Regents ask for investigation of potential policy violations

The Iowa Board of Regents, at its September 17 meeting, directed the three universities to conduct an immediate investigation into potential violations of board policy including but not limited to Chapter 4.2, which governs freedom of expression, including employees' use of social media.

During the investigation, the universities were further directed to place all employees subject to investigation on administrative leave, or have them removed from the classroom, and authorized the university presidents to take immediate action regarding any employee found to have violated board policy.

ISU general counsel Michael Norton sat down with Inside Iowa State this week to answer a few questions regarding the board of regents' social media policy and employee First Amendment rights.

What is board policy section 4.2 and why is it important?

Section 4.2 is the section of the board's policy manual that addresses freedom of expression. This policy affirms the First Amendment by guaranteeing that the regents' universities cannot restrict speech based on its content or viewpoint, even if the speech is offensive or unpopular.

When speaking as a private citizen on matters of public concern, employees are generally free to address personal opinions using their social media accounts, consistent with the First Amendment, but the university "may be obligated to act to prevent harm to the university, our campus community and its mission."

Does this mean there can be consequences for social media posts?

It does. The law recognizes that public employees have more limited First Amendment protection than an average citizen. For public employees, their right of free expression is balanced with the government employer's interest in promoting the efficiency of the public services it performs through its employees. Where a public employee's speech creates significant disruption to the efficient and effective operation of the public entity, they may be held accountable. 

Is there a line employees shouldn't cross with regard to their social media posts?

That is a difficult question to answer. However, courts have recognized that public employers can restrict employee speech that creates workplace disharmony, impedes performance, impairs working relationships or otherwise has an adverse impact on the efficiency of the employer's operations. 

Every situation is fact-specific, and the court cases suggest that this standard sets a fairly high bar when it comes to restricting public employee speech. We have to ask ourselves if a social media post, including engagement such as "likes," "reposts" and "shares," and the response to that activity, disrupts our ability to run the university.

(Editor's note: For examples of how courts have considered balancing government employer interests and employee speech rights, see this summary from the Cornell Law School.)

Does the board directive impact students' social media posts as well?

The social media section of chapter 4.2 applies only to employees, including hourly student employees and graduate students on assistantship in their employment capacity. However, students also may be held accountable for their social media posts under general First Amendment principles (threats, incitement, harassment, obscenity, etc.).