Your Space, MySpace – Social Networking Legal Update

Social networking sites like MySpace and Facebook are technology success stories.  They allow extensive (and sometimes anonymous) communication between members.  Today’s students use them to report just about everything in their lives – and sometimes the lives of others.  But as with most great inventions, there is often a down side. For both school personnel and students, these sites and others like them have generated serious litigation.  Here is an overview of recent caselaw:

Staff Use of Social Networking Sites

Teachers using these types of sites to communicate and “relate” to their students are often deemed unprofessional and suffer adverse employment actions as a result of their participation.  For example, a student teacher—against the direction of her supervisors—advertised her MySpace page to her students.  On the page she posted photos of herself in an intoxicated state and she made disparaging remarks about her cooperating teacher. The school dismissed her from her student teaching assignment for unprofessional conduct and she was unable to complete her teaching licensure at the university.  The court upheld the university’s action.   Snyder v. Millersville Univ., No.07-1660, WL 5093140 (E.D. Pa. 2008).  A male teacher, who had a MySpace profile that included photos of naked men, engaged in non-school related conversations with his students via the profile.  After being advised to discontinue the practice, the teacher deactivated the profile and substituted an essentially similar one.  The school elected to nonrenew the teacher’s contract and the teacher sued for violations of his first amendment rights of speech and association.  The school prevailed because most of the MySpace communication was not protected speech about a “matter of public concern” and the only arguably protected speech was not directly linked to the nonrenewal.  Spanierman v. Hughes, 576 F. Supp. 2d 292 (D. Conn. 2008).

Students Online and Associated School Discipline

Students sometimes use the sites to vent their frustration with teachers and administrators by creating hostile or parody profiles under the names of those employees.  Courts are mixed on how they view the students’ first amendment rights to create spoofed or disparaging profiles.  For example, middle school students posted a MySpace profile of the school principal indicating he was a pedophile and sex addict.  Combining the standard school speech analyses of Tinker v. Des Moines Indep. Comm. Sch. Dist. and Bethel Sch. Dist. v. Fraser, and tossing in the recent Morse v. Frederick decision, the court found that the students could be punished for the profile even though it was created wholly off-campus.  The court reasoned that because the profile was lewd, indecent, and potentially illegal, and there was some effect on the campus, the effect did not need to be a “significant disruption” to qualify.  JS ex rel Snyder v. Blue Mountain School District, No. 3:07cv585, WL 4279517 (M.D. Pa. 2008).  Similarly, when a high school student vented frustration with school administration by posting a scathing blog on livejournal.com, she was deemed ineligible to run for senior class secretary.  The court ruled that when the blog entry was related to school issues and it was reasonably foreseeable that other students and administrators would see the posting, the blog entry could be treated as on-campus speech.  Doninger v Niehoff, 514 F. Supp. 2d 199 (D. Conn. 2007).

On the other hand, a female vice-principal sued students and parents claiming intentional infliction of emotional distress, conspiracy, defamation, libel, and negligence when the students posted a fake MySpace profile that displayed her name and photo along with explicit, graphic sexual content.  The trial court dismissed all the allegations, and the appeals court upheld the trial court. One judge, in her concurrence, lamented that the law gave the educator no recourse for this insult.  Draker v. Schreiber, No. 04-07-00692-CV, WL 3457023 (Tex. App.–San Antonio 2008).  Likewise, a middle school student judged delinquent for harassment because of a vulgarity-laced MySpace tirade against her former principal had her sentence overturned. The Indiana Supreme Court upheld a lower court’s determination that because the principal was unlikely to discover the rant on MySpace, the actions did not meet the “intent of legitimate communication” element of the offense of “harassment” under state law.  AB v. Indiana, 885 N.E. 2d 1223 (Ind. 2008).

And for a case that provides no guidance whatsoever, a student disciplined for creating a parody site of the high school principal on MySpace sued the school and the administrators as individuals for violating the student’s first amendment rights.  The student had created the site on his own away from school, but used the principal’s photo from the school’s web page. The court found that even though the discipline violated the student’s first amendment rights because there was no school disruption related to the site, the administrators had qualified immunity because the student’s right was not well-established at the time of the disciplinary decision .  Layshock v. Hermitage School District, 496 F. Supp. 2d 587 (W.D. Pa. 2007).

What Can Administrators Do?

Most social networking sites have ways to remove offensive or fraudulent profiles.  For example, MySpace has a guide for school administrators that explains the service and how to remove false or offensive profiles.  See information at http://cms.myspacecdn.com/cms/SafetySite/documents/SchoolAdministratorGuide.pdf)  It also has suggestions on ways schools can use MySpace (and other social networking sites) to promote school activities and enhance school spirit. The terms of service of the sites explain what activities are acceptable and which are not.  Those terms specifically prohibit material that “constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous.” MySpace identifies in its School Administrator Guide ways to contact MySpace in emergency situations such as threats and cyberbullying.

So what does all this mean?  Social networking will not go away.  Students will use these services for friendly communication, immature steam-venting, and potentially abusive or illegal activities.  School administrators would do well to stay aware of such activity and encourage students to alert them to cyberbullying activities and other online threats.  In some of the cases above, the staff member’s admitted naïveté about social networking disfavored discipline:  the court believed that because the target of the parody would likely never have found the potentially libelous material, no communication was intended.  Having a clear student complaint process can also defuse frustration before it gets out of hand.

Public school faculty, if they use these sites at all, probably should not indicate their school affiliation, and certainly should not use these uncontrolled sites for communication with current students. Requiring faculty to communicate to students in a professional environment that the school controls is the best way to minimize the risks above.  Making it clear to faculty and staff where communication with students should occur can save a lot of headaches later.

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