The focal article by Cortina, Cortina, and Cortina (Reference Cortina, Cortina and Cortina2019) poses several interesting questions regarding the tensions between free speech and civility in academic employment. One of the questions raised in the article is whether academics at public universities have free speech protections that extend to protect online incivility. To date, there is little to no legal precedent specific to this issue, even as there is long-established legal precedent that free speech protection exists for public sector employees who speak about “matters of public concern” (defined as speech “relating to any matter of political, social, or other concern to the community”; Connick v. Myers, 1983, p. 146; Garcetti v. Ceballos, 2006).
Cortina et al. (Reference Cortina, Cortina and Cortina2019) highlight the case of Salaita v. Kennedy (2015), which involved an associate professor’s profanity-laced Twitter rant about a skirmish that occurred between Palestine and Israel. Following complaints from both university donors and students, the University of Illinois’s Board of Trustees rescinded Professor Salaita’s previously offered faculty appointment. The ensuing litigation resulted in an $875,000 out-of-court settlement for Salaita. However, with no lawsuit remaining post-settlement, academics were left without much-needed precedent on the issue of free speech protection for public university faculty’s personal social media posts (LoMonte & Jadon, Reference LoMonte and Jadon2018; Salaita v. Kennedy, 2015).
It is against this backdrop that we turn toward the tensions between free speech and civility in academic employment, focusing our analysis specifically on instances involving public university faculty and social media-related speech. We analyze the issue based on First Amendment protections (which are not part of the legal analysis at private universities, unless free speech protections are extended via state law or contract), tenure, academic freedom, and civility (Sungulia, Fohn, & Breaux, Reference Sungulia, Fohn and Breaux2017). We conclude that, although university civility policies may seem to disproportionately impact untenured faculty in social media-related disciplinary actions, academic freedom and tenure do not equate to overarching protection from university discipline. Public university faculty, both tenured and nontenured, must recognize that their social media speech may be vulnerable to legal challenges. Furthermore, our analysis suggests universities have quite a bit of leeway in disciplining faculty on civility policy grounds.
The social media legal landscape: Court precedent does exist for other types of public sector employees
Even with the absence of precedent for public university cases to date, court precedent does exist for other types of public-sector workers and their personal social media posts—police officers, firefighters, school principals, for example (LoMonte & Jadon, Reference LoMonte and Jadon2018). This body of case law is important because the First Amendment legal analysis in social media cases would be the same for public university faculty as any other public-sector employee. In fact, one area that has been particularly hard hit with social media discipline cases is K–12 public school teachers (O’Connor & Schmidt, Reference O’Connor and Schmidt2015). Several cases have emerged where online behaviors have cost teachers their jobs, including instances where teachers posted statements about students, posted pictures or statements deemed to be morally objectionable, or used social media to interact with students in questionable ways (Land v. L’Anse Creuse, 2010; Payne v. Barrow County School Dist. 2009; Rubino v. City of NY, 2012).
One case such case involved tenured elementary school teacher Jennifer O’Brien. At the start of the 2010–2011 school year, O’Brien was assigned to teach a first-grade class where all her students were African American or Latino. During the first few months of school, O’Brien encountered several students whom she classified as discipline problems, with behavior such as stealing and violence toward others in the classroom. Although O’Brien sent several disciplinary referrals to the school’s administrators, she did not believe that the referrals were sufficiently addressed. Frustrated, she turned to Facebook where she vented, “I’m not a teacher—I’m a warden for future criminals” (In re O’Brien, 2013).
News of O’Brien’s Facebook post quickly spread, as many believed that her remarks were racially motivated, and she was charged with “conduct unbecoming of a teacher” (In the matter of O’Brien, 2011). In her case, she argued that her comments were matters of public concern because they addressed the issue of students’ classroom behavior. Nevertheless, O’Brien’s employment was terminated. The court held that, even if O’Brien’s comments were a matter of public concern, her right to express those comments was outweighed by the school district’s interest in its efficient operation (In re O’Brien, 2013).
This legal analysis appears to be consistent across K–12 public school cases, as courts heavily favor the efficient operation of public schools versus protecting teacher social media speech (O’Connor & Schmidt, Reference O’Connor and Schmidt2015). In fact, there have only been a handful of cases where K–12 public school teachers were able to keep their jobs in spite of their social media postings, typically due to state statutes related to tenure (Land v. L’Anse Creuse, 2010; Rubino v. City of NY, 2012). Notably, such state statutes are found in only a few states, with many states dialing back protections in recent years (Heinze, Reference Heinze2010). With regard to public university faculty, the question becomes whether tenure in a university setting serves to strengthen a faculty member’s protection for online speech, or does a disruption of university operations also justify discipline in university faculty social media cases?
University faculty: Are personal social media posts protected by tenure?
Outside the social media context, precedent does exist at the university level to show that courts are actually quite concerned when a faculty member’s speech disrupts university operations (both tenured and untenured faculty; Maples v. Martin, 1988). Thus, even if a faculty member’s speech involves a matter of public concern, the speech may lose its protection if it constitutes “disruptive speech.” Waters v. Churchill (1994) further held that a public employer is not required to prove that employee speech is disruptive. Instead, an employer’s reasonable prediction of interference with a governmental function is enough. This potentially gives universities wide latitude to determine whether faculty speech is indeed “disruptive” to university operations in social media cases.
Interestingly, the court in Salaita v. Kennedy started down the path of a “disruptive speech” analysis. Following a determination by the court that Professor Salaita’s posts were likely matters of public concern, the case states in part, “A cursory look at the Complaint reveals facts that provide some evidence of potential disruption” (Salaita v. Kennedy, 2015, p. 1803). However, as mentioned, the Salaita case eventually settled, leaving universities without further guidance. Because of this, universities may simply be reluctant to make the “disruptive speech” determination on their own in social media cases at this time. This lack of guidance may also have left faculty with a false sense of security for their personal social media posts, as there are several instances involving tenured public university faculty and social media speech that have made headlines.
For example, the University of Kansas originally suspended David Guth, a tenured journalism professor, after he posted the following statement on Twitter: “#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” (Jaschick, Reference Jaschik2013). Similarly, tenured Fresno State University English professor, Randa Jarrar, recently denounced first lady Barbara Bush on social media, calling her an “amazing racist … I’m happy the witch is dead” (LoMonte & Jadon, Reference LoMonte and Jadon2018). Despite public outcry calling for these faculty members’ employment to be terminated, they kept their jobs. Jarrar even boasted to her online critics that due to her tenure, “I will never be fired” (LoMonte & Jadon, Reference LoMonte and Jadon2018).
It is important to note, however, that Jarrar’s statement on its face is flawed. In no way should tenure be considered a foolproof protection for university faculty employment. Tenure is meant to protect the freedom of teaching and research in higher education. It is true, however, as Cortina et al. (Reference Cortina, Cortina and Cortina2019) point out, that tenure often does “create an additional layer of insulation” (p. 368) around a faculty member’s speech. Simply put, after tenure, the burden shifts to the university to demonstrate that the faculty member is no longer meeting the institution’s standards (Spitzer, Reference Spitzer1994). This burden shift simply equates to a right to due process and does not mean that tenure is a guaranteed shield against university action (WorkplaceDiversity.com, 2019).
Academic freedom and civility: What is the impact on faculty speech?
Cortina et al. (Reference Cortina, Cortina and Cortina2019) also discuss the fact that universities may choose not to discipline faculty speech because universities understandably tend to err on the side of academic freedom, which stands for the idea that research and classroom discussion are protected activities (Buchanan v. Alexander, 2019). However, courts have been very clear that even this protection has limits: “Students, teachers, and professors are not permitted to say anything and everything simply because the words are uttered in the classroom context” (Buchanan v. Alexander, 2019, p. 852). One very recent case from the 5th Circuit Court of Appeals stands illustrates this limitation.
Dr. Teresa Buchanan, an associate professor of early childhood education, was fired from her tenured professorship at Louisiana State University. Buchanan’s students complained to the university about comments she made during class, including excessive profanity and talking about her sex life and the sex lives of her students. The university concluded that she had created a “hostile learning environment” (Buchanan v. Alexander, 2019, p. 851). After a first amendment and academic freedom analysis by the court, the court held that Buchanan’s speech was not a matter of public concern, because the use of profanity and discussion of her sex life and her students’ sex lives was clearly not related to the training of pre-K to third grade teachers. The court went on to explain that in the college classroom context, speech that is unrelated to the subject matter does not serve an academic purpose (Buchanan v. Alexander, 2019). Instead, academic freedom protections require that the speech in question has to be teaching or scholarship related.
The Buchanan case points to the fact that most universities have policies that protect the university environment so that the learning is both safe and civil. Civility policies further promote an inclusive environment with mutual respect throughout the university (LeRoy, Reference LeRoy2015). It can certainly be argued that Salaita’s tweets did not foster mutual respect or promote an inclusive environment (as especially evidenced by student complaints), but there are also several recent headlines involving untenured faculty and social media posts that universities deemed to lack civility.
For example, at California State University at Fresno, a lecturer in the history department, Dr. Lars Maischak, tweeted that, “to save American democracy, Trump must hang.” Following a flood of complaints, the university issued the following statement, “The review of these and any other statements will be conducted in the context of rights of free expression, but also for potential direct threats of violence that may violate the law.” After the investigation, the university decided not to renew Maischak’s contract. Maischak apologized and stated, “To treat Twitter as of no more consequence than a journal was a poor decision” (Quintana, Reference Quintana2017).
Cases such as this may lead one to conclude that university civility polices disproportionately impact untenured faculty. It is, after all, much easier not to renew an annual contract of employment than it is to terminate the employment of a faculty member with tenure. Although there is no doubt that adjunct faculty are vulnerable due to their employment status, as discussed, so are tenured faculty. Therefore, at minimum, cases involving adjuncts should be a reminder to faculty that all ranks are governed by the civility policies that are adopted by universities.
Conclusion
Cortina et al. (Reference Cortina, Cortina and Cortina2019) ask the question, “Should we defend faculty jackassery in the name of academic freedom?” (p. 373). In light of the aforementioned analysis (as applied to social media cases), universities can potentially answer the question “no.” Free speech protections are quite narrow for public sector employees, protecting only matters of public concern that are not job-related (Garcetti v. Ceballos, 2006). Even if the faculty speech is a matter of public concern, it can lose its protection if it is disruptive to university operations. In addition, universities have prevailed in many free speech cases against tenured faculty that do not involve social media. Although courts are supportive of academic freedom, one argument that has been made is that social media is not really a platform for the scholarly exchange of ideas (LeRoy, Reference LeRoy2015). Instead, social media is a platform where users put forth their personal opinions and commentary (some of which can be extreme, emotional, and attention seeking), which may not be seen by courts as related to academic freedom (LeRoy, Reference LeRoy2015). University faculty therefore may not prevail in the courtroom if they argue that academic freedom protects their nonacademically related personal posts. Moreover, university civility policies often come into play to regulate rude or disrespectful speech, which can include online speech (Cortina et al., Reference Cortina, Cortina and Cortina2019; LeRoy, Reference LeRoy2015). Thus, to summarize the current legal landscape, academics must be cognizant of the fact that their personal social media posts may not be free from university discipline, even at public institutions, and even for those with tenure.
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The focal article by Cortina, Cortina, and Cortina (Reference Cortina, Cortina and Cortina2019) poses several interesting questions regarding the tensions between free speech and civility in academic employment. One of the questions raised in the article is whether academics at public universities have free speech protections that extend to protect online incivility. To date, there is little to no legal precedent specific to this issue, even as there is long-established legal precedent that free speech protection exists for public sector employees who speak about “matters of public concern” (defined as speech “relating to any matter of political, social, or other concern to the community”; Connick v. Myers, 1983, p. 146; Garcetti v. Ceballos, 2006).
Cortina et al. (Reference Cortina, Cortina and Cortina2019) highlight the case of Salaita v. Kennedy (2015), which involved an associate professor’s profanity-laced Twitter rant about a skirmish that occurred between Palestine and Israel. Following complaints from both university donors and students, the University of Illinois’s Board of Trustees rescinded Professor Salaita’s previously offered faculty appointment. The ensuing litigation resulted in an $875,000 out-of-court settlement for Salaita. However, with no lawsuit remaining post-settlement, academics were left without much-needed precedent on the issue of free speech protection for public university faculty’s personal social media posts (LoMonte & Jadon, Reference LoMonte and Jadon2018; Salaita v. Kennedy, 2015).
It is against this backdrop that we turn toward the tensions between free speech and civility in academic employment, focusing our analysis specifically on instances involving public university faculty and social media-related speech. We analyze the issue based on First Amendment protections (which are not part of the legal analysis at private universities, unless free speech protections are extended via state law or contract), tenure, academic freedom, and civility (Sungulia, Fohn, & Breaux, Reference Sungulia, Fohn and Breaux2017). We conclude that, although university civility policies may seem to disproportionately impact untenured faculty in social media-related disciplinary actions, academic freedom and tenure do not equate to overarching protection from university discipline. Public university faculty, both tenured and nontenured, must recognize that their social media speech may be vulnerable to legal challenges. Furthermore, our analysis suggests universities have quite a bit of leeway in disciplining faculty on civility policy grounds.
The social media legal landscape: Court precedent does exist for other types of public sector employees
Even with the absence of precedent for public university cases to date, court precedent does exist for other types of public-sector workers and their personal social media posts—police officers, firefighters, school principals, for example (LoMonte & Jadon, Reference LoMonte and Jadon2018). This body of case law is important because the First Amendment legal analysis in social media cases would be the same for public university faculty as any other public-sector employee. In fact, one area that has been particularly hard hit with social media discipline cases is K–12 public school teachers (O’Connor & Schmidt, Reference O’Connor and Schmidt2015). Several cases have emerged where online behaviors have cost teachers their jobs, including instances where teachers posted statements about students, posted pictures or statements deemed to be morally objectionable, or used social media to interact with students in questionable ways (Land v. L’Anse Creuse, 2010; Payne v. Barrow County School Dist. 2009; Rubino v. City of NY, 2012).
One case such case involved tenured elementary school teacher Jennifer O’Brien. At the start of the 2010–2011 school year, O’Brien was assigned to teach a first-grade class where all her students were African American or Latino. During the first few months of school, O’Brien encountered several students whom she classified as discipline problems, with behavior such as stealing and violence toward others in the classroom. Although O’Brien sent several disciplinary referrals to the school’s administrators, she did not believe that the referrals were sufficiently addressed. Frustrated, she turned to Facebook where she vented, “I’m not a teacher—I’m a warden for future criminals” (In re O’Brien, 2013).
News of O’Brien’s Facebook post quickly spread, as many believed that her remarks were racially motivated, and she was charged with “conduct unbecoming of a teacher” (In the matter of O’Brien, 2011). In her case, she argued that her comments were matters of public concern because they addressed the issue of students’ classroom behavior. Nevertheless, O’Brien’s employment was terminated. The court held that, even if O’Brien’s comments were a matter of public concern, her right to express those comments was outweighed by the school district’s interest in its efficient operation (In re O’Brien, 2013).
This legal analysis appears to be consistent across K–12 public school cases, as courts heavily favor the efficient operation of public schools versus protecting teacher social media speech (O’Connor & Schmidt, Reference O’Connor and Schmidt2015). In fact, there have only been a handful of cases where K–12 public school teachers were able to keep their jobs in spite of their social media postings, typically due to state statutes related to tenure (Land v. L’Anse Creuse, 2010; Rubino v. City of NY, 2012). Notably, such state statutes are found in only a few states, with many states dialing back protections in recent years (Heinze, Reference Heinze2010). With regard to public university faculty, the question becomes whether tenure in a university setting serves to strengthen a faculty member’s protection for online speech, or does a disruption of university operations also justify discipline in university faculty social media cases?
University faculty: Are personal social media posts protected by tenure?
Outside the social media context, precedent does exist at the university level to show that courts are actually quite concerned when a faculty member’s speech disrupts university operations (both tenured and untenured faculty; Maples v. Martin, 1988). Thus, even if a faculty member’s speech involves a matter of public concern, the speech may lose its protection if it constitutes “disruptive speech.” Waters v. Churchill (1994) further held that a public employer is not required to prove that employee speech is disruptive. Instead, an employer’s reasonable prediction of interference with a governmental function is enough. This potentially gives universities wide latitude to determine whether faculty speech is indeed “disruptive” to university operations in social media cases.
Interestingly, the court in Salaita v. Kennedy started down the path of a “disruptive speech” analysis. Following a determination by the court that Professor Salaita’s posts were likely matters of public concern, the case states in part, “A cursory look at the Complaint reveals facts that provide some evidence of potential disruption” (Salaita v. Kennedy, 2015, p. 1803). However, as mentioned, the Salaita case eventually settled, leaving universities without further guidance. Because of this, universities may simply be reluctant to make the “disruptive speech” determination on their own in social media cases at this time. This lack of guidance may also have left faculty with a false sense of security for their personal social media posts, as there are several instances involving tenured public university faculty and social media speech that have made headlines.
For example, the University of Kansas originally suspended David Guth, a tenured journalism professor, after he posted the following statement on Twitter: “#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” (Jaschick, Reference Jaschik2013). Similarly, tenured Fresno State University English professor, Randa Jarrar, recently denounced first lady Barbara Bush on social media, calling her an “amazing racist … I’m happy the witch is dead” (LoMonte & Jadon, Reference LoMonte and Jadon2018). Despite public outcry calling for these faculty members’ employment to be terminated, they kept their jobs. Jarrar even boasted to her online critics that due to her tenure, “I will never be fired” (LoMonte & Jadon, Reference LoMonte and Jadon2018).
It is important to note, however, that Jarrar’s statement on its face is flawed. In no way should tenure be considered a foolproof protection for university faculty employment. Tenure is meant to protect the freedom of teaching and research in higher education. It is true, however, as Cortina et al. (Reference Cortina, Cortina and Cortina2019) point out, that tenure often does “create an additional layer of insulation” (p. 368) around a faculty member’s speech. Simply put, after tenure, the burden shifts to the university to demonstrate that the faculty member is no longer meeting the institution’s standards (Spitzer, Reference Spitzer1994). This burden shift simply equates to a right to due process and does not mean that tenure is a guaranteed shield against university action (WorkplaceDiversity.com, 2019).
Academic freedom and civility: What is the impact on faculty speech?
Cortina et al. (Reference Cortina, Cortina and Cortina2019) also discuss the fact that universities may choose not to discipline faculty speech because universities understandably tend to err on the side of academic freedom, which stands for the idea that research and classroom discussion are protected activities (Buchanan v. Alexander, 2019). However, courts have been very clear that even this protection has limits: “Students, teachers, and professors are not permitted to say anything and everything simply because the words are uttered in the classroom context” (Buchanan v. Alexander, 2019, p. 852). One very recent case from the 5th Circuit Court of Appeals stands illustrates this limitation.
Dr. Teresa Buchanan, an associate professor of early childhood education, was fired from her tenured professorship at Louisiana State University. Buchanan’s students complained to the university about comments she made during class, including excessive profanity and talking about her sex life and the sex lives of her students. The university concluded that she had created a “hostile learning environment” (Buchanan v. Alexander, 2019, p. 851). After a first amendment and academic freedom analysis by the court, the court held that Buchanan’s speech was not a matter of public concern, because the use of profanity and discussion of her sex life and her students’ sex lives was clearly not related to the training of pre-K to third grade teachers. The court went on to explain that in the college classroom context, speech that is unrelated to the subject matter does not serve an academic purpose (Buchanan v. Alexander, 2019). Instead, academic freedom protections require that the speech in question has to be teaching or scholarship related.
The Buchanan case points to the fact that most universities have policies that protect the university environment so that the learning is both safe and civil. Civility policies further promote an inclusive environment with mutual respect throughout the university (LeRoy, Reference LeRoy2015). It can certainly be argued that Salaita’s tweets did not foster mutual respect or promote an inclusive environment (as especially evidenced by student complaints), but there are also several recent headlines involving untenured faculty and social media posts that universities deemed to lack civility.
For example, at California State University at Fresno, a lecturer in the history department, Dr. Lars Maischak, tweeted that, “to save American democracy, Trump must hang.” Following a flood of complaints, the university issued the following statement, “The review of these and any other statements will be conducted in the context of rights of free expression, but also for potential direct threats of violence that may violate the law.” After the investigation, the university decided not to renew Maischak’s contract. Maischak apologized and stated, “To treat Twitter as of no more consequence than a journal was a poor decision” (Quintana, Reference Quintana2017).
Cases such as this may lead one to conclude that university civility polices disproportionately impact untenured faculty. It is, after all, much easier not to renew an annual contract of employment than it is to terminate the employment of a faculty member with tenure. Although there is no doubt that adjunct faculty are vulnerable due to their employment status, as discussed, so are tenured faculty. Therefore, at minimum, cases involving adjuncts should be a reminder to faculty that all ranks are governed by the civility policies that are adopted by universities.
Conclusion
Cortina et al. (Reference Cortina, Cortina and Cortina2019) ask the question, “Should we defend faculty jackassery in the name of academic freedom?” (p. 373). In light of the aforementioned analysis (as applied to social media cases), universities can potentially answer the question “no.” Free speech protections are quite narrow for public sector employees, protecting only matters of public concern that are not job-related (Garcetti v. Ceballos, 2006). Even if the faculty speech is a matter of public concern, it can lose its protection if it is disruptive to university operations. In addition, universities have prevailed in many free speech cases against tenured faculty that do not involve social media. Although courts are supportive of academic freedom, one argument that has been made is that social media is not really a platform for the scholarly exchange of ideas (LeRoy, Reference LeRoy2015). Instead, social media is a platform where users put forth their personal opinions and commentary (some of which can be extreme, emotional, and attention seeking), which may not be seen by courts as related to academic freedom (LeRoy, Reference LeRoy2015). University faculty therefore may not prevail in the courtroom if they argue that academic freedom protects their nonacademically related personal posts. Moreover, university civility policies often come into play to regulate rude or disrespectful speech, which can include online speech (Cortina et al., Reference Cortina, Cortina and Cortina2019; LeRoy, Reference LeRoy2015). Thus, to summarize the current legal landscape, academics must be cognizant of the fact that their personal social media posts may not be free from university discipline, even at public institutions, and even for those with tenure.