(Courtesy: Lincoln Journal Star)

Congressman’s office pressures U. of Nebraska to punish professor who liked ‘Fartenberry’ Facebook photo

By November 1, 2018

Lincoln Journal Star reporter Nancy Hicks described what happened to a campaign sign for Nebraska Rep. Jeff Fortenberry late last month as “[p]olitical vandalism … [with] a touch of humor.” Whoever defaced the poster opted for the “sophomoric” version of dissent — adding cartoonish googly eyes to Fortenberry’s face along with a few pieces of strategically placed tape that transformed his name to “Fartenberry.”

Hicks condemned the vandalism, believed to have happened sometime on or around Oct. 21, but noted that the stunt “had even Republicans on Facebook chuckling.”

Not chuckling, however, were staffers in Fortenberry’s office after they somehow discovered one of the “likes” on a widely-shared Facebook photo of the modified sign belonged to Ari Kohen, an associate professor of political science at the University of Nebraska-Lincoln.

According to a troubling Journal Star report out today, Fortenberry’s chief of staff, Dr. William “Reyn” Archer III, then contacted Kohen. When Kohen did not immediately respond, Archer emailed high-level university officials, including the chancellor. Archer’s Oct. 24 message inquired about setting up a phone call to talk “about the support one of your faculty has shown for political vandalism.”

“The question,” Archer wrote, “is what the position of the [political science] department and university is regarding vandalism or worse violence, which we have seen in this political season.”

When contacted by the Journal Star, a UNL spokesperson declined to comment on the matter — apparently not even to issue a perfunctory defense of its faculty members’ First Amendment rights.

Kohen told the Journal Star that he and Archer ultimately did speak by phone late last week. In a recording of the call posted to YouTube, Kohen argues that his Facebook ‘like’ did not amount to him promoting vandalism or violence, and was unrelated to his teaching duties. (Kohen told the Journal Star that he ‘liked’ the photo on a weekend, from his personal Facebook account, on his personal cell phone.) The professor also asked Archer if Fortenberry’s office is contacting everyone who ‘liked’ the Facebook photo, and Archer responded that they singled out Kohen specifically because of his status as a faculty member.

“Because you’re a professor,” Archer said, “we think you are held to a different standard than anyone else. … And because you can’t be distinct from your role as teaching folks political science, “ he added, “you’ve got to be careful of the optics of yourself.”

You can listen to the full exchange here:

Fortenberry, for his part, hasn’t distanced himself from Archer’s comments.

“It is — at a minimum — disrespectful of civil discourse and free speech,” Fortenberry wrote in a statement to the Journal Star. “When a university professor of political science gives his assent to such vandalism, it sends a seriously wrong message.”

While Fortenberry and his staff are certainly free to criticize Kohen for his choice of Facebook ‘likes’, these comments and actions are troubling. Faculty do have some limits on their freedom of expression attendant with their status as faculty members, but a professor “liking” a Facebook picture making fun of a political candidate from his private account on his own time fails to even approach that line. Simply put, Kohen’s “like” is protected by the First Amendment.

Federal courts have instead routinely held that faculty generally maintain their free speech rights when they speak as private citizens on matters of public concern. The United States Court of Appeals for the Eighth Circuit, whose decisions are binding on Nebraska institutions, observed in the 1997 case of Burnham v. Ianni that “the idea that a faculty member could be compelled to relinquish First Amendment rights in connection with employment at a public school was ‘unequivocally rejected’ by the Supreme Court” in the landmark case of Pickering v. Board of Education. And although its holdings are not binding in Nebraska, the United States Court of Appeals for the Fourth Circuit held in the 2013 case of Bland v. Roberts that ‘liking’ something on Facebook “constituted pure speech,” bringing it within the scope of the First Amendment.

Accordingly, as FIRE’s Adam Steinbaugh told the Journal Star, “[l]iking a picture is not incitement to vandalism.”

While political representatives are free to disagree with members of a university community, elected officials (and their staff acting in their official capacities) must not use their office to pressure colleges and universities to infringe upon the constitutional rights of students or faculty members. Indeed, elected officials, who promise to uphold the Constitution, must keep that promise when challenging those who disagree with them.

While the University of Nebraska has not commented on the controversy, FIRE hopes it will not cave to political pressure, and will support the free speech rights of its faculty — on campus and on Facebook.

Schools: University of Nebraska – Lincoln