Bulletin: Fall 2011, Volume 17, Number 1

Social media Laws Aim to Curb Bullying and Abuse of Children Online

The bullying and abuse of children through social media services remain a concern among legislators. States have responded to these threats by passing laws limiting digital communication between teachers and students or banning the use of these services in schools. Several state legislatures have backpedaled when accused of infringing upon free expression, but others support such limitations as a means of protecting students and ensuring a productive classroom environment.

Missouri Teacher Social Media Ban Held to Chill Free Speech

On July 14, 2011, Missouri Governor Jay Nixon signed into law Senate Bill 54, intended to “more clearly define teacher-student boundaries” by banning direct contact between teachers and students on social-networking websites. The law is the first of its kind, and revises a set of state laws aimed at preventing and punishing child sexual abuse. Impetus for the law grew after an Associated Press (AP) investigation found that 87 Missouri teachers had lost their licenses between 2001 and 2005 because of sexual misconduct, some of which involved the exchange of explicit online messages with students. Before the law could be enforced in its original form, it was enjoined by a Missouri state judge.

Dubbed the “Amy Hestir Student Protection Act,” the law was named for a young woman who was sexually abused by her junior high teacher, a lifelong state employee who worked in multiple school districts and retired with a “Teacher of the Year” award. In a press release, Senator Jane Cunningham (R-Chesterfield), the bill’s sponsor, wrote that under Missouri’s current employment law, a fear of litigation makes school districts hesitant to disclose past employee behavior. “As a result, teachers who engage in sexual abuse or misconduct with students have the ability to transfer from one school district to another … as in the case of the teacher who assaulted Ms. Hester.” The bill passed overwhelmingly, with strong support for provisions mandating, among other things, that any student-reported incidents of sexual misconduct by teachers must be reported to a school district’s superintendent within 24 hours. Codified as Mo. Rev. Stat. section 162.069 and originally scheduled to take effect on Aug. 28, 2011 before it was enjoined on August 26, the statute also forbids teachers to “establish, maintain, or use a non-work-related Internet site which allows exclusive access with a current or former student.” In addition, it limits teacher-student communication to work-related websites publicly available to third parties, including “school administrators and the child’s legal custodian, physical custodian, or legal guardian.” The law also requires each school district in the state to develop written policies detailing expectations for online communication between students and teachers, intended to take effect in January 2012. The text of Senate Bill 54 can be found at http://www.senate.mo.gov/11info/pdf-bill/tat/SB54.pdf.

Shortly after the bill’s passage, the Missouri State Teachers Association (MSTA) challenged the measures as a violation of First Amendment rights. Asserting that the restrictions placed upon use of non-work-related sites were a prior restraint and violated free speech rights, the union asked the Missouri Circuit Court in Cole County to prevent the state from implementing the contested portions of the bill. The Association’s suit characterized the law as overbroad, writing that it “makes it unlawful for school teachers to communicate with their children, relatives, church youth group members” by means of “many of the … popular and increasingly indispensable computer and cell phone based technologies in wide-spread use in society today.”

The court granted a preliminary injunction on Aug. 26, 2011. Finding a violation of First Amendment freedoms, Circuit Judge Jon Beetem called the measure’s breadth “staggering” and noted that in addition to producing a chilling effect on speech, it could effectively prohibit teachers from using non-work-related social-networking websites to contact their own family members. Enjoining the state from enforcing the law two days before it was set to take effect, the court wrote that “Given the fundamental nature of the right implicated, a ‘chilling effect’ constitutes an immediate and irreparable harm sufficient to support a preliminary injunction.” A copy of Judge Beetem’s order granting the injunction can be found at http://www.msta.org/files/resources/publications/injunction.pdf.

The ruling came as a relief to teachers and school districts. “This gives everyone time to debate and discuss the issue to come to a proper resolution rather than rushing to piece together language that doesn’t resolve the concerns of educators or allow time for teacher input,” said Gail McCray, legal counsel for the MSTA, in an August 26 press release following the injunction.

Less than two weeks after the legislation was blocked, Missouri’s Senate Education Committee unanimously passed a narrower version of the law that repealed the disputed social media ban. Rather than banning social media communications outright, the new bill requires that school districts draft their own social media policies that feature “the use of electronic media and other mechanisms to prevent improper communications between staff members and students.” Some of the original uncertainty remains, however, because the change does not detail what these policies should contain. The amended legislation was subsequently passed by the Missouri House 139 to 2, sending the measure to Gov. Nixon for approval.

Nixon signed the law on October 21, effectively repealing the original statutory ban before it had the opportunity to take effect. However, he took the opportunity in an accompanying signing statement to express reservations over delegating responsibility to school districts to develop their own policies. “Senate Bill No. 1 is not perfect, but the alternative of educators having to conform to the unreasonable restrictions of … Senate Bill No. 54 is a far worse result,” Nixon wrote. The American Civil Liberties Union (ACLU) of Eastern Missouri encouraged Nixon to veto the new bill despite its previous opposition to Senate Bill No. 54, suggesting that shifting discretion to local schools was an inadequate response. “We think the current legislation just passes the buck to the various school boards and doesn’t really solve the problem,” said John Chasnoff, program director for the ACLU of Eastern Missouri, in an interview with the AP.

According to a September 23 post on the St. Louis Beacon, a non-profit online news publication, Rep. Chris Kelly (D-Columbia), who handled the amended bill, called the original ban “a lesson to us all in the effect of unintended consequences.” Rep. Jay Barnes (R-Jefferson City), one of two representatives opposed to the bill, questioned the choice to delegate policy drafting control to all of the state’s school districts. “What I’m afraid that we’re doing is taking one big unconstitutional law and we’re telling 529 different school districts to adopt the policy, he told the Beacon. “Some of them are going to adopt constitutional policies. But some of them probably aren’t.” Nevertheless, Rep. Kelly suggested that guidance from the Missouri School Boards Association and the ACLU would help school boards draft policies that will pass constitutional scrutiny. “That doesn’t mean everyone’s going to get it right every time,” he said. “It means that over time, the best policy will emerge.”

Although Missouri is the first state to attempt to codify a school social media embargo between students and teachers, it is not the only state contemplating legislation. Virginia’s Board of Education considered adopting a teacher social media ban in November 2010, titled “Proposed Guidelines for the Prevention of Sexual Misconduct & Abuse in Virginia Public Schools.” The guidelines would have limited teachers’ electronic communication with students to publicly-accessible platforms, and banned interaction through social-networking sites and text messages, much like Missouri’s original law. Citing increased opportunities for one-on-one online communication that did not exist before, Virginia Board of Education Communications Director Charles Pyle, in an interview for a Jan. 14, 2011 PC Magazine story, said “We’re trying to strike a balance that allows for appropriate uses of technology and social networking while still providing for transparency and accountability.”

However, support in the Virginia Legislature waned following months of debate, and the state’s board of education settled for passing guidelines merely calling for transparency and accessibility to parents and administrators. The move was welcomed Frank LoMonte, executive director of the Student Press Law Center (SPLC), who pointed out that a more open-ended set of guidelines would better serve student journalism participants and advisors than a highly restrictive regime. “[S]tudent journalism in particular is not an 8 a.m. to 3 p.m. business,” LoMonte said in a March 25th SPLC blog post addressing the guidelines.

As part of similar regulatory efforts, Louisiana in 2009 passed Act No. 214, a law that requires school employees who contact students by phone, email, or other electronic means to report the communications to the school district and to use only school-provided devices. The provision has yet to face constitutional challenge.

Rhode Island Imposes Limits on Social-Networking Site Use in Schools

Rhode Island became the first state to impose a blanket ban on use of social networking sites on school grounds in June 2011 with an expressed goal of curbing “cyber-bullying.” Following approval by the state’s General Assembly, Governor Lincoln D. Chafee signed into law the “Safe School Act,” codified as R.I. Gen. Law 1956 section 16-21-33.The Act’s findings of fact state that “it is important that all participants feel free to express their thoughts and ideas in a manner that does not disrupt the educational process, or create unnecessary distractions to, or adversely impact the interpersonal relationships between the students, faculty, and staff.” To that end, the law prohibits student access to social networking sites at school, with an exception for “educational or instructive purposes” given prior approval by school administration. A copy of Rhode Island’s legislation is available at http://www.rilin.state.ri.us/BillText11/HouseText11/H5941Aaa.pdf.

Observers reacted to the bill with many of the same criticisms that faced the Missouri legislation, citing vagueness and overbreadth as possible barriers to compliance. Similar critiques have been leveled at past cyber-bullying legislation, as commenters caution against reflexive corrective legislation to fix a problem traditionally handled without legal recourse. (For more on this issue see “Federal Government, States Grapple with Cyber-bullying Laws” in the Fall 2009 issue of the Silha Bulletin.) Rather than targeting a particular type of speech, such as speech intended to coerce, intimidate, harass or cause substantial emotional distress, Rhode Island’s law simply cuts off communication via “social networking sites” entirely. The statute provides no clear definition of what “social networking sites” are, potentially giving schools authority to ban access to any website with features of social media such as comments and user profiles. “Even if we thought traditional social networking sites were somehow more risky than other sites, which they are not; and even if we thought schools were capable of banning them from student phones, which they are not; trusting schools with a mandate and a vague grant of authority is a recipe for abuse,” said Adam Goldstein, an attorney with the Student Press Law Center, in a June 27 editorial written for the Huffington Post’s Education blog.

Nevertheless, the law’s proponents emphasize that the law identifies its aim as preventing cyber-bullying, not preventing social media access. “We have very good cyber-bullying policies, but this legislation now puts that into law, requiring a statewide policy, which we will draft and develop, which will incorporate the best elements from the current policies that are currently in place in other districts,” said Rhode Island Rep. Deborah Ruggiero (D-Jamestown), in an interview with the education technology blog eSchool News for a July 12 post.

Responding to accusations that the law’s practical effect would be to ban access to these sites in schools, Elliot Krieger, a spokesperson for the Rhode Island Department of Elementary and Secondary Education, told eSchool News that “It allows social media to be used appropriately for instructional and educational purposes.” But in a June 24 SPLC blog post, Executive Director Frank LoMonte noted that most schools already block social networking sites on their own servers and prohibit use of personal electronic devices during school.

Bans may also be circumvented through students’ knowledge of technology. A Sept. 2, 2011 New York Times article by Jennifer Conlin points out that students are increasingly finding ways to access social networking in school. Such bans may be overcome with proxy servers, for instance, which allow a means of side-stepping a ban on direct access to certain websites. Alternatively, students encountering filters may simply access such material at home.

– Mikel J. Sporer
Silha Research Assistant