Wednesday, January 18, 2012

Supreme Court Signals It Will Protect Students' Social Media First Amendment Rights

The Supreme Court recently declined to review three social media free speech cases. According to the Associated Press, the Supreme Court let stand two cases that stated that public schools do not have the right to discipline students for off campus speech that was disseminated via social media. In the third case, the Supreme Court let stand a student's suspension by a West Virginia school that was handed out because the student created a web page that suggested another student had a sexually transmitted disease.

On-campus and off-campus speech has been blurred because of the reach of social media. However, the Supreme Court demonstrated that at this point Tinker v. Des Moines (393 U.S. 503, 1969) is still the law of the land. According to Tinker, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Furthermore, the Tinker Court stated, "[i]n order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."

In my Social Media Law Predictions For 2012, I mentioned as my third prediction: "State Legislatures and/or the courts in the United States will address whether students and/or college applicants may be required to turn over their social media user names and passwords and/or install social media monitoring software onto their personal electronic devices in order to attend or play inter-collegiate sports."

As I have previously stated, I believe it is unconstitutional for a public school to require their students to turn over their private social media user names and passwords and/or provide access to their private social media content via "Facebook Friending" a school employee and/or to require that students install social media monitoring software onto their personal electronic devices. Public schools that require their students to provide them access to their private social media content are violating the U.S. Constitution and are creating tremendous legal liability issues that may ultimately harm taxpayers who provide school funding.

Unfortunately, some public schools are listening to social media consultants who are advising them that it is legal and acceptable public policy to require students to provide schools unfettered access to their personal electronic devices and content in order to play intercollegiate sports. It appears that consultants who are advising some public schools on these issues do not understand NCAA social media compliance issues, the law, legal liability issues, public policy, etc...

Unlike China that has a Microblog Identification Program that requires its citizens to register their online user names so the government may track their online posts, the United States strongly believes in freedom of speech. Therefore, schools must be careful when trying to regulate student social media speech.

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