A Substantial Disruption of Public Concern: Tinker, Bell v. Itawamba, and Internet Speech for High School Students

Jeff McAlpin

A Substantial Disruption of Public Concern: Tinker, Bell v. Itawamba, and Internet Speech for High School Students

Abstract: 

Over fifty years ago, TINKER established a standard for protected on-campus speech, allowing students to protest the Vietnam war by wearing black armbands during school hours.

Fast-forward to the twenty-first century, and concerns about smart phones, social media, and the Internet have resulted in application of the TINKER test to off-campus speech in most of the United States circuit Courts of Appeal, with some dissent in the Third Circuit. The instant case originates in rural northern Mississippi and made its way to the Fifth Circuit, where an en banc decision upheld a school board’s punishment of a student for a YouTube video, composed off-campus, full of violent rhetoric and allegations of teacher-on-student sexual impropriety. The majority of the panel of judges found that the school district’s policy banning conduct that threatens, harasses, or intimidates was constitutional, using TINKER to analyze the conduct. Originally a three-judge panel issued an opposite ruling that the student’s speech was protected and TINKER did not extend off-campus.

There is disagreement in the intermediate courts over when and where TINKER applies. The current climate in public schools, where use of technology is encouraged yet boundaries and norms are constantly evolving, beckons for a new, consistently-applied standard for high school student speech that takes the existence of a new online forum into account. This conflict should be resolved by the Supreme Court. TINKER is overdue for an update.

 

 

Abuse and Harassment Diminish Free Speech

Anita Bernstein

bernstein

Abuse and Harassment Diminish Free Speech

Abstract:

A familiar dichotomy in the legal academy juxtaposes freedom against a contrasting value like security or equality. Applied to speech, the “freedom” half gets assigned to abusers and harassers while those who speak up against harm are perceived as censors or silencers. The dichotomy is unfair to the latter camp: Abuse and harassment threaten not only security and equality but freedom. As phenomena that have grown with the rise of social media, abuse and harassment drive individual speakers from the Internet; cause points of view to be lost to discourse; force attacked persons to spend scarce time and money in pursuit of physical safety; reinforce unjust and oppressive hierarchies; and generate emotional distress, which in turn impedes the production of new speech.

 

Facebook Tag Sufficient Grounds for Protection Order Violation

facebook

Facebook Tag Sufficient Grounds for Protection Order Violation

In People v. Gonzalez, 15-6081M, a New York judge recently ruled that “tagging” someone who has a protection order against you can constitute a violation of that order.  This case arose from a protection order issued against Maria Gonzalez.  Protection orders, also referred to as restraining orders, prevent one party from contacting another party.  Here, Maria Gonzalez was prohibited from contacting her ex-husband Rafael Calderon or his family.  This, however, did not stop Maria Gonzalez from going on Facebook to tag her former sister-in-law Maribel Calderon and call her ‘stupid.’  Maria Gonzalez also tagged Rafael Calderon in another post and wrote the following:

You and your family are sad…You guys have to come stronger than that!! I’m way over you guys but I guess not in ya agenda.

Upon receiving notification that she had been tagged, the ex-sister-in-law went to the police and Maria Gonzalez was charged with violating a protection order.  Maria Gonzalez filed a motion to dismiss the charge arguing that the protection order did not specifically mention Facebook. The court denied the motion finding that:

The allegations that she contacted the victim by tagging her in a Facebook posting which the victim was notified of is thus sufficient for pleading purposes to establish a violation of the order of protection.

The case is now at the trial stage.

Attorney Position: Cyberlaw Counsel

AmericanExpress

Cyberlaw Counsel

New York, New York

Operations

Schedule: Full-time


Job Description

This position will support the General Counsel Office’s “Cyberlaw Unit” and its Vice President and Senior Counsel in the provision of internet law focused legal services across American Express. The position’s key client will be the Company’s Digital Customer Experience unit, the Company’s internal utility providing digital strategy, standards, and delivery of optimal customer online experiences for American Express websites and digital communications. The selected candidate will support the American Express digital experience, creating, keeping current and enforcing industry leading standards, requirements and best practices for American Express digital properties and communications. Candidate will review digital projects in the U.S. and international markets for compliance with “interactive” requirements. Candidate will work closely with GCO attorneys to create and maintain standards documents and provide general support on various interactive law issues, such as electronic contracting, mobile contracting, effective delivery of disclosures in mobile space, website accessibility for the disabled, user generated content, Web 2.0 and social media risk mitigation, Open Source, API development practices, negotiation of key interactive vendor relationships, co-branding and hyperlinking issues and others. Candidate will also conduct research, draft related memoranda and help educate and train internal groups on various US and International internet laws, practices and policies.

Offer of employment with American Express is conditioned upon the successful completion of a background verification check, subject to applicable laws and regulations.

Qualifications

• Must be a strong communicator, leader, team player having customer facing relationship skills, all with a global perspective.
• Must be proactive, independent, self-starter with a strong sense of personal accountability and a “will to win.”
• Must have ability to research, understand and resolve novel, complex issues with a resourceful, independent attitude.
• Must be versatile, flexible and have a desire to take on new responsibilities as American Express and its businesses continue to evolve.
• Must have ability to handle multiple deadline-driven tasks, and experience in leading and facilitating change.
• Must be comfortable in and passionate about working in a diverse, fast moving, constantly changing space.
• Familiarity with social media and all major social media platforms and Web 2.0 technologies.
• Familiarity with general rules of electronic contracting, E-Sign.
• Familiarity with the WCAG and WC3 website accessibility guidelines is a plus, but not required.
• A law degree from an accredited law school and member of the New York Bar in good standing.
• At least 5-10 years of relevant experience

Using Social Media to Calculate Your Threat Score

washington post

The Washington Post had a recent article discussing how law enforcement uses “Threat Scores” for potential suspects.  According to the Post, some police departments have programs that scour billions of data points to include arrest reports, property records, commercial databases and even social media postings to calculate a threat level for particular individuals.  To read more go here.

New Ethics Opinion on LinkedIn and Attorney Advertising

1fe0c-images

New Ethics Opinion on LinkedIn and Attorney Advertising

The New York City Bar has issued a new ethics opinion (Formal Opinion 2015-7) examining attorney advertising and LinkedIn.  The opinion, among other things, notes that in order for a LinkedIn profile to be deemed lawyer advertising:

–it must be made by or for the lawyer;

–the primary purpose of the profile must be to attract new clients;

–it must relate to the legal services offered by the lawyer;

–it must be intended to be viewed by potential clients; and

–it must not fall within any recognized exception to the definition of attorney advertising.

Formal Opinion 2015-7: Application of Attorney Advertising Rules to LinkedIn

Prof’s Critical Tweets of Israel Lead to a Hefty Settlement

Twitter

Prof’s Critical Tweets of Israel Lead to a Hefty Settlement

In October of 2013, the University of Illinois made a job offer to Steven Salaita, a professor of Palenstinian descent.  In 2014, the university rescinded that offer after discovering that Salaita had sent some very critical tweets about Israel.  The professor subsequently sued the university and the two parties recently reached a settlement.  Among other things, the university agreed to pay Salaita $600,000 plus $275,000 in attorneys’ fees.  However, the university admitted no wrongdoing.  According to press reports, the university has already spent close to $1.5 million in legal fees on this case.

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