The Social Media Conundrum: Navigating Free Speech in the 21 st Century Neelanjan Choudhury, Esq. Thomas, Drohan, Waxman, Petigrow & Mayle, LLP 2517 Route 52 Hopewell Junction, NY 12533 (845) 592 ‐ 7000 nchoudhury@tdwpm.com I. Free Speech Basics • 1 st Amendment – restricts Congress from making any law “…abridging the freedom of speech.” • 14 th Amendment – extends this restriction to infringements made by school districts. 1
Some Basics About TheCourt System That Decides Free Speech Issues • The federal court system is divided into three general levels: the district court (the trial court level), the circuit court of appeals (the appellate level), and the Supreme Court of the United States. • District and Circuit courts are divided geographically across the country, and almost always the court that has geographic jurisdiction over the school district hears the case (e.g., school districts in Westchester, Rockland, Putnam, Dutchess and Orange Counties are within the federal district court of the Southern District of New York and appeals from the SDNY would go to the United States Court of Appeals for the Second Circuit). 2
• Issues decided in the court exercising geographic jurisdiction over a school district are binding on all school districts located within it, with the circuit court’s decision trumping the district court determination. • However, because the First Amendment applies to all 50 states, from time to time (like in this presentation), cases outside our geographic jurisdiction are reviewed, especially when a legal issue has not yet been addressed by the local district or circuit court. II. Public Employee Speech • So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. Pickering v. Bd. of Educ., 391 U.S. 563 (1968); Garcetti v. Ceballos, 547 U.S. 410 (2006). 3
• In Pickering (a case from a time before Facebook and Twitter, an ancient period in Earth’s history known as the 20 th Century), a teacher wrote a letter to the local newspaper that was critical of his employer board of education’s use of school operation funds and method of raising revenues. The board terminated the teacher’s employment. The teacher sued the board on First Amendment grounds. Well, how did that turn out? 4
• SCOTUS (Supreme Court of the United States) ruled in favor of the teacher, holding that the teacher had a right to speak on public issues that had no impact on his job duties. • However, when public employees make statements pursuant to their official duties, such employees are not speaking as private citizens for First Amendment purposes, and thus the First Amendment does not prohibit managerial discipline of such employees for such speech. Garcetti v. Ceballos 5
• In Garcetti, a deputy district attorney in L.A. County claimed he suffered an adverse employment action because he voiced concerns regarding what he believed to be a faulty search warrant. SCOTUS found that his concerns were not protected speech for purposes of claiming retaliation against his employer, the L.A. County District Attorney’s office, since issues regarding probable cause fall within the duties of a District Attorney. • In order to determine whether speech addresses a matter of public concern, the “content, form, and context of a given statement, as revealed by the whole record” must be examined. Connick v. Myers, 461 U.S. 138, 147 ‐ 48 (1983). 6
• Furthermore, a public employer may nevertheless defend any adverse employment decision by showing the employee’s speech disrupted the workplace, i.e. its interest in promoting an efficient workplace outweighs the employee’s interest in commenting on matters of public concern. Connick, 461 U.S. at 140. Examples of Protected Employee Speech • Athletic Director’s statements in a letter to the Board and during a press conference expressing criticism of football coach and concerns with handling of investigation into student hazing incident. Cioffi v. Averill Park CSD, 444 F.3d 158 (2d Cir. 2006). 7
Examples of Protected Employee Speech, Cont’d. • Teacher’s complaints, including reports to DCF, regarding school’s policy allowing use of force to restrain students. Bracey v. Bd. of Educ., 368 F.3d 108 (2d Cir. 2004). Examples of Unprotected Speech • Teacher’s online communications with a friend in which he said he “want[s] to kill people,” that he believed the Sandy Hook elementary school killing had been faked, identified airplanes as targets, said that people in government deserved to die, and along with the fact that (with no prior history or interest in guns) he had purchased two guns, received a third from a friend, and considered purchasing a fourth, all in a brief period. Heller v. Bedford CSD, 665 Fed. Appx. 49 (2d Cir. 2016). 8
• Music teacher’s statements pertaining to conference policies, detention locations, duty assignments, and disciplinary actions taken against other district employees, addressing day ‐ to ‐ day functioning of the school. Valenti v. Torrington Bd. of Educ., 601 F. Supp. 2d 427 (D.C.Conn. 2009) III. Speech by the Public Q. Can a public school district place restrictions on speech by a member of the public? 9
A. It depends (a lawyer’s favorite answer) • A governmental body (e.g. school district) may create a public forum “created for a limited purpose such as use by certain groups…or for the discussion of certain subjects.” Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 71 n.7 (1983). 10
• However, “[o]nce it has opened a limited forum, the government ‘must respect the lawful boundaries it has itself set.’” Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819, 829 (1995) Q. That’s great news counselor, but does this apply to school district administered social media accounts or email communications? 11
A. Probably. In a recent case out of Virginia, a federal district court heard arguments by a disgruntled member of the public that his posts to a municipality’s official Facebook page were censored. • The municipality maintained a Facebook page to allow it to communicate with its constituents. A concerned citizen was upset that the local prosecutor had yet to take any action with regard to the citizen’s allegations that a local school official offered testimony that constituted perjury. The citizen shared his concerns on the municipality’s Facebook page by posting an article on the appointment of special prosecutors. 12
• However, the municipality asserted that the Facebook page was a limited public forum “to present matters of public interest” and determined that the concerned citizen’s posts fell outside the scope of the forum and removed the citizen’s posts on the matter. • Like any concerned citizen, he filed a lawsuit. Q. How did the Court rule? 13
• The Court analyzed two standards. Under the first standard, if the government restricts speech that falls within the designated category for which the limited public forum was created, such restriction would receive strict scrutiny from the Court (e.g. if the government wants to restrict speech that falls within the designated category, it better have a compelling interest or its actions are unconstitutional). • Here, since the Court agreed with the municipality that the concerned citizen’s speech fell outside the limited forum intended for the Facebook page, this standard did not apply. 14
• The Court then applied the second standard, stating that if the speech falls outside the bounds of the limited forum, were the government’s actions (i) viewpoint neutral and (ii) reasonable in light of the purpose of the forum. • Here, the Court determined the municipality’s actions were reasonable and viewpoint neutral (the Facebook postings at issue were simply removed). • Applying these two standards, the court concluded that the defendant municipality did not violate the citizen’s First Amendment rights. Davison v. Plowman, 247 F.Supp.3d 767 (E.D.Va. 2017). 15
• Note: school districts may also create websites that are not forums for speech whatsoever, and some courts have even held that where a school district incorporates third party statements as its own, the use of such statements does not create a limited public forum for speech requiring the posting of opposing viewpoints. See, e.g., Sutliffe v. Epping Sch. Dist., 584 F.3d 314 (1 st Cir. 2009). Discussion Point Q. Does this mean that if a school district maintains a social media presence that allows the public to contribute statements, the district can remove statements that are false (e.g., inaccurate budget information)? 16
• Lesson – if a school district maintains a social media presence, make clear what the rules are with regard to communications with the public AND make sure you abide by them. If you do, you will be on solid ground in the event you have to take action in response to an otherwise inappropriate social media posting. Discussion Point Q. What if Mr. Concerned Citizen posts statements on his own Facebook post that are inaccurate? 17
A. It depends (ugh, lawyers). • Traditional rules regarding speech would still apply. If the speech constitutes a false statement but is on a personal social media account, then the nature of the statement would have to be analyzed (e.g., is it a false statement about an action taken by the school district as a whole; is it a potentially defamatory statement about an individual Board member or employee). 18
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