Social Media and the First Amendment

Fifty years after the U.S. Supreme Court defined broad constitutional free speech rights, we exercise freedom every day by using social networks. Nevertheless, this use of liberty also remains at issue in schools, the workplace and beyond.

University of Oregon Jonathan Marshall First Amendment Professor Kyu Ho Youm, a longtime friend, recently wrote on the anniversary of New York Times v. Sullivan (1964) that the libel case declaring "wide open" debate protected "caustic" expression targeted at public officials. Youm writes:

The liberty-expanding ethos of the Sullivan case increasingly has been recognized in foreign and international law. The Sullivan case is, or should be, the United States' best export to the world.


The 50th anniversary of the decision, as well as the 25th anniversary of the Internet, seems a good time to reflect upon the value of uninhibited debate in an age of social media. A quarter-century ago, the Internet was born into an established legal precedent in the U.S. of a constitutional right of free expression. Without these legal rights, the government may have squelched remarkable social, mobile and data innovation.

For all of its imperfections, our courts guarded freedom. In Reno v. ACLU (1997), for example, the Supreme Court found Internet communication similar to newspaper publishing, which historically enjoyed broad First Amendment protection. Congress had attempted to restrict indecent Internet communication to protect children, but the Reno court found the legislation vague and overbroad.

The Court was unwilling to apply broadcast-like regulation to the Internet because websites functioned as publishers:

Publishers may either make their material available to the entire pool of Internet users, or confine access to a selected group, such as those willing to pay for the privilege.

Internet freedoms have been generally extended to social media sites, yet schools and employers may be free to filter content and limit individual use.

I think it is understandable that elementary schools would be concerned about the potential educational distraction of Facebook, Twitter, Instagram, Snapchat and other sites. Yet, effective teachers use these sites to spark academic enthusiasm through structured exercises.

At the same time, it may be reasonable for employers to worry about time wasted on a social network site or third-party game during the workday. However, progressive employers recognize that every employee is a "brand ambassador" and works to develop employee media literacy skills within reasonable social media policies. Still, it is not easy to write policies that protect free speech.

The Kansas Board of Regents social media policy in 2013 is under further review, and many believe it violates the First Amendment rights of professors at public universities.

The Regents had responded to criticism of a professor's tweet by quickly amending its policies related to "suspensions, terminations and dismissals."

Specifically, the amendment referenced "improper use of social media" through various sites, and would be defined as communication that:

i. directly incites violence or other immediate breach of the peace;
ii. when made pursuant to (i.e. in furtherance of) the employee's official duties, is contrary to the best interest of the university;
iii. discloses without authority any confidential student information, protected health care information, personnel records, personal financial information, or confidential research data; or
iv. 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.

The policy states that:

The chief executive officer shall balance the interest of the university in promoting the efficiency of the public services it performs through its employees against the employee's right as a citizen to speak on matters of public concern, and may consider the employee's position within the university and whether the employee used or publicized the university name, brands, website, official title or school/department/college or otherwise created the appearance of the communication being endorsed, approved or connected to the university in a manner that discredits the university.

While officials may consider whether or not the communication happened during the workday on university equipment, the balancing approach falls far short of the constitutional requirement that regulation of speech be narrowly tailored. The First Amendment does not place the branding of a university ahead of free speech.

So, 25 years after the birth of the Internet and 50 years after a landmark Supreme Court decision, we have a problem. As a Nebraskan, it troubles me that tenured professors just across the state line to our south run the risk of being fired for criticizing public officials in the manner understood by the Supreme Court.

While we continue to ask the "What's the matter with Kansas?" question, we can only hope that our federal courts will continue to be guardians of the First Amendment in an age of social media communication.