Where do we draw the line of what is allowed under freedom of speech?
The big issue is how do you monitor and limit the content of private speech. Private speech being that which is made on employees or students personal and private accounts. If it isn’t included in employee’s contracts that their social media may be monitored and that they could possibly b remanded for their post and likes on them, it becomes an issue (Marcum & Perry 15). Many business and public-school systems have social media policies or are in the process of writing them. The process of writing these are extremely tricky and require careful consideration. The main concern is how much control and regulation is really too much. How can we regulate without intruding? Jana Hrdinová and Natalie Helbig published an article with the Center for Technology Innovation at Brookings that identified eight things for consideration when writing such policies. Those eight elements are as follows:
1.Employee access – the degree to which employees ae allowed to access social media site while at work and the procedures for gaining access; 2. Account management – procedures for creation, maintenance, and destruction of social media accounts; 3. acceptable use – guidelines on how employees are expected to use social media tools while at work; 4. Employee conduct expectations for an employee conduct on social media and the consequences should violation occur; 5. Content – procedures for posting content on official work pages; 6. Security – procedures for safeguarding government data and infrastructure; 7. Legal Issues – legal considerations and requirements for use of social media; and 8. Citizen conduct – management of citizen generated conduct of official sites (Hrdinova & Helbig p.2).
With those things in consideration I believe that it is possible to write a decent policy that has everyone affected in mind.
How does Social Media affect the schools?
Public schools are faced with the issue of how do we monitor and what is correct in our schools students social media. Can they control them or are they subject to their own rules? Private schools do not have the same concerns that the public schools do. So, can a school track what a student does off campus online? The case of Tinker v. Des Moines Independent Community School District is often referred to when answering this question. Basically, if the speech is disrupting the learning environment then yes (Sheridan 57). The exact wordage of the standard is as follows:
Conduct by the student, in class or out of it (emphasis added) which involves for any reason – whether it stems from time, place, or type of behavior – materially disrupts classwork or invest substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. (Tinker v. Des Moins Indep. Cnty. Sch. Dist. 1969)
The Tinker doctrine has been referred to and been used to determine new laws and procedures when it comes to current social media and school involvement. In the Bethel School District No. 403 et al. v. Fraser, it was decided that a school may discipline students for using lewd, vulgar, and indecent language at school (Sheridan 59). In 2007 the Supreme Court added that schools can prohibit students’ speech when it comes to being seen as the promoting of illegal drugs (Sheridan 60). This came from Morse v. Frederick, when a student was suspended after he refused to remove a banner that had words that were viewed as promoting illegal drug use (Morse v. Frederick, 2007). These cases however dealt with speech on-campus.
In the case Wyner v. Douglas County School District, a student was sending violent messages to the principle via his Myspace page from home (Sheridan 62). The courts decided that this did constitute the values in Tinker, stating that there should be a balance between what schools can do when it comes to recognizing threats and free speech (Sheridan 62). Courts have also come to the decision that the First Amendment does not protect online speech when it harasses and demeans another student, stating that Tinker allows for the discipline of off-campus speech (Sheridan 62). In the end, the courts have come to the decision that speech directed at another student that could be seen as defamatory that causes the type of disruption as stated in Tinker is immune for the First Amendment Protection (Sheridan 63).
What about the speech that cannot be traced back to a single person so easily? With anonymous social media apps on the rise this is the new issue among administrators. These new platforms open a new world for harassment, threats, hate-speech, sexual harassment, the list goes on and on. A campus has the responsibility to keep their students safe by having a safe campus free from such harassment and is non-hostile (DuMont 245). The need to find a way to remedy these issues aren’t always as easily pointed out. You can’t trace who said these things so who do you punish. It is hard to ban these sites, students will find a way to use them even with a ban and looking the other way does not make the site disappear. Campuses should work together with the law to try to find a way to combat these issues and make the campus a safe place not only physically but online as well.
What threat does free speech have on a company?
The treat of bad press comes from everyone and it is extremely huge from the employee side that is all coming from the social media. A single post on a website by one individual can affect many people and their view of the school or the company. The issue is how do we control the image we put out and what is said online by students and employees without being intrusive into their personal lives? According to Throne (2015) even if you state something on your private account you are still representing your company or school. I remember in high school going out with the school on trips and the teacher reminding us that we were there with the school and that we were representing our school, county, and our parents. The same goes on social media. We are connected to our company or schools somehow; many sites allow you to state where you attend school or work at. Your friends know where you work and see what you post. You are being a reflection back on them.
So why are the Courts divided?
The courts are constantly unsettled with this issue. They have seen several cases that have been crucial cases in showing the mixed feelings among the courts. Several cases have been landmark and crucial for the development of how courts handle types of cases involving issues of free speech and the use of social media. These cases do not necessarily show what the courts are feeling towards school members but more the employees and the right of freedom of speech and what is included in that. Before social media the issues came from print and what could have been seen as social media for that time. Cases that were determined what was considered free speech before social media can be divided into three categories, Pre-Garcetti Decisions, The Garcetti Decisions, and Post-Garcetti (Marcum & Perry 6). All of these cases involve a public employee, or someone who works for the government. Some of these Pre-Garcetti Cases are Pickering v. Board of Education, Maddison School District v. Wisconsin Employment Relations Commission, and Connick v. Myers.
Pickering v. Board
of Education is a seminal case where a teacher by the name of Marvin L. Pickering sent a letter to the local newspaper that had negative wording towards how the school board spent it money between the education programs and the athletic and how they handled proposals that suggested how to raise more money for the district (Marcum & Perry 8). He was fired for this letter and what he stated in it, on the grounds that his words were defamatory and reflected negatively on the school system (Marcum & Perry 8). The official ruling on this case came from the Supreme Court with an eight to one decision (Pickering 1968). Their decision was that the school board had violated Pickering’s First Amendment rights (Pickering. 1968). They formed what is referred to as the balancing test. In the balancing test, you test to see if the interest of the person is not greater than the interested of limiting the opportunity to contribute to public debate. (Marcum & Perry 8).
In the Madison School District v. Wisconsin Employment Relations Commission, a teacher, who was not a union member, spoke at a public board meeting about the pending teachers’ union and the school board contract negotiations (Marcum & Perry 8). This teacher was speaking against the proposed clause that would require teachers to pay union dues (Marcum & Perry 8). The teachers’ union filed a complaint with the Wisconsin Employment Relations Commission or WERC stating that the non-union teacher should not have been allowed to speak on such issues at a public-school board meeting (Marcum & Perry 8). The WERC ordered that the school board stop allowing anyone except union officials to speak on such topics (Marcum & Perry 8). The U.S. Supreme Court heard the appeal and reversed the state decision that upheld the order from the WERC (Marcum & Perry 9). The decision stated that speech at public forums, especially about public decisions, cannot exclude teachers who made up a huge population of the schools’ employees (Marcum & Perry 9).
The last Pre-Garcetti decision case that I will discuss is Connick v. Myers. Connick v. Myers changed the Pickering balancing test to the Pickering- Connick balancing test. How did it do that? Connick was a District attorney and Myers was an assistant at the district attorney office (Marcum & Perry 9). She was unhappy when she was moved to a new division, so she made a survey asking the opinion of the other employees for the office, she was fired for this (Marcum & Perry 9). Myers sued stating that her survey was under her right of free speech. Court decisions were appealed all the way until it reached the U.S. Supreme Court. There the justices determined that the other courts had not weigh properly the interest of the employee (Marcum & Perry 9). The court stated that we should examine the content, form, and context (Marcum & Perry 9). Out of this the Pickering-Connick balancing test was formed.
Then came the Garcetti Decision. This doctrine came from the case Garcetti v. Cebellos. The basic facts of the case are as follows, Richard Ceballos, an employee of the District Attorney’s office in Los Angeles, when review the warrant affidavit had facts that was quite correct (Garcetti v. Cebellos, 2006). He made the attorneys aware of this issue and they all agreed that something was not right and the D.A.s office refused to dismiss the case. He argued that he was retaliated against for his work with the defense and was protected by his First Amendment right (Garcetti v. Cebellos, 2006). The district courts stated that the D.A. was protected with immunity (Garcetti v. Cebellos, 2006). The Ninth Circuit ruled in favor of Cebellos (Garcetti v. Cebellos, 2006). The case reached all the way to the Supreme Court as well. There their decision was a five to four decision in favor of Garcetti, this decision was that speech by a public official is only protected if they are acting as a private citizen and not a part of their duties (Garcetti v. Cebellos, 2006).
Cases after the Garcetti were all referred back to it and the Pickering-Connick Balancing test. They became helpful decision-making tools for deciding the outcomes of the case and how they viewed the issues of if it was free speech or not.
There are cases that involve the modern social media and free speech. One of the biggest ones that comes to mind about a non-government employee is Elonis v. United States. This case is a more recent case being decided in 2015. In this case Elonis was posting threats online to people such as his wife, coworkers, the police, a kindergarten class, and a FBI agent on Facebook (Elonis v. United States,2015). Among those treats were the details of how was going to kill his wife, and a call for gun violence at the elementary school (americanbar.org 2015). Elonis even posted a disclaimer on his Facebook profile. Despite this disclaimer Elonis was sentenced to prison time. His prison sentence has appealed by the Supreme Court by a decision of eight to one (Elonis v. United States, 2015). The court determined that the postings had true intent for a treat, however it was not enough to just convict a man on this (Elonis v. United States, 2016).
This area of the law continues and I feel for a while will continue to be a grey area that isn’t always so clear cut what the answer is. We will continue to have cases that help shape our law and how we decide these cases for many years to come.
Conclusion
With new social media launching every day, the current law is already behind. We need to actually look at what can be done to bring our law into today’s new world view. Everyone is connected and can see what one post online. This will constantly and continually be an issue in our society. Even if we catch up to it in the law and what is free speech on such a large network it will still be behind. And is it right to constantly monitor what one says online? Maybe, if it could cause harm to another person. But what is that harm, is it mental, or physical, or just not there?