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Drunk Photos and Facebook

By Justin Bathon

Well, Facebook just continues to generate educational law news ... or in this case buzz. Andrew Paulson over at Board Buzz has an interesting account of students being disciplined and questions over photos of them on Facebook which showed them partying with alcohol. The incident even generated a walkout by some students at the school.

Andrew's questions in the BoardBuzz post are interesting, however, and worth an examination. Here is the quote:

First, the easy question ... free speech. Likely, in these cases of photos being posted on Facebook or other social networking sites, there will not be a First Amendment issue because the speech does not amount to an expression that has meaning (See, Jarman v. Williams, 753 F.2d 76 (1985)). Now, that is not to say that all Facebook posts do not amount to expression, certainly some can, but they must convey a clear meaning that is likely to be understood by a third party and it is hard to see how drunk photos do that.

Now, the harder question ... should school authorities consider it part of their job to search Facebook? First, the law considers Facebook (and the Internet in general) to be a public space (even if student's hold to the misconception that it is private) so the old rules of reasonable, individualized suspicion probably don't apply in a legal sense. So, can school authorities legally search Facebook? ... sure. Okay, with that out of the way, we can consider the "should" question. Should school administrators randomly be searching Facebook on their students? Here is the advice I have been giving when asked this question. Even though the traditional rules of reasonable, individualized suspicion probably don't apply to Internet and Facebook searches ... pretend that they do. What I absolutely don't want is a principal spending 4 hours a day randomly searching the net. While I promise that if they search in this manner they will find things to punish students for, they have far more important things to do like improving curriculum and evaluating teachers. But, if there is an individualized suspicion of a student that is reasonable, why not take 5 min. and see if that student has a Facebook page and run a few Google searches? If you find what you are looking for, go ahead and proceed with disciplinary action. If you find some other transgression in the process that you were not looking for, such as pictures of students drinking, well ... use your discretion - there is no rule saying you have to punish everything you see. The law gives principals discretion because we want them to use it. There are lots of bad things and lots of good things happening on the net, just as in classrooms. After a couple hundred years of education in this country we have determined that a reasonable, individualized suspicion standard is a good standard for searching in classrooms, so I don't see why it should be any different for the Internet. The Internet is becoming part of our schools, whether we like it or not. We can't just try to block everything all the time because students will always find ways around the boundaries we erect (again, this is no different than classrooms). We need to be honest with students and establish clear precedents regarding the school administration's relationship with the Web. I think a good standard that both school authorities and students can live with is a reasonable, individualized suspicion standard. Students should know the Internet and Facebook are not private places immune to searching by school authorities, but students should also know that school authorities are not "out to get them" and that they will only be searching the Net for information on their students if there is a reason to do so.     

Also see Mike Tully's recent entry at the Gate about the settlement of a facebook dispute in Ohio after the school overreacted and didn't use their discretion wisely.

Full post as published by Edjurist on January 17, 2008 (boomark / email).