As the social media becomes a useful tool for teachers to contact students about work or to help reluctant or shy students, abuses have surfaced with teachers making inappropriate contact leading in some cases to sexual abuse.

Citing free speech issues, a Missouri judge recently threw out a new law banning contact on the social media between teachers and students, but the need for boundaries remains as school districts struggle to balance free speech and student safety. -db

From The New York Times, December 17, 2011, by Jennifer Preston.

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A New Jersey elementary school teacher may lose her job for calling her students “future criminals.” An administrative law judge said she should be fired.

The teacher intended that her comments be seen only by  her Facebook friends. -db

From a commentary in Mobiledia, November 11, 2011, by Janet Maragioglio.

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Delaware schools and schools across the country are crafting policies to encourage responsible use of the social media but in doing so often run head on into the First Amendment.

Many educators and free speech advocates see the need to educated students at an early age to the consequences of cyberbullying and other questionable uses of the social media. -db

From DFMNews, November 8, 2011, by Eileen Smith Dallabrida.

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Two Pennsylvania school districts have petitioned the U.S. Supreme Court for a review of decisions holding that the schools violated the First Amendment rights of students by punishing them for criticizing their principals on the social media.

There are several issues the school want addressed including whether the schools can regulate off-campus speech including vulgarities on the Internet. -db

From the First Amendment Center, November 3, 2011, by David L. Hudson Jr.

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A columnist for Justia argues that the U.S. Supreme Court should not take the case of Kara Kowalski suing her high school for suspending her for the mean comments she made at home about a fellow student on MySpace.

The columnist notes that Kowalski speech involved the bullying of another student so that if the Court took the case, the heinous nature of Kowalski’s actions would make it more difficult to clearly define the limits of speech. -db

From a commentary in Justia (Verdict), October 31, 2011, by Julie Hilden

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The U.S. Supreme Court left standing a lower court ruling supporting the punishment of a high school student for criticizing a decision by school officials in a vulgar online posting.

By ruling not to hear the case, the Court sidestepped an opportunity to establish guidelines for regulation of student speech in social media forums. -db

From The CT Mirror, October 31, 2011, by Jacqueline Rabe Thomas.

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When a Los Angeles police detective posted a photo of a murder victim on Twitter, questions arose about the propriety of the post and the policeman’s free speech rights. Even though the Los Angeles Police Department does not have a policy on the use of social media, they asked the detective to forego posting details about his investigations. -db

From a commentary for Suffolk Media Law, October 22, 2011, by Brian Lynch.

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Mexican drug cartels are murdering journalists and bloggers using the Internet and social media to protest the cartels’ drug-related violence.

The Electronic Freedom Foundation makes some suggestions for Mexican citizens who want to continue the protests, “EFF recommends that bloggers who are concerned about their security and safety should post under a pseudonym, use Tor to prevent eavesdroppers from seeing the sites they visit and prevent websites from collecting data that might reveal their physical location, and use HTTPS to encrypt their private communications when possible.” -db

From a commentary for the Electronic Freedom Foundation, October 3, 2011, by Eva Galperin.

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A study by Pew Research revealed that Americans still rely on newspapers for local coverage of crime, community events, housing, jobs, schools and government.

They turn to TV for weather, breaking news and traffic and the Internet for restaurants, night life and local businesses. -db

From a commentary for The Poynter Institute, September 26, 2011, by Rick Edmonds.

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Panelists at the U.S. Institute of Peace addressed the role of social media in recent uprisings in the Arab world with some saying that the use of social media was part of a power shift from nation states to smaller groups.

Others said the information about the social media is still too mixed and scattered to draw any firm conclusions. -db

From NextGov, September 16, 2011, by Joseph Marks.

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Two Mexican citizens were arrested in Veracruz for  reporting on Twitter something they heard,  that a drug gang had attacked a primary school and conducted a kidnapping. It turns out that the report was untrue and caused a panic and over twenty car accidents as parents rushed to get their kids out of class.

The government blamed the two for causing the panic and charged them with terrorism that carries a sentence of two to 30 years. As Arthur Bright points out in a commentary for the Citizen Media Law Project, criminalizing citizen reports on the social media is not a wise thing to do especially in a country that suffers from lawlessness and a dearth of accurate reporting. -db

From a commentary for the Citizen Media Law Project, September 8, 2011 by Arthur Bright.

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School administrators are no match for tech savvy students as students simply use proxy servers to get around Facebook bans. Schools are trying to limit social media sites to get students to concentrate on their educations, but a ban on sites are ineffective.

Some students, though, have been known to stay at school to do homework aware that they will not be tempted to go on Facebook. -db

From  The New York Times, September 2, 2011, by Jennifer Conlin.

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A new California law scheduled to go into effect January 1, 2012 prohibits jurors from using texting, social media or the Internet to research or to distribute information about cases in trial.

There have been numerous instances of juror misconduct that made the law necessary. Then Governor Arnold Schwarzenegger vetoed a similar bill last year. -db

For the Citizen Media Law Project, September 1, 2011, by Eric P. Robinson.

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With a proliferation of social media sites, emergency responders are getting more information from the public presenting new challenges. For one, government agencies feel the need to conduct themselves with greater transparency to build trust.

Sifting out fact from fiction is also a problem, and a former Wyoming governor has suggested that the social media might help sift out the information before it goes to emergency responders but that solution carries its own liabilities.  -db

From NextGov, August 31, 2011, by Joseph Marks.

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Contrary to common-held belief that Tweets are ephemeral and not subject to libel law, statements on Twitter are fair game for libel suits say legal experts. So far there have been few suits, but as public use and awareness of Twitter increases, libel cases are expected to increase.

So far observers could only come up with one case of Twitter defamation and the press. “Earlier this year, NBA referee Bill Spooner sued the AP after sportswriter Jon Krawczynski tweeted that Spooner was calling fouls to compensate for bad calls. Spooner, who considered the tweet defamatory, asked the court for more than $75,000 in damages and requested a court order to delete the tweet. AP Spokesman Paul Colford said only, the ‘case is in litigation,’” writes Mallary Jean Tenore for The Poynter Institute.

From a commentary for The Poynter Institute, August 8, 2011, by Mallary Jean Tenore.

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The Electric Freedom Foundation issued a press release arguing that using the federal anti-stalking law to prosecute people for criticizing public figures on Twitter threatens First Amendment rights to online free speech.

The  federal law was  enacted to criminalize traveling across state lines for the purpose of stalking but now is being to stifle speech. The release reads: “In 2005, the law was modified to make the ‘intentional infliction of emotional distress’ by the use of ‘any interactive computer service’ a crime. In this case [the indictment of the man on Twitter], the government has presented the novel and dangerous theory that the use of a public communication service like Twitter to criticize a well-known individual can result in criminal liability based on the personal sensibilities of the person being criticized.” -db

From a press release from the Electric Freedom Foundation, July 29, 2011.

Full release

Q: My daughter was featured on the top most headline of the local newspaper this last Saturday. She has been stripped of her ELECTED position as President of her High School because of an off-hand comment she made on a chat on Facebook. We are looking to anyone that can help us and a lawyer friend in the are suggested contacting you.

A: The Supreme Court “has held that the First Amendment guarantees only limited protection for student speech in the school context.” Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 371 (9th Cir. 1996), citing Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 509 (1969):

holding that schools can punish student conduct that would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” without violating the First Amendment);

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (“A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school.”);

Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986) (“The constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.”).

California has enacted statutes that broaden protection for student speech in many contexts.

The California Education Code extends students’ free speech rights while on campus to the same extent those rights may be exercised outside of the school context.” Lovell, 90 F.3d at 371, citing Cal. Educ. Code §§ 48907 and 48950. Education Code § 48907 provides that “[p]upils of the public schools, including charter schools, shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications, whether or not the publications or other means of expression are supported financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous.

Also prohibited shall be material that so incites pupils as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school.”

As an initial matter, the fact that the location of the speech was in a non-school sponsored forum does not necessarily insulate a student from school discipline. See J.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094, 1105-06 (C.D. Cal. 2010), citing Doninger v. Niehoff, 527 F.3d 41, 50 (2d Cir. 2008) (where off-campus speech creates a foreseeable risk of substantial disruption within a school, “its off-campus character does not necessarily insulate the student from school discipline.”).

As for the situation involving your daughter, courts have recognized that, generally, “threats are not protected by the First Amendment,” though it is not always clear what constitutes a “threat.” Lovell, 90 F.3d at 372, citing Watts v. United States, 394 U.S. 705 (1969) (holding that the statement, “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.,” was political hyperbole and not a “true threat” given its context).

In Lovell, the court found that, under both the federal constitution and state law, threats made by a student to a teacher stating she would shoot her teacher if she did not rearrange her class schedule were not protected. Lovell, 90 F.3d at 372.

Although the statement was made while the student was on the school’s campus, the court seemed to disregard this fact, instead focusing its inquiry on whether the student could be punished, “based on her statement, without violating her First Amendment free speech rights, regardless of whether the conduct occurred on or off campus.” Id. at 371.

Rather, the court focused on whether the threat (as alleged by the teacher) — “If you don’t give me this schedule change, I’m going to shoot you,” according to the teacher — could be interpreted as a “true threat,” thereby falling outside the protection of the First Amendment. Id. at 372.

The applicable test that the court used was whether a reasonable person in the student’s position would foresee that the recipient of the threat (the teacher) would interpret her statement as a serious expression of intent to harm or assault. Id. at 372. “[T]here is no question that a person could reasonably consider the statement, ‘If you don’t give me this schedule change, I’m going to shoot you,’ made by an angry teenager, to be a serious expression of intent to harm or assault.

A reasonable person in these circumstances would have foreseen that [the teacher] would interpret that statement as a serious expression of intent to harm. This statement is unequivocal and specific enough to convey a true threat of physical violence. This is particularly true when considered against the backdrop of increasing violence among school children today.” Id.

The court acknowledged that it was a closer question as to whether punishing the student for the statement that the student claimed to have made — “I’m so frustrated I could just shoot someone” — violated her First Amendment rights. Id. at 373.

“It is not clear that one should foresee that such a statement will be interpreted as a serious expression of intent to harm.” Id.

Unfortunately, the court did not definitively answer whether punishment for this statement violated the student’s First Amendment rights, since she failed to meet her burden of showing that she uttered these particular words, as opposed to the words that the teacher alleged she spoke. Id.

There would seem to be good arguments that the kind of “threat” that your daughter posted to Facebook — “She makes me want to shoot my shotgun and imagine her as the clay pigeon” — might not have been reasonably interpreted by the teacher as a serious threat of harm toward her.

For one thing, your daughter did not explicitly state that she wanted to actually shoot the teacher, but rather directed any anger she had toward an imagined clay pigeon, which she would merely pretend was the teacher (if she indeed carried out her threatened actions).

It does not seem that a reasonable person in your daughter’s position would foresee that the teacher would interpret this statement as a serious expression of an intent to harm that individual.

Given that the school does not appear to have expelled your daughter for her Facebook posting, or otherwise taken any other disciplinary action that one might expect if actual danger was suspected, it seems questionable that school officials have interpreted her statement to be an actual threat against the teacher or anybody else at the school.

And if there were no “true threat,” it may be that the school’s taking away your daughter’s right to speak at her graduation represents retaliation against her in violation of her First Amendment rights.

As for what to do to reinstate her right to speak at the graduation ceremony, given that the school year is coming to an end, you would probably have to act quickly if you plan to take legal action against the school district (i.e., if you sought a preliminary injunction requiring the school to permit your daughter to speak).

You may want to consult with an attorney regarding the best course of action to take. You may be able to find an attorney to assist you through the First Amendment Coalition’s Lawyer’s Assistance Request Form at http://www.firstamendmentcoalition.org/legal-hotline/lawyers-assistance-request-form/.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Journalists are now developing ways to verify social media content and citizen reports, says Craig Silverman in the Columbia Journalism Review. He cites a number of experts and the tips that constitute best practices.

The tips include researching a source’s background for a record of reliability, using Google street, map and satellite imagery to verify locations, working with colleagues to ascertain that dialects are consistent with the locations, and posting a tweet and asking followers to help verify the information. -db

From a commentary in the Columbia Journalism Review, June 3, 2011, by Craig Silverman.

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A British soccer star obtained a court order forbidding the traditional news media from publishing details of his alleged affair with a “Big Brother” contestant, but the effect 0f the injunction waxed small in the wake of some 75,00o weekend postings about the affair on the social media.

The judge stubbornly reaffirmed the need for the injunction to protect the soccer player’s privacy, but the prime minister said in light of what happened in this case that the parliament might need to reconsider the law on super-injunctions. -db

From The New York Times, May 23, 2011, by Sarah Lyall.

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As one journalist described it, he has “a personalized wire service” of over 2,000 sources on Twitter who provide him with tips and on-location news reports. While this sort of access is of inestimable value, it present immense difficulties as well.

Writing in GigaOM, Mathew Ingram says that with gathering so much information on the fly, reporters have to work harder than ever to separate fact from rumor and verify the credibility of sources, some anonymous. -db

From a commentary in GigaOM, May. 17, 2011, by Mathew Ingram.

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A state senator from San Leandro has introduced legislation that would require Facebook and other social networking sites to let new users establish privacy settings at the same time they register.

State Sen. Ellen Corbett, a Democrat, argues that users shouldn’t have to give up their private information by default. Opponents object to government imposition of privacy rules and assert that the bill could have unintended consequences that actually reduce privacy

The billed, SB242, passed the Senate Judiciary Committee and is headed for the Senate floor.

Full story.

Bill status, text and analysis is here.

WikiLeaks founder Julian Assange called Facebook the “most appalling spy machine that has ever been invented.”

Assange pointed out that a trove of information about people, their relationships, conversations and locations exists on the social media and that U.S. intelligence agencies could bring pressure on Facebook, Yahoo, Google and others to extract that information. -db

From NextWeb, May 2, 2011, by Matt Brian.

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The website Storify that allows users to accumulate information from the social media to build stories is now available to the public. Users can combine content with commentary and also add their own text.

Reporters have used the tool to report on the Middle East uprisings and the shooting of Congresswoman Gabrielle Gifford. -db

From the ReadWriteWeb, April 25, 2011, by Audrey Watters.

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Anti-government activists living in the Middle East, Europe and the U.S. are taking a leading role in using the Internet to defy the autocratic Syrian government in providing news of the uprising to the world.

Writing in The New York Times, Anthony Shadid described the work of one man, “Gaunt and with bloodshot blue-green eyes, Mr. Nakhle navigated a cascade of information Friday — a frenetic conversation on Skype with 15 people in Syria, a snippet of video from Tartus, a phone call from a friend in Damascus, and queries from journalists for contacts in remote towns. Someone he believed to be a secret police officer flashed him a taunting message: ‘There is news that a member of your family has been taken by security services.’ Mr. Nakhle changed the sim card on his phone and called home, without taking his eyes off his computer screen. The news proved false.” -db

From The New York Times, April 23, 2011, by Anthony Shadid with contributions from Katherine Zoepf.

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Free speech rights of police officers in the social media are clashing with their law enforcement responsibilities as illustrated by a recent case in Albuquerque where a police officer listed his occupation on Facebook as “human waste disposal.” A TV station discovered the gaffe after the officer was involved in a fatal off-duty shooting in February.

In response to this and other instances across the country, police departments are developing social media policies. The courts have supported free speech limits when the speech of government employees is job related.

In The New York Times, Erica Goode quotes David. L. Hudson Jr., of the First Amendment Center about the viability of such limits, “The question of when employees can be disciplined for off-duty speech is hazy. Part of our core nature is what we do for a living, and to prohibit somebody from engaging in any kind of expression related to their job is arguably too broad.”

From The New York Times, April 6, 2011, by Erica Goode.

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Following Twitter’s example, Facebook has plans to help journalists use the network to greater advantage.
It wants to provide more information on its service to make it more than just a social site.

Facebook has launched a page that will be a resource for journalists with “best practices” showing how reporters have used Facebook effectively in reporting a story. It also wants to show how to increase audience participation in news content through open-graph plugins and “like” buttons. -db

From a commentary in GigaOM, April 5, 2011, by Mathew Ingram.

Full story

Social media sites are struggling to achieve the right balance in remaining neutral during the Middle East
and North Africa uprisings and allowing freedom of expression. A recent case in which Flickr removed photos of officers from Egypt’s state security force demonstrated the difficulties.

Is it feasible in some instances to remain neutral when people could be in danger from a posting? Ebele Okobi-Harris, the director of the business and human rights program at Yahoo, which owns Flickr says, “Does a company take responsibility for the content?” What if someone wanted to post photos of doctors who do abortions?

From The New York Times, March 27, 2011, by Jennifer Preston.

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The younger generation is filing few libel suits for such as lies and character assassination, fueling speculation that they have greater tolerance of “hurly, burly Internet conversation.”

Or is it just that young people realize that bloggers have limited resources, decimating the chances of obtaining damages? -db

From the Minneapolis-St. Paul Star Tribune, March 14, 2011, by Kevin Giles.

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In viewing video of the aftermath of the Japanese earthquake, MediaPost’s Erik Sass says the most valuable footage came from professional news organizations.

The pros were able to use traffic helicopters to focus on the most important developments such as the advancing tsunami and fires while amateurs tended to try to film too much and ended up with little of import. -db

From a commentary in MediaPost, Friday, March 11, 2011, by Erik Sass.

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In the Toronto Star, Don Tapscott argues that the social media is an important tool for fostering democracy in that citizens can alert millions of people about injustices and social ills, and in the case of Tunesia and Egypt, weak ties between people on Facebook can lead to the stronger ties necessary to bring change.

Tapscott says that it will not be easy for totalitarian governments to shut down protests simply by shutting down the Internet: “In past revolutions, old regimes collapsed when the masses shut down the economy with a general strike. Today, the Internet is becoming the foundation for wealth creation, education, health care, supply chains, commerce and all other facets of society. Shutting down the Internet will be akin to creating a digital general strike against yourself.” -db

From  a commentary in the Toronto Star, February 13 2011, by Don Tapscott.

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While conceding that the social media did not cause the Egyptian revolution, Sam Gustin in Wired writes that the social media made significant contributions to the revolution’s success, a development that offers hope to repressed peoples of the Middle East.

Gustin quotes Sascha Meinrath of the New America Foundation’s Open Technology Initiative: “In the same way that pamphlets didn’t cause the American Revolution, social media didn’t cause the Egyptian revolution. Social media have become the pamphlets of the 21st century, a way that people who are frustrated with the status quo can organize themselves and coordinate protest, and in the case of Egypt, revolution.”

From a commentary in Wired, February 11, 2011, by Sam Gustin.

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American Medical Response of Connecticut agreed to settle a suit brought by the National Labor Relations Board (NLRB) after the company fired an employee for criticizing her boss and calling him derogatory names on Facebook.

The NLRB contended that the firing was illegal in that employees have the right to discuss workplace issues with fellow workers and others. The company agreed to revise their rules governing discourse on the Internet regarding work conditions. -db

From CNET, February 7 2011, by Steven Musil.

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Los Angeles Times
January 29, 2011

With a few phone calls to the likes of YouTube, Facebook and Twitter, the Egyptian government  stymied the social media, effectively limiting its role in organizing the demonstrations against President Hosni Mubarak. -db

The Wall Street Journal
Analysis
January 21, 2011
By Jeanette Borzo

When companies dismiss employees for what they consider harmful use of social media, the dismissals can backfire on the companies involving them in expensive lawsuits and damaging their reputations. -db

Wired
Commentary
January 14, 2011
By Nate Anderson of Ars Technica

Citizens are using the social media in quest to oust the corrupt government in Tunisia, and the government is fighting back, blocking websites and using the Internet to identify activists. -db

All agree that an employee making critical remarks on Facebook about her company and supervisor violated company policy, but did the company violate federal labor law by firing the woman? -db

Citizens Media Law Project
Commentary
December 24, 2010
By Andrew Mirsky

A Connecticut company suspended and then fired an employee for making disparaging comments on Facebook about the company and about her supervisor.

Not in dispute is that the employee’s actions violated the company’s social media and other personnel policies, which (among other things) prohibited depicting the company ‘in any way’ on Facebook or other social media sites or from “disparaging” or “discriminatory” “comments when discussing the company or the employee’s superiors” and “co-workers.”

In dispute is whether that social media policy – and the company’s actions in enforcing the policy – violated public policy, in particular Federal labor law. This came into fast relief when the National Labor Relations Board (NLRB) subsequently filed a complaint against the company, charging the company with violations of the employee’s rights under the National Labor Relations Act (NLRA).

The company is American Medical Response (AMR), an ambulance service provider. The incident followed a customer complaint about the employee’s work, when the employee’s supervisor asked the employee to prepare a report about the incident. At that point, the employee sought but was denied representation from her union.

Later that day, the employee posted negative remarks about her supervisor and AMR on her personal Facebook page, through her home computer. It appears that at no time did she use AMR’s technology or services to conduct her actions.

According to the New York Times story about the case, the employee’s grievance – and subsequent social media commentary – related primarily the fact that her supervisor barred a representative of the Teamsters to assist her in preparing her report.

The employee’s Facebook comments sparked an exchange of further commentary by other AMR employees, and further disparaging comments by the employee about the supervisor. That prompted her suspension and later termination.

Two important things to note about this case:

1. “Concerted Activity” under NLRA.

As the NLRB stated in its press release about the case, “the employee’s Facebook postings constituted protected concerted activity” under the NLRA. “Protected concerted activities” under the NLRA include the right of employees to “Discuss wages, working conditions or union organizing with co-workers or a union” and “Act with co-workers to improve working conditions by raising complaints with an employer or a government agency”.

Employers may not, among other things, “Fire, demote, transfer, reduce hours or take other adverse action against employees who join or support a union or act with co-workers for mutual aid and protection, or who refuse to engage in such activity.” (emphasis added)

According to the New York Times, this case is the first where the NLRB interpreted its powers to include regulation of employer conduct related to employee activities in social networking.

What is not clear is whether the NLRB would have filed this case – and whether this would have constituted “protected concerted activity” – had the employee’s conduct been limited to solo Facebook complaints, rather than engaging with co-workers and an online community.

2. Social Media Policies Violative of NLRA.

As described in the New York Times, AMR’s policies “barred employees from depicting the company ‘in any way’ on Facebook or other social media sites in which they post pictures of themselves.” Another policy prohibited “disparaging” or “discriminatory” “comments when discussing the company or the employee’s superiors” and “co-workers.”

According to the NLRB, “Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.”

This view is troubling if only in the sense that these types of policies and provisions are common for companies adapting to social media. As Bret Cohen of Hogan Lovells wrote recently about the case, “Though such policies are most likely to be invoked when employees post material to the Internet or social media sites that exhibit clear insubordination or disloyalty to the company, the NLRB was clear in expressing its concern for the possibility for companies to use the policies to stifle union-related employee communications.”

The case is set for hearing on January 25, 2011.

Copyright 2011 Citizens Media Law Project      FAC Content Use Policy

A chair of a Congressional committee cautioned a law professor about to speak to the committee  to refrain from personal attacks against any companies or company employees. -db

Onlne Media Daily
Commentary
December 3, 2010
By Wendy Davis

Columbia Law professor Eben Moglen seemed to have touched a nerve on Capitol Hill this week when he touted the social networking start-up Diaspora, which he advises, while simultaneously bashing Facebook, in his written testimony.

Immediately before Moglen was set to testify at the House Subcommittee on Commerce, Trade and Consumer Protection, Rep. Zachary Space (D-Ohio), chided the professor. “Congress tries to foster highest level of decorum,” Space lectured. “I would ask you to avoid personal attacks against any companies or company employees.’”

These remarks spurred a flurry of tweets from curious industry observers who wanted to know which company Moglen had criticized. That question took a surprisingly long time to answer, thanks to a highly questionable decision to remove Moglen’s prepared statement from the subcommittee’s Web site.

After a round of complaints on Twitter about the apparent attempt to toss Moglen’s remarks down the memory hole, privacy expert Chris Soghoian posted a link to a pdf of the testimony hosted by the Software Freedom Law Center, where Moglen serves as director.

Shortly afterward, Moglen’s original statement reappeared on the House Subcommittee site.

What did the professor write that was deemed worthy of censorship? For one thing, he called Facebook’s privacy settings “mere deception, a simple act of deliberate confusion.”

“These ‘privacy settings’ merely determine what one user can see of another user’s private data. The grave, indeed fatal, design error in social networking services like Facebook isn’t that Johnny can see Billy’s data. It’s that the service operator has uncontrolled access to everybody’s data, regardless of the so-called ‘privacy settings.’ ”

Secondly, he pointed out that Facebook has access to vast amounts of data about people. “Facebook holds and controls more data about the daily lives and social interactions of half a billion people than 20th-century totalitarian governments ever managed to collect about the people they surveilled,” he wrote.

While the remarks might have fallen somewhat outside the parameters of a narrow discussion about do-not-track mechanisms, Moglen’s testimony certainly bears on larger questions of online privacy. In fact, it’s nearly impossible to talk meaningfully about online privacy without bearing in mind Facebook’s snafus — like the defunct Beacon platform, which told users about their friends’ purchases.

With Congress increasingly turning its attention to Internet privacy, discussions about individual companies seem inevitable. Hopefully future witnesses won’t hold back their legitimate concerns about specific businesses due to fear that their testimony, like Moglen’s, will be found lacking.

Copyright 2010 MediaPost Communications     FAC Content Use Policy

Five centuries years ago, a new technology, the printing press, spawned a deluge of books. Mankind responded with innovations for making sense of the information flood. -db

Boston Globe
Commentary
November 28, 2010
By Ann Blair

Worry about information overload has become one of the drumbeats of our time. The world’s books are being digitized, online magazines and newspapers and academic papers are steadily augmented by an endless stream of blog posts and Twitter feeds; and the gadgets to keep us participating in the digital deluge are more numerous and sophisticated. The total amount of information created on the world’s electronic devices is expected to surpass the zettabyte mark this year (a barely conceivable 1 with 21 zeroes after it).

Many feel the situation has reached crisis proportions. In the academic world, critics have begun to argue that universities are producing and distributing more knowledge than we can actually use. In the recent best-selling book “The Shallows,” Nicholas Carr worries that the flood of digital information is changing not only our habits, but even our mental capacities: Forced to scan and skim to keep up, we are losing our abilities to pay sustained attention, reflect deeply, or remember what we’ve learned.

Beneath all this concern lies the sense that humanity is experiencing an unprecedented change — that modern technology is creating a problem that our culture and even our brains are ill equipped to handle. We stand on the brink of a future that no one can ever have experienced before.

But is it really so novel? Human history is a long process of accumulating information, especially once writing made it possible to record texts and preserve them beyond the capacity of our memories. And if we look closely, we can find a striking parallel to our own time: what Western Europe experienced in the wake of Gutenberg’s invention of printing in the 15th century, when thousands upon thousands of books began flooding the market, generating millions of copies for sale. The literate classes experienced exactly the kind of overload we feel today — suddenly, there were far more books than any single person could master, and no end in sight. Scholars, at first delighted with the new access to information, began to despair. “Is there anywhere on earth exempt from these swarms of new books?” asked Erasmus, the great humanist of the early 16th century.

But amid the concern, that crisis began to generate something else: a raft of innovative new methods for dealing with the accumulation of information. These included early plans for public libraries, the first universal bibliographies that tried to list all books ever written, the first advice books on how to take notes, and encyclopedic compilations larger and more broadly diffused than ever before. Detailed outlines and alphabetical indexes let readers consult books without reading them through, and the makers of large books experimented with slips of paper for cutting and pasting information from manuscripts and printed matter — a technique that, centuries later, would become essential to modern word processing.

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Some Florida teachers are suing their district in state court on the grounds that a proposed Manatee school district policy violates their free speech rights by prohibiting social media postings of negative comments or photos about the district, employees or students from home or work computers. -db

Bradenton Herald
November 13, 2010
By Richard Dymond

MANATEE, Florida — The teachers union in Manatee County filed a lawsuit Friday challenging the constitutionality of a proposed Manatee school district policy governing how teachers use Facebook and other social networking websites.

The lawsuit by the Manatee Education Association asserts that the policy would violate teachers’ freedom of speech rights.

The action comes 45 days after the school district came up with a proposed policy that would prohibit teachers from posting negative statements or photos about the district, employees or students from their home or work computers on sites such as Facebook and Twitter.

The policy would also require teachers to get written permission from parents if they want to communicate with students on those websites, or by personal e-mail.

At the time, school board chairwoman Jane Pfeilsticker voiced concern about the district infringing on First Amendment rights, stating, “This is pretty untested water and I would love to see how other districts have dealt with this without any freedom of speech issues arriving in a lawsuit.”

In the 18-page suit, filed in the 12th Judicial Circuit Court, the Manatee Education Association and its president, Pat Barber, allege that proposed policy 4.7, “prohibits speech on matters of public concert in a manner which violates the First Amendment, United States Constitution and Article 1, Section 4, Florida Constitution.”

When he discovered the district had been sued by the teachers union Friday, school board attorney John Bowen said he was disappointed.

“I am disappointed this wasn’t handled in a manner that would not have involved spending the public’s money on litigation,” Bowen said.

Bowen also called the teachers union action “premature.”

The union in October filed a complaint with the state claiming the proposed policy violates a teacher’s right to privacy and speech. The state has not issued a ruling on the complaint.

The union had asked the state Division of Administrative Hearings’ judicial board to rule against the proposed policy.

School board members were slated to vote on the policy proposal Oct. 25, but it was pulled from the school board agenda after the union approached the state for a ruling.

“Challenging the constitutionality of this doesn’t make sense when we don’t know what the final form of the rule will take,” Bowen said. “I think it is extremely premature.”

A call to Barber was not returned by press time.

Bowen said the school district will petition to move the case to federal court since it is involves the U.S. Constitution.

Bowen said he stands behind earlier statements that he made that restricting teacher’s use of the social media does not violate their rights, but only reminds them they are bound to a code of ethics.

“The school board’s position on this is that we are not changing anything,” Bowen said. “What we are saying to teachers is that when they communicate, in whatever manner, from a conversation on the street, on the beach, in a classroom, or in a chat room, they are bound by the a code of ethics built around the principles of the teaching profession.”

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Public and private universities are increasingly limiting players’ use of social media that one expert says constitutes in most cases illegal prior restraint and a violation of their free speech rights. -db

Citizen Media Law Center
Commentary
November 9, 2010
By Eric P. Robinson

An exercise we did Friday at University of Nevada, Reno’s High School Journalism Day raised an interesting legal question: can a public university restrict its students’ use of social networking sites such as Facebook and Twitter?

It turns out that a number of public and private universities — including Boise State, Indiana University, New Mexico State, Texas Tech, the University of Miami (private), and the University of North Carolina — have followed the lead of the National Football League, which imposes limits on players’ use of social media. The NFL prohibits players from using social media during games (and has attempted to extend this to others at the game).

But the schools have gone further: Boise State banned players from using any social media during the season, while New Mexico State barred Twitter during the season. Meanwhile, the University of Miami, UNC, and Texas Tech all required football players to cancel their Twitter accounts entirely. And Indiana University indefinitely suspended a player from the football team after he sent Tweets criticizing the school’s coaching staff.

As private organizations, legally the NFL and the University of Miami can impose whatever restrictions they want on players. But the situation is more complicated for the public universities. As government entities, their ability to limit speech — including the speech via Twitter of football players — is limited by the First Amendment.

The U.S. Supreme Court famously declared in 1969 that “[neither] students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969), and that high school authorities could limit speech only when they foresee “substantial disruption of or material interference with school activities.” Id. at 514. In more recent cases, the Court has found a number of circumstances in which the possibility of such disruption allowed high school administrators to restrict speech, including a profanity-laden student speech (Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)) and a banner referencing drug use (Morse v. Frederick, 551 U.S. 393 (2007)).

The court has also held that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities [such as a school-sponsored newspaper] so long as their actions are reasonably related to legitimate pedagogical concerns.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988). The court added that students would have more freedom in publications that have served as “public forums.” Id. at 267.

All of these cases involved high school students; for college students, the courts have been more protective of First Amendment rights. Thus a college’s refusal to give a particular student group the same recognition it gave to other groups was held to violate the First Amendment, when the college’s refusal was based on a generalized fear of disruption (Healy v. James, 408 U.S. 169 (1972)) or when the college refused to recognize or provide funds to religious groups while doing so for secular groups (Widmar v. Vincent, 454 U.S. 263 (1981); Rosenberger v. Rector of the Univ. of Va., 515 U.S. 819 (1995)). While most of these cases involved on-campus speech, some lower courts, and the Supreme Court in Morse, applied these rules to off-campus speech with a possible impact on campus.

Generally, public schools can limit students’ speech only if the limitations are content-neutral, further an important government interest, and are “narrowly tailored” to further that interest. U.S. v. O’Brien, 391 U.S. 367 (1968). In most of the cases, the cited governmental interest is the school’s interest in ensuring a safe, non-disruptive educational environment.

Some courts have held that, in the context of a school athletic team, this interest includes the ability to punish insubordination amongst team members. Thus both the Sixth Circuit and the Eighth Circuit have upheld the removal of public school athletes who created and signed petitions expressing general lack of confidence in their coaches. See Lowery v. Euverard, 497 F.3d 584 (6th Cir. 2007), reh’g and reh’g en banc denied (6th Cir. Feb. 1, 2008), cert. denied, 129 S.Ct. 159, 172 L.Ed.2d 42 (U.S. Oct. 6, 2008); Wildman ex rel. Wildman v. Marshalltown Sch. Dist., 249 F.3d 768 (8th Cir. 2001).

But the Ninth Circuit found that a petition by athletes complaining of physical and psychologically intimidation by their coach was protected by the First Amendment. Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 768 (9th Cir. 2006). And in Seamons v. Snow, 206 F.3d 1021 (10th Cir. 2000), the court reversed a lower court’s dismissal of First Amendment claims brought against a coach who allegedly removed a student who refused to apologize for complaining to school authorities and the police about a hazing incident.

The rule emerging from these cases seems to be that public schools can reprimand student athletes for insubordinately expressing dissatisfaction with their coaches, while they cannot punish athletes for serious — and specific — allegations. The Indiana University suspension, resulting from Tweets critical of the coaches, would probably be upheld under this rule.

But it would be difficult for the blanket rules imposed by the other schools on use of social media by football players — a total ban on Twitter or on all social media, applying either during the season, or at all times — to withstand First Amendment scrutiny. Schools may penalize students for specific Tweets or posts that are likely to lead “substantial disruption of or material interference” with the team and its activities, but cannot impose a prior restraint on athletes in mere anticipation of such a comment.

For failing to go through the First Amendment goalposts, the public colleges’ policies limiting athletes’ use of social networking sites should be sacked.

Eric P. Robinson is Deputy Director of the Donald W. Reynolds Center for Courts and Media at the University of Nevada, Reno. He was previously a Staff Attorney at the Media Law Resource Center.

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