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When #Hashtags and Selfies Become Headaches andSafety Concerns:Students and Social Media UseOctober 15, 2015Catherine MitchellHigher Education Legal Fellow

OverviewSocial media use on college campusesIssues to considerConstitutional IssuesFree speechPrivacy rightsProtecting studentsElectronic harassment and cyberbullyingOther safety issuesMonitoringStudent-athletes and social mediaBest practices
Social Media Uses and Trends
General social interaction with friendsShare videos, photos, multimedia contentExpress concerns, thoughts, ideas, storiesGossip sitesPromote eventsRetrieve and provide information

Common Social Media Platforms
Special Characteristics of Social Media
Instant and broad-reachingInformation can go viralImmediacyEveryone is connectedPopularityPrivate accountsAnonymityCan hide behind usernamesGrounds for controversial topics and discussionsDifficult to addressEffects on public relations
Things to Consider
Constitutional RightsFree expressionPrivacy rightsProtection of StudentsCyberbullying and HarassmentMonitoring Pros and ConsEducating Students
Old issue, new mechanisms, continued concernsSpeech on college campuses not a new issueSocial media provides more ways, easier access, new challengesSupreme Court has not taken up this matter
Student Speech Cases
Tinker v. Des Moines IndependentCmmtySchool District(1969)May limit or discipline student expression if school officials reasonably conclude that expression will“materially and substantially disrupt the work and discipline of the school”Healy v. James (1972)Colleges may prohibit students’ associational activities that would“infringe reasonable campus rules, interrupt classes, or substantially interfere with the opportunity of students to obtain an education”“substantial and material disruption” test may apply to college’s efforts to regulate or discipline student speech BUTCollege has less leeway in regulating or disciplining such speech than secondary schools
Hazelwood School Districtv.Kuhlmeier(1988)Court held that officials can regulate the style and content ofschool-sponsored student speechin ways that are “reasonably related to legitimate pedagogical concerns”But court seems to point to Tinker for disciplining online student speechMorsev.Frederick(2007)Bong hits for Jesus case“schools may take steps to safeguard those entrusted to their care from speech that canreasonably be regarded as encouraging illegal drug use”But language likely intended for secondary school settings
Christian Legal Societyv.Martinez(2010)US Supreme Court explained that courts are “final arbiter of question whether public university has exceeded constitutional constraints” and courts “owe no deference to universities” in considering that questionBUT “determinations of what constitutes sound educational policy…fall within discretion of school administrators and educators”January 2013—USSupreme Court declined to hear several Internet speech cases
Is this speech or conduct?Isit protected speech?Where does the speech occur?On campus?Off-campus?Nexus to campus?Is it parody?Has it created a material, substantial disruption?Does it trigger other obligations?Ex: Title IX, CampusSaVE,Clery, etc.

Free Speech Analysis
Speech or Conduct?
Are we focusing on the speech or the actual conduct of the student?Requav. Kent School District(W.D. Wash. 2007)Video of teacher posted to YouTube andMySpaceFocus on violations of Student Code of Conduct
Code of Student Responsibility
ThreatsFearHarassmentIntimidationHazingStalkingDisruption of normal university activitiesUnauthorized electronic recordingViolation of computeruse policies……etc.
Is it protected speech?
Unprotected:True threatsFighting wordsSpeech that incites imminent lawless actionChild pornographyUnlawful harassmentDefamation
Is it protected speech?
Public institutionMay control access to and use of university propertyPolicy/restrictions must comport with First Amendment requirementsViewpoint-neutralReasonable time, place, and manner restrictionsOverbroad or vague?
Forum analysis:Havewe created a forum?University sponsored website/account/etc.Types of forumsPublicNonpublicDesignated or limited publicType of forum created influences the control university can exercise over speechForumrules apply to physical and virtualspaces
Is it protected speech?
Where Did the Speech Occur?
On-Campus?Off-Campus?*often with social media/internet speech*Much more difficult to decideU.S. Supreme Court has not given clear guidanceDenied cert in three cases in January 2013Split in circuits
Kowalski v. Berkeley County Schools(4thCirc. 2012)“sufficiently connected to the school environment” to trigger Tinker’s substantial disruption analysisCourt rejected the importance of the “metaphysical question of where [the student’s] speech occurred when she used the Internet as the medium.”Posted at home but knew it would be published beyond her home and reasonably expected to reach school or impact school environmentDJM v. Hannibal Public School District(8thCirc. 2011)Off-campus application of Tinker is appropriate where it isreasonably foreseeable that off-campus threats create a risk of substantial disruption within the school environment
Layshockv. Hermitage School District(3rdCirc. 2011)District court found it created curiosity not a substantial disruption –Third Circuit upheldCourt found that school could not regulate the expressive conduct which occurred outside the school context
Is it parody?
Speech is so outrageous that no reasonable person would take it seriouslyJ.S. v. Blue Mountain School District(3rdCirc. 2011)
TinkerSchool may prohibit and discipline on-campus student speechthat could“materially and substantially interfere with the requirements of appropriate discipline in the operation of the school”This has been applied to college/university setting as well
Common Standard for Social Media Speech
Tatrov.University of Minnesota(Minn. Ct. App. 2012)Threat to stab someone, death list, concern from university community, police investigation, integrity of programImpact of speech on those who learned of itIntegrity of academic programAcademicprogram rules ok to regulate student speech on social media—but must be narrowly tailored and directly related to established professional conduct standardsMurakowskiv. University of Delaware(D. Del. 2008)“[a]lthoughcomplete chaos isnotrequired, something more than distractionordiscomfiture created by the speech is needed.”
Is there a material and substantial disruption?
Gossip sitesYikYak, Whisper,Burnbook, Juicy CampusPlatform for hate speech, disruptive speech, etc.Often online, off-campusDifficult to identifyGeolocationWork with social media sites

Anonymous Speech
Privacy Rights
Fourth AmendmentReasonable expectation of privacyElectronic Communication Privacy ActPrevents an entity from “intentionally accessing without authorization…and thereby obtaining an electronic communication from an electronic communication service while it is in storage”Voluntary nature of some activities may allow authorization for school to view communication over social media (student-athletes, student organizations, etc.)
CyberbullyingWhat is it?Growing problem—linked to suicides on campusesOther Electronic HarassmentTitle IX, CampusSaVE, VAWA obligationsCyberstalkingObligation to respond to student harassment…Severe and pervasive?Do we have substantial control?Do we know or reasonably should know about it?Potential problems when addressing these issues:Anonymous postsOnline, off-campus speech

Cyberbullying & Electronic Harassment
Threats to the university communityHate speechConcerning behaviorSuicide prevention
Other Safety Concerns
Advantages to proactive monitoringIdentify cyberbullying, electronic harassment, concerning behaviorKnow students’ interests, concerns, etc.Disadvantages to proactive monitoringCreates liability for universityAssumed a duty and may face liability if fail to meet that dutyFailure to monitor properlyFailure to actInfringing on rights of studentsElectronic Communications Privacy Act
Liability for Monitoring
Failure to monitorCreate adutymisssomethingliabilityActive monitoringBecome aware of threat and fail to actStored Communications ActQuestion of implied consentPublic information?Special circumstancesLearn of something—should monitor/look into itPolicy?Particular groups?Always be mindful of assumption of a duty
How dowe respond?

University Response
Look to Code of StudentResponsbilityLook to discrimination laws and policiesBe mindful of Title IX and CampusSaVEobligationsLook to University Policies on use of the computernetwork, university computers, etc.Contact law enforcementSeek assistance from social media services to remove offensive posts, retrieve information, etc.
University Response
Educate our students!!Posts may be publicPosts are permanentPosts may spread quicklyPolicies on network and computer useEffects of cyberbullying/electronic harassment on the victim/others and potential criminal actionPotential discipline at school-level
Threats:Identity theftOnline stalkingGPS trackingIdentifying patternsCriminals monitoring accountsA few Do’s and Don’ts…Don’t post status updates on your locationDo turn off location servicesDon’t share that you are leaving townDo keep profile privateDon’t accept friend requests from people you don’t know
Educating Students onSafe Practices
Things to consider:More publicity, more followersNCAA rules and recommendationsUNC-Chapel Hill--Report from Committee on InfractionsTeam unity/chemistryConstitutional issuesFans and boosters
“Privilege, not a right” argumentBut argument that athletes don’t lose all constitutional rights when step on field/courtShould not be unreasonably broadCourts have recognized a difference between speech in the classroom and speech on playing fieldHave allowed restriction to prevent “substantially negative effect on team”Can consider team unity/chemistry
Prior restraintGovernmental restriction on speech or publication before its actual expressionViolates First Amendment unless speech is obscene, defamatory, or creates clear and present danger to societyGovernment has burden of providing sufficient justification for restraint:Must show that ban:Does not allocate overbroad discretion to governmentNot content-basedNarrowly tailored to serve significant government interestOffers reasonable alternatives for communication
Social Media Bans
MonitoringStudent-Athletes Social Media

Examples of ways schools monitor:Third party—Varsity Monitor, etc.Student-athletes must accept coach’s “friend” requestPolicy on social media use—what can and cannot saySimilar considerations as monitoring general student populationConstitutional concernsCreate a duty
Use of Social Media in the Classroom
Classroom space made more publicStudents can post photos, live tweet, periscope, etc.FERPA concernsCreate a duty and obligation to reportAdvantages as well—more student interaction, easier to communicate, etc.
Social Media Use by Employees
Free expression rights of employeesKansas University exampleAcademic freedom
Proactive Steps
Educate students (and faculty and staff)Best practicesSafety issuesCode violationsCriminal actionLiabilityNCAA rulesIf monitor, do so effectively and be mindful of assumption of dutyPositive reinforcement for social media use
Positive Effects of Social Media
Student interactionPublicityShare storiesEfficientCost effective





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