Social Media Makes It Tougher to ‘Speak Out of School’

Posted August 8, 2012 in Internet Law by

Dan Abrams

Drama, chatter and gossiping between kids at school doesn’t stop when they leave the schoolyard, and it never has. In the Mesozoic era before the Internet, the conversation continued on party lines and during sleepovers. As technology developed, instant message and texting became the media of choice to keep the off-campus conversation going. But that was aimed at a targeted audience and rarely involved, for example, yelling about something for all to hear. Social media has changed everything, moving that chatter to the public sphere and putting educators on uncertain legal ground. Whether the issue is students making fun of their teachers or principals, kids bullying other kids, protesting school policies or flouting student codes of conduct, the move into the social media arena complicates an important legal issue.

The landmark case of Tinker v. Des Moines Independent Community School District in 1969 established that schools were only permitted to curtail their students’ speech by demonstrating it was necessary to maintain school order and control. In that case, the two Tinker children and their friend wore black armbands to school to protest the Vietnam War and were suspended for continuing to wear them even after the district’s principals instituted a ban on armbands. Ultimately, the case was appealed to the U.S. Supreme Court, which ruled that school administrators overstepped their constitutional authority and could not censor speech in the classroom for something like a political protest. This case is still cited in determining the constitutional rights of students in U.S. public schools, but social media has changed the fundamental premise upon which the case is grounded.

A pair of federal cases involving student-created Myspace pages, for example, established that a school’s right to discipline may be confined to actions that take place on its physical grounds, even when the offending speech exists in the digital sphere. Although the Myspace pages caused only some disruption that reached school hallways and (in one case) could be accessed on the school’s computers, the court held that the school had no right to discipline the students for speech that occurred outside school property.

Both cases were decided in 2011, but they are already startlingly out of date. Social media can be experienced and produced on mobile devices like smartphones and tablets, and that makes it difficult to determine a student’s location when offending comments are made. Imagine that a high school student posts an offensive picture of her principal on Facebook via her mobile phone. If the student pressed “Post” while sitting in her school’s parking lot it could theoretically be grounds for suspension, but if she’s five blocks awaythe school’s administrators might not have a legal leg to stand on.

In the end, most school districts don’t have the time to keep up with every change in the world of social media. Platforms like Facebook and Twitter, for example, are always refining their location strategies. Just two months ago, Facebook purchased a company whose app continuously shares the locations of its users. The social network’s plans for the app and its technology aren’t clear, but they’re sure to have legal ramifications for years to come.

Some schools are trying to nip this issue in the bud with a sweeping solution — updating broad language in honor codes. The Minnesota Supreme Court has already decided that a school can take action against students for content they post on social media, provided those postings violate a code of conduct or honor code. The state of Delaware, on the other hand, has pre-emptively passed a bill of social media rights for students which prevents public or private schools from demanding access to students’ social media accounts. As the law tries to catch up with technology, look out for more schools, universities and graduate programs to attempt to control certain student speech in the name of upholding standards of professionalism or ethics.

Students aren’t alone; teachers are now finding themselves dealing with these issues as well. Today, when most everything on social media is discoverable and employers aren’t above demanding your Facebook account password, we should prepare for courts to weigh in on how far a school can go to hold people accountable for actions taken in an intangible, technological social world.

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