The Amy Hestir Davis Student Protection Act prohibits teachers from communicating with students privately on social networking sites, Web pages or websites.
The law requires a third party-school administrator and or parent to have access to the exchange between teacher and student.
The purpose of the act is to prevent teachers from using Web pages and social networking sites such as Facebook to foster inappropriate relationships with students.
But it is unlikely the anticipated restriction will clear the First Amendment in its entirety without a fight.
The proposed restriction on exclusive communication between teacher and student is not a content-based restriction. Therefore, the state is concerned with how things are being said instead of what is being said.
This approach by the state makes it easier for a court to determine the act does not violate the First Amendment.
Furthermore, the state, in the arena of school speech, acts as both an employer and an educator. The state employs those whose speech it seeks to limit, and the state has the responsibility of teaching children the values of society through its institutions of learning.
Basically, society does not value predatory adult-child relationships, and the state is responsible for instilling that value in the children it educates and in its employees.
Moreover, the U.S. Supreme Court in Bethel School District vs. Fraser indicated the state has an interest in protecting children from sexually explicit, vulgar or offensive speech.
Speech from a teacher that is meant to entice a student into a sexual relationship would be offensive speech, and therefore, the state can take steps to prevent it from happening.
Arguably, recipients of speech, the students, are entitled to receive speech. The public library is similar to receiving teacher speech outside the classroom.
A child checks out a book and reads it privately just as he would receive a message from a teacher outside of the classroom.
Therefore, the state could not limit private messages from teacher to student because the student is entitled to the ideas contained in that speech.
Also, the act’s restriction on private communications between teacher and student via social networking sites and web pages may violate the First Amendment doctrine of “overbreadth” because the act reaches protected and unprotected speech.
The unprotected speech is those websites, Web pages and social networking sites that are used or created for work-related purposes and engage students under the color of school curricula.
However, when a teacher creates a Web page or uses a social networking site to solely discuss, for example, the benefits of being a Christian, it may be deemed as protected speech, and the attempt by the state to restrict that teacher-to-student speech could be determined unconstitutional.
The act’s purpose is laudable, but if it's challenged, courts may find it violates the First Amendment, at least as it concerns the state’s desire to prevent private communication between teachers and students in a public forum wherein the teacher is just a participant in the marketplace of ideas and not acting as a state-employed educator.