The Changing Media and Academic Freedom

The media have been both enemies and allies of faculty in the fight for academic freedom during the past century.

The founders of the AAUP were so worried about media coverage of professors that they stated in the 1915 Declaration of Principles on Academic Freedom and Academic Tenure that classroom comments by faculty “ought always to be considered privileged communications. Discussions in the classroom ought not to be supposed to be utterances for the public at large. They are often designed to provoke opposition or arouse debate. It has, unfortunately, sometimes happened in this country that sensational newspapers have quoted and garbled such remarks.”

At the same time, the AAUP relied on the media to report on threats to academic freedom. Hans-Joerg Tiede, in his new book University Reform: The Founding of the American Association of University Professors, argues that the growth of the press was “of particular importance for the development of academic freedom.” “Academic freedom cases,” he writes, “existed because they were reported in the press, causing negative publicity for university presidents.”

Tiede argues that “the press was generally supportive of academic freedom,” although the New York Times was a notable exception. In 1916, it editorialized, “Academic freedom, that is, the inalienable right of every college instructor to make a fool of himself and of his college by . . . intemperate, sensational prattle about every subject under heaven, to his classes and to the public, and still keep on the payroll or be reft therefrom only by elaborate process, is cried to all the winds by the organized dons.”

The right of a professor to be a fool has been deeply established in academia, in the courts, and even in the media. We defend this right not because foolish comments contribute greatly to public discourse but because the fear of being deemed a fool and punished for making controversial comments will silence many faculty.

Whether fighting newspapers, politicians, or college presidents, the AAUP has faced hostile audiences as it has tried to persuade people of the value and necessity of academic freedom. For a century now, the AAUP has sought to make academic freedom a reality, not merely a theory, and that effort has been remarkably successful. Today, one of the greatest threats to academic freedom is the attempt to silence professors by keeping them from using social media to communicate directly with the public.

Social Media and the Kansas Regents

The rise of social media has sparked new attention because blogs and Twitter are ideal places for making foolish comments and watching them spread far and wide: the immediacy limits editing and careful thought, the ease of personal expression makes it tempting to reveal everything you think, and the potentially “viral” nature of postings on the Internet makes it easy for critics to transmit a foolish tweet to a far bigger audience. Social media create a “paper trail” more permanent than paper.

On December 18, 2013, the Kansas Board of Regents adopted new rules on “Use of Social Media by Faculty and Staff” to punish them for “improper use of social media.” The AAUP called the Kansas policy “a gross violation of the fundamental principles of academic freedom.”

The rules are based on the Supreme Court’s 2006 ruling in Garcetti v. Ceballos. In that case, which involved a district attorney who had been fired for writing a memorandum critical of his supervisors, the Court ruled that when public employees engage in speech “pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” The Kansas policy calls for punishing any university employee who “impairs discipline by superiors or harmony among co-workers” or “adversely affects the employer’s ability to efficiently provide services.” The broad policy requires a “balancing analysis” that includes “academic freedom principles” and four other factors: “the employee’s position within the university,” “whether the communication was made during the employee’s working hours,” “whether the communication was transmitted utilizing university systems or equipment,” 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.”

The problem with a balancing test is that it’s almost inevitable that one factor (academic freedom) will be outweighed by four other factors (being a prominent employee such as a professor, blogging during “working hours,” using a university computer, or mentioning anywhere on your blog that you’re a professor at a Kansas university).

The Kansas rules were adopted rapidly in response to University of Kansas professor David Guth, who was suspended for a semester by the administration, in violation of its stated protections for academic freedom, because he harshly condemned the National Rifle Association in a tweet after the Navy Yard shooting: “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.”

The Kansas Board of Regents called social media “powerful tools” that “pose risks of substantial harm to personal reputations and to the efficient operation of the higher education system.” The policy targets only social media. It does not apply to faculty members who send e-mails to listservs or publish op-eds or letters to the editor in print publications, nor does it apply to classroom speech or comments made in a public lecture. If a professor posts a lecture online, he or she can be punished even if almost no one sees it; if someone else posts the lecture online with permission and a million people watch it, then the professor is immune from punishment under this policy.

So why are social media considered so dangerous? Unlike other media, Twitter and blogs allow professors to reach the public directly, without having their voices mediated by an editor. In the uncensored realm of the Internet, faculty can say anything they want, and in the eyes of the regents that freedom is a threat to universities.

On one level, a social media policy is completely irrational. If a professor engages in misconduct deserving punishment, then the medium shouldn’t matter. A professor who threatens to kill people should be punished, whether that threat is made in a letter to the editor or in a Facebook post. But the goal of the Kansas regents is simple: to prevent professors from making controversial comments. Because social media make it easy for professors to communicate with a broad public, the Kansas regents have specially targeted them. And even though the Kansas regents claim that the policy does not violate academic freedom and freedom of expression, it has that effect by striking fear in the minds of faculty.

Extramural Utterances

Steven Salaita begins his new book, Uncivil Rites: Palestine and the Limits of Academic Freedom, by asking: “Is it a good idea for scholars to tweet? Is it even appropriate?” Salaita argues, “Most of my tweets distill decolonial theory into workaday language. Tweets are not scholarship, however. Academics can express things on Twitter (or other social media) that are verboten in peer-reviewed journals.”

Despite having been summarily dismissed by the University of Illinois at Urbana-Champaign because of his tweets, Salaita still sees Twitter as a tool that academics can use to reach a wider public and escape the narrow norms of scholarly restraint. That’s exactly how university trustees and regents see it, too, and why they increasingly seek to regulate faculty use of social media.

The AAUP’s report on the Salaita case found that his dismissal from UIUC violated Association-supported principles related to extramural utterances, adding that “the status of an utterance as extramural does not depend on its relationship to a faculty member’s disciplinary expertise.”

In the 2015 volume of the AAUP’s Journal of Academic Freedom, Cary Nelson and Don Eron argue (separately) for a different interpretation of the AAUP’s policy on extramural utterances, one that would exclude extramural comments relevant to a professor’s academic work from the protections of the policy and instead make those comments subject to professional standards of evaluation.

Nelson asserts that the AAUP has “long made an exception where public statements are clearly related to a faculty member’s areas of teaching, research, and disciplinary expertise.” He adds, “In jettisoning the long tradition of recognizing public statements based on academic expertise as part of a faculty member’s profile, AAUP’s current leaders are breaking with AAUP precedent.” But Nelson doesn’t cite any examples of “AAUP precedent” or how it has “long made an exception” for extramural utterances related to academic work.

Eron quotes from the AAUP’s 2013 revision of its 2004 report Academic Freedom and Electronic Communications: “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.” These words appeared in the context of a defense of extramural utterances. The report rejects a literal distinction between “extramural” and “intramural,” arguing that extramural utterances should be protected even if they occur on campus grounds.

But it’s a mistake to imagine that we must create a distinction between expert and nonexpert speech and protect only the latter as extramural utterances. If the AAUP excluded statements related to academic expertise from protection as extramural utterances, it would effectively be endorsing the distinction made by the Supreme Court in Garcetti v. Ceballos. The Court ruled in that case that a district attorney could not be punished for expressing his political views but that he could be fired for stating views on matters related to his job. Although the Court avoided discussion of faculty in the Garcetti ruling, lower courts have used it as a precedent in cases involving professors. The logic of the Garcetti ruling poses a severe threat to academic freedom if it means that any extramural utterances relevant to a professor’s academic work are unprotected by the First Amendment.

Eron argues that “because when one speaks within one’s area of academic expertise, one’s professional competence is invariably implicated to some degree, such speech, by definition, is almost always intramural.” But there is a fundamental difference between a professor’s actual academic work and his or her comments anywhere about anything related to that academic work. Removing that distinction is dangerous, because it could make faculty fearful of speaking about any topic unless they know nothing about it.  

Until universities hire professors to tweet, and make tweeting part of their scholarly output, they certainly shouldn’t use tweets as part of the scholarly evaluation process and punish faculty for being controversial. Any statements made outside of a professor’s academic work, such as teaching and research, are extramural utterances. Professors can be penalized under AAUP-supported principles for extramural utterances that demonstrate “unfitness to serve,” and it is possible that utterances related to academic work might be more likely to show unfitness. But the standard is still “unfitness to serve.”

The 1915 Declaration of Principles rejected the idea that faculty “freedom of speech, outside the university, should be limited to questions falling within their own specialties.” The AAUP at its founding took it for granted that ideas related to one’s academic work were protected under extramural utterances; the AAUP’s argument was that extramural utterances must also include speech outside a professor’s academic expertise.

Most of the leading early academic freedom cases dealt with extramural utterances, and virtually all of them involved speech directly related to a professor’s academic expertise. Economist Edward Ross was fired by Stanford University because of his extramural views about the railroad industry and immigrant labor. Economist Edward Bemis was fired by the University of Chicago because he publicly attacked the railroad companies during the 1894 Pullman strike. Scott Nearing was fired by the University of Pennsylvania’s business school because of his extramural utterances critical of business interests. The 1916 AAUP report on the Nearing case concluded “that at least a contributory cause of Dr. Nearing’s removal was the opposition of certain persons outside the University to the views, upon questions within his own field of study, expressed by him in his extra-mural addresses.” This, the committee said, was “an infringement of academic freedom.”

The founders of the AAUP wanted professors to use their academic expertise to educate the public. Protecting extramural utterances relating to their academic work was a key part of fulfilling that mission. Today, protecting foolish tweets by professors can be compared with protecting foolish speeches by professors a century ago.

In its early years, the AAUP devoted more work to the defense of extramural utterances than to any other topic, and that tradition has continued for a century. As more and more professors use social media to express their ideas, including on topics related to their academic work, we need to enhance the protections of extramural utterances, not weaken them. We need to reject special rules for social media.

As former University of Virginia president (and former AAUP general counsel) Robert O’Neil argues, “We are facing new challenges posed by the freewheeling nature of the new ‘social media.’” But these challenges are purely political. The faculty are freewheeling, not the new media. Social media simply allow some faculty to say what they want more effectively. And that’s what sparks controversy.

The AAUP’s report Academic Freedom and Electronic Communications urged that “each institution work with its faculty to develop policies governing the use of social media.” I believe that campus social media policies should be only one line long: “Social media are treated exactly the same as all other media.” There is no “separate but equal” approach to freedom of speech. The only reason to enact a social media policy is to prevent someone else from creating a worse social media policy.

The transformation of mass media a century ago helped shape the AAUP. Today, the AAUP needs to continue its strong protections for academic freedom in a new age of social media that amplifies the voices of faculty.

John K. Wilson is coeditor of Academe Blog, editor of Illinois Academe, and the author of seven books, including Patriotic Correctness: Academic Freedom and Its Enemies. His e-mail address is [email protected].