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    Tracy Mitrano explores the intersection where higher education, the Internet and the world meet (and sometimes collide).

Is Free Speech at Risk?
February 2, 2014 - 7:05pm

In the main, it would seem not.  Whole groups -- ethnic or political -- are not being silenced by discriminatory codes or witch-hunts, for example, as occurred in Nazi Germany or the McCarthy era in the U.S.  If asked, probably each one of you could identify a faculty member on your campus who is preternaturally disposed to saying outrageous things, and who is at the very least tolerated, even if socially made fun of or even ostracized by colleagues.  First Amendment law has already laid the foundation, particularly for our public universities, not only the rules but the topics that still cause hair to stand on end but which are by precedent allowed to be uttered. Flag burning is an example. Most private institutions, although not beholden to the Constitution, follow suit either out of principle or pressure from national faculty organizations such as the American Association of Universities Professors.

But something is happening around the edges of higher education, which is curious enough; that it often involves technology makes it more interesting.  The Kansas social networking policy ranks high on the list, although more as a forum for discussion than a case about an individual.  My guess is that the provision in this policy that is causing kafuffle is over Roman numeral (ii) of the articulate violations:

ii.  when made pursuant to (i.e. in furtherance of) the employee's official duties, is contrary to the best interest of the university;

Opponents might be rightfully concerned with vagueness, over breadth or even a violation of existing National Labor Relations law.  (For more on this last point, see this post.) In response to concerns, the Chancellor has formed a committee to review the policy, which will report back sometime this spring.  For whatever anyone thinks about the policy per se, the University of Kansas is doing higher education a service to bring this thorny issue of speech in social media out into the open for discussion.  I only hope that there is equal attention paid to staff on this point as will undoubtedly be paid to faculty and students.  Under existing exceptions to First Amendment protections under employment law, staff as a constituency in higher education is the most vulnerable.

The incident at Colorado-Pueblo is another example.  Reported in IHE under the title “Is Citing History a Threat,” because the speaker evoked a famous 1914 miners strike that turned bloody as analogy the administration’s jobs reduction plan.  Following First Amendment law, speech that incites violence is not protected by the constitution.  The speaker made caustic comparisons between the mine owners and the administration … but is that the same thing as inciting the crowd to violence?  The press has made that point carefully.

This incident caught my attention because of the steps the administration took without any due process: shutting down the professor’s email account.  So in addition to the analogous speech issue, I have two other questions: First, is blocking an email account tantamount to constraining speech?  Second, is it ever even possible for an email message to meet the “inciting violence” standard?

I think the answer to the first question is yes.  If setting fire to a flag is “speech” by the lights of the Supreme Justices of the land, then shutting down an email account in the digital age should included.  (Note, in an individual case there might be other laws or policies that affect this action, but just distilling the issue down to the question of “is email speech?,” that is my answer.)

About the second question, to be sure, when the Supreme Court came up with that standard it was in the face-to-face context, where a speaker arouses the passion of an audience in a moment of passion and calls for “imminent lawless action.” Is an email “imminent lawless threat” when recipients may be dispersed around the globe, possibly not even see the message for hours or days, and have time to consider behavior?  I can’t think of a circumstance where it would be so. Does it change if it is Twitter and the speaker is physically in front of a crowd?  Maybe.

What do you think?

 

 

 

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