(Note: This article originally appeared on the media blog LWR.)
On August 26, 2011, Circuit Judge Jon Beetem granted a temporary injunction in favor of Missouri teachers who sued the state of Missouri to prevent the enforcement of a new law preventing teachers from using social media websites like Facebook. Judge Beetem called the breadth of the prohibition “staggering.”
“[The 180-day injunction] 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,” Gail McCray, Missouri State Teachers Association (MSTA) legal counsel, said.
The Amy Hestir Student Protection Act, SB54, which creates various task forces and promulgates a variety of laws related to child abuse, also prevents teachers from using social media websites that give teachers “exclusive access” to students. It is this provision that the MSTA challenged, arguing that such “non-work” restrictions violate teachers’ First Amendment rights.
“Senate Bill 54, §162.069, to the extent that it makes it unlawful for Plaintiffs and other teachers to have a non-work-related website or other social networking sites that allow
exclusive access with current or former students, is unconstitutional on its face,” MSTA argued in its petition for injunctive relief.
First, the MSTA argued that the law was an unconstitutional prior restraint on teachers’ speech. A prior restraint is simply a law which prevents speech altogether. Prior restraints are presumptively unconstitutional. In Near v. Minnesota, the Court stated that the right to free expression “has meant, principally . . . immunity from previous restraints or censorship.”
Thus, because the law prevents teachers from speaking on these various platforms, the prohibition amounts to a prior restraint. Indeed, the law would not only prevent teachers from speaking with students who have social media accounts, but–presumably–speaking at all. That is to say that the law prevents teachers writ large from using social media accounts that could otherwise be used to contact students.
“No teacher shall establish, maintain, or use a nonwork-related internet site which allows exclusive access with a current or former student,” the law reads.
Here, websites that provide “exclusive access” are those websites where “the information on the website is available only to the owner (teacher) and user (student) by mutual explicit consent and where third parties have no access to the information on the website.” Such websites presumably include Twitter and Facebook, because each website allows users to send private messages to other users.
Essentially, the ban amounts to all websites that any former or current student uses. Thus, because 73% of United States teenagers use social media websites, the likelihood just one student at a teacher’s school is using at least one social media website is staggering. As such, the wide use of these websites by students would in turn prevent all teachers from using all of those same websites, becaue of the social media websites–by definition–offer “exclusive access” to those students.
The MSTA came to the same conclusion, arguing, “The Act is unconstitutionally overbroad and void on its face because it prohibits every teacher in the state of Missouri from having any non-work-related web-based communications with current or former students that allow exclusive access by the teacher and student which will deter legitimate exercise of First Amendment rights.”
Finally, the MSTA argued that the language of the statute cannot allow a constitutional interpretation–no matter how narrowly it is construed. The MSTA needed to state this point, because under rules of statutory interpretation, courts will generally attempt to construe statutes so as to avoid constitutional questions. Thus, MSTA simply argued that under any reading, the breadth and ambiguity of the statute’s language would unconstitutionally infringe on Missouri teacher’s First Amendment rights by preventing any and all use of social media websites.
Judge Beetem agreed with the MSTA on several points. He first stated that the new law “implicates” the First Amendment rights’ of teachers. Second, that it would prohibit “all teachers” from using various social media websites. Third, the law would create a “chilling effect” (that is, may cause teachers not to speak for fear of legal ramifications), and therefore supported the grant of a temporary injunction.
Thus, the section of the law subject to the temporary injunction did not go into effect with the remaining sections on August 28. Instead, the MSTA and the state of Missouri will continue with a trial on the merits, at which time the court will determine whether the statute does, in fact, violate teachers’ First Amendment rights.
While social media is indeed creating new challenges for schools–and other institutions–across the country, the basic issues on the line have changed little. That is, prior restraints are still disfavored. The First Amendment protects a citizen’s right to speak, assuming that that person is not attempting to “incit[e] or produc[e] imminent lawless action and [his speech] is [not] likely to incite or produce such action.” And even content-neutral regulations (those regulations aimed at speech generally, and not a specific type of speech) must be narrowly tailored to serve a significant government interest, while leaving open alternative outlets for speech.
“[Indeed,] while the technology is a new wrinkle, I think we can look to a lot of settled law and principles we hold dear to really guide us through it,” Gene Policinski, executive director at the First Amendment Center, recently said on NPR.