The following is the text of a talk that I delivered on March 30, 2015 at Wright State University, in Dayton, Ohio, as part of the Spring Semester Centennial Speakers Series. The series celebrates the centennial of the AAUP and the contributions of all those who have served within leadership positions in the WSU AAUP chapter, but especially Rudy Fichtenbaum and Jim Vance.  My thanks to Martin Kich for honoring me with an invitation to speak in this series. Portions of this text are taken from or paraphrase passages in AAUP’s 2013 report on “Academic Freedom and Electronic Communications.”

In September 2013, at the University of Kansas, journalism professor David Guth, responding to a shooting incident at the Washington Navy Yard, tweeted a comment about gun control that many gun advocates found offensive, even threatening. He was barraged with hate messages and death threats, and several legislators called for his dismissal. Although the university publicly reaffirmed its commitment to his freedom of speech, he was suspended to “avoid disruption.” This incident prompted the Kansas Board of Regents in December 2013 to adopt new rules under which faculty members and other employees may be suspended or dismissed for “improper use of social media.” The new policy defined social media as “any facility for online publication and commentary,” a definition that covered but was “not limited to blogs, wikis, and social networking sites such as Facebook, LinkedIn, Twitter, Flickr, and YouTube.”

This definition could arguably also include any message that appears electronically, including email messages and even online periodicals and books. The policy defined “improper use of social media” in extremely broad terms, including communications made “pursuant to . . . official duties” that are “contrary to the best interest of the university,” as well as communication that “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 AAUP, the ACLU and faculty leaders in Kansas quickly condemned the new policy as “a gross violation of the fundamental principles of academic freedom.” In the face of widespread criticism, the regents agreed to work with campus leaders to revise the policy, but when a faculty-administration task force recommended an entirely different approach, the idea was rejected and the policy remains largely intact.

Faculty use of social media is increasing. In one survey of eight thousand faculty members, 70 percent of all those responding reported visiting a social media site within the previous month for personal use, a rate that rose to 84 percent when those who use social-media sites less frequently were added. More than 55 percent said they had made professional use of social media outside the classes they teach at least monthly, and 41 percent reported having used social media in their teaching.

Social-media sites blur the distinction between private and public communication in new ways. Unlike blogs or websites, which are generally accessible to anyone with Internet access who goes in search of the site, social-media sites offer the appearance of a space that is simultaneously private and public, one that is on a public medium (the Internet) and yet defined by the user through invitation-only entry points, such as Facebook “friend” requests, and a range of user-controlled privacy settings.

The extent of the privacy of such sites, however, is at the least uncertain and limited, because it is dependent not only on the individual’s privacy-setting choices and those of the members in the individual’s network but also on the service provider’s practices of analyzing data posted on the network. Moreover, social-media providers often modify their policies on privacy and access in ways that their users do not always fully comprehend.

Faculty members may believe that their Facebook pages are more secure or private than a personal web page, but that is not necessarily true. The seemingly private nature of sites like Facebook, Flickr, or Pinterest can lead individuals to let their guard down more readily, because they may think they are communicating only to handpicked friends and family members, when in fact those friends and family members may be sharing their utterances with other unintended recipients without the individual’s knowledge. Likewise, an acquaintance may post private information about someone’s personal life without that person’s knowledge, and the viral nature of social-media sites may then make that comment more public than the original poster intended.

Recently I heard a story about someone who was boarding a plane to Nigeria and tastelessly and foolishly posted a comment on social media to the effect that she feared contact with AIDS there, but was probably protected because she was white. Dumb, and no doubt at least a bit racist. Well, as she slept through her flight the comment somehow went viral and upon landing she was greeted by literally thousands of angry responses, a hostile Nigerian press corps, and word that she’d been fired from her job! Fortunately, this person was not a professor.

The AAUP recommends that all institutions of higher education work with their faculties to develop policies governing the use of social media. Clearly the Kansas approach is not what we have in mind. Our fundamental starting point when it comes to the regulation of all electronic communications by faculty is simple. As we stated initially in 2004 and have repeated frequently ever since:

Academic freedom, free inquiry, and freedom of expression within the academic community may be limited to no greater extent 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. Such obvious differences between old and new media as the vastly greater speed of digital communication, and the far wider audiences that electronic messages may reach, would not, for example, warrant any relaxation of the rigorous precepts of academic freedom.

What does this mean in practice? How might electronic communications and, in particular, faculty participation in the new electronic social media be appropriately regulated? Should faculty be permitted to use such media without restriction? In my remarks today I want to explore these questions with respect to all aspects of the traditional four-part definition of academic freedom employed by the AAUP and most colleges and universities: freedom in research and in the publication of its results; freedom in the classroom; freedom to comment upon and dissent from university policies and practices; and lastly the freedom of faculty members, as citizens, to speak upon matters of public concern, whether such matters are related to their professional expertise or not.

I begin with freedom in research. The emergence of electronic media has greatly expanded access to information. Journal articles and a wide array of other published and unpublished research materials may now be available to anyone from anywhere. Indeed, in some cases journals themselves have become a form of social media where published research results may be discussed and exchanged with breathtaking speed. At the same time, as Robert O’Neil has noted, “[a]lthough a university does to some degree control a scholar’s recourse to print materials by its management of library collections, . . . the potential for limitation or denial of access is vastly greater when the institution maintains and therefore controls the gateway to the Internet.”

Further, third-party vendors may seek to impose restrictions on access that go beyond those claimed by an institution itself, and such restrictions are rarely defined by faculty governance structures. Third-party vendors may also gain access to user information, especially when these vendors offer research tools such as customized portals, saved searches, or e-mail alerts on research topics, some of which may mimic the feel and function of more common social media. How these vendors employ such information and who can gain access to it may be beyond the institution’s control. While the digital world has offered great promise to make information accessible to a global community, commercial forces have locked up much research behind paywalls and ever-more-restrictive licensing agreements. Faculty members who produce research in digital form frequently do not control how that research may be accessed and by whom.

Security concerns may also affect freedom in research. In recent years many university information-technology (IT) systems have come under sustained cyberattack, often from overseas. While these attacks have sometimes resulted in the theft of personal information, they also target faculty research materials, including patentable research, some with vast potential value, in areas as disparate as prescription drugs, computer chips, fuel cells, aircraft, and medical devices. Institutions’ infrastructure more generally has also been under threat. Some universities have experienced as many as one hundred thousand hacking attempts each day. The increased threat of hacking has forced many universities to rethink the basic structure of their computer networks. Universities are well advised to devote resources to protecting their electronic-communications networks. However, every effort should also be made to balance the need for security with the fundamental principles of open scholarly communication.

But the advent of social media has raised some new questions about such scholarly communication. New social media and electronic-communications technologies can make research in progress both more accessible and more vulnerable to intellectual property theft. For example, professors who present papers at scholarly conferences often use those occasions to try out new ideas and stimulate discussion. While they may be willing, even eager, to share unpolished or preliminary ideas with a closed group of peers, they may be less happy to have those in attendance broadcast these ideas through social media. Conference papers are often clearly labeled as “not for circulation.” At some meetings, however, attendees at sessions have communicated to others electronically—and often instantaneously—through social media, email, or blogs, reports and comments on papers and statements made by other conference attendees. Many academic conferences have associated Twitter hash tags—at times suggested by the conference organizers. As a result, ideas and information that previously would have been controlled by the presenter and limited to a relatively small audience may quickly become accessible globally. Scholars have always debated each other’s ideas and will continue to do so. However, faculty members who use social media to discuss research should keep in mind the intellectual property rights of their colleagues as well as their own academic freedom to comment on and debate new ideas.

I turn now to freedom in the classroom. According to the 1940 AAUP Statement of Principles on Academic Freedom and Tenure, “teachers are entitled to freedom in the classroom in discussing their subject.” But what constitutes a classroom? In our digital age the concept of ‘classroom’ must be broadened to reflect how instruction increasingly occurs through media without physical boundaries and that the ‘classroom’ must indeed encompass all sites where learning occurs. Indeed, it should be stressed that academic freedom in the online classroom is no less critical than it is in the traditional classroom.

In August 2013, the teaching duties of a tenured professor in Michigan were reassigned after a student anonymously videotaped part of a ninety-minute lecture, a heavily edited two-minute version of which—described by some as an “anti-Republican rant”—was then aired on a conservative Internet site, on Fox News, and on YouTube. In October 2013, a Wisconsin geography professor sent her students an e-mail message explaining that they could not gain access to census data to complete a required assignment because the “Republican/Tea Party-controlled House of Representatives” had shut down the government, thus closing the Census Bureau’s website. After a student posted the message on Twitter, it appeared in a local newspaper and in national conservative media, resulting in numerous complaints to the university, which sent an e-mail message to the campus distancing the institution from the comment.

These and similar incidents demonstrate that electronic media can expand the boundaries of the classroom in new and dramatic ways. And while classroom lectures, syllabi, and even an instructor’s email messages to students should be considered the intellectual property of the instructor, much of what teachers distribute to students in the classroom or write in email messages may legally be redistributed by students for noncommercial use under the “fair-use” principle. Moreover, copyright does not cover expression that is not reduced to “tangible” form, including extemporaneous utterances such as those of the Michigan professor, as it might a formal lecture, a PowerPoint presentation, or written material like a syllabus.

New teaching technologies and learning-management systems also allow faculty members and students to be monitored in new ways. Online teaching platforms and learning-management systems — which through discussion boards and similar devices may function as de facto social media — may permit faculty members to learn whether students in a class did their work and how long they spent on certain assignments. Conversely, however, a college or university administration could use these systems to determine whether faculty members were spending “adequate” time on certain activities.

While learning-management systems make it possible for faculty members to keep electronic teaching materials separate from scholarly, political, or personal materials often found on faculty websites or personal social media pages, many instructors still frequently post course materials on websites or on social media alongside other content, some of which may be controversial and irrelevant to a given course. Students who encounter material they find disturbing while they are browsing through a faculty member’s website in search of course materials may complain to the administration or even to the courts. In addition, faculty members who consider the development of, say, a dedicated Facebook page or Twitter hashtag for a class run the risk that discussions there are likely to bleed over into topics perhaps far-removed not only from the instructor’s intentions but from the purposes of the course.

Turning now to the faculty’s rights to comment on university affairs, I will begin by relating two stories. The first is about Phil Cole, an AAUP Council member from Idaho, who was Chair of his Academic Senate when that body came into conflict with a hostile administration. The Senate was dissolved and new elections were held, which returned the original officeholders to power. The administration not only rejected these results, however, they also barred Prof. Cole from communicating them to the faculty via email! Unfortunately, when Cole filed suit on First Amendment grounds he lost, the court ruling that he was speaking “pursuant to official duties” and could thus be restricted on the basis of the U.S. Supreme Court’s notorious Garcetti decision. (Fortunately, since then the 9th Circuit, which includes Idaho, has now ruled that Garcetti is not applicable to institutions of higher education, an issue as yet unresolved nationally, however.)

In another case, a Colorado history professor sent an email comparing potential budget cutbacks to the 1914 Ludlow Massacre of striking miners in that state. His email access was revoked because he allegedly had threatened violence and, while his access was soon restored, he still needs special permission to send messages to large groups. I will return shortly to the issue of threatening messages – although in this case the charge was clearly bogus – but for now let me suggest that in both these instances the issue was less the content of the faculty member’s message than the professor’s ability to communicate that message to large groups – in Cole’s case to the entire faculty – for all intents and purposes instantaneously.

In an often well-intentioned effort to reduce spam and prevent the monopolization of bandwidth, some university IT offices have proposed policies under which users of institutional electronic-communications resources must seek advance permission to send messages to large groups of recipients. But even if such measures address the problems of spam and limited bandwidth—and it is questionable whether they do—they only create a much larger and more ominous academic freedom problem because they amount to de facto prior censorship. Similarly, provisions that have been proposed in some instances to bar communications that purportedly “interfere with the mission of the university” (as we saw in Kansas) or that violate university policies amount to unwarranted censorship of free expression.

The AAUP has upheld the right of faculty members to speak freely about internal college or university affairs as a fundamental principle of academic freedom that applies as much to electronic communications as it does to written and oral ones. This includes the right of faculty members to communicate with one another about their conditions of employment and to organize on their own behalf. Union leaders, senate officers and other faculty representatives engaged in governance activities should have free and unfettered access to university-controlled lists of faculty members they represent, and all faculty members should be able to comment electronically on governance issues without restriction or fear of disciplinary action.

I turn now to the final aspect of academic freedom – so-called “extramural expression,” the right of faculty members to speak without institutional restriction as citizens on matters of public concern. This was, of course, the central issue in the controversy over the Kansas policy and it is the central issue in the current storm at the University of Illinois at Urbana-Champaign over the controversial tweets of Professor Steven Salaita, which has emerged as perhaps the most important academic freedom case of the present decade.

In case there are some in the audience who have not heard of the Salaita case, let me very quickly summarize the basics. Professor Salaita was hired to a tenured position at UIUC and was set to begin his employment last summer when the administration and trustees became aware of a series of highly controversial “tweets” he had produced concerning the Israeli-Palestinian conflict. Because his appointment was still formally subject to trustee approval, it was withdrawn at the last minute. From the beginning the AAUP has treated this as a case of “summary dismissal” and denial of appropriate due process. For us the issue has never been the content of Salaita’s message. One may, I must stress, consider the contents of the tweets to be juvenile, irresponsible, and repulsive and still defend Salaita’s right as a faculty member to produce them. I therefore will make no specific reference to what he said, except to acknowledge that they were highly emotional and divisive – and to some deeply offensive.

We are currently completing a thorough investigative report on the Salaita case to be published shortly that will deal in some depth with various aspects of the controversy. For now, however, I want to comment on three specific issues. First, is the very nature of Twitter as a mode of expression. As you most likely know, Twitter allows people to broadcast short statements of no more than 140 characters to their “followers” and to all those following a specific subject-matter “hashtag.” These “tweets” may in turn be retweeted and in short order may reach tens of thousands or more individuals beyond their original audience.

What can be said in just 140 characters? On the one hand, in a scholarly sense, not a whole lot. We academics are notoriously long-winded; our written productions tend to be cautious and constrained, hedged with all sorts of nuance and qualification. On the other hand, these brief messages can carry a lot of power; they are often emotional and almost always direct and simple in ways that scholarly communications rarely are. In this respect they may be reminiscent of slogans, chants and agitational speeches that in previous times might get a faculty member in trouble. Take, for example, the 1970 case of Angela Davis, then a philosophy instructor at UCLA, whose contract was denied by the UC Board of Regents because of the allegedly “unscholarly” and “irresponsible” content of her political speeches. In that case, UC Regent William Coblentz dissented from the board’s decision, noting that “in this day and age when the decibel level of political debate . . . has reached the heights it has, it is unrealistic and disingenuous to demand as a condition of employment that the professor address political rallies in the muted cadences of scholarly exchanges. Professors are products of their times even as the rest of us.”

Twitter too is a product of our time and when professors “tweet” they also do not communicate in “the muted cadences of scholarly exchanges.” Twitter may indeed be considered, as the historian Natalie Z. Davis argued in an extraordinary letter to the UIUC Chancellor, a genre with its own set of distinctive practices and codes. Here’s part of what Davis wrote:

. . . some of Professor Salaita’s tweets were vehement and intentionally provocative: he used strong language both to criticize the deaths from Israeli bombing and to attack anti-Semitism. The lack of “civility” in some of his tweets is linked to the genre itself: a tweet is often an answer to a tweet, and a tweet always anticipates a response. It is a form of concise communication based on give and take, on the anticipation that the respondent may respond sharply or critically to what you have said, and that the exchange will continue. Thus, in his public political life, Professor Salaita participates in a mode that always leaves space for an answer. . .

But what of the criterion of “civility?” In a remarkable statement defending the decision to in effect dismiss Salaita, the UIUC Chancellor declared: “What we cannot and will not tolerate at the University of Illinois are personal and disrespectful words or actions that demean and abuse either viewpoints themselves or those who express them.” The university’s trustees further claimed that disrespectful speech “is not an acceptable form of civil argument” and that “it has no place . . . in our democracy.”

These remarks have been subject to such withering criticism that I need not repeat most of it here, although I would urge you to keep on the lookout for a forthcoming essay in The Nation magazine on the relationship between “civility” and academic freedom by Professor Joan W. Scott, a member of AAUP’s Committee A, which explores the issue in considerable depth. For now, however, let me make three fundamental points. First, the criterion of “civility” is vague and ill-defined. It is not a transparent or self-evident concept, and it does not provide an objective standard for judgment. Second, the standard of civility inevitably conflates the tone of a statement with its content. In many cases that AAUP has investigated over the years unacceptable emotive qualities have been ascribed to the ideas a teacher has endorsed. Third, and perhaps most important, whether it is a matter of First Amendment rights or of the principles of academic freedom, there is concurrence on the dangers to democracy of attempting to outlaw emotionally provocative speech. As the U.S. Supreme Court put it in a 1971 case, “We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which practically speaking may often be the more important element of the overall message sought to be communicated.” The same can be said of the principles of academic freedom.

Of course, there needs to be a distinction between emotional expression and threats of violence. On this let me be clear: nothing in either First Amendment jurisprudence or in AAUP case history prevents a university administration from responding to genuine threats of violence – toward individuals or groups – including threats made via social media. It is one thing for a disgruntled colleague to say, “I am fed up with things here; everyone’s an incompetent fool,” but quite another to say, “I’m fed up with things here and I’m bringing my Uzi to campus to give the incompetent fools what they deserve.”

Threats, however, need to be genuine, and even then those who make them are entitled to legitimate due process protections. And while the language of Salaita’s tweets sometimes evoked violence, none of it amounted to a true threat to any identifiable individual or group, at least any group accessible to Salaita. Impassioned, even violent language or vivid metaphors are not enough to constitute a genuine threat. Moreover, the contention – advanced by the UIUC administration—that students would be threatened or intimidated by Salaita’s language demands corroboration by specific evidence that Salaita’s classroom conduct evidences behavior somehow analogous to the content or tone of the tweets. But no one has marshaled such evidence. In fact, just as in 1970 it was observed that Angela Davis’s subdued classroom demeanor contrasted dramatically with her reputation as a firebrand orator, so too available evidence suggests that Salaita’s classroom language and tone have never resembled that of the controversial tweets.

But what, you may ask, about cyberbullying? Isn’t this a problem? Yes, it is, especially among students, although it would be naive to assume that faculty members are somehow immune to this sort of thing. The very nature of social media may facilitate troubling patterns of behavior. An individual who becomes a target of multiple insults and derogatory comments on social media – sometimes numbering in the thousands – may legitimately feel threatened even if any individual comment may lie well within the realm of the acceptable.

Moreover, there is the problem posed by viral responses to ill-considered remarks. Both these kinds of issues – cyberbullying and viral responses – play a part in the final controversy I want to discuss today, one about which I am less certain than I am about the other incidents I’ve mentioned, including the Salaita case. To summarize both briefly and inadequately, at Marquette University Professor John McAdams maintains a personal blog in which he regularly voices strong opinions on a variety of political and university issues and where he engages in sometimes pointed and even harsh criticism of colleagues. McAdams’s views tend toward the political Right and are not very popular among his colleagues. In particular, he is apparently an opponent of gay marriage. When a student who also opposes gay marriage complained that a graduate student instructor had stifled discussion of the issue – a complaint determined upon official investigation to be unfounded — McAdams – without speaking to either the instructor or her department – posted what most would call an abusive personal attack on the graduate student instructor. The post quickly went viral and soon the student was subjected to a tremendous barrage of hostile, obscene and threatening email and social media messages. She was fearful enough to leave Marquette and transfer to another university.

McAdams claims that his blog is journalism and totally extramural and hence protected by both the First Amendment and the principles of academic freedom. And at least one regular contributor to AAUP’s Academe blog agrees: “McAdams’ blog is a classic example of extramural utterances,” he writes. “McAdams’ blog is not part of his teaching or his research. It is an expression of his own opinions.”

Certainly McAdams did have the right to criticize a fellow instructor, even falsely and carelessly:

Marquette is perfectly free to condemn McAdams for an alleged breach of civility, but not to punish him. And although some faculty might legitimately fear being criticized by McAdams, no one has a right to be free from criticism, or to punish McAdams for their own decision to self-censor.

 

Another contributor sees it differently, however, in good measure because the instructor was also a student. He writes:

When a professor engages in extramural utterances that harm a student, cause great emotional distress, precipitate egregious mob action e-mail insults and death threats, and a quick exodus to the University of Colorado, it would be wholly inappropriate for administration officials to ignore such consequences.

He then concludes:

There are two competing claims to academic freedom here. One is the right of a professor to engage in institutional criticism of practices and outcomes that may include naming names of administrators and faculty members. The other is the right of professors to teach without hindrance, within a climate conducive to disparate pedagogies without fear of being policed by a[nother] professor on the Internet. Professor McAdams’s actions are disruptive to the academic freedom of an institution.

A third AAUP member, posting as a guest blogger, argues that academic freedom is not the issue at all.  He writes:

the labor dispute between McAdams and Marquette hinges primarily on McAdams’ rejection of his responsibilities as a teaching member of the faculty. Academic freedom, though necessarily onstage in the dispute, does not play a leading role. We ought to conceive of this matter in terms of other principles. . . .  It is one thing to snipe at administrators or to criticize one’s colleagues’ teaching on one’s blog—though unpleasant or uncivil (circumstances depending, of course), such is and must remain protected speech—and it is something very different to publicly condemn a professional-in-training, for whose welfare one bears some responsibility.

Who is correct here? The issue has prompted a good deal of discussion and, frankly, I’m not certain where I stand. For one thing, we might ask to what extent Professor McAdams can be held responsible for the threats made by those who read his blog, most if not all of whom he presumably does not know. The Marquette administration has now moved to dismiss McAdams and I will certainly say that he must be afforded all the protections of due process. But were I to serve on a faculty panel hearing this case I can’t say now where I’d end up. And so, in conclusion, I will toss the question back to all of you: where do faculty rights to free expression on social media meet their limits?