When state legislators threatened to cut funding to the University of Kansas because a journalism professor sent out an angry tweet blaming the NRA for the Washington Navy Yard Shooting, the Kansas Board of Regents issued a Draconian social media policy to try and deter faculty and staff from saying anything that could encite scrutiny from elected state officials.
The issue that provoked the Regents to take action was gun politics, but the concern among educators is politicians could try and control the conversations about a host of issues of public importance by threatening to cut funding. The first draft of the Kansas Board of Regents social media policy caused a ruckus because it jeopardized free speech and academic freedom. So they set up a working group to clean it up.
A new draft of the policy was released on May 14, 2014, but critics say it still chills free speech rights and is an over reaction to an isolated incident, which everyone agrees was protected by freedom of speech anyway, since the professor sent the tweet off hours from a personal device on his home broadband network.
The new draft does offer more clarifications, but also makes reference to the “improper use of social media” without defining exactly what that is.
Some reports have singled out the demand that employees not say anything “contrary to the best interests of the employer” as unfair, since there’s no practical way for an employee to accurately make that distinction, since those interests are so broad and varied.
But the new draft clarifies “best interests” as “the interest of the employer in promoting the efficiency of the public services it performs through its employees must be balanced against the employee’s right as a citizen to speak on matters of public concern” which seems reasonable enough, and is borrowed from a previous Supreme Court case on government employee free speech.
Social Media Policies for Government vs. Private Sector Employees
Government employees have free speech rights because it is the government that is taking the action to restrict speech when it makes rules about what employees can and cannot say, but they can impose some, limited restrictions.
“Government employers can create rules about things employees say publicly in their official capacity,” says Heather Bussing. “Most speech on social media is not made in any official capacity. The Regents’ policy appears to try to make this distinction, but it is unclear how it will be applied, especially since it was adopted in response to a professor’s tweet on his own account.”
It should be noted that social media policies for government employees are different from policies for private sector employees because different rules apply.
Private sector employees have no free speech rights at work because their employers are not the government trying to restrict speech. They have other rights such as the NLRA, privacy, Connecticut’s free speech at work law and New York and California’s restrictions on off-duty conduct.. But generally, private sector employees do not have freedom of speech at work. Also the NLRA, which protects private sector workers’ rights to organize and bargain collectively, does not apply to government workers, airline or railway employees.
“Policy should be limited to the workplace,” says Doug Bonney, chief counsel and legal director for the American Civil Liberties Union of Kansas. “That’s where they [employers] have the authority to regulate employee speech.”
But whether you’re a public or private sector employer, a looser social media policy reinforced with mandatory social media training, assessment and certification may be the smarter way to go.