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Social Media and Free Speech

A Political Issue
Erikamarie Burk 2/25/2013

Contents
Introduction ................................................................................................................................................... 1 Case ........................................................................................................................................................... 1 Changes in Policy Over Time ................................................................................................................... 2 Policy and Social Media ............................................................................................................................ 3 Conclusion .................................................................................................................................................... 3 Works Cited ................................................................................................................................................... 4 Addendums and Attachments For Your Information ................................................................................ 5 Court Cases on Free Speech...................................................................................................................... 5 Cases on Social Networking and Media .................................................................................................... 6

Erikamarie Burk EDL 609: Politics in Education February 25, 2013 Political Issue: Social Networking and Free Speech

Introduction
According to Public School Law, by Thomas et al., until the mid-20th century, it was generally accepted that public school teachers could be dismissed or disciplined for expressing views considered objectionable by the school board. Technology and Social Networking has become an ingrained idea for modern citizens. Be it students or adults, many use Facebook as a personal means of expression. When comments are made regarding teaching, schools, or supervisors; however, what becomes speech and what is just bologna? (Thomas, CambronMcCabe, & McCarthy, 2009) The First Amendment states, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. What we will focus on is the clause or abridging the freedom of speech. In talking about speech, it is important to understand the court cases that build our nations opinion on the subject. An important concept to note is that although freedom of speech is protected by the First Amendment, not everything we say, display, or do is considered speech. To be considered expression covered by the First Amendment, it must attempt to convey a particularized message that will be likely be understood by those receiving the message. (Thomas, Cambron-McCabe, & McCarthy, 2009) (Stone, 2012) Let us start by reviewing landmark cases involving public employees and free speech.
Case: 1968 Pickering V. Board of Education

The Supreme Court recognized that teachers have a First Amendment right to air their views on matters of public concern. Overview: School board fired Pickering because of a letter to a local newspaper criticizing the school boards fiscal policies. The SC reversed the lower courts decisions, saying that Pickering raised questions of public interest that required free and open debate. The court applied a balancing test this test weights the teachers interest in expressing his views on public issues against the school boards interest in providing educational services. The court said that the school would prevail if what Pickering wrote hurt his classroom performance, his relationships with his boss or other teachers, or hurt school operations. Because these outcomes did not manifest, Pickerings letter to the newspaper was deemed admissible expression and covered by the First Amendment.
(*Please see Addendums and Attachments for more cases regarding free speech.) 1

Erikamarie Burk EDL 609: Politics in Education February 25, 2013 Political Issue: Social Networking and Free Speech

Changes in Policy Over Time

Now that we have discussed Pickering, let us discuss the changes in Free Speech Policy over the years. Early on after Pickering, the courts interpreted protected speech by applying the Pickering balancing test in upholding teachers right to express views on matters of public interest. By the 1980s; however, the courts have seemed to view teachers expression as relating to private employment, rather than public concern, using Connick (see addendum) to broadly interpret what falls into the category of unprotected private grievances. From the landmark Pickering case in 1968 to the 2006 Garcetti case (see addendum), the focus moved from the content of the expression to the role of the speaker in determining what is covered by the laws of free speech. Since the early twentieth century, regulations on public employees, such as teachers, are far less restrictive. For example, in the early 1900s, many female teachers were prohibited from marrying or even dating. Although these restrictions seem ridiculous to us today, school boards still attempt to control aspects of teachers personal lives that are unaligned with community values. Teachers often challenge school administration due to restrictions placed on personal lifestyles. This right, according to the teachers, is implied in the concept of personal liberty a section of the Fourteenth Amendment. President Lincoln assessed this paradox, saying, We all declare for liberty, he said, but in using the same word we do not all mean the same thing. (Stone, 2012) The courts have tried to balance privacy rights against the school boards interest to protect the welfare of students and operations of the school. According to School Law, sanctions cannot be imposed solely because school officials disapprove of teachers personal and private conduct, but restrictions can be placed on unconventional behavior that is detrimental to job performance or harmful to students. (Thomas, Cambron-McCabe, & McCarthy, 2009) Because educators are held at a higher standard than other public citizens, they can be dismissed on evidence that would not hold up to law enforcement; however, they cannot be dismissed for unsubstantiated rumors about their activities. Precise and specific privacy rights for educators have not been clearly defined by the courts. Generally, these topics are decided on a case-by-case basis. With all this information and precedent, how can we apply these ideas to social networking? Because social media is a rather new concept and a huge piece of daily life for many people, this topic is controversial. Can and should an educator be fired, demoted, or otherwise for something posted on Facebook, Twitter, Pinterest, Tumblr, MySpace, and other social media sites?
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Erikamarie Burk EDL 609: Politics in Education February 25, 2013 Political Issue: Social Networking and Free Speech

Policy and Social Media

In most cases concerning social media, the courts seem to rule in favor of the school and not teachers. There are also countless websites out there advising teachers the dos and donts of social media. What all of these cases have in common though, is that the full time teachers were all fired from contracted positions when they commented directly about the school or staff. An alarming case comes to mind a teacher in Georgia who was fired for posting two photos holding a glass of Guinness on a non-school-sponsored trip to Europe. She posted over 500 pictures of her trip, but only two showed her outside the thousand-year-old pub in Ireland with a glass that said Guinness. She was not spoken to about the photos until a parent allegedly called the school to complain about the photos. She was asked to resign in the office that same day or be suspended immediately. According to Payne, she felt forced to resign and was not given due process. She has been given the right to sue the district. In this case, the photos do not depict drunkenness or any type of undesirable behavior. This begs the question, what level of privacy should be allowed to teachers? Can they live their own lives? What about drinking at a public event if a student happens upon a teacher who is enjoying a beer, can that teacher be fired? Where is the limit?
(*Please see Addendums and Attachments for more cases involving the internet and social media.)

Conclusion
Without trying to be too blunt, I truly believe that much of this is absolutely asinine. As a teacher and a business person, what I do outside of school is my business. When it comes to the classroom, it becomes the schools business. Teachers, as well as any citizen, are entitled to their own private lives. I believe schools can state that teachers should not friend or follow students or that they must have high privacy settings; these things, I understand could be a liability issue for the school. However, when a teacher is not allowed to voice an opinion or post a non-offensive picture on Facebook, is that not a huge infringement on her personal liberty? These cases are few compared to other issues because the internet and scope of electronic media has grown so quickly. Without much precedent, these cases are singly tried and ruled. In the coming decades, new ideas a rulings may come about. As law catches up to technology, more cases will better define laws and policies on social media. Without understanding the laws in place and laws not in place, it is hard to determine which actions are best in terms of social networking and schools.

Erikamarie Burk EDL 609: Politics in Education February 25, 2013 Political Issue: Social Networking and Free Speech

Works Cited
Association, N. E. (2009). Social Networking Nightmares. Retrieved September 16, 2012, from National Education Association: Great Public Schools for Every Student: www.nea.org Erickson, M. J. (2012, August 10). Recent Articles. Retrieved September 15, 2012, from Social Networking Law: www.socialnetworkinglawblog.com Stone, D. (2012). Policy Paradox: The Art of Political Decision Making. In A. Javsicas (Ed.). New York, NY, USA: W.W. Norton & Company, Inc. Thomas, S. B., Cambron-McCabe, N. H., & McCarthy, M. M. (2009). Public School Law. Boston: Pearson.

Erikamarie Burk EDL 609: Politics in Education February 25, 2013 Political Issue: Social Networking and Free Speech

Addendums and Attachments For Your Information


Court Cases on Free Speech
1977 Mt. Healthy City School District V. Doyle The Supreme Court ruled that an educator can be disciplined or fired if there are grounds to do so outside of any question of protected speech. Overview: The School Board voted not to renew a teachers contract that had called a radio station to comment on a proposed teacher grooming code. However, apart from that instance of protected speech, the teacher was involved in previous instances and obscene gestures to students. The School Board cited the phone call as one of the only grounds for dismissal. The Supreme Court reversed the lower courts findings and found that there was enough evidence to remove the teacher without considering the phone call and, in that case, the teacher could be dismissed. 1983 Connick v. Myers The Supreme Court narrowed the purview of Pickering by more narrowly interpreting the balancing test. This lessened the circumstances under which a public employee could succeed in a speech case. Overview: The Supreme Court found that form and context as well as the content of the speech in question should be considered when deciding if it relates to matters which are public or matters which are just personal grievances. Those that are personal are not protected by the First Amendment. The court made it clear that the balancing test used in Pickering can be considered initially to determine whether the expression informs public debate, but that there must be subsequent tests. If the expression under scrutiny is found to be of personal grievance, the argument ends at the Pickering test and is not up for constitutional debate. In this case, a disgruntled ADA sent a questionnaire to employees about their work environment and feelings about the DA and, as a result, was fired. The ADA felt that the questionnaire was a form of expression covered by the First Amendment. The questionnaire was found to have limited connection to a public concern and did not pass the Pickering test; barring it from being argued further. 1994 Waters v. Churchill The Supreme Court found that a government employer can reach factual conclusions without being held to the evidentiary rules that courts must follow. As long as the employer conducted an investigation and acted in good faith, it could discharge an employee for remarks it believed were made, regardless of what was actually said. Overview: A nurse was fired due to comments criticizing hospital operations to a coworker during a break. These comments were deemed not of public concern, but criticisms of her employer and
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Erikamarie Burk EDL 609: Politics in Education February 25, 2013 Political Issue: Social Networking and Free Speech

disruptive to the work environment. Because of this, her firing was deemed not a violation of her First Amendment rights. 2006 Garcetti v. Ceballos Added another question to assess the First Amendment protection of public workers speech and made it more difficult for them to succeed in cases that their rights have been infringed upon. The Supreme Court ruled that any speech made pursuant to job responsibilities is not protected by the First Amendment. Overview: The first consideration became what role the person was taking when expressing. Instead of Pickering or Connick, now the very first question is whether the employee is speaking as a private citizen or as an employee. Ceballos, an ADA, felt that because he wrote a memo indicating that a deputy lied in an affidavit in a criminal case and then testified to it, he was ridiculed, denied promotion, and retaliated against by the DA. He thought this was a violation of his right to speech. The Supreme Court ruled that the DA did not violate Ceballos rights because Ceballos was speaking about a task that was in the context of his job duties and; therefore, not covered by the First Amendment.

Cases on Social Networking and Media


A deputy sheriff in Virginia lost his job after he liked the Facebook page of his bosss election opponent in 2009. Others in the office also lost their jobs for the same reason after the incumbent was re-elected. The group sued, but a judge ruled that just liking a Facebook page is insufficient speech to merit constitutional protection. (Erickson, 2012) The case is currently awaiting consideration by the Fourth Circuit Court of Appeals. Facebook and ACLU have recently filed friend-of-the-court briefs to support the deputys appeal. In August of 2011, Missouri passed a law prohibiting communications on a website that allows exclusive access with a current or former student. The law seems to prevent private, direct communications between student and teacher as well as prevent a teacher with a private Facebook profile from friending a student on Facebook. This law is clearly vague and leaves a lot of questions. What is exclusive access? Does this law go too far? Does it infringe on students or teachers free speech or freedom of association rights? This law was to go into effect January 1 or 2012, but was repealed in October of 2011. The ACLU said it placed an unconstitutional restriction on freedoms of speech and association. In Patterson, NJ, a teacher posted on Facebook that being in her mostly black and Latino school made her feel like a warden of future criminals. The teacher was fired a sued with grounds that what she said was free speech. A judge ruled that the woman could be fired for calling her students future criminals on Facebook. In another case, a teacher was fired after she posted that a pro-gay exhibit at school should be taken down and that homosexuals are innate sinners. In this case, parents felt that the long rant undermined her ability to teach. The case has not yet gone to court.

Erikamarie Burk EDL 609: Politics in Education February 25, 2013 Political Issue: Social Networking and Free Speech

A Connecticut teacher, Jeffrey Spanierman, was fired because of two online conversations with students on his MySpace page. In one post, he teased a student about his girlfriend and the student responded, Dont be jealous cause you cant get any lol. Spanierman replied: What makes you think I want any? Im not jealous. I just like to have fun and goof on you guys. If you dont like it, kiss my brass! LMAO. He also jokingly threatened another student with lifelong detention for calling him sir. A federal court ruled that Spaniermans termination didnt violate the First Amendment because his speech was likely to disrupt school activities. This case did not pass the Pickering test. The court faulted the teacher for failing to maintain a professional association with students and that, such conduct, could disrupt the learning atmosphere of a school. In Washington State, Tara Richardson was a mentor for beginning teachers. She sued the Central Kitsap School District claiming she was demoted because she posted comments on her personal blog describing an administrator as a smug know-it-all creep who has a reputation of crapping on secretaries A federal Appeals court rejected her First Amendment argument, finding that her nasty, personal comments interfered with her job because they fatally undermined her ability to enter into confidential and trusting mentor relationships with beginning teachers. In the case of a Pennsylvania college senior removed from her student-teaching practicum due to posting unprofessional pictures of herself drinking, a federal court found no First Amendment violation. Applying the Pickering case the court ruled that her MySpace postings dealt only with personal matters, not issues of public concern. (Association, 2009)