Beware of Unconstitutional Social Media Policies

Daniel McCarthy, Manley Burke

Facebook, Twitter and other forms of social media are growing in popularity and importance on a daily basis.  The advances in technology are moving at the speed of light but schools are not as quick to adopt and enforce effective and legal social media policies.  While schools may have compelling reasons to adopt policies concerning student social media use, the First Amendment provides strong protection against overreaching policies.

Recently Sam Houston State University, a public institution, proposed a new social media policy that included, among other problematic provisions, a requirement that student organizations turn over their social media passwords to the school.  The University could then censor postings that were inconsistent with the school’s overall message.

FIRE (The Foundation for Individual Rights in Education) brought national attention to Sam Houston State’s proposed policy after a professor tried to censor a “free speech wall.”  FIRE now reports that the University has eliminated its policy and has decided to start over with a yet-to-be announced social media policy.

Recent hazing at a high school in Montana led Cascade County Attorney John Parker to release the following statement to all students at three public high schools in the area:

“Regarding the recent arrest of a… student… any student who posts messages on any social networking sites (Facebook, Myspace) or sends text messages, etc., regarding the alleged victims or hearsay information regarding the investigation or victims, per the County Attorney, you will be arrested and prosecuted to the fullest extent of the law for the crimes of intimidation and/or Tampering with a Witness.  Government officials are monitoring all Facebook/Myspace and other social networking postings and they would recommend anyone that has posted names regarding this incident to immediately remove the names from the sites.  This will be everyone’s one and only warning… failure to comply with this demand will result in prosecution, regardless of your age.”

In Missouri, the state legislature passed a law that imposed a statewide ban on electronic communication between teachers and students.  The law quickly earned the nickname “The Facebook Law,” and provided in parts,

• No teacher shall establish, maintain, or use a work-related internet site unless such site is available to school administrators and the child’s legal custodian, physical custodian, or legal guardian.
• No teacher shall establish, maintain, or use a nonwork-related internet site which allows exclusive access with a current or former student.

The state teacher’s union challenged the law on free speech grounds.  Cole County Circuit Court Judge Jon Beetem, the trial judge, issued an injunction banning the state from enforcing the new law for at least 180 days. “The breadth of the prohibition is staggering,” Beetem wrote.

Following Judge Beetem’s decision enjoining the law, the legislature rewrote the bill, dropped the statewide ban but ordered all school boards to develop their own social media policies by March 1, 2012.

These are just some recent examples of institutions or officials overreaching when trying to control social media use. The First Amendment affords great protection against government interference with speech.  Prior restraint is only allowed in vary narrow and specific circumstances.  Schools are still struggling to find the proper balance between allowed regulation and unconstitutional prior restraint.

Expect more attempts to enact and enforce unconstitutional social media policies in this rapidly developing area of the law.