By Giulia M. di Marzo | 62 Am. U. L. Rev. 123 (2012)
Undoubtedly, the sexual abuse of children by authority figures, particularly teachers and coaches, has been an issue of national concern for years. Recently, there have been several high-profile child sexual abuse scandals in the news, such as the ordeal involving Jerry Sandusky, a former Pennsylvania State University football coach, who was convicted of forty-five child sexual abuse counts for sexually abusing ten male children over the course of fifteen years. In an effort to prevent these tragic occurrences, state and school district officials have targeted social media as the culprit.
As states and school districts across the nation revisit or implement social-media policies, some take the extreme action of completely banning teachers from using social media to communicate with students. In addition to disadvantaging students in an electronic era, these bans are unconstitutional, running afoul of the First Amendment, because they are overbroad and do not pass intermediate scrutiny.
Although states and school districts have substantial leeway in disciplining their employees for online expressions, they cannot implement laws or policies that infringe upon employees’ expression that is constitutionally protected by the First Amendment. States and school districts are continuously battling with the issue of how to regulate social-media use by teachers and need guidance in crafting policies. This Comment analyzes current laws and policies that are likely to be found unconstitutional by courts; this Comment also provides social-media policy guidelines that, in contrast, are likely to survive constitutional challenge.