A few hundred years of American jurisprudence have largely determined the parameters of permissible expression in most facets of American life, but now we are facing new challenges posed by the freewheeling nature of the new “social media.” Thus far, although we have long-standing judicial guidelines for expression in print and in direct speech, we do not yet have a good working definition for acceptable expression in all the electronic venues popping up across the Internet.
Last fall witnessed a widely publicized controversy that posed the issue in sharp relief. A professor of American Indian Studies, Steven Salaita thought that he was about to assume a tenured position at the University of Illinois–Urbana-Champaign when the chancellor abruptly informed him that she had declined to confirm his appointment—a decision that the board of trustees ratified when it met shortly before the fall semester began to officially confirm new appointments. Salaita had already resigned a tenured professorship at Virginia Polytechnic University after receiving the offer of the professorship from Illinois.
The chancellor said she had learned that Salaita had posted angry Twitter messages (sometimes a dozen or more a day), mostly in response to Israel’s bombing of Gaza. These messages were hardly models of academic discourse, containing vulgar and taboo epithets with an unmistakably anti-Semitic tone. Some prominent Illini supporters and major donors were outraged by these messages, and some began to apply pressure upon the administration to cancel Salaita’s appointment.
The chancellor said publicly that her decision reflected not primarily pressure from donors or other critics but rather the allegedly “uncivil” tone of some of Salaita’s tweets. She insisted that, “We cannot and will not tolerate ... personal and disrespectful words or actions that demean and abuse either viewpoints themselves or those who express them.” Her official explanation added, “Any student of any faith or background must feel confident that personal views can be expressed and that philosophical disagreements with a faculty member can be debated in a civil, thoughtful, and mutually respectful manner.”
Predictably, the campus community (and especially Illinois’ ideologically diverse faculty) was sharply split. Professor Salaita, it turned out, was not a newcomer to social media. During his years on the Virginia Tech faculty, he had posted other tweets and Twitter messages containing, for example, ironic, disparaging comments concerning “support our troops” and other patriotic messages. Virginia Tech officials had staunchly defended Salatia’s academic freedom, while insisting that his uncongenial views did not speak for the university.
At Illinois, some scholars who were recognized champions of free speech proved uncharacteristically opposed to Salaita’s appointment. This included English professor Cary Nelson, a former long-time president of the American Association of University Professors (AAUP), who almost immediately declared his strong opposition to Salatia’s appointment. The controversy continued to draw wide public attention with Salaita’s filing in late January of a federal lawsuit alleging violation of his constitutional rights to speech and due process, as well as violation of an employment contract. Besides suing university officials and all the board members who voted against his appointment, the lawsuit sought compensatory and punitive damages from donors who threatened to withhold support to the university if his appointment went ahead. The suit contends they wrongfully interfered with his contractual and business relations, despite a faculty report in December that found no evidence donors influenced the university’s decision.
Beyond the issues of freedom of expression dealt with in this article, in drafting future hiring policies, trustees might consider not only a faculty candidate’s declarations in social media, but also focus on framing as soon as possible appropriate board policies for assessing the potential impact of such statements.
The Importance of Shaping Policy for Social Media
What strikes me most about this widely publicized case is the seeming disregard for—or lack of recognition of—one crucial question: What difference does (or should) the particular medium used for expression make? For example, hardly anyone has asked whether Professor Salaita’s communications would or should be treated differently if they were made in print—or if he shouted them in a lecture hall or waved a banner containing them at a rally.
While this is hardly the first time an irreverent scholar has unleashed digital invective, it has captured far more attention than earlier exchanges. So it is appropriate to ask how the courts treat various forms of expression.
Until the last quarter century, at most, digital or electronic outbursts were, of course, nonexistent because expression could occur only in oral, symbolic (signs, banners, etc.), or written and printed formats. It was not until 1997 that the U.S. Supreme Court was ready to declare the Internet to be a wholly First Amendmentprotected medium. Until then, only books, magazines, and other printed publications had been granted, along with verbal expression, protected status. (For a variety of reasons, the Supreme Court has not accorded such comprehensive protection to motion pictures, broadcasting, and cable—each of which, for quite different reasons, has over the years been treated separately.)
When the Supreme Court embraced the Internet as the only fully protected medium of communication other than books, newspapers, and, of course, oral declarations, the justices stressed the emergence of the Internet as “a unique and wholly new medium of worldwide human communication.” Noting that “anyone with access to the Internet may take advantage of a wide variety of communication and information retrieval methods,” the court was at the same time keenly aware of differences and was not naïve about the contrasts among the media. Indeed, in preparing for the oral arguments in the case that produced the decision according full First Amendment protection to expression on the Internet, the justices viewed in their conference room some sexually explicit digital material related to the case.
Nonetheless, the justices were ready to imbue the Internet with a stature that has permanently eluded the other media noted above. Thus at the present time, we should assume that social media fall (if sometimes uncomfortably) on the fully protected side of the free-speech line. Surprisingly few institutions, however, appear to have recast their policies or regulations on electronic and digital expression to reflect the applicable law.
Returning briefly to the Salaita case, another dimension also bears closer scrutiny. Throughout the weeks of controversy, there has been a lack of clarity about the basic nature of the now-cancelled appointment. Some faculty in Illinois seemed to treat the case as though it involved essentially the termination of a tenured professor. Others seemed to assume Salaita enjoys no greater protection than a newly minted Ph.D.
In fact, the actual situation falls somewhere between these two extremes. Salaita, no academic neophyte, was already a tenured member of the faculty at a major research university. He had simply exercised the familiar option to make a lateral move between doctoral institutions. He was clearly an established member of the academic community in seemingly good standing, despite his tweets and other controversial statements.
The legal anomalies in the treatment of even outrageous statements within and among different media is particularly highlighted by the recent emergence of quite different formats such as Facebook, Twitter, and so on. While the Supreme Court has not directly addressed the contrasts in recent years, a pending case dealing with electronic hate speech may provide some guidance—which no doubt would be welcomed by boards and senior administrators, especially those who govern information technology.
Of course, beyond the Salaita case, there are other specific challenges involving academic freedom in cyberspace. When the very first reported cases involving the legal status of digital and electronic communication emerged in the early 1990s, we became aware of some striking differences between the traditional teaching-and-learning formats and new ones enabled by the electronic/digital revolution. The sanctity of the college or university classroom, and of communications that take place in that physical space, have always been at the core of academic freedom. Yet when an instructor creates a home page for a course, and when a growing portion of exchanges between teacher and student occur through email, we need to ask whether such media are an extension of the brick-and-mortar classroom or whether they should invite a completely different analysis. Distinctions between “on-campus” and “offcampus” obviously break down in an electronic environment.
Other familiar considerations also tend to blur on the Internet. For example, AAUP’s historic 1940 “Statement of Principles on Academic Freedom and Tenure” directs professors to avoid any implication that they speak for their institutions when in fact they are not authorized to do so. The force of that rule is clear enough when faculty members write letters on either personal or institutional stationery. But when many messages are exchanged through email, posted on blogs, or sent via Twitter, with an address that may or may not directly implicate the server, the lines become far less distinct
Why Policy Making Lags Behind Litigation
Despite the rapid emergence on college and university campuses of digital and electronic communication, a major gap remains between actual institutional experience on the one hand and the shaping and application of legal and other policy on the other. Quite simply, the framing of institutional policy has lagged far behind the practical demands facing college or university boards and administrations. Soon after the Supreme Court’s Internet ruling in 1997, the AAUP established (through its Committee A on Academic Freedom and Tenure) a subcommittee on academic freedom and electronic communications. It had issued two reports by 2004, with the latter renewing a call for more extensive institutional regulation and faculty involvement in the development of policies and principles.
As the 2004 AAUP report noted: “An electronic message may instantly reach readers across the country and indeed around the globe, in sharp contrast to any form of print communication. Although a digital message, once posted, can be infinitely altered over time— another significant difference—the initial message may never be retracted once it has been sent or posted. Indeed, the first posting may remain accessible on ‘mirror’ sites despite all efforts to suppress, remove or expunge it.”
This past summer, AAUP issued a third and substantially revised and expanded report on the topic. Despite significant changes between its policies framed in the mid ’90s and the latest AAUP report, the association has stood by its assertion that “Academic freedom, free inquiry, and freedom of expression within the academic community may be limited to no greater degree in electronic format than they are in print, save for the most unusual situation where the very nature of the medium itself might warrant unusual restrictions—and even then only to the extent that such differences demand exceptions or variations.”
The most recent AAUP report also noted that, in a recent survey, 70 percent of all faculty members responding reported having visited a social media site for personal use during the previous month. And more than 55 percent of respondents noted they had made professional use at least monthly of social media outside the classes they teach, with 41 percent reporting having used social media in their classroom teaching.
Yet as the AAUP report observes, although “social media sites blur the distinction between private and public communications in new ways,” most institutions of higher learning “have yet to formulate policies regarding social media usage by faculty members.” Where such policies do exist, “the focus is on the university’s reputation and not on the faculty’s academic freedom.” (It should be noted that the AAUP policies have been focused almost totally on faculty expression and academic freedom and have not dealt with issues related to students. The American Civil Liberties Union has taken cases regarding regulation of student websites on a case-by-case basis, but the opinions in the cases litigated thus far do not offer any cohesive guidance.)
A policy statement at the University of South Carolina illustrates the institutional focus on reputation, saying, “The purpose of the Social Media policy is to ensure accuracy, consistency, integrity, and protection of the identity and image [of the institution] by providing a set of required standards for social media content from any [academic] unit.”
Beyond simply calling for more systematic policy-making, last summer’s AAUP report strongly recommends that “each institution work with its faculty to develop policies governing the use of social media. Any such policy must recognize that social media can be used to make extramural utterances and thus their use is subject to Association-supported principles of academic freedom, which encompass extramural utterances.” (An earlier AAUP document stated, “professors should also have the freedom to address the larger community with regard to any matter of social, political, economic, or other interest, without institutional discipline or restraint, save in response to fundamental violations of professional ethics or statements that suggest disciplinary incompetence.” Obviously, the literal distinction between intramural and extramural speech has little meaning for digital or electronic messages, although this past summer’s AAUP report cautions that “the fundamental meaning of extramural speech as a shorthand for speech in the public sphere and not in one’s area of academic expertise, fully applies in the realm of electronic communications, including social media.”
Recent experience only serves to illustrate the disparity between what institutions need in the way of a social media policy and the actual regulatory structure that might exist on a campus. Publicized examples of the issues that arise when institutions do attempt to formulate such policies demonstrate the difficulties involved.
At Chicago State University (CSU) last year, the institution’s legal counsel sent a cease-anddesist letter to a professor stating that a faculty blog he maintained that was critical of the administration infringed on the institution’s trademark and created the false impression that the views came from CSU’s official website, although the blog was not hosted on a university server. Two professors filed a federal lawsuit saying they felt their First Amendment rights were infringed by the request to shut down the blog, as well as the university’s adoption of a “cyberbullying policy” that bars electronic communications that may have an “adverse impact on the work environment of a CSU faculty member or employee.” A federal judge earlier this year allowed the lawsuit to go forward.
For boards desiring to consider policies regarding electronic communication and free expression, the recent AAUP document cited above provides a good starting point since it contains a variety of recommendations. Let me close by offering a few other possible questions that boards might consider for their future deliberations:
- Has the institution promulgated computerusage policies that define appropriate and inappropriate stands and practices in digital expression, particularly affecting social media and designed to regulate abuses such as cyber-bullying?
- Where within the institution should responsibility reside for framing and revision of digitalspeech policies? At the board committee level, within senior administration, or at a lower level such as the director of information technology?
- In addition to the institution’s general counsel or university lawyer, what other offices should be involved in the framing and application of electronic or digital speech policies?
- What board committees currently deal or should deal with concerns about social media policy?
- Should a new board panel or subcommittee be established to oversee issues in this realm? Is an institutional task force of board members, administrators, and faculty representatives needed?
- In what ways can boards best safeguard the privacy of faculty and staff members who use the Internet for academic purposes?
- Should boards (and information-technology administrators) determine that the content of electronic communications ought to be probed only with the consent of the speaker or participant?
- Should boards limit employees who operate and support electronic communications to regular monitoring of transmissions primarily or solely for the purpose of ensuring reliability and security of those resources and services?
- How should boards encourage involvement of the institution’s faculty in the framing and application of policies regulating electronic and digital communication?