Showing posts with label social media policy. Show all posts
Showing posts with label social media policy. Show all posts
Wednesday, April 30, 2014
Tuesday, April 29, 2014
Social media (iii): Pickering v Garcetti
[Once again, I'm speaking only for myself. I'm at home blogging and not using any KU resources for this post. Also, I am not a legal scholar, so my opinions are based only a few minutes reading the SCOTUS decisions and on a brief but excellent presentation by a constitutional law prof. I attended on Sunday.]
A lot of the language of SMP is taken directly from the Pickering case. A school-teacher wrote a letter to the editor criticizing the school board. He sued when the board took reprisals against him. Phrases like "best interests" and "harmony" and "close working relationship" come directly from the Supreme Court Decision. The Court ruled in favor of Pickering (the teacher), arguing that he didn't work directly with the School board and that he was exercising his normal rights as a citizen to express an opinion on matters of public concern. Although the court ruled in favor of 1st amendment rights, in favor of Pickering, it did so in a way that acknowledged government's interests in regulating the speech of its employees in the name of efficiency, harmony, and best interests.
The other relevant case is Garcetti v. Ceballos, a much more recent one. (Pickering is from the late 60s). Here the court ruled against Ceballos, a prosecutor who had questioned a search warrant, to the great displeasure of his supervisor. What is significant here is the right of the govt. to control the speech of its employee while such employee is performing official duties. Here the Supreme Court ruled wrongly (in my opinion) but still aided 1st amendment rights in drawing a line between official duties and private speech. For example, Ceballos would have been protected (presumably) if he were writing a letter to the editor on his private time expressing a political opinion that his boss, Garcetti, didn't happen to like.
[Dissents to Garcetti pointed out that Ceballos was fulfilling a whistle-blowing function and that he was bound by ethical obligations as an officer of the court and an attorney. I agree with those dissents.]
Now academic freedom works very differently than speech acts in the context of the prosecution of crimes. It is not absolute freedom: I don't have the freedom (inherently) to teach my Spanish classes in French, or to grade my students on their knowledge of algebra. On the other hand, in the normal course of things I don't take direct orders about how I am to interpret Lorca from the provost or my chair. The court ruled specifically, in Garcetti, that their findings were not necessarily relevant to issues of academic freedom. Yet the KBOR also uses a lot of language taken directly from the Garcetti decision. The Regents includes attorneys who are smart and know what cases to cite, what the relevant case law is.
***
The problem is that when I teach my classes, or write my articles, or blog, I am representing the university (in some sense) but not representing it (in another sense). The University doesn't care about the specific content of my writing or teaching. The University pays me to express my opinions, in the form of teaching and research. It doesn't really pay me to express its opinions. This is fundamentally different from the job of a prosecutor. I can see how the DA could tell her subordinates not to tell certain things to the press.
***
Ironically, I think Pickering is more pernicious than Garcetti, even though Pickering was decided more correctly.
A lot of the language of SMP is taken directly from the Pickering case. A school-teacher wrote a letter to the editor criticizing the school board. He sued when the board took reprisals against him. Phrases like "best interests" and "harmony" and "close working relationship" come directly from the Supreme Court Decision. The Court ruled in favor of Pickering (the teacher), arguing that he didn't work directly with the School board and that he was exercising his normal rights as a citizen to express an opinion on matters of public concern. Although the court ruled in favor of 1st amendment rights, in favor of Pickering, it did so in a way that acknowledged government's interests in regulating the speech of its employees in the name of efficiency, harmony, and best interests.
The other relevant case is Garcetti v. Ceballos, a much more recent one. (Pickering is from the late 60s). Here the court ruled against Ceballos, a prosecutor who had questioned a search warrant, to the great displeasure of his supervisor. What is significant here is the right of the govt. to control the speech of its employee while such employee is performing official duties. Here the Supreme Court ruled wrongly (in my opinion) but still aided 1st amendment rights in drawing a line between official duties and private speech. For example, Ceballos would have been protected (presumably) if he were writing a letter to the editor on his private time expressing a political opinion that his boss, Garcetti, didn't happen to like.
[Dissents to Garcetti pointed out that Ceballos was fulfilling a whistle-blowing function and that he was bound by ethical obligations as an officer of the court and an attorney. I agree with those dissents.]
Now academic freedom works very differently than speech acts in the context of the prosecution of crimes. It is not absolute freedom: I don't have the freedom (inherently) to teach my Spanish classes in French, or to grade my students on their knowledge of algebra. On the other hand, in the normal course of things I don't take direct orders about how I am to interpret Lorca from the provost or my chair. The court ruled specifically, in Garcetti, that their findings were not necessarily relevant to issues of academic freedom. Yet the KBOR also uses a lot of language taken directly from the Garcetti decision. The Regents includes attorneys who are smart and know what cases to cite, what the relevant case law is.
***
The problem is that when I teach my classes, or write my articles, or blog, I am representing the university (in some sense) but not representing it (in another sense). The University doesn't care about the specific content of my writing or teaching. The University pays me to express my opinions, in the form of teaching and research. It doesn't really pay me to express its opinions. This is fundamentally different from the job of a prosecutor. I can see how the DA could tell her subordinates not to tell certain things to the press.
***
Ironically, I think Pickering is more pernicious than Garcetti, even though Pickering was decided more correctly.
Social Media (ii)
[See disclaimer on my previous post: my views are mine alone.]
It is said that the Regents' Social Media Policy (SMP) will not be applied very much, if at all. I should hope not. The faculty and staff does not live in constant fear that the chancellor will dismiss us from our jobs.
SMP does not have to be actually used, though, for it to have an effect on free speech. Instead, an overly broad policy, with sweeping language about "the best interests of the university," has a chilling effect, converting us all into self-censors. A lot of things are presumably in the best interest of the university:
*Having a Republican-controlled legislature look favorably upon the university and funding it generously.
*Having good publicity in the news media; high rankings in US News and World Report for our programs.
*Having our leaders and administrators have good public reputations.
etc...
It would be easy to see how numerous legitimate expressions of opinion might not be in the best interests of the institution. The Regents are saying that the 1st amendment still applies, but a lot of us are not too sure.
The same could be said of other sweeping provisions in the proposed SMP.
It is said that the Regents' Social Media Policy (SMP) will not be applied very much, if at all. I should hope not. The faculty and staff does not live in constant fear that the chancellor will dismiss us from our jobs.
SMP does not have to be actually used, though, for it to have an effect on free speech. Instead, an overly broad policy, with sweeping language about "the best interests of the university," has a chilling effect, converting us all into self-censors. A lot of things are presumably in the best interest of the university:
*Having a Republican-controlled legislature look favorably upon the university and funding it generously.
*Having good publicity in the news media; high rankings in US News and World Report for our programs.
*Having our leaders and administrators have good public reputations.
etc...
It would be easy to see how numerous legitimate expressions of opinion might not be in the best interests of the institution. The Regents are saying that the 1st amendment still applies, but a lot of us are not too sure.
The same could be said of other sweeping provisions in the proposed SMP.
Social Media
I am writing here only as an individual faculty member and private citizen here, not in my capacity as President-Elect of the University Senate, nor as a member of the Faculty Senate or University Senate Executive committees. All opinions expressed here are personal opinions and do not represent the views of any of these organizations, nor of the University of Kansas itself. Many faculty members do, in fact, share my opinions, but I am not speaking for any of them in this particular instance.
The KBOR (Kansas Board of Regents) has proposed revisions of its social media policy. I am troubled by some phrases that persist from older versions of the policy.
If a tweet or blog post did not meet with the agreement of my colleagues, that could damage "harmony among co-workers," for example. Does this language imply that I owe a chair or a dean or a chancellor or provost "personal loyalty"? Some of this verbiage is directly out of case law that applies to Police Depts. and other kinds of govt. bodies that are different from Research Institutions, one would hope.
The KBOR (Kansas Board of Regents) has proposed revisions of its social media policy. I am troubled by some phrases that persist from older versions of the policy.
“Improper use of social media” means making a communication through social media that:What I find troubling, specifically, is the broadness of phrases like: the best interests of the university; discipline by superiors or harmony among co-workers; the regular operation of the university; close working relationships for which personal loyalty and confidence are necessary; the university’s ability to efficiently provide services.
[...]
when made pursuant to (i.e. in furtherance of) the employee’s official duties, is contrary to the best interests of the university;
[...]
subject to the balancing analysis required by the following paragraph, 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.
If a tweet or blog post did not meet with the agreement of my colleagues, that could damage "harmony among co-workers," for example. Does this language imply that I owe a chair or a dean or a chancellor or provost "personal loyalty"? Some of this verbiage is directly out of case law that applies to Police Depts. and other kinds of govt. bodies that are different from Research Institutions, one would hope.
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