March 22, 2011
WordPress was down for a few hours this afternoon, and I had a longish meeting this evening. I’m running behind.
While I’m gearing up to get my promised comments up, take a look at Stanley Fish’s post at his New York Times blog:
In over 35 years of friendship and conversation, Walter Michaels and I have disagreed on only two things, and one of them was faculty and graduate student unionization. He has always been for and I had always been against. I say “had” because I recently flipped and what flipped me, pure and simple, was Wisconsin.
When I think about the reasons (too honorific a word) for my previous posture I become embarrassed. They are by and large the reasons rehearsed and apparently approved by Naomi Schaefer Riley in her recent op-ed piece “Why unions hurt higher education” (USA Today). The big reason was the feeling — hardly thought through sufficiently to be called a conviction — that someone with an advanced degree and scholarly publications should not be in the same category as factory workers with lunch boxes and hard hats. As Riley points out, even the American Association of University Professors (AAUP) used to be opposed to unionization because of “the commonly held belief that universities were not corporations and faculty were not employees.”
Good discussion from smart guys. Go see.
January 21, 2009
Teachers are public employees (most of us). Should we blog about education and teaching?
Interestingly, there is a good case to be made that public employees have more First Amendment protection than private employees (should teachers in KIPP, charter and parochial schools blog?).
Larry Solum at Legal Theory highlights Paul Secunda’s article:
Paul M. Secunda (Marquette University – Law School) has posted Blogging While (Publicly) Employed: Some First Amendment Implications (University of Louisville Law Review, Vol. 47, No. 4, 2009) on SSRN.
I’ll wager most teachers are not common users of SSRN, so let’s steal Solum’s posting of the abstract of the article, too:
While private-sector employees do not have First Amendment free speech protection for their blogging activities relating to the workplace, public employees may enjoy some measure of protection depending on the nature of their blogging activity. The essential difference between these types of employment stems from the presence of state action in the public employment context. Although a government employee does not have the same protection from governmental speech infringement as citizens do under the First Amendment, a long line of cases under Pickering v. Bd. of Education have established a modicum of protection, especially when the public employee blogging is off-duty and the blog post does not concern work-related matters.
Describing the legal protection for such public employee bloggers is an important project as many employers recently have ratcheted up their efforts to limit or ban employee blogging activities while blogging by employees simultaneously continues to expand. It should therefore not be surprising that the act of being fired for blogging about one’s employer has even led to a term being coined: “dooced.” So the specific question that this essay addresses is: do dooced employees have any First Amendment protection in the workplace? But the larger issue examined by implication, and the one addressed by this Symposium, is the continuing impact of technology on First Amendment free speech rights at the beginning of the 21st Century.
This contribution to the Symposium proceeds in three parts. It first examines the predicament of private-sector employees who choose to blog about their workplaces. The second section then lays out the potential First Amendment free speech implications for public employees who engage in the same types of activities. Finally, the third section briefly considers a potential future trend in this context from Kentucky involving government employers banning employee access to all blogs while at work.
I’ve been wondering where are the cases of student blogs dealing with serious First Amendment issues. I think we’re overdue for more litigation in that area.