Demanding A Student's Facebook Password A Violation Of First Amendment Rights, Judge Says

Free Speech

from the well,-we-all-know-who-the-REAL-bully-is-here... dept

For some strange reason, a large number of schools adhere to the notion that their students are not actually citizens of the United States and therefore, not granted the same rights as the “grownups.” The rationale for the limitation of these rights usually involves the word “safety,” a word that has been (ab)used in various forms to curtail rights of full-grown American citizens in other arenas.

This isn't to say that all, or even most, schools are violating students' rights, but the sheer number of incidents reported isn't very comforting. Fortunately, some decisions are being handed down that should, if nothing else, provide precedent for those challenging administrative overreach.

On September 6, a decision was handed down in a suit brought against the Minnewaska Area School District (Minnesota), dealing with a twelve year old student who was coerced into giving school officials the password to her Facebook account so they could search it for messages they deemed inappropriate.

R.S. was a twelve year old student at a Minnewaska Area middle school. She posted a message to her Facebook page about an adult hall monitor at her school:

“[I hate] a Kathy person at school because [Kathy] was mean to me.”

The post was only accessible to her friends. One of her friends brought the post to the attention of the administration. The principal called R.S. into his office and told R.S. “that he considered the message about Kathy to be impermissible bullying.” (???) As a result of the message, R.S. was required to apologize, given detention, and received a disciplinary notation in her records. R.S. was disciplined a second time when she expressed her chagrin that someone had told on her (“I want to know who the f%$# told on me.”) [“f%$#” in original] This time she was disciplined for “insubordination” and “dangerous, harmful, and nuisance substances and articles.” (???)

Venkat Balasubramani has added his own punctuation to some of the more dubious or ridiculous statements made by school officials. First off is the charge of “impermissible bullying” (there's a “permissible” variety?), a broad term used nearly as often by school administrators as “disorderly conduct” is used by cops.

In essence, “R.S.” was punished for “being a kid” (i.e., not liking something that happened at school, complaining, being ratted out and complaining about that, etc.). The handling of this first incident makes the school appear to be as vindictive and thin-skinned as the child they punished.

This isn't the end of the story, however. The school also received a complaint from a parent that R.S. was discussing “sexual topics” with another student “on the internet.” For whatever reason (most likely stated as “concern for her safety”), the school decided to pull R.S. from class and grill her about the particulars of these conversations. Apparently, her answers weren't good enough, so three school counselors and a taser-armed cop interrogated her until she gave up her Facebook password. They proceeded to search her account, including private messages, for evidence of these conversations. Still not satisfied, they decided to search her private email messages.

After this traumatizing and intrusive incident, R.S. decided to sue the school district for violating her constitutional rights. The court agreed with her on both claims:

First Amendment claims: The court has no trouble concluding that assuming the facts as alleged as true, school officials violated R.S.’s First Amendment rights. The court says that posts on social networks are protected unless they are “true threats” or are reasonably calculated to reach the school environment and pose a safety risk or a risk of substantial disruption of the school environment. R.S.’s posts were not true threats. Even assuming the statements were reasonably calculated to reach the school audience, there was no possibility of disruption.

Fourth Amendment claims: The court also says that the school officials violated R.S.’s Fourth Amendment rights to the extent they rummaged around in her Facebook page and her private email account. Private emails were like letters of other private conversations, and subject to Fourth Amendment protections. Private Facebook messages are no different. There was no evidence that the officials tailored their search to minimize the intrusion. Even if they had, they had no underlying basis to search in the first place.

If the alleged facts are true (and the court takes care to point out this “if”), the school will likely be writing out a settlement check. This decision, a response to the school's motion to dismiss, also allows for claims of invasion of privacy (although it does dismiss claims for “intentional inflection of emotional distress”). It doesn't seem like the school is debating the facts as presented, not if its argument that R.S.'s violation of Facebook policy (she's 12 and you “have” to be 13 to sign up for an account) means she's entitled to fewer constitutional rights is any indication.

Eric Goldman adds his own analysis, pointing out the inherent problem with most bullying policies/legislation:

[I]t's a good example of how administrators might use the “bullying” label as a pretextual justification for punishment. The term “bullying” has way too much semantic ambiguity, but it should never stretch as far as calling another person “mean.”

This is something administrators should keep in mind when crafting/revamping school policies. They should also be reminded of this simple fact, as stated by Judge Michael Davis in his decision:

For more than forty years, the United States courts have recognized that students do not check their First Amendment rights at the schoolhouse door.

“Safety” does not trump rights, just as surely as “policy” does not trump (or at least, shouldn't) trump common sense and proportionate responses.

Filed Under: free speech, passwords, school, social networks, students
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