Now that the 2013 legislative session in Hawai‘i is in full swing, let’s take a look at what new measures are in the pipeline to regulate Internet activity. A chart of relevant information about each bill is available here. Here’s a summary of the Internet-related proposals working their way through the legislature.
Social Media and Internet Account Passwords
A set of bills (SB207 and HB713) proposes to join other states in banning employers from asking employees or job applicants to disclose the passwords to their personal social media accounts. Another set of proposals (HB1104 and HB1023) would extend the ban to educational institutions and their students or prospective students.
Three bills (HB1226, SB525, and HB397) would require the board of education to adopt various policies and programs to combat cyberbullying in public and charter schools.
Apparently responding to incidents in which teachers and students conducted inappropriate relationships online, HB678 would allow a teacher in a public or charter school to engage in electronic communication with a student (including cell phone calls) only on Department of Education networks and systems.
SB325 would require businesses to implement a comprehensive, written policy and procedure to prevent identity theft and train all employees in implementation of the same.
HB462 would establish a statewide cybersecurity council to identify and assess critical computer infrastructure, identify cybersecurity “best practices,” recommend incentives for voluntary adoption of such best practices, evaluate the efficacy of such practices, and report annually to the legislature.
We’ll be tracking these bills, reporting on their status periodically, and posting revisions to the chart. Stay tuned!
No First Amendment Protection for public school teacher’s comments on Facebook — In re O’Brien, 2013 WL 132508 (N.J. Super. App. Div. Jan 11, 2013)
We’ve seen a number of cases in which employees are fired for making comments on Facebook that they never thought would get around. (For a sampling, see my posts on Sutton v. Bailey, the BMW dealership decision, and Sumien v. Careflite.) Put In re O’Brien in this category of cases, except add a twist: Here, the employer is a public school district. Does the First Amendment (which applies only to government action) add a layer of protection to comments posted by a public employee on social media? Not in this case.
Jennifer O’Brien was a first-grade schoolteacher. O’Brien posted two statements on Facebook:
I’m not a teacher—I’m a warden for future criminals!
And the second:
They had a scared straight program in school—why couldn’t [I] bring [first] graders?
The Facebook comments were brought to the attention of the principal at O’Brien’s school (Ortiz). Ortiz was “appalled” by the statements. O’Brien’s Facebook comments also spread quickly throughout the school district, causing a well-publicized uproar.
The school district charged O’Brien with conduct unbecoming of a teacher. An administrative law judge (ALJ) found support for the charge and recommended O’Brien’s removal from her tenured position, and the acting commissioner of the school district agreed. The ALJ was particularly bothered by O’Brien’s lack of remorse in posting the comments. A New Jersey court adopted with the reasoning of the ALJ on appeal.
Both at the administrative level and on appeal, O’Brien argued that the First Amendment protected her Facebook statements. The court disagreed, applying the test stated in the Supreme Court’s decision in Pickering v. Board of Education that analyzes whether a public employee’s statements are protected by the First Amendment by balancing the employee’s interest, “as a citizen, in commenting on matters of public concern against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
The court accepted the findings of the ALJ and Commissioner that O’Brien’s real motivating for making the statements was her dissatisfaction with her job and the conduct of some of her students, not a desire to comment on “matters of public concern.” Even if the comments regarded a matter of public concern, O’Brien’s right to express those comments was outweighed by the school district’s interest in the efficient operation of its schools. The court also rejected O’Brien’s arguments that there was insufficient evidence to support the charge against her, and that removal was an inappropriate penalty.
LegalTXTS Lesson: Public employers need to exercise more caution when disciplining employees for their activity on social media networks. Unlike the private sector, public agencies are limited by the First Amendment when regulating expression of their employees. But even public employees don’t have absolute freedom to say whatever they want. As O’Brien reminds us, when public employees make comments of a personal nature, or their comments interfere with the delivery of government services, such expression is not protected by the First Amendment.
Sutton v. Bailey, 2012 WL 5990291 (8th Cir. Dec. 3, 2012), is the latest reminder that private Facebook postings can lead to professional consequences. Sutton was hired as a Funeral Science Director at Arkansas State University–Mountain Home for the 2010-11 academic year. His employment contract provided that he could be terminated at any time “for adequate cause.” A month after Sutton got hired (but apparently before he began teaching), he posted on his Facebook page: “Toby Sutton hopes this teaching gig works out. Guess I shouldn’t have cheated through mortuary school and faked people out. Crap!”
University officials somehow learned about the post and asked to meet with Sutton about it. At the meeting, the university’s vice-chancellor (Bailey) and director of instruction (Thomas) confronted Sutton with the post. He admitted to making the post. Bailey then told Sutton that he was fired. Sutton asked if it mattered that the statement was a joke, and that he posted the statement before he began teaching. Baily replied “no” to both questions. Sutton then received an Employee Counseling Statement form stating that he was being dismissed for an incident of “Academic Fraud and unprofessional conduct.” The “Supervisor Statement” portion of the form explained: “Mr. Sutton posted material on Facebook indicating he had ‘cheated’ his way through mortuary school. There are multiple other class related issues.” Bailey told Sutton he had an opportunity to make a statement before signing the form. Sutton declined and signed the form without further comment. Sutton later sued Bailey and Thomas in their individual capacities, alleging that he was deprived of procedural due process in connection with his firing.
The bulk of the Eighth Circuit Court of Appeals’ opinion addressed the defendants’ defense of qualified immunity, which the court found to have merit.
LegalTXT Lesson: This case has two important, if obvious, takeaways. First, employees need to remember that whatever content they share on their private social media networks could come back to haunt them professionally. Employees need to be reminded constantly that social media blurs the line between personal and public, private and professional.
Second, Sutton answers a question I often get asked by employers: Can employees be disciplined or even terminated for their private social media conduct? The answer is yes. (For another example, read my post on the Careflite case, which recently settled). There are limits, of course (and the NLRB Acting General Counsel has waxed long about many of them), but there are circumstances in which it is proper to discipline or terminate an employee for his or her private social media activity. Now, it would help greatly if an employer sets standards of employee conduct clearly identifying the kinds of social media conduct that could lead to adverse employment action. We don’t know what was in the employee handbook of the university in this case, but a rule that could’ve come in handy is one instructing faculty members not to endorse or make light of academic dishonesty.
Cyberbullying is a problem not just for students, but school workers as well (see my post on the R.S. v. Minnewaska Area School District No. 2149 case). To address that problem, North Carolina recently passed a law banning students from bullying school workers online. An expansion of North Carolina’s existing anti-bullying law, the 2012 School Violence Prevention Act is the first in the nation to make cyberbullying of school workers a crime. The 2012 law criminally penalizes public school students who use a computer or computer network with “intent to intimidate or torment a school employee” by:
- building a fake profile or web site
- posting or encouraging others to post on the Internet private, personal, or sexual information about a school employee
- posting a real or doctored image of a school employee on the Internet
- tampering with a school employee’s online network, data, or accounts
- using a computer system for repeated, continuing, or sustained electronic communications (including email) to a school employee
The new law also prohibits students from signing up school workers to pornographic websites or spam mailing lists, or making any statement, whether true or false, intending to provoke another person to stalk or harass a school worker. The law went into effect on December 1.
The ACLU of North Carolina has criticized the law as overbroad, and announced plans to file a lawsuit challenging it.
The legal boundaries for school discipline for cyberbullying continues to be unclear — R.S. v. Minnewaska Area School District No. 2149, 2012 WL 3870868 (D. Minn. Sept. 6, 2012); S.J.W. v. Lee’s Summit R-7 School District, 696 F.3d 771 (8th Cir. Oct. 17, 2012)
As much as cyberbullying is gaining media attention, clear guidance on what schools can do about it is still lacking. In January, the U.S. Supreme Court declined to review three free speech challenges involving social media content posted by students. As a result, courts continue to grapple with defining the boundaries of school discipline for student online conduct, particularly when it happens off-campus. A pair of recent cases illustrates this trend.
R.S. v. Minnewaska Area School District No. 2149: A 12-year old sixth grader (R.S.) posted on her Facebook page that she “hated” her school’s adult hall monitor. R.S. posted the comment from her home outside of school hours. The comment somehow found its way to the principal, who considered the comment a form of bullying. The principal gave R.S. detention and required her to apologize to the hall monitor. In a second incident, R.S. posted a comment on her Facebook wall stating: “I want to know who the F%$# [sic] told on me.” For this, R.S was suspended for a day and prohibited from going on a class ski trip. On a third occasion, school officials learned that R.S. was communicating with a male student on the Internet about sexual topics (when confronted, the male student admitted that he initiated the conversation). The school officials called R.S. out of class to meet with them and the deputy sheriff assigned to the school. They demanded to know her email and Facebook usernames and passwords. Feeling pressured, R.S. complied. The school officials then logged into her Facebook account and viewed the public and private messages she had posted on the site. The school did not formally discipline R.S. any further.
The punishment of R.S. violated her First Amendment right to free speech
Judge Davis of the federal district court of Minnesota looked to the Tinker line of cases for guidance and concluded that the First Amendment prohibits school authorities from punishing students for out-of-school statements the statements are true threats or reasonably calculated to reach the school environment and are so egregious as to pose a serious safety risk or other substantial disruption there. R.S.’s Facebook posts were not threatening, the court found, and while the posts might have been reasonably calculated to reach a school audience, that possibility alone did not justify her punishment. An out-of-court statement must be more than inappropriate. It must potentially cause a substantial disruption in the school before it can be punished.
The school violated R.S.’s Fourth Amendment right to be free of unlawful searches and seizures
Students enjoy a Fourth Amendment right to be free from unreasonable searches and seizures by school officials. But did R.S. have a reasonable expectation of privacy as to the information posted on her Facebook account that only her Facebook friends could see? The court said yes. There is no meaningful difference between a password-protected private Facebook message and other forms of private electronic correspondence. The court also found that the school officials had no legitimate governmental interest for reviewing her private communications. Notably, there was no threat that R.S.’s private posts would cause a disruption in the classroom.
R.S. had a viable claim against the school for invasion of privacy
S.J.W. v. Lee’s Summit R-7 School District: Twin brothers (the “Wilsons”) who were high school juniors created a website called NorthPress. Part of NorthPress was a blog intended to discuss, satirize, and “vent” about events at the Wilsons’ school. Because the site was hosted on a Dutch domain, the site would not show up in the results of a Google search by a user in the U.S., but anyone knowing the site’s URL could access it. The Wilsons added posts to the NorthPress blog containing a variety of offensive and racist comments as well as sexually explicit and degrading comments about particular female classmates whom they identified by name. The racist posts discussed fights at the school and mocked black students. A third student added another racist post.
The Wilsons initially told only several of their friends about NorthPress and claimed they intended only their friends to know about it, but word about the site quickly spread to the study body at their school. The school initially suspended the Wilsons for ten days, and after the matter went through further proceedings at the school district level, the Wilsons were suspended for 180 days but allowed to enroll in another school for the duration of their suspensions. The Wilsons filed a lawsuit for a preliminary injunction to lift the suspensions. The district court granted the preliminary injunction, but on appeal, the Eighth Circuit reversed.
Reviewing cases that analyze the applicability of Tinker to off-campus student speech, the Eighth Circuit ruled that the blog posts in question targeted the school, could reasonably be expected to reach the school or impact the environment, and caused considerable disturbance and disruption. As a result, the Wilsons were unlikely to succeed on the merits, and so they were not entitled to an injunction.
LegalTXTS Lesson: Cyberbullying is a serious issue, but schools should be careful not to overreact. The reality is that much of the online material students post and share these days has a good chance of offending someone or being considered inappropriate by adults. That doesn’t give schools the authority to police online content however they like. Off-campus speech is punishable when it threatens to endanger danger to another student or cause substantial disruption in the school environment, but not merely because some would find it “inappropriate.”
How this rule is applied, however, depends on the sensitivity of the court. The courts in R.S. and S.J.W. could have gone either way. The court in R.S. could have concluded that the sexual conversations between two very young students presented a risk of substantial disruption in the classroom. On the other hand, the court in S.J.W. could have held that the blog was never targeted at the school community, and therefore, its contents did not justify meting out school discipline. Perhaps we’ll get more consistency in court rulings after Supreme Court decides to weigh in on the constitutional limits to combating cyberbullying.