The Chronicle of Higher Education recently published an interesting article (available here) dealing with the establishment (or not) of online speech policies by colleges and universities. Much of the discussion in the article focused on issues related to faculty online speech. Some individuals interviewed suggested that colleges and universities should proactively adopt policies to avoid the knee-jerk enactment of a rule as a reaction to a high profile incident (see recent post about the Kansas Board of Regents). An alternative strategy advocated by interviewees was to look to standards relied upon in the pre-Internet age and to apply these principles to online speech. That is, a contrasting point of view expressed in the article is that online speech or expressive activity is still speech no matter the medium in which it has taken place. Some individuals interviewed also expressed an apprehension that adoption of policies potentially provided a mechanism for administrators to limit faculty speech rights.
I had a slightly different take on the issues under consideration in the article, one not as focused on the nuances or not between online and offline speech. While incidents involving online speech may attract considerable attention, I agree with the premise that speech or expressive activity online in nature is not fundamentally different from other forms of speech. What seemingly has taken place is the fact that online speech can, as commonly stated, "go viral." Communication or expressive activity that previously might have been confined to a small number of people or to a single campus can reverberate, bringing unwanted media attention and pressure from various individuals or groups, such as alumni or lawmakers. Unlike a passing comment made offline that can ascend into the ether never to be heard again, online comments or expressive activity seemingly can take on a life of their own.
But, this is the point where my thinking strayed from the central focus of the article. I think high profile incidents involving online speech have served to highlight existing and emerging fractures in higher education related to our basic understandings of what it means to be a faculty member, including in relation to ongoing debates centered on whether colleges and universities should be conceptualized largely from a business oriented perspective. For instance, when the Kansas Board of Regents adopted a new social media policy, it opted to treat faculty as employees for purposes of the policy, ostensibly relying on Garcetti v. Ceballos (available here) for the legal proposition that public employees don't enjoy First Amendment protection for speech made pursuant to carrying out their official employment duties. As we've discussed on this site, courts are in disagreement regarding the extent to which faculty in public higher education fall under the Garcetti standards. This means that the issue of First Amendment protection for faculty speech, including speech clearly implicating academic freedom concerns, occupies a legally ambiguous position, whether online in nature or not.
Beyond First Amendment legal considerations prompted by the article, the issue of social media policies for faculty highlights an underlying tension regarding whether faculty should fundamentally be viewed as "employees" for purposes of their speech, and their professional functions more generally. Or, instead, should they be thought of more as citizens, with corresponding rights and responsibilities not encompassed by the employee/employer relationship model. For my part, faculty members play a role that is not captured sufficiently under the employee/employer rubric, but debates over social media policy help to highlight that such a position is on the defensive to a large degree in higher education. Discourse and debate over online speech by faculty reveal deeper uncertainties and tensions regarding the overall nature of the faculty/institutional relationship.