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“It’s my First Amendment right to say what I want!”  The First Amendment is commonly invoked to justify personal expression.  But did you know that the First Amendment applies only when the government is involved?  For example, the First Amendment wouldn’t prevent a private company from firing an employee for making offensive comments about the governor.  If the same employee worked for a government office, then the First Amendment might apply.  As a lawsuit recently filed against the County of Maui illustrates, the First Amendment adds a layer of complexity for public employers dealing with controversial social media activity of its employees.

The First Amendment Lawsuit Against Maui County

Neldon Mamuad is a volunteer Liquor Commissioner for Maui County and part-time aide to a Maui County Council member.  In July 2013, Mamuad started a Facebook fan page called “TAGUMAWatch,” named after a Maui police officer well-known for strict enforcement of parking and traffic violations.  The page was intended to enable Facebook users to post about “Taguma sightings” and share their thoughts about him.  TAGUMAWatch gained popularity quickly and evolved into a discussion forum on a variety of topics including news, traffic, and politics.

Mamuad claims that he didn’t publicize his involvement with TAGUMAWatch until a TV news story about the page named him as its creator.   Mamuad also didn’t identify himself as a County employee when posting to the page or suggest that he spoke for the County.

The County somehow linked Mamuad to the page.  Allegedly under pressure from the County, Mamuad changed the page’s name to MAUIWatch.  A few days later, Officer Taguma submitted a complaint to the County alleging harassment via the page.  After notifying Mamuad of the complaint and conducting an investigation, the County determined that Mamuad had engaged in harassment and cyber-bullying through social media and required him to enroll in an employee counseling program.

On March 3, 2014, Mamuad sued the County in federal court for violating his First Amendment rights.  As of the time of this post, Mamuad’s motion for a TRO was pending.

When Does Employee Discipline Violate the First Amendment?

Most forms of internet expression qualify as “speech” under the First Amendment.  That point has been driven home by recent legal developments,  including a court decision that Facebook “likes” are protected by the First Amendment, a Ninth Circuit opinion recognizing that bloggers have the same First Amendment protections as traditional journalists, dismissal of an appeal from the termination of a public school teacher, and a federal lawsuit filed by a gun rights group alleging that the Honolulu Police Department censored comments on its Facebook page.  Whenever the government is the one restricting speech, the First Amendment becomes relevant.

So how does a public employer know when it may discipline an employee for his or her social media conduct without violating the First Amendment?  The general test in the Ninth Circuit, as spelled out in Mamuad’s TRO motion, looks at these factors:

  1. Did the employee speak on a matter of public concern?
  2. Did the employee speak as a private citizen or public employee?
  3. Was the employee’s protected speech a substantial or motivating factor in the adverse employment action?
  4. Did the government have an adequate justification for treating the employee differently from other members of the general public?
  5. Would the government have taken the adverse employment action even absent the protected speech?

Dahlia v. Rodriguez, 735 F.3d 1060, 1067 (9th Cir. 2013) (en banc).  For a court to find that employee discipline violates the First Amendment, the first and third question must be answered in the affirmative, the fourth and fifth question answered in the negative, and for the second question, the employee must have spoken as a private citizen.  The employee also has the burden to prove the first three factors.  If the employee is successful, then the burden shifts to the government to prove the fourth and fifth factors.

Applying this test to employee social media conduct isn’t simple, but it helps government employers assess whether the First Amendment counsels against disciplinary action.

Links:

Complaint in the Mamuad lawsuit
Motion for TRO in Mamuad lawsuit (w/o attached declarations and exhibits)

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Federal court dismisses claims against charter school for expelling student due to cyberbullying — Lindsey v. Matayoshi, 2013 WL 3092450 (D. Haw. June 19, 2013)

The federal district court of Hawaii recently dismissed a lawsuit against a charter school that expelled a student for cyberbullying.  The student and her parents claimed that the school denied them a property interest in a free public education in violation of their constitutional right to due process.  The court ruled that the damage claims against the school were barred by Eleventh Amendment immunity and that injunctive relief was unavailable because the school did not violate the constitutional rights of the student and her parents.

RFL was a student at Kanu, a charter school in the state of Hawaii.  On several occasions, RFL threatened, bullied, and teased other students through Facebook posts and text messages.  RFL also got involved in a fight with a classmate.  Kanu initially suspended RFL and reminded her of Kanu’s “no tolerance” policy toward bullying, but when RFL persisted in taunting and threatening classmates through social media, Kanu expelled her.

Kanu discussed several options with RFL’s parents for continuing her education, including nearby public high schools and home schooling, and offered to assist in transitioning RFL to the school of her parents’ choice.  RFL’s parents declined to enroll RFL in any of the public high schools offered to them as alternatives.  Instead, RFL and her parents sued Kanu, the superintendent of the state department of education, and various school officials.  The plaintiffs sought damages and injunctive relief for the deprivation of their due process rights, emotional distress, and a violation of state administrative laws.

The court ruled that the Eleventh Amendment barred the plaintiffs from seeking monetary damages claims from Kanu, a state entity, and the other defendants, who were state officials sued in their official capacity.  As for injunctive relief claim for an order requiring Kanu to re-enroll RFL, the court found that the defendants had not deprived the plaintiffs of a constitutionally-protected property interest in public education.  Kanu offered alternative schooling options to the plaintiffs, but they rejected them all because they did not like the schools that were available to them.  The court held that an entitlement to public education did not include the right to attend a particular school or to a particular kind of education or curriculum.

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Now that the 2013 legislative session in Hawai‘i is in full swing, let’s take a look at what new measures are in the pipeline to regulate Internet activity.  A chart of relevant information about each bill is available here.  Here’s a summary of the Internet-related proposals working their way through the legislature.

Social Media and Internet Account Passwords

A set of bills (SB207 and HB713) proposes to join other states in banning employers from asking employees or job applicants to disclose the passwords to their personal social media accounts.  Another set of proposals (HB1104 and HB1023) would extend the ban to educational institutions and their students or prospective students.

Privacy Policies

Two bills (HB39 and SB729) would make it a legal requirement for operators of a commercial website or online service to post a privacy policy on their website.

Cyberbullying

Three bills (HB1226, SB525, and HB397) would require the board of education to adopt various policies and programs to combat cyberbullying in public and charter schools.

Teacher/Student Interactions

Apparently responding to incidents in which teachers and students conducted inappropriate relationships online, HB678 would allow a teacher in a public or charter school to engage in electronic communication with a student (including cell phone calls) only on Department of Education networks and systems.

Identity Theft

SB325 would require businesses to implement a comprehensive, written policy and procedure to prevent identity theft and train all employees in implementation of the same.

Cybersecurity

HB462 would establish a statewide cybersecurity council to identify and assess critical computer infrastructure, identify cybersecurity “best practices,” recommend incentives for voluntary adoption of such best practices, evaluate the efficacy of such practices, and report annually to the legislature.

We’ll be tracking these bills, reporting on their status periodically, and posting revisions to the chart.  Stay tuned!

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The legal boundaries for school discipline for cyberbullying continues to be unclear — R.S. v. Minnewaska Area School District No. 2149, 2012 WL 3870868 (D. Minn. Sept. 6, 2012); S.J.W. v. Lee’s Summit R-7 School District, 696 F.3d 771 (8th Cir. Oct. 17, 2012)

As much as cyberbullying is gaining media attention, clear guidance on what schools can do about it is still lacking.  In January, the U.S. Supreme Court declined to review three free speech challenges involving social media content posted by students.  As a result, courts continue to grapple with defining the boundaries of school discipline for student online conduct, particularly when it happens off-campus.  A pair of recent cases illustrates this trend.

R.S. v. Minnewaska Area School District No. 2149: A 12-year old sixth grader (R.S.) posted on her Facebook page that she “hated” her school’s adult hall monitor.  R.S. posted the comment from her home outside of school hours.  The comment somehow found its way to the principal, who considered the comment a form of bullying.  The principal gave R.S. detention and required her to apologize to the hall monitor.  In a second incident, R.S. posted a comment on her Facebook wall stating: “I want to know who the F%$# [sic] told on me.”  For this, R.S was suspended for a day and prohibited from going on a class ski trip.  On a third occasion, school officials learned that R.S. was communicating with a male student on the Internet about sexual topics (when confronted, the male student admitted that he initiated the conversation).  The school officials called R.S. out of class to meet with them and the deputy sheriff assigned to the school.  They demanded to know her email and Facebook usernames and passwords.  Feeling pressured, R.S. complied.  The school officials then logged into her Facebook account and viewed the public and private messages she had posted on the site.  The school did not formally discipline R.S. any further.

The punishment of R.S. violated her First Amendment right to free speech

Judge Davis of the federal district court of Minnesota looked to the Tinker line of cases for guidance and concluded that the First Amendment prohibits school authorities from punishing students for out-of-school statements the statements are true threats or reasonably calculated to reach the school environment and are so egregious as to pose a serious safety risk or other substantial disruption there.  R.S.’s Facebook posts were not threatening, the court found, and while the posts might have been reasonably calculated to reach a school audience, that possibility alone did not justify her punishment.  An out-of-court statement must be more than inappropriate.  It must potentially cause a substantial disruption in the school before it can be punished.

The school violated R.S.’s Fourth Amendment right to be free of unlawful searches and seizures

Students enjoy a Fourth Amendment right to be free from unreasonable searches and seizures by school officials.  But did R.S. have a reasonable expectation of privacy as to the information posted on her Facebook account that only her Facebook friends could see?  The court said yes.  There is no meaningful difference between a password-protected private Facebook message and other forms of private electronic correspondence.  The court also found that the school officials had no legitimate governmental interest for reviewing her private communications.  Notably, there was no threat that R.S.’s private posts would cause a disruption in the classroom.

R.S. had a viable claim against the school for invasion of privacy

Again, the court focused on R.S.’s expectation of privacy.  The court analogized private Facebook messages to email messages, to which there is a reasonable expectation of privacy.  The court summarily rejected the schools’ argument that R.S. used Facebook in violation of the site’s terms of use because she was a minor.  The court failed to see how a violation of a website’s terms of use could destroy an expectation of privacy.  Also unpersuasive was the school’s argument that R.S. compromised her privacy interest by allowing her mother and one other person view her Facebook account.  It would be unreasonable, the court explained, to conclude that a person gives up all expectation of privacy as to the contents of his or her password-protected email account just by showing an email to another individual.

S.J.W. v. Lee’s Summit R-7 School District: Twin brothers (the “Wilsons”) who were high school juniors created a website called NorthPress.  Part of NorthPress was a blog intended to discuss, satirize, and “vent” about events at the Wilsons’ school.  Because the site was hosted on a Dutch domain, the site would not show up in the results of a Google search by a user in the U.S., but anyone knowing the site’s URL could access it.  The Wilsons added posts to the NorthPress blog containing a variety of offensive and racist comments as well as sexually explicit and degrading comments about particular female classmates whom they identified by name.  The racist posts discussed fights at the school and mocked black students.  A third student added another racist post.

The Wilsons initially told only several of their friends about NorthPress and claimed they intended only their friends to know about it, but word about the site quickly spread to the study body at their school.  The school initially suspended the Wilsons for ten days, and after the matter went through further proceedings at the school district level, the Wilsons were suspended for 180 days but allowed to enroll in another school for the duration of their suspensions.  The Wilsons filed a lawsuit for a preliminary injunction to lift the suspensions.  The district court granted the preliminary injunction, but on appeal, the Eighth Circuit reversed.

Reviewing cases that analyze the applicability of Tinker to off-campus student speech, the Eighth Circuit ruled that the blog posts in question targeted the school, could reasonably be expected to reach the school or impact the environment, and caused considerable disturbance and disruption.  As a result, the Wilsons were unlikely to succeed on the merits, and so they were not entitled to an injunction.

LegalTXTS Lesson:  Cyberbullying is a serious issue, but schools should be careful not to overreact.  The reality is that much of the online material students post and share these days has a good chance of offending someone or being considered inappropriate by adults.  That doesn’t give schools the authority to police online content however they like.  Off-campus speech is punishable when it threatens to endanger danger to another student or cause substantial disruption in the school environment, but not merely because some would find it “inappropriate.”

How this rule is applied, however, depends on the sensitivity of the court.  The courts in R.S. and S.J.W. could have gone either way.  The court in R.S. could have concluded that the sexual conversations between two very young students presented a risk of substantial disruption in the classroom.  On the other hand, the court in S.J.W. could have held that the blog was never targeted at the school community, and therefore, its contents did not justify meting out school discipline.  Perhaps we’ll get more consistency in court rulings after Supreme Court decides to weigh in on the constitutional limits to combating cyberbullying.