ANALYSIS
violations. Te fact that the employees spoke in-person rather than posted online is irrelevant to the decision. Employees must exercise caution when relying on
the First Amendment to protect their speech, including social network posts. And don’t even consider violating confidentiality laws, such as the Family Educational Rights and Privacy Act, by identifying a student who plays a role in your story. Even if you don’t actually use the student’s name, if members of the likely audience might reasonably know the identity of the person you’re discussing, you don’t have to actually name the student to run afoul of the law.
As the laws, rules and societal norms evolve and change with each new advance in technology, so, too, will the decisions of our courts.
Te fact is, the rules haven’t changed, although the media have. But, perhaps, with the potential for immea- surable number of individuals in a Facebook or Twitter “audience,” the potential for substantial disruption has
increased. But the basic protections set out in the Bill of Rights are sufficiently adaptable to apply today. As one court recently noted: As the laws, rules and societal norms evolve and change
with each new advance in technology, so, too, will the decisions of our courts. While the U.S. Constitution clearly did not take into consideration any tweets by our founding fathers, it is probably safe to assume that Samuel Adams, Benjamin Franklin, Alexander Hamilton and Tomas Jefferson would have loved to tweet their opinions as much as they loved to write for the newspa- pers of their day (sometimes under anonymous pseud- onyms similar to today’s twitter user names) . . . (Bland v. Roberts), 2012 WL 1428198 (E.D. Va. 2012).
Peggy Burns is former in-house counsel to a large suburban Colorado school district, and now is president and consultant with Education Compliance Group, Inc., www.
educationcompliancegroup.com. Peggy is sought after as a presenter at state, regional, and national conferences, and district and company in-services, focusing most often on legal issues related to school transportation and special education. She is editor of Legal Routes, and a frequent contributor to STN.
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