Tuesday, June 05, 2007

COPA: the ambiguities parallel similar legal issues for the speech of teachers

In February I discussed a couple of textbooks that take up teacher free speech. Of particular concern was the notion that teachers may risk discipline and firing if they discuss their personal affairs in a public space (whether the Internet, magazines, television appearances) and if these disclosures could be perceived as encouraging disturbances in the school system. Along these lines, on December 6, the Dr. Phil show had (writeup) taken up the case of a teacher whose contact was not renewed because of having appeared in pornography ten years before, and this sort of incident has occurred numerous times around the country.

There are several legal concerns here the crisscross. One is a recent Supreme Court ruling that public employees do not necessarily have First Amendment protection when they blow the whistle as part of their official duties. But the main concern I have is off-the-job speech by teachers (or other public employees). Over time, the courts have become much more sympathetic to the idea that teachers may express their own opinions on their own initiative when not on the job. They have tended to draw the line when the speech poses a risk to good order and discipline within the schools that they work, and this must take into account the cognitive immaturity of some students when they access the speech. (Here we get closer to COPA – and after all, students go to school to learn the critical thinking skills – those four years of high school English -- that enable them to understand more ambiguous materials in the medai.) There has evolved a general notion or unwritten doctrine that public disclosures of a personal nature pose more risk of this.

In the Philadelphia COPA trial, on Oct. 30, (blog entry of visit) the role of schools came into play when one witness discussed the controversies school boards face in deciding what books or other materials, especially concerning sexuality, to be made available to students in public school curricular or libraries. Parents have deep differences in what they consider suitable for their kids, and these reflect subtle variations in cultural values regarding the family, religion, and personal motivation.

Another important concept is the media upon which content is placed. In general, as courts have said repeatedly, intellectual property law in both criminal and civil areas regarding the legality of content is independent of the media or manner of distribution, and in most cases (although not completely so in COPA) independent of whether the material is free or charged for or generates profits.

The March 22 COPA opinion by Judge Reed (writeup), on page 78, note the ambiguity in COPA caused by the topology of distribution of content through websites. It is impossible to say what “taken as a whole means” because of the practical likelihood that some content will be located by a search engine and a visitor may view only a small amount of content relative to the intended whole. On the other hand, with a book, a visitor, when browsing in a library or bricks-and-mortar bookstore, is likely to see much more of the author’s total work before encountering a troublesome subset of the work. Likewise, the definition of “minor” is ambiguous. A piece of writing might seem prurient to a thirteen year old and valuable to a sixteen year old. More troubling, a fourteen year old who is cognitively mature for his age might find something valuable that a less mature fourteen year old would find tempting or enticing as to harmful behavior. (This is the so-called “Smallville Problem” – the characters Clark, Lana, and Chloe, played by young adults, are more much “mature” than average for their fictitious ages). Courts do not look lightly on content-based restrictions on free speech, and restricting speech because it appears on the Internet or a profile or blog raises serious strict scrutiny problems.

All of this can apply to the way school systems build personnel policies regarding the speech of teachers, however. In general, school systems are very concerned that a less mature student could be provoked by a provocative body of content located out of context by a search engine. This translates very quickly into concerns from parents in a pluralistic community, as located above. This is why school boards do not like to see teachers broadcast controversial information about themselves on the web. And the COPA opinion gives some substance to the notion that school boards may rightly be concerned about what might happen when material is discovered out of context.

“Personal” is itself a loaded concept. Administrators may often look the other way unless they are sure that the material comes form a particular teacher, and they might encourage that teachers speak anonymously when addressing provocative problems and disclose their own experiences. This contradicts what other human resources experts have proposed when developing blogging policies. While the ACLU supports the right to anonymous speech, circumstances in a story or piece of writing often can identify the speaker anyway, invoking well known problems in publishing law, where someone can be defamed if he resembles a negatively-portrayed character even in a work of fiction with names changed (the “Touching” or “Bell Jar” cases). Furthermore, as a practical matter, anonymous (or pseudonymous) speech is often not as effective politically as is speech where the author self-identifies.

Furthermore, speech that simply relates to the idea that someone belongs to a minority group, perceived or real, is often no longer regarded as personal. In many communities, to say that one is LGBT would not be seen as personal, it would be seen as identifying with a particular group. But that paradigm does not encourage totally honest, non politically correct airing of issues that have personal consequences. Likewise, “family pictures” in a profile are usually not regarded as “personal” because they tend to be non-provocative, and furthermore the institutionalization of marriage gives some protection to the speech (just as it does with family photos in the workplace itself.)

Another issue of the context of Internet speech “taken as a whole” occurs when a teacher makes a revelation (direct or inferred) that compromises his or her credibility as an authority figure for minors, or suggests unfitness to be in that position. Generally, one would think a school system or any employer for that matter should look at everything as a whole rather than draw questionable “conclusions” from just one piece or page, but employers have, in general, expressed the same behavior in looking at pages on job applicants’ Myspace profiles. There are concerns of potential liability here. The underlying doctrines of the military policy “don’t ask don’t tell” for gays, which allows a command to take any isolated statement, public or private, as rebuttably presumptive evidence of a “propensity” to engage (in the military context) forbidden (homosexual) conduct, and the tendency for appeals courts to uphold the constitutionality of government to use this kind of presumptive doctrine in a sensitive job (the military) sets a legally disturbing precedent for other employers with sensitive jobs, and that would include school systems.

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