal blog to discuss her pioneering scholarship on how to combat so-called “revenge porn,” she was barraged with abusive anonymous comments, including one stating, “she needs to be raped” (http://goo.gl/mDixep).

Maintaining academic freedom online requires protection of scholars’ ability to raise and discuss controversial, even dangerous, ideas. But it also requires norms ensuring that important voices will not be hounded out of the discussion through threats and abuse. Right now, the balance seems out-of-whack in both directions. Getting it right will be a delicate—and evolving—task for academics and administrators alike.