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Monthly Archives: March 2015

Where the Schoolhouse Gates End: An Analysis of State Cyberbullying Laws

Andrew David Postal


Where the Schoolhouse Gates End: An Analysis of State Cyberbullying Laws


American policymakers, from school board members to elected lawmakers, must constantly strike a delicate balance between disciplining students for misconduct and protecting student speech rights. These decisions are often controversial and must adapt to rapidly changing technologies. Nowhere are these tensions more apparent than in laws aiming to address the problems caused by cyberbullying in American K-12 public schools. This paper employs a functional approach to sociotechnical analysis, which identifies a new sociotechnical harm of cyberbullying, the relevant technologies involved, shortcomings in existing laws, and changes that must be made in laws to rectify the shortcomings. This work updates previous research on student speech and the First Amendment by including recently-passed state laws aimed at addressing cyberbullying specifically. Additionally, it looks more broadly at how to balance student speech and moves beyond examining general bullying laws by creating a unique policy framework for evaluating existing cyberbullying laws.

This research accomplishes three main goals. First, it will outline existing legal jurisprudence shaping First Amendment protections to student speech. Second, it will detail how online social media sites and electronic communication methods create and contribute to new sociotechnical problems associated with cyberbullying, which while similar to bullying, is distinctly different. Third, it will analyze the text of state cyberbullying laws from Illinois, Michigan, North Carolina, and California, arguing that broad language giving schools the authority to step beyond their physical and electronic boundaries to punish students for online content created on off-campus, non-school sanctioned computers runs against the constitutional limits placed on schools by the Tinker decision, which states that schools must stay within their geographical boundaries when punishing student speech that administrators believe will cause a substantial disruption to the educational mission.

Overall, this article argues that laws aimed at addressing cyberbullying must limit schools to a jurisdictional substantial disruption approach. By this, I mean schools should not discipline students for content produced outside of the physical boundaries of the school, including its network. While off-campus cyberbullying is still problematic, other entities, such as law enforcement and social media platform terms of service, should govern any content. Instead of focusing on legal solutions to the problems brought on by cyberbullying, lawmakers and schools should focus more on shifting societal norms and teach youth how to properly conduct themselves on the Internet. To more effectively and constitutionally address the problems brought on by cyberbullying, lawmakers and schools should focus on shifting societal norms.

Against Jawboning

Derek Bambauer


Against Jawboning


Despite the trend towards strong protection of speech in U.S. Internet regulation, federal and state governments still seek to regulate on-line content. They do so increasingly through informal enforcement measures, such as threats, at the edge of or outside their authority – a practice this Article calls “jawboning.” The Article argues that jawboning is both pervasive and normatively problematic. It uses a set of case studies to illustrate the practice’s prevalence. Next, it explores why Internet intermediaries are structurally vulnerable to jawboning. It then offers a taxonomy of government pressures based on varying levels of compulsion and specifications of authority. To assess jawboning’s legitimacy, the Article employs two methodologies, one grounded in constitutional structure and norms, and the second driven by process-based governance theory. It finds the practice troubling on both accounts. To remediate, the Article considers four interventions: implementing limits through law, imposing reputational consequences, encouraging transparency, and labeling jawboning as normatively illegitimate. In closing, it extends the jawboning analysis to other fundamental constraints on government action, including the Second Amendment. The Article concludes that the legitimacy of informal regulatory efforts should vary based on the extent to which deeper structural limits constrain government’s regulatory power.

Virginia Becomes the Latest State to Provide Employees Social Media Protections

National Law Review: Virginia’s Social Media Law Continues Growing Trend

The NLRB as an Überagency for the Evolving Workplace

Michael Green


The NLRB as an Überagency for the Evolving Workplace


In addressing legal issues regarding the relationships between employers and employees, one must navigate a complex maze of rights and remedies that govern the workplace. This Essay details several recent and important workplace disputes addressed by the National Labor Relations Board (NLRB) pursuant to Section 7 of the National Labor Relations Act (NLRA). Section 7 protects a worker’s right to pursue an activity for mutual aid or protection regarding wages, hours, and other terms and conditions of employment. The NLRB, a unique agency with its ultimate decisions determined by five members who primarily establish rules through adjudication rather than rulemaking, has been asked to offer an initial answer to many pressing workplace questions arising from technological and legal advances.

Some of the critical issues that have been or will be addressed by the NLRB include employee use of social media, use of electronic mail communications, immigrant workers’ rights and remedies, enforcement of class arbitration waivers in collective wage and hour claims, organizing of college football players, protected worker speech versus employer rights and obligations to limit certain speech, the scope of coverage under joint employer/independent contractor arrangements, and the intersection of labor law with anti-discrimination law concerns in the workplace. The NLRB is encountering these matters at a unique time concerning the number of NLRB members appointed by the President with advice-and-consent approval by the Senate. While in the midst of considering the ramifications of a pending Supreme Court decision regarding challenges to the scope of the President’s recess appointment of certain NLRB members, the President and the Senate agreed in August 2013 to a political compromise allowing the NLRB to operate with all five members approved and in place for the first time in ten years. A full complement of NLRB members remains in place throughout 2015 and at the dawn of the NLRB’s eightieth anniversary.

As a result of having this full complement of NLRB members, this Essay asserts that the NLRB has become the premier administrative agency for addressing workplace matters across a broad spectrum of employee-employer concerns. In this respect, the NLRB represents a super — or über — agency in pointing a spotlight on important workplace issues that no other administrative agency could or should address. With the five appointed members’ outstanding expertise in labor law as well as in broader workplace concerns under employment discrimination and employment law, these NLRB decision-makers offer an unusual level of knowledge to operate on the front line in adjudicating perplexing issues that continue to evolve in the workplace.

Technological ‘Nudges’ and Copyright on Social Media Sites

Corinne Hui Yun Tan

Technological ‘Nudges’ and Copyright on Social Media Sites


Using an adapted taxonomy, this article identifies the technological features on predominant social media sites – Facebook, YouTube, Twitter and Wikipedia – that encourage and constrain users from engaging in generative activities. Notwithstanding the conflicting narrative painted by recent litigation around copyright in relation to content on social media sites, I observe that some of the main technological features on social media sites are designed around copyright considerations. References are made to the legal positions in the United States, the United Kingdom and Australia. I argue that users of social media sites are subject to the mixed signals given by social media sites, as a result of which they are unfairly exposed to the risks of allegations of copyright infringement. Given the ubiquitous usage of social media sites, the article questions the resulting vulnerability of users who act under the influence of social media sites, and hopes to stimulate further discussion in this area.

Social Media in Employment Decisions

Hardin Haynes


Social Media in Employment Decisions


Information posted to social media sites like Facebook, YouTube, and Instagram, is increasingly important to employers. Part I of this paper explores how and why employers are using social media, and how ideas of privacy and what is private are evolving both legally and socially. Part II covers proper and lawful uses of social media in the employment context. Part III discusses improper uses of social media, even if it has been lawfully obtained. Part IV analyzes legal obstacles to obtaining social media. Finally, Part V discusses how employer’s use of social media can benefit potential employees.

Fired Over a Tweet


Fired Over a Tweet

Interesting article below about a recently hired employee who was fired, before the first day of work, for making less than flattering remarks on Twitter about her employer.

Here is the initial tweet by the employee: “Ew I start this [expletives] job tomorrow”

Response by the employer: “And…no you don’t start that job today! I just fired you!

Good luck with your no money, no job life!”

Follow up by the employee: “I got fired over Twitter.”

National Law Review: The “Twitterverse” Reacts After Employer Revokes Job Offer to Teen Over Tweet