Title: SOCIAL MEDIA - WHEN POLICIES AND THE FIRST AMENDMENT COLLIDE
Headings: SOCIAL MEDIA – WHEN POLICIES AND THE FIRST AMENDMENT COLLIDE
SOCIAL MEDIA – WHEN POLICIES AND THE FIRST AMENDMENT COLLIDE
Content: What is the mischief the Policy is addressing? When can a school district exercise control over employees’ private speech? What is private versus public speech? Is a Social Media Policy necessary if the employee’s conduct in using social media is covered by other policies and/or statutory protections? How broad should the Social Media Policy be? Is the Policy clear regarding the specific kind of speech that is restricted? In answering some of the above inquiries, the drafting of the Policy must draw a clear distinction between employee speech when engaged in as a citizen speaking on matters of public concern and speech that can fairly be restricted because it is related to the employees’ job duties or can potentially have a serious negative impact on a school district’s operations. Policy language prohibiting speech that is “embarrassing,” “damaging,” “annoying,” “inappropriate,” “offensive,” or “promoting destruction of property” may be overbroad, difficult to interpret, and hard to enforce. It must be remembered that when dealing with First Amendment free speech protections, sometimes offensive speech may be protected speech even when employees are involved. The language of Social Media Policies must be carefully drafted to avoid these legal challenges under the First Amendment.