Oh Dorothy, we are indeed in Kansas. Under a bill pending in the state’s Legislature, public-college and public-university employees in Kansas would be barred from using their official titles in newspaper opinion articles written in their capacity as private citizens.
The bill would prohibit public postsecondary employees in the state from “providing or using [the] employee’s official title when authoring or contributing to a newspaper opinion column.” But … don’t worry. The restriction applies “only when the opinion of the employee concerns a person who currently holds any elected public office in [the] state, a person who is a candidate for any elected public office in [the] state, or any matter pending before any legislative or public body in [the] state.”
Given various pressing issues likely to need attention in Kansas, it’s reassuring to know that the bill’s sponsors are hard at work to make sure that hapless elected officials are protected from bullying by public-college and -university employees.
Showing an awareness of, if not respect for, the First Amendment, the proposed legislation acknowledges that employees acting as private citizens aren’t restricted from offering their personal opinions, as long as they do so without providing their titles. Despite that clarification, the legislation would still encroach on employees’ constitutional rights. The bill would be on safer ground in terms of the First Amendment if it called for employees to state clearly that they are not speaking for their institution or to refrain from using institutional resources — official letterhead, for example.
Seeking to make sure that readers don’t believe that an employee is speaking on behalf of a college or university could reflect a legitimate legislative concern. But the bill goes beyond only ensuring such clarity. Instead, it aims to control the informational content of employees’ speech. Often, an opinion writer’s official title provides useful context and background for the author’s views and credibility. As the U.S. Supreme Court has noted, the public may especially value the opinions of public employees, who are in a unique position to assay governmental actions.
Even holding aside substantive free-speech concerns, as a practical matter, what’s to prevent a newspaper from identifying an official title (and employer) instead of the employee? Would institutions need to instigate an investigation to determine if the newspaper had independently reported the author’s official title? Maybe employees could provide clues to their official title, resulting in a game of sorts for readers.
In Pickering v. Board of Education, decided in 1968, the U.S. Supreme Court held that a public-school teacher’s speech in the form of a letter to the editor qualified for First Amendment protection. In that case, the teacher wrote to criticize budgetary decisions of the school district in which he taught.
In sum, when speaking in their private capacity, public employees possess significant First Amendment rights to share their views on matters of public concern. Such safeguards also encompass instances, as in Pickering, when the public employee speaks out about his or her employer. While a public employer can proffer a justification to restrict that type of private employee speech under limited circumstances, the speech presumptively receives First Amendment protection.
For First Amendment purposes, a public employee speaking as a private citizen differs markedly from an individual speaking in the course of performing job duties. In Garcetti v. Ceballos, a 2006 decision, the Supreme Court held that speech made as part of carrying out employment duties falls outside the purview of the First Amendment.
While Garcetti has been criticized on multiple fronts, including in the context of faculty speech, the Kansas bill has nothing to do with employee speech arising from the performance of job duties. Instead, it seeks to restrict individuals employed at public colleges and universities in Kansas from sharing a certain kind of information — their official title — when speaking as private citizens.
Given the First Amendment protections that attach to public employees when speaking as private citizens, the Kansas bill raises serious constitutional concerns. Hopefully, the legislation will fail. Otherwise, be on the lookout for flying monkeys in Kansas.
Neal H. Hutchens is an associate professor of higher education at Pennsylvania State University.
