The recent dust-up over a newly enacted state law requiring school districts to have a social media policy that meet certain minimum state standards is a classic example of unintended consequences. Frankly this was much more than a dust-up. It looked more like a tornado cutting a wide swath through the legislation.
No one objected when the bill was going through the legislative process to section 162.069 and the Missouri State Teachers Association signed on by supporting the bill. Only after the Governor signed the bill was there a consensus that the language in section 162.069 went too far and had unintended consequences affecting the free speech of teachers. Proponents of the bill noted that the social media portion was a small part of the bill and that the main parts of the bill were not affected.
What was the problem? Section 162.069.4 prohibited a teacher from establishing, maintaining, or using a nonwork related Internet site unless the site is available to school administrators, the child’s legal custodian, physical custodian, or legal guardian. A nonwork related Internet site was defined as a website or webpage used by a teacher primarily for personal purposes and not for educational purposes. Wow! I guess that covers everything not related to work. How intrusive can you be? Besides, who knows what this language means. For sure, it was too broad and vague, failing to meet the rigorous standards to pass constitutional muster under the Free Speech Clause of the First Amendment.
Once the scope and breath of the language was recognized, Governor Nixon responded by including in his call for a special session that section 162.069 be repealed. In the meantime the Cole County Circuit Court quickly issued a temporary restraining order against any enforcement of 162.029.4. Next the General Assembly repealed the offensive language, while amending the bill to continue the requirement that school districts have a social media policy that included the use of electronic media and other mechanisms to prevent improper communications between staff members and students by March of 2012. The bill as amended eliminates the offensive language and gives school districts broad discretion to develop their own policy to prevent improper communications between staff members and students.
To everyone’s credit the problem was solved. Well not quite. Five hundred and twenty-nine school districts will immediately embark on the difficult task of writing a social media policy. Only two legislator’s voted against the bill and they were both lawyers. Representative Barnes quipped that: “We just traded one big unconstitutional ball of wax for 529 little balls of wax.” They are right. Consider the probability of all 529 school districts getting it right or even done by March 2012?
Doylestown, Pennsylvania is an example of a school district that is in the process of drafting a social media policy in response to a teacher – known as the “blogging teacher” – who inappropriately blogged about her students calling some of them “frightfully dim,” “rat like,” and “lazy jerks.” She did not name students, the school, or herself, but posted her picture on her blog. Not exactly what the Doylestown School Board wanted their teachers saying about Doylestown students and very unprofessional. The fall out was that the teacher was suspended, reinstated due to lack of cause, and now the school board is engaged in the difficult task of writing a social media policy in the midst of a media frenzy.
For local government the question is whether they should even consider adopting a social media policy? At a minimum, you should look at your city personnel policies to see if city policies address the use of social media. It may be that current language works or that a word or two clarifying its application to social media is all that is needed. Remember drafting such legislation is no easy matter; so do not go there unless absolutely necessary. Besides by March of 2012 you may have 529 social media policies to review and there are others already available on-line.
If you decide your city needs a social media policy, particular care should be given to avoiding free-speech issues. If the policy touches on potential free speech issues you should add language to state that the policy is not intended to affect the right of free speech. In addition, add a severability clause in case part of the language is struck. Also keep in mind the big picture. Even though a social media policy involves new means of communication, it still about the same issues that local government has been dealing with for years. The legal framework for writing these policies has been well established by the United States Supreme Court. Only employee speech that pertains to issues of public concern is protected. The courts have given local government wide latitude to discipline employees who engage in speech that is inappropriate or disruptive in the workplace. Still writing a policy that does not trample on the right of free speech is no easy task and is a very tricky business. Be careful.
Howard Wright@ 2011