Editor’s Note: Lori Andrews discussed her new book, I Know Who You Are and I Saw What You Did: Social Networks and the Death of Privacy, at the National Constitution Center on January 12, 2012. The podcast can be heard by clicking the play button below.[audio: http://hancock.constitutioncenter.org/media/founding_fathers_and_facebook_01-12-12/founding_fathers_and_facebook_01-12-12_%2864%29.mp3]
In Philadelphia 225 years ago, the U.S. Constitution was drafted. Now Pennsylvania is essentially drafting a second Constitution as courts across the state determine what rules should govern social networks.
Pennsylvania leads the nation in legal disputes involving social networks and the Web. These cases include a teacher who was suspended because of a Facebook post about her frustrations with her students, a law student who was criticized for running a website where men fantasized about raping particular female students, and a Pittsburgh Pirates mascot who was fired for a Facebook post disagreeing with his employers’ decision to extend certain managers’ contracts.
The U.S. Constitution protects the rights of free speech and privacy. But social networks pose challenges to those rights. Straight-A students have been expelled from school for criticizing their teachers on Myspace. Thirty-five percent of companies turn down job seekers based on posts from social networks, especially photos that show the person holding a glass of wine or beer.
When employees used to complain about their jobs in discussions around the water cooler or at the local bar, bosses rarely found out or took action. But now workers are fired for venting on the web, including a 16-year-old who complained that her job was boring and an emergency worker who posted a cartoon about a clueless doctor.
Courts considering social network cases have had to balance issues of free speech, privacy, and potential harms. The tensions between protecting rights and preventing harms were highlighted when an eighth-grader in Bethlehem created a Teacher Sux website with reasons why his algebra teacher should die, asking for $20 “to help pay for the hitman.”
The student was expelled and the state Supreme Court said that, even though the website had been created in the boy’s home and had specifically said that teachers shouldn’t read it, the student could be punished since the website upset the algebra teacher. A dissenting judge in the case argued that the boy’s website was protected by the First Amendment and pointed out that the school had never perceived the boy’s actions as a real threat. What’s more, said the judge, “This type of sick humor can be found in some of today’s popular television programs, such as South Park.”
In two other cases from Pennsylvania schools, federal appellate judges were more protective of students’ online posts, even when they were degrading to teachers or misleading about them. The judges quoted the U.S. Supreme Court’s holding that students do not “shed their constitutional rights to free speech or expression at the schoolhouse gate.” Student speech can only be punished if it substantially disrupts the functioning of the school.
Employees have fewer protections than public school students and can generally only seek reinstatement if they blew the whistle on harmful practices or protested about working conditions. In the Pittsburgh Pirates case, the mascot won back his job that allowed him to race, while dressed as a pierogi, during the fifth-inning stretch because he was not terminated in compliance with the team’s human resources procedures.
Other countries are more protective. Finland already bans employers from Googling applicants. Germany is considering a law that would forbid employers from using information from social networks in the processes of hiring and or assessing employees.
Democracy is based on free speech. The postings of students and employees are a way to let off steam and can provide important information about public and private institutions. Penalizing students and employees for what they post would silence people for virtually their whole life, since people enter school at age 5 and retire from work six decades later. Unless the speech is likely to cause imminent harm to particular individuals, people should be able to freely express their ideas. Such expressions encourage societal discussion of the sort the founding fathers wanted to protect under the Constitution.
By articulating likes and dislikes, individuals can determine their own priorities, such as whether they should quit their job. And they can work to improve crucial social institutions such as schools and workplaces. We need a Social Network Constitution that protects people’s freedom of expression on the Web.
Lori Andrews is Distinguished Professor of Law at Kent College of Law; Director of the Institute for Science, Law and Technology; and Associate Vice President at Illinois Institute of Technology. This post first appeared in the Jan. 8 edition of the Philadelphia Inquirer.