When #Hashtags and Selfies Become Headaches and Safety Concerns: Students and Social Media Use

October 15, 2015

Catherine MitchellHigher Education Legal Fellow

Overview• Social media use on college campuses• Issues to consider

o Constitutional Issues Free speech Privacy rights

o Protecting students Electronic harassment and cyberbullying Other safety issues Monitoring

o Student-athletes and social media• Best practices

Social Media Uses and Trends

General social interaction with friends

Share videos, photos, multimedia content

Express concerns, thoughts, ideas, stories

Gossip sites

Promote events

Retrieve and provide information

Common Social Media Platforms

Facebook Instagram Snapchat Twitter YouTube LinkedIn

Yik Yak Burnbook Whisper Flickr Blogs

Special Characteristics of

Social Media

• Instant and broad-reaching • Information can go viral

o Immediacyo Everyone is connectedo Popularity

• Private accounts • Anonymity

o Can hide behind usernameso Grounds for controversial topics and discussions

• Difficult to address• Effects on public relations

Things to Consider

• Constitutional Rightso Free expressiono Privacy rights

• Protection of Studentso Cyberbullying and Harassmento Monitoring Pros and Conso Educating Students

CONSTITUTIONAL ISSUES

Old issue, new mechanisms, continued concerns

• Speech on college campuses not a new issue• Social media provides more ways, easier access,

new challenges• Supreme Court has not taken up this matter

Student Speech Cases

Tinker v. Des Moines Independent Cmmty School 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”o “substantial and material disruption” test may apply to college’s efforts to

regulate or discipline student speech BUTo College has less leeway in regulating or disciplining such speech than

secondary schools

Hazelwood School District v. Kuhlmeier (1988)• Court held that officials can regulate the style and content of school-

sponsored student speech in ways that are “reasonably related to legitimate pedagogical concerns”

• But court seems to point to Tinker for disciplining online student speech

Morse v. Frederick (2007)• Bong hits for Jesus case• “schools may take steps to safeguard those entrusted to their care

from speech that can reasonably be regarded as encouraging illegal drug use”

• But language likely intended for secondary school settings

Christian Legal Society v. 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 question

• BUT “determinations of what constitutes sound educational policy…fall within discretion of school administrators and educators”

January 2013—US Supreme Court declined to hear several Internet speech cases

• Is this speech or conduct?

• Is it 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, Campus SaVE, Clery, etc.

Free Speech Analysis

Speech or Conduct?

• Are we focusing on the speech or the actual conduct of the student?

• Requa v. Kent School District (W.D. Wash. 2007)• Video of teacher posted to YouTube and MySpace• Focus on violations of Student Code of Conduct

Code of Student Responsibility

• Threats• Fear• Harassment• Intimidation• Hazing• Stalking• Disruption of normal university activities• Unauthorized electronic recording• Violation of computer use policies• ……etc.

Is it protected speech?

Unprotected:• True threats• Fighting words• Speech that incites imminent lawless action• Child pornography• Unlawful harassment • Defamation

Is it protected speech?

Public institution • May control access to and use of university property

• Policy/restrictions must comport with First Amendment requirementso Viewpoint-neutralo Reasonable time, place, and manner restrictions

o Overbroad or vague?

Forum analysis:o Have we created a forum?

o University sponsored website/account/etc.o Types of forums

o Publico Nonpublico Designated or limited public

o Type of forum created influences the control university can exercise over speech

o Forum rules apply to physical and virtual spaces

Is it protected speech?

Where Did the Speech Occur?

On-Campus?

Off-Campus? *often with social media/internet speech*• Much more difficult to decide

• U.S. Supreme Court has not given clear guidanceo Denied cert in three cases in January 2013o Split in circuits

Kowalski v. Berkeley County Schools (4th Circ. 2012) • “sufficiently connected to the school environment” to trigger Tinker’s

substantial disruption analysis • Court 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 environment

DJM v. Hannibal Public School District (8th Circ. 2011)• Off-campus application of Tinker is appropriate where it is reasonably

foreseeable that off-campus threats create a risk of substantial disruption within the school environment

Off-Campus

Layshock v. Hermitage School District (3rd Circ. 2011) • District court found it created curiosity not a substantial

disruption –Third Circuit upheld• Court 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 seriously

• J.S. v. Blue Mountain School District (3rd Circ. 2011)

Tinker • School may prohibit and discipline on-campus

student speech that 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

Tatro v. University of Minnesota (Minn. Ct. App. 2012)• Threat to stab someone, death list, concern from university

community, police investigation, integrity of program• Impact of speech on those who learned of it • Integrity of academic program

o Academic program rules ok to regulate student speech on social media—but must be narrowly tailored and directly related to established professional conduct standards

Murakowski v. University of Delaware (D. Del. 2008)• “[a]lthough complete chaos is not required, something more than

distraction or discomfiture created by the speech is needed.”

Is there a material and substantial

disruption?

• Gossip sites o Yik Yak, Whisper, Burnbook, Juicy Campus

• Platform for hate speech, disruptive speech, etc.

• Often online, off-campus

• Difficult to identifyo Geolocationo Work with social media sites

Anonymous Speech

Privacy Rights

• Fourth Amendmento Reasonable expectation of privacy

• Electronic Communication Privacy Acto Prevents an entity from “intentionally accessing without

authorization…and thereby obtaining an electronic communication from an electronic communication service while it is in storage”

o Voluntary nature of some activities may allow authorization for school to view communication over social media (student-athletes, student organizations, etc.)

PROTECTING OUR STUDENTS

Cyberbullying• What is it?• Growing problem—linked to suicides on campuses

Other Electronic Harassment• Title IX, Campus SaVE, VAWA obligations

• Cyberstalking• Obligation 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:o Anonymous postso Online, off-campus speech

Cyberbullying & Electronic

Harassment

• Threats to the university community

• Hate speech

• Concerning behavior

• Suicide prevention

Other Safety Concerns

Monitoring

Advantages to proactive monitoring• Identify cyberbullying, electronic harassment,

concerning behavior• Know students’ interests, concerns, etc.

Disadvantages to proactive monitoring• Creates liability for university

o Assumed a duty and may face liability if fail to meet that duty Failure to monitor properly Failure to act

• Infringing on rights of students • Electronic Communications Privacy Act

Liability for Monitoring

• Failure to monitoro Create a dutymiss somethingliability

• Active monitoringo Become aware of threat and fail to act o Stored Communications Act

Question of implied consent Public information?

• Special circumstanceso Learn of something—should monitor/look into ito Policy? o Particular groups?o Always be mindful of assumption of a duty

How do we respond?

University Response

• Look to Code of Student Responsbility

• Look to discrimination laws and policieso Be mindful of Title IX and Campus SaVE obligations

• Look to University Policies on use of the computer network, university computers, etc.

• Contact law enforcement

• Seek assistance from social media services to remove offensive posts, retrieve information, etc.

University Response

Educate our students!!• Posts may be public

• Posts are permanent

• Posts may spread quickly

• Policies on network and computer use

• Effects of cyberbullying/electronic harassment on the victim/others and potential criminal action

• Potential discipline at school-level

Threats:• Identity theft• Online stalking• GPS tracking• Identifying patterns• Criminals monitoring accounts

A few Do’s and Don’ts…o Don’t post status updates on your locationo Do turn off location serviceso Don’t share that you are leaving town o Do keep profile private o Don’t accept friend requests from people you don’t know

Educating Students on

Safe Practices

STUDENT-ATHLETES AND SOCIAL MEDIA

Student-athletes

Things to consider:

• More publicity, more followers• NCAA rules and recommendations

o UNC-Chapel Hill--Report from Committee on Infractions

• Team unity/chemistry

• Constitutional issues

• Fans and boosters

• “Privilege, not a right” argumento But argument that athletes don’t lose all

constitutional rights when step on field/courto Should not be unreasonably broad

• Courts have recognized a difference between speech in the classroom and speech on playing fieldo Have allowed restriction to prevent “substantially

negative effect on team”

o Can consider team unity/chemistry

Student-Athletes

Prior restraint

• Governmental restriction on speech or publication before its actual expression

• Violates First Amendment unless speech is obscene, defamatory, or creates clear and present danger to society

• Government has burden of providing sufficient justification for restraint:o Must show that ban:

Does not allocate overbroad discretion to government Not content-based Narrowly tailored to serve significant government interest Offers reasonable alternatives for communication

Social Media Bans

Monitoring Student-Athletes

Social Media

• Examples of ways schools monitor:o Third party—Varsity Monitor, etc. o Student-athletes must accept coach’s “friend” requesto Policy on social media use—what can and cannot say

• Similar considerations as monitoring general student populationo Constitutional concernso Create a duty

OTHER CONSIDERATIONS

Use of Social Media in the Classroom

Classroom space made more public• Students can post photos, live tweet, periscope, etc.

FERPA concerns

Create a duty and obligation to report

Advantages as well—more student interaction, easier to communicate, etc.

Social Media Use by

Employees

Free expression rights of employees• Kansas University example

Academic freedom

SO, NOW WHAT?

Proactive Steps

• Educate students (and faculty and staff)o Best practiceso Safety issues o Code violationso Criminal actiono Liabilityo NCAA rules

• If monitor, do so effectively and be mindful of assumption of duty

• Positive reinforcement for social media use

Positive Effects of

Social Media

• Student interaction• Publicity• Share stories• Efficient• Cost effective

QUESTIONS, COMMENTS, DISCUSSION

#NinerNation