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Muzzling teachers on Facebook

Missouri law illustrated dangers of chipping away at speech with a meat-ax instead of a scalpel.

The National Law Journal
November 28, 2011

With class sizes burgeoning and many youngsters remaining anonymous to their teachers, one might think that efforts by teachers to enhance communication with pupils would be applauded. Instead, school authorities and, more recently, legislators are casting a wary eye on such practices as teacher-student “friending” on Facebook. Although some view Internet social media as ideal forums for instructors and students to connect positively, others regard them as havens for would-be child predators — wolves masquerading as educators, who inveigle kids into inappropriate and at times even illegal relationships. Proper concern about young people's safety (perhaps coupled with public hysteria and officials’ fear of liability for Web-based misconduct) have led to crackdowns on teachers’ use of Facebook, Twitter, MySpace and similar popular Web sites. Missouri's misadventure with the first statewide law in this area furnishes a warning of the dangers of chipping away at speech with a meat-ax instead of a fine-honed scalpel.

Passed by an overwhelming margin during the summer, the Amy Hestir Student Protection Act was slated to take effect on Aug. 28. Some of its features were unexceptionable: for instance, a salutary requirement that school districts share information about sexually abusive teachers, which allowed for lawsuits when failure to do so resulted in additional offenses.

Others were less benign, however. The most disquieting portion read: “No teacher shall establish, maintain, or use a non-work-related internet site which allows exclusive access with a current or former student.” (A confusing second sentence added that the ban should not be construed to “prohibit…a teacher from establishing a nonwork-related internet site, provided the site is used in accordance with this section.”) The statute defined “[f]ormer student” as any person who once attended the teacher’s school, is 18 or younger, and has not graduated. “Exclusive access” referred to limiting of information to people authorized by the owner. Interestingly, these provisions had nothing to do with Amy Hestir, the poster child of the eponymous law, who had been seduced by a teacher in the mid-1980s — two decades before the emergence of social-networking sites.

On its face, the act appeared to bar a teacher from having any personal Web site regardless whether students employed it, exclusively or not, since Internet social media generally offer the option of privacy settings. A less draconian interpretation, based on the “used in accordance” proviso, might have permitted Facebook accounts so long as teachers actually denied nonpublic entree to pupils. But at least one district announced that it would interpret the law even to forbid communication between a teacher and her own children who met the definition of students! Thus, teachers could hardly rely on administrators to take a common-sense view of the act.

Believing its members should not have to choose between self-censorship and possible discipline or loss of license, the Missouri State Teachers Association sued to enjoin implementation of the troubling language, claiming that it was overbroad, vague and an impermissible prior restraint. On Aug. 26, citing the “staggering” breadth of the law and its chilling effect on legitimate speech, Circuit Judge Jon E. Beetem granted a preliminary injunction. On Oct. 19, the governor signed a bill (again, overwhelmingly passed) repealing the offending provisions. But against his wishes the legislature required school districts to come up with their own policies on appropriate use by teachers and students of the electronic media.

Passing the buck downward is unlikely to improve matters. More likely, this approach will only give myriad districts — Missouri alone has more than 500 — a local option on the First Amendment. A better strategy would be to enact an improved state law. Narrower and clearer limitations would probably survive constitutional scrutiny. For example, restricting Internet contact between teachers and students, other than their own children, to school-approved, work-related sites might well pass muster. Under the Pickering-Connick-Garcetti test governing speech by public employees, such regulation would be proper since teacher-pupil fraternization does not involve matters of public concern. (The result under a variant of the Tinker-Hazelwood standards applicable to student speech, which some courts have employed in this area, is less certain as it is more protective of speech.)

Yet a policy’s possible validity does not settle its advisability. Teens prefer “one-stop” shopping: They will visit their own and their friends’, or teacher-friends’, sites and probably ignore the school’s. Moreover, students might well seek needed help from teachers, guidance on anything from homework to bullying or problems at home, in a private Internet setting when they would not do so in person, on a Facebook “wall,” or — needless to say — on a school Web page. Do we really want to bar all such communication? Although the technology may be new, the basic problem remains the same: Should we outlaw much “good speech” as the price of preventing “bad speech”?