Facebook, Students and Teachers: A Question of Free Speech
By Rob Arcamona
Last week, a Missouri judge issued a preliminary injunction against the state, suspending part of a law that would have made it illegal for teachers and students to connect via social networks.
Section 162.069.4 of the Amy Hestir Student Protection Act — which aims to protect children from sexual predators — prohibits teachers from establishing, maintaining or using a “non-work-related Internet site which allows exclusive access with a current or former student.”
On its face, the law appears to stop teachers from using popular websites and services such as Facebook, Twitter or Gmail — any site where there is a function allowing a teacher to privately message a student. But the injunction showcases that the law may go much further than that — into shaky First Amendment territory.
In issuing the injunction order, Cole County Circuit Judge Jon Beetem stated that the breadth of this one provision was simply “staggering.” The provision, Beetem wrote, creates a “chilling effect” on teachers’ speech.
According to the judge’s order, there is a “substantial likelihood” that Section 162 violates educators’ First Amendment rights. As a result, Beetem temporarily suspended the law while the government and teachers’ associations prepare for their next move.
The law came under fire from a variety of groups, including the Missouri Teachers Association and the American Civil Liberties Union, which filed separate lawsuits. However, educational groups largely supported the Student Protection Act while it was making its way through the General Assembly.
Kent Brown, the attorney who won the injunction on behalf of the Missouri Teachers Association, said social networking sites can have a distinct pedagogical purpose. These web pages have become a popular way for teachers to share notes, prepare presentations, answer questions, review papers, and communicate with students about coursework outside of the classroom. But, lawmakers fear that allowing teachers to communicate privately with students on the Internet may lead to improper relationships, and possibly sexual abuse.
State Sen. Jane Cunningham, a Republican representing the suburbs of St. Louis and sponsor of the law, said many inappropriate sexual relationships that develop between students and teachers originate from private communications.
After the injunction was issued, Missouri Gov. Jay Nixon called for the state General Assembly to repeal Section 162, “while preserving other vital protections included in the bill” in a special legislative session. According to Scott Holste, a spokesman for Nixon, Missouri legislators could then reconsider the provision later this year with input from teachers and school administrators.
Sen. Cunningham does not believe the Assembly needs to wait that long, saying she’s confident amended language could be passed in the special session set to begin on Sept. 6. The lawmaker said she has been in contact with a variety of educational groups and other state Assembly members who are “very supportive of what we’re trying to do.”
The court order is only a temporary suspension of this one subsection of the Amy Hestir Student Protection Act. The order may become permanent, or be rescinded, once the court has had a chance to more fully consider the constitutional questions at stake.
Balancing Free Speech Against Student Protection
Public school officials, like state legislators, have a responsibility to protect students from sexual assault, particularly at the hands of teachers or other state employees. In fact, it is hard to imagine a higher interest than protecting students from sexual predators. Yet, the constitution mandates that any law, regardless of the interest it seeks to protect, meet certain criteria. Among these criteria is the requirement that laws not be “substantially overbroad” or unconstitutionally “vague.”
The First Amendment overbreadth principle originates from the 1973 Supreme Court case, Broadrick v. Oklahoma. According to this doctrine, state and federal legislatures may not enact laws that are so broad in scope that they prohibit substantially more speech than necessary to achieve the law’s purpose. In banning teachers from “establish[ing], maintain[ing] or us[ing]” a website that “allows access with a current or former student,” the Student Protection Act may do just that.
According to Brown, the law prohibits a teacher from using any website that has a function allowing educators to privately contact students. “On its face, the law prohibits use, period,” Brown said.
If Brown is correct, teachers would be prohibited from simply having a Facebook or Gmail account, regardless of whether they attempt to contact students, because these websites facilitate private messaging.
Sen. Cunningham disputes this reading, claiming that the law only stops teachers from privately messaging students.
Even if the law is read as the state senator suggests, however, Section 162 still restricts proper pedagogical uses of the Internet as currently written. For instance, the law would prohibit a teacher from sending a Gchat message to a student reminding him or her that a homework assignment is due. As Judge Beetem noted, the law would also prohibit a parent who is also a teacher from communicating on websites with their own children who are students.
In order to completely stop teachers from having any private contact with students on the Internet, the state would need to meet the most stringent form of judicial review. Namely, Missouri attorneys would have to put forth a “compelling” rationale for the wholesale ban and demonstrate how it is the least speech-restrictive means available to protect students.
To Sen. Cunningham, completely blocking private Internet messages between students and teachers, even those relating to schoolwork, is needed. “A lot of sexual relationships start with the most innocent text message: ‘How do I do this math problem?’ or ‘I’m going to be late for practice,’” Cunningham said. To the state senator, this ban is nothing more than a way to avoid parents being “cut out” of student-teacher contact and protect both teachers and students.
The question a court will have to answer, if the law is not amended, is two-fold: First, a judge would have to determine whether the law only prohibits private messaging or whether it stops educators from using social networks at all; second, if the former reading is accepted, a judge will have to determine whether a blanket ban on private messaging is truly the “least restrictive means” to protect students.
But What Does It Mean?
There is yet another constitutional issue raised by restricting teachers’ ability to “establish, maintain, or use” a website that “allows exclusive access with a current or former student.”
Under First Amendment principles, a law will be held unconstitutional if it is “vague.” The Supreme Court has stated that laws are void for vagueness when a “would be law-abiding” citizen cannot tell what conduct or speech is permitted, and what is prohibited. Such vague laws chill speech — people will err on the side of caution and not engage in speech rather than risk being prosecuted for violating an unclear law.
The primary vagueness issue raised by Section 162 relates to the terms “establish,” “maintain” and “use.” By Sen. Cunningham’s reading, the law is not overbroad because it only applies to private communications between teachers and students, and does not stop a teacher from simply using certain websites. But nowhere in the text of the law does it actually say that.
“This issue came up from teachers who identified the main problem as not being able to tell what is allowed and what is prohibited under the law,” Brown said. This, Brown said, is the hallmark of vagueness.
If a court finds that a reasonable person would not know what conduct is prohibited under the Act, the provision will be stricken for its unconstitutional chilling effect on free speech.
Judge Beetem has ordered a scheduling conference for this case on Oct. 14. If the provision has not been repealed by the General Assembly by then, the court will be forced to conclude whether the law is substantially overbroad or unconstitutionally vague.
A New Law With The Same Problems
As it is currently drafted, Section 162 of the Amy Hestir Student Protection Act has some substantial constitutional problems. But lawmakers are currently working to amend the section in early September, raising a new constitutional question.
Sen. Cunningham is actively working to amend the enjoined provision and “clear up any ambiguities that people might see in it,” she said. Likely, what will result is new language that clearly prohibits teachers from privately messaging students through electronic communications. This, however, still might not pass constitutional muster.
When a state employee, such as a public school teacher, makes “statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,” the Supreme Court has said. Thus, if the General Assembly wished to ban a teacher from privately messaging a student regarding homework or a book report, they would have some constitutional precedent in their sails. Although, this is certainly not an open-and-shut case.
Yet, any amended language is likely to do more — a lot more. The law we could see come from the General Assembly would completely prohibit non-work related speech. If it does, the state would need to show, with some particularity and rigor, just why a total ban is absolutely necessary to protect students. The legislature could do this though affidavits, hearings, in-depth studies, and statements from Assembly members on the State House floor. And, even then, a court could simply disagree.
The problem the General Assembly will face is that given Judge Beetem’s injunction, the constitutional problems Section 162 is currently facing, and the national media spotlight focused on this law, every free-speech advocate in the country will have an eye on what the General Assembly passes, possibly making a lawsuit difficult to avoid.
Rob Arcamona is a legal fellow at the Student Press Law Center. He graduated from The George Washington University Law School.Related