Public secondary and post-secondary schools around the country may be creating tremendous legal liability issues for taxpayers because of their lack of understanding regarding social media and the law. According to The Daily Mail, a college freshman at the University of Georgia is suing her former Georgia school district for $2 million dollars after it utilized a photograph that she posted on her personal Facebook account without her permission in a district seminar about the Internet.
The Director of Technology at the Fayette County Schools allegedly used a personal photo of a former student to discuss the issues inherent with social media. It appears that before the seminar the former student's photo was not newsworthy or publicized other than being on Facebook. Some questions that need to be answered may include: How did the school district obtain the photograph?; Did the school district know who was in the photograph?; Why didn't the school district obtain permission before utilizing the photograph?
This litigation demonstrates the tremendous legal liability issues that secondary and post-secondary schools may encounter regarding the use of personal student photographs that appear on social media platforms. There are a handful of consulting firms that are approaching schools that claim they can properly advise schools on how to "educate" and "monitor" students online.
Unfortunately, many of these services utilize methods to "educate" and/or "track" students online that states around the country are banning. In addition, some of these services are abusing their access to students' personal digital content. For example, according to Time Magazine, a company called UDiligence was caught last year displaying the personal photographs of the students that it was monitoring to sell its services.
The bottom line is that secondary and post-secondary schools must better understand the legal ramifications of social and digital media content and platforms before they are sued.
Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Showing posts with label Social Media Monitoring. Show all posts
Showing posts with label Social Media Monitoring. Show all posts
Tuesday, June 25, 2013
Tuesday, April 9, 2013
Utah Bans Student-Athlete Social Media Monitoring Firms
Utah recently became the latest state to enact legislation that bans schools from deploying social media monitoring firms that require students verify their social media user names and/or passwords. Utah joins Delaware, California, Michigan, and New Jersey in protecting their schools, students, and taxpayers from social media snake oil salesmen who are selling legal liability time bombs.
The Utah legislation appears to have been prompted because of a Time Magazine article that discussed the student-athlete social media policy of one Utah school. This academic institution appeared to require student-athletes sign a social media policy that stated, "To the extent that any federal, state, or local law prohibits the Athletic Department from accessing my social networking accounts, I hereby waive any and all such rights and protections." According to constitutional law expert Professor Phil Closius, this student-athlete social media policy was "clearly suspect". Under Utah's new law (H.B. 100), this policy is not just clearly suspect but against the law.
What does Utah's new law along with similar laws across the country mean for schools? In short, academic institutions need to re-examine their student-athlete social media policies and education programs to ensure compliance with all applicable state and federal laws. Athletic departments need to understand that social media is not just a public relations issue but a serious legal matter that requires the counsel of social media law experts who understand college athletics and NCAA compliance. Drafting and implementing improper student-athlete social media policies may create millions of dollars in legal liability.
Consultants who sell "student-athlete social media monitoring services" to athletic departments are selling legal liability time bombs. Deadspin has already exposed several companies as having no connection to college athletics before starting their "social media monitoring firms". Some companies that are approaching colleges appear to be making material misrepresentations to market their services. For example, how does someone transition from being a health care recruiter to a social media student-athlete compliance and education consultant overnight?
The bottom line is that states across the country are banning schools from being able to deploy firms to monitor and archive their students' personal digital content. These laws may cumulatively save schools around the United States hundreds of millions of dollars in monitoring, legal, compliance, and insurance costs.
In order for social media monitoring services to properly function students must at least verify their social media user names. Absent student verification these services are unable properly work. Furthermore, athletic departments should not be fooled into believing these services are compliant with all state and/or federal laws. In general, these companies also claim their services are educational tools while others claim they want to protect the online reputation of schools and/or students. Has anyone asked those who are approaching schools for their teaching credentials?
It appears that the founders of these companies have no verifiable experience that would lend any credibility to their claims. Consultants who are marketing student-athlete social media monitoring services to athletic departments do not understand social media, NCAA compliance, public policy, or the law; and they apparently care more about making a sale than protecting schools and student-athletes.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.
The Utah legislation appears to have been prompted because of a Time Magazine article that discussed the student-athlete social media policy of one Utah school. This academic institution appeared to require student-athletes sign a social media policy that stated, "To the extent that any federal, state, or local law prohibits the Athletic Department from accessing my social networking accounts, I hereby waive any and all such rights and protections." According to constitutional law expert Professor Phil Closius, this student-athlete social media policy was "clearly suspect". Under Utah's new law (H.B. 100), this policy is not just clearly suspect but against the law.
What does Utah's new law along with similar laws across the country mean for schools? In short, academic institutions need to re-examine their student-athlete social media policies and education programs to ensure compliance with all applicable state and federal laws. Athletic departments need to understand that social media is not just a public relations issue but a serious legal matter that requires the counsel of social media law experts who understand college athletics and NCAA compliance. Drafting and implementing improper student-athlete social media policies may create millions of dollars in legal liability.
Consultants who sell "student-athlete social media monitoring services" to athletic departments are selling legal liability time bombs. Deadspin has already exposed several companies as having no connection to college athletics before starting their "social media monitoring firms". Some companies that are approaching colleges appear to be making material misrepresentations to market their services. For example, how does someone transition from being a health care recruiter to a social media student-athlete compliance and education consultant overnight?
The bottom line is that states across the country are banning schools from being able to deploy firms to monitor and archive their students' personal digital content. These laws may cumulatively save schools around the United States hundreds of millions of dollars in monitoring, legal, compliance, and insurance costs.
In order for social media monitoring services to properly function students must at least verify their social media user names. Absent student verification these services are unable properly work. Furthermore, athletic departments should not be fooled into believing these services are compliant with all state and/or federal laws. In general, these companies also claim their services are educational tools while others claim they want to protect the online reputation of schools and/or students. Has anyone asked those who are approaching schools for their teaching credentials?
It appears that the founders of these companies have no verifiable experience that would lend any credibility to their claims. Consultants who are marketing student-athlete social media monitoring services to athletic departments do not understand social media, NCAA compliance, public policy, or the law; and they apparently care more about making a sale than protecting schools and student-athletes.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Monday, February 18, 2013
Right To Privacy Will Be Protected By The Social Networking Online Protection Act
The Social Networking Online Protection Act (SNOPA) was recently reintroduced by Congressman Eliot Engel of New York. SNOPA is the first bipartisan federal legislation designed to protect the digital privacy of employees, job applicants, students, and student applicants in the Social Media Age. The legislation may also provide a legal liability shield to businesses and academic institutions that may make it difficult for litigants to claim that these entities have a legal duty to monitor the personal digital accounts of their employees and/or students.
The right to digital privacy needs to be statutorily strengthened in the United States. Last year, the Supreme Court in U.S. v. Jones ruled that the government needs a warrant in order to place a GPS device onto a suspect's car. The Jones' decision demonstrates that the judiciary recognizes that people still have an expectation of privacy in the Social Media Age.
At this point, there have been only a handful of publicized examples where employees have alleged that their employer and/or a company with whom they interviewed with requested access to their personal digital accounts. This may be an underreported problem because according to a 2012 Harris Interactive Survey, 37% of hiring managers utilize social networking sites to screen candidates.
Without the protections that SNOPA provides how long will it be before it becomes commonplace for employers to require job applicants and/or employees provide access to personal password protected digital accounts as part of the employment process? In 2008, Congress enacted the Genetic Information Non-Discrimination Act (GINA) to bar employers from using genetic information when making employment decisions. GINA was not enacted because of a high profile incident where an employer required a candidate to submit his genetic information as part of the application process; it was enacted as a pre-emptive measure. In contrast, there are already multiple verifiable situations where employers are requiring job applicants provide their personal digital credentials as part of the application process.
While there have only been a handful of publicized incidents where employers are requiring access to their candidates' personal password protected digital content, thousands of students across the country are being required to turn over their digital usernames and/or passwords and/or Facebook Friend a school administrator and/or install cyberstalking software in order to attend a public school, keep a scholarship or participate in extra-curricular activities.
There have been multiple incidents where public school students have been forced without reasonable suspicion to turn over their personal Facebook and/or email usernames and passwords to school administrators. Universities across the country are requiring student-athletes to register their social media user names and/or Facebook Friend school officials and/or install cyberstalking software to track and archive their personal digital activity.
With access comes responsibility. Last year, a former Library of Congress employee alleged in a lawsuit that because his former supervisor viewed one of the groups he liked on Facebook he was discriminated against. The family of Yardley Love, a University of Virginia (UVA) student-athlete who was murdered on UVA's campus by her former boyfriend George Huguely (also a UVA student-athlete), is suing UVA and school employees for $30 million dollars for failing to properly protect their daughter.
Love's family alleges that UVA and its employees knew or should have known Huguely was a danger to Love because Huguely was not properly disciplined for past known inappropriate conduct because he was a star student-athlete. While it is too soon to speculate what type of evidence Love's family will introduce during legal proceedings, if UVA and/or its employees had access to Huguely's or Love's personal digital accounts and missed and/or intentionally ignored content that may have indicated a potential problem this may create tremendous legal liability for UVA and/or its employees.
If SNOPA is enacted students will not have to worry about being required to provide access to their personal digital accounts in order to attend the school of their dreams or keep their scholarships. In addition, academic institutions that do not violate the law may have a strong legal liability shield against litigants who claim schools have a legal duty to become the social media police.
Protecting personal digital privacy will help grow the economy and foment new technological breakthroughs. If people believe their personal password protected digital thoughts, ideas, and creations are statutorily protected they will increase their usage of Dropbox, Microsoft SkyDrive, Google Plus, Facebook, etc... It is vital for our country's competitive future to implement public policy that encourages increased digital platform participation in our increasingly interconnected world.
SNOPA would encourage widespread consumer adoption of cloud based platforms because users will not have to worry that their employer or school may require they provide access to their personal password protected digital accounts absent a judicial order. SNOPA is bipartisan win-win legislation that protects employers, employees, job applicants, schools, students, and student-applicants.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2013 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
(Full Disclosure: I am working with Congressman Engel's office on this bill.)
Friday, August 24, 2012
South Korea bans social media account registration
South Korea's highest court unanimously ruled that South Koreans are not required to register their user names or other online account information in order to make comments on the Internet. This reaffirms that South Korea will protect freedom of speech on social media and other online platforms.
When applying this law to universities in South Korea, it appears to mean that public school students are not required provide their schools their social media user names or other digital account information. In a democratic society, public schools may not require their students to register their Facebook accounts, Twitter handles, and/or other social media credentials in order to obtain or keep their scholarships. It is clearly unconstitutional for a U.S. public university to demand that their students register their digital or social media usernames or online persona with a university or a third party in order to keep their scholarship or participate in extracurricular activities. This protection extends to all students including student-athletes and other students on scholarship.
Unfortunately, there are multiple U.S. public colleges and universities that are following the advice of self-described social media consultants who are pitching schools on requiring their student-athletes to register their social media usernames with their schools and/or Facebook Friend a coach and/or download social media monitoring software so the school may identify the student's online persona and track their online behavior.
Any social media consultant that advocates schools utilize a social media monitoring service to track their student-athletes' online behavior is a snake oil salesman that should not be trusted because this advice may create tremendous legal liability for those universities and individuals who follow this advice.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
When applying this law to universities in South Korea, it appears to mean that public school students are not required provide their schools their social media user names or other digital account information. In a democratic society, public schools may not require their students to register their Facebook accounts, Twitter handles, and/or other social media credentials in order to obtain or keep their scholarships. It is clearly unconstitutional for a U.S. public university to demand that their students register their digital or social media usernames or online persona with a university or a third party in order to keep their scholarship or participate in extracurricular activities. This protection extends to all students including student-athletes and other students on scholarship.
Unfortunately, there are multiple U.S. public colleges and universities that are following the advice of self-described social media consultants who are pitching schools on requiring their student-athletes to register their social media usernames with their schools and/or Facebook Friend a coach and/or download social media monitoring software so the school may identify the student's online persona and track their online behavior.
Any social media consultant that advocates schools utilize a social media monitoring service to track their student-athletes' online behavior is a snake oil salesman that should not be trusted because this advice may create tremendous legal liability for those universities and individuals who follow this advice.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Tuesday, July 3, 2012
Delaware passes student-athlete social media privacy legislation
Delaware is the first state to pass student social media privacy legislation. While HB 309: An Act to Amend Title 14 of the Delaware Code Relating to Education was passed by both the Delaware General Assembly and Senate over the weekend, it still needs to be signed by Delaware's governor to become law.
Delaware's HB 309 utilized Maryland's SB 434 as a template. Maryland's SB 434 passed the Maryland Senate 46-0 but died at the end of the legislative session due to the logjam created when the legislature was unable to pass a budget. Despite the setback in Maryland, multiple other states and Congress have introduced legislation that may protect schools from social media related lawsuits while also protecting the personal digital privacy rights of students.
HB 309 is needed because colleges and universities across the country are requiring some of their students to download social media monitoring software onto their personal electronic devices or accounts in order to keep their scholarships. This practice has become an epidemic. The CEO of one social media monitoring company has boasted that requiring students to provide access to password protected digital content “is the new drug testing — it will be as common as being asked to take a drug test in the next two years."
Under Delaware's HB 309, colleges and universities may not:
Require a student to provide his Facebook username and/or password to a school employee or agent of the school to obtain or keep a scholarship
Require a student to download social media monitoring software onto their personal iPhones, computers, accounts, etc...
Require a student to Facebook Friend a school employee or agent of the school
In return, Delaware colleges and universities may have a legal liability shield against claims that they have a legal duty to monitor their students' personal social media accounts. This legal liability shield may become extremely important in the near future in light of the recent lawsuit against the University of Virginia, its coaches, and athletic director for failing to properly monitor one of their star student-athletes.
Hiring social media consultants who advocate monitoring students' personal social media/digitial accounts may lead to lawsuits and judgements that may financially harm public schools and taxpayers. The bottom line is that colleges and universities in Delaware and across the country need to reexamine their general student and student-athlete social media policies to ensure that they do not violate state and/or federal law.
To learn more about legal student social media policies and how to properly educate your students and employees about social media you may contact me at http://shearlaw.com/attorney_profile.
(Full Disclosure: I advised Rep. Brady and Sen. Bushweller's offices on HB 309 to ensure that it would mutually benefit colleges, universities, and students.)
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Delaware's HB 309 utilized Maryland's SB 434 as a template. Maryland's SB 434 passed the Maryland Senate 46-0 but died at the end of the legislative session due to the logjam created when the legislature was unable to pass a budget. Despite the setback in Maryland, multiple other states and Congress have introduced legislation that may protect schools from social media related lawsuits while also protecting the personal digital privacy rights of students.
HB 309 is needed because colleges and universities across the country are requiring some of their students to download social media monitoring software onto their personal electronic devices or accounts in order to keep their scholarships. This practice has become an epidemic. The CEO of one social media monitoring company has boasted that requiring students to provide access to password protected digital content “is the new drug testing — it will be as common as being asked to take a drug test in the next two years."
Under Delaware's HB 309, colleges and universities may not:
Require a student to provide his Facebook username and/or password to a school employee or agent of the school to obtain or keep a scholarship
Require a student to download social media monitoring software onto their personal iPhones, computers, accounts, etc...
Require a student to Facebook Friend a school employee or agent of the school
In return, Delaware colleges and universities may have a legal liability shield against claims that they have a legal duty to monitor their students' personal social media accounts. This legal liability shield may become extremely important in the near future in light of the recent lawsuit against the University of Virginia, its coaches, and athletic director for failing to properly monitor one of their star student-athletes.
Hiring social media consultants who advocate monitoring students' personal social media/digitial accounts may lead to lawsuits and judgements that may financially harm public schools and taxpayers. The bottom line is that colleges and universities in Delaware and across the country need to reexamine their general student and student-athlete social media policies to ensure that they do not violate state and/or federal law.
To learn more about legal student social media policies and how to properly educate your students and employees about social media you may contact me at http://shearlaw.com/attorney_profile.
(Full Disclosure: I advised Rep. Brady and Sen. Bushweller's offices on HB 309 to ensure that it would mutually benefit colleges, universities, and students.)
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Monday, March 26, 2012
Schools May Need a Search Warrant To Access Their Student-Athletes' Personal Password Protected Electronic Accounts
According to the Penn State Daily Collegian, Penn Sate Police seized illegal drugs and paraphernalia from the home of one of their football players. Police had entered the home of a current and former student-athlete to investigate a break-in. Upon realizing there may be illegal drugs, it appears the police obtained a search warrant.
Since in the real world a search warrant is generally required to obtain evidence in one's real home, a search warrant is also generally required in the digital world to search one's password protected digital home. In order for a public school to obtain access to the password protected personal social media and digital accounts (non-school issued) of their student-athletes they may need a court order.
A public school may not require a student to utilize the services of UDiligence, Varsity Monitor, Centrix Social, or any other social media monitoring company in order to keep his or her scholarship and may not retaliate against a student for refusing to provide access absent a court order.
Therefore, if a student at a public school refuses to provide UDiligence, Varsity Monitor, Centrix Social, other social media monitoring companies, or school employees their personal social media or personal digital account information and the school punishes the student in any manner for refusing to do so the student may have multiple causes of action against the school. The 1st, 4th, and 5th amendments along with the Stored Communications Act, the Computer Fraud Abuse Act, and multiple state laws may be implicated in social media monitoring.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Since in the real world a search warrant is generally required to obtain evidence in one's real home, a search warrant is also generally required in the digital world to search one's password protected digital home. In order for a public school to obtain access to the password protected personal social media and digital accounts (non-school issued) of their student-athletes they may need a court order.
A public school may not require a student to utilize the services of UDiligence, Varsity Monitor, Centrix Social, or any other social media monitoring company in order to keep his or her scholarship and may not retaliate against a student for refusing to provide access absent a court order.
Therefore, if a student at a public school refuses to provide UDiligence, Varsity Monitor, Centrix Social, other social media monitoring companies, or school employees their personal social media or personal digital account information and the school punishes the student in any manner for refusing to do so the student may have multiple causes of action against the school. The 1st, 4th, and 5th amendments along with the Stored Communications Act, the Computer Fraud Abuse Act, and multiple state laws may be implicated in social media monitoring.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Sunday, January 8, 2012
Social Media Law Predictions For 2012
Having foresight and advising clients on how to successfully navigate potential legal risks is what lawyers are paid to do. On January 10, 2011, I made 10 social media law predictions for the year and nine of them have come true; the tenth one appears that it will be realized within the next couple of months. In no particular order, below are some of my social media law predictions for 2012:
1) Social Media account ownership issues will increase.
2) State Legislatures and/or the courts in the United States will address whether employees may be required to turn over their social media user names and passwords and/or install social media monitoring software onto their personal electronic devices so employers may access their employees' private electronic content.
3) State Legislatures and/or the courts in the United States will address whether students and/or college applicants may be required to turn over their social media user names and passwords and/or install social media monitoring software onto their personal electronic devices in order to attend or play inter-collegiate sports.
4) In the United States lawmakers will work to pass bipartisan intellectual property legislation to address social media copyright and trademark issues.
5) Rakofsky v. the Internet will be decided in favor of the Internet.
6) The United States' Federal Trade Commission and the United Kingdom's Advertising Standards Authority will crack down on fraud and misleading social media advertising.
7) Governments around the world will continue to grapple with how to control social media flash mobs, anti-government content, Internet controls, etc...
8) Governing bodies and courts around the world will continue to address social media privacy issues.
9) Social Media usage by political candidates and political causes will greatly increase during the 2012 election cycle and this will lead to increased discussion on updating election compliance laws in the United States and around the world.
10) Lawyers will realize that some of their social media marketing consultants are violating the FTC advertising regulations.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
1) Social Media account ownership issues will increase.
2) State Legislatures and/or the courts in the United States will address whether employees may be required to turn over their social media user names and passwords and/or install social media monitoring software onto their personal electronic devices so employers may access their employees' private electronic content.
3) State Legislatures and/or the courts in the United States will address whether students and/or college applicants may be required to turn over their social media user names and passwords and/or install social media monitoring software onto their personal electronic devices in order to attend or play inter-collegiate sports.
4) In the United States lawmakers will work to pass bipartisan intellectual property legislation to address social media copyright and trademark issues.
5) Rakofsky v. the Internet will be decided in favor of the Internet.
6) The United States' Federal Trade Commission and the United Kingdom's Advertising Standards Authority will crack down on fraud and misleading social media advertising.
7) Governments around the world will continue to grapple with how to control social media flash mobs, anti-government content, Internet controls, etc...
8) Governing bodies and courts around the world will continue to address social media privacy issues.
9) Social Media usage by political candidates and political causes will greatly increase during the 2012 election cycle and this will lead to increased discussion on updating election compliance laws in the United States and around the world.
10) Lawyers will realize that some of their social media marketing consultants are violating the FTC advertising regulations.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Tuesday, June 28, 2011
The NCAA, Social Media Monitoring, Censorship, the First Amendment, the Supreme Court, and Video Games
Last week, the NCAA may have created a major legal liability quagmire for its member institutions when it alleged that the University of North Carolina failed to monitor the social media activity of its football players.
Social Media/Social Networking Monitoring may lead to Social Media Censorship. Social Media Censorship by NCAA institutions may be gaining acceptance in some schools. According to the Washington Post, the University of Maryland (UMD) may be actively monitoring and regulating the speech of the members of its football team. It appears that UMD is monitoring defensive lineman A.J. Francis' Twitter account. Does Maryland require all of its athletes to turn over their social media account names to their compliance staff? Or, is it only the men's football team?
Could there be a Title IX or a 14th Amendment Equal Protection clause violation if Maryland is only monitoring the men's football team and not treating other teams and/or genders equally? Are only a few athletes of the men's football team being singled out? How did Maryland obtain A.J. Francis' Twitter account information? Did Maryland's compliance department require A.J. Francis to provide it his social media account user names in order to continue to be on the football team and/or receive academic aid?
According to the Clarion Ledger, University of Mississippi signee C.J. Johnson deleted his personal Twitter account after speaking with the Ole Miss athletic department staff. Ole Miss has publicly stated that it did not force C.J. Johnson to close his Twitter account. C.J. Johnson's Twitter activity may be objectionable to some people and it may be best for him to stop tweeting for the time being; however, what if a school gives a student an ultimatum: stop your social media activity or lose your scholarship and/or be kicked out of school?
What if the University of Maryland told Larry David (Seinfeld Co-Creator), Jim Henson (Creator of the Muppets), David Simon (Co-Writer of The Wire), Sergey Brin (Co-Founder Google), Steny Hoyer (Former House Majority Leader), Carl Bernstein (Former Washington Post Watergate Journalist), etc... or the University of Mississippi told William Faulkner (Author), John Grisham (Author), Sheppard Smith (Host of the Fox Report), Gerald McRaney (Actor), and Bill Parsons (Director of NASA's John F. Kennedy Space Center) that they should stop publicly expressing their personal and/or political views while they attended their respective schools? If a public college and/or university starts regulating what its student-athletes express on social media what will stop it from trying to regulate what other members of the student body state online?
The NCAA 2010-2011 Division I Manual does not appear to discuss Social Media/Social Networking Monitoring and/or censorship so I am not sure how public schools thinks that it is acceptable to monitor and then censor its student-athletes.
In Brown v. Entertainment Merchants Association, the Supreme Court in a 7-2 majority recently ruled that "disgust is not a valid basis for restricting expression." Justice Scalia wrote, "[l]ike the protected books, plays and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world)....That suffices to confer First Amendment protection.” Since video games are now constitutionally protected forms of expressive behavior will the First Amendment protect most types of social media activity no matter how offensive unless they defame and/or violate other areas of the law?
Any school that deploys a social media monitoring service to monitor its student-athletes may want to reevaluate their policy. Colleges and universities that utilize social media monitoring and receive government funding may also be creating further unanticipated legal issues. As I have stated over and over, academic institutions should be educating their students about social media and not monitoring and censoring them.
To learn more about these issues you may contact me at http://shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Social Media/Social Networking Monitoring may lead to Social Media Censorship. Social Media Censorship by NCAA institutions may be gaining acceptance in some schools. According to the Washington Post, the University of Maryland (UMD) may be actively monitoring and regulating the speech of the members of its football team. It appears that UMD is monitoring defensive lineman A.J. Francis' Twitter account. Does Maryland require all of its athletes to turn over their social media account names to their compliance staff? Or, is it only the men's football team?
Could there be a Title IX or a 14th Amendment Equal Protection clause violation if Maryland is only monitoring the men's football team and not treating other teams and/or genders equally? Are only a few athletes of the men's football team being singled out? How did Maryland obtain A.J. Francis' Twitter account information? Did Maryland's compliance department require A.J. Francis to provide it his social media account user names in order to continue to be on the football team and/or receive academic aid?
According to the Clarion Ledger, University of Mississippi signee C.J. Johnson deleted his personal Twitter account after speaking with the Ole Miss athletic department staff. Ole Miss has publicly stated that it did not force C.J. Johnson to close his Twitter account. C.J. Johnson's Twitter activity may be objectionable to some people and it may be best for him to stop tweeting for the time being; however, what if a school gives a student an ultimatum: stop your social media activity or lose your scholarship and/or be kicked out of school?
What if the University of Maryland told Larry David (Seinfeld Co-Creator), Jim Henson (Creator of the Muppets), David Simon (Co-Writer of The Wire), Sergey Brin (Co-Founder Google), Steny Hoyer (Former House Majority Leader), Carl Bernstein (Former Washington Post Watergate Journalist), etc... or the University of Mississippi told William Faulkner (Author), John Grisham (Author), Sheppard Smith (Host of the Fox Report), Gerald McRaney (Actor), and Bill Parsons (Director of NASA's John F. Kennedy Space Center) that they should stop publicly expressing their personal and/or political views while they attended their respective schools? If a public college and/or university starts regulating what its student-athletes express on social media what will stop it from trying to regulate what other members of the student body state online?
The NCAA 2010-2011 Division I Manual does not appear to discuss Social Media/Social Networking Monitoring and/or censorship so I am not sure how public schools thinks that it is acceptable to monitor and then censor its student-athletes.
In Brown v. Entertainment Merchants Association, the Supreme Court in a 7-2 majority recently ruled that "disgust is not a valid basis for restricting expression." Justice Scalia wrote, "[l]ike the protected books, plays and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world)....That suffices to confer First Amendment protection.” Since video games are now constitutionally protected forms of expressive behavior will the First Amendment protect most types of social media activity no matter how offensive unless they defame and/or violate other areas of the law?
Any school that deploys a social media monitoring service to monitor its student-athletes may want to reevaluate their policy. Colleges and universities that utilize social media monitoring and receive government funding may also be creating further unanticipated legal issues. As I have stated over and over, academic institutions should be educating their students about social media and not monitoring and censoring them.
To learn more about these issues you may contact me at http://shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
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