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Public Employees’ Freedom of Expression and Its Limitations - Especially on the Discussion about Teachers’ Use of Social Networking Service(SNS) in the U.S. -

  • Public Land Law Review
  • Abbr : KPLLR
  • 2013, 62(), pp.371-395
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Soon Chul Huh 1

1경남대학교

Accredited

ABSTRACT

Unlike in the past, due to the development of the social networking service such as Facebook, MySpace and Twitter, recently, there are new cases that public employees, especially teachers, were forced to resign because of their expressions, for example, posting some photos of herself holding a glass of beer or commenting on his abhorrence for same-sex marriage. In general, a Social Networking Service(SNS) or Social Networking Sites means “a platform to build social networks or social relations among people who, for example, share interests, activities, backgrounds, or real-life connections.” Even though, until now, there is no case about whether SNS, such as Facebook, is a private or a public sphere, under the so-called “Third Party Doctrine,” we can reach a conclusion that an user can not be protected because he or she voluntarily disclose his or her information to the site. Furthermore, the pertinent part of Facebook’s privacy policy indicates that they may access, preserve and share an user’s information if there is a legal request from the government or if they have a good faith belief that they should do so. In the mean time, under the Electronic Communications Privacy Act of 1986(ECPA), which consists of three relevant parts - the Wiretap Act, the Stored Communications Act(SCA) and the Pen Register Act(PRA) - it seems that SCA would be applied to Social Networking Sites like Facebook. However, SCA has an important exceptions that communications stored for 180 days or more only require a trial subpoena supported by reasonable suspicion other than probable cause. Then, despite of many educational benefits such as making students more focusing on their study with the help of their teachers on the SNS, the concern that teachers may use it to engage in sexual relations with their students made some states, including Missouri, attempt to regulate the use of social media sites between them. Under the U.S. Supreme Court case, Garcetti v. Ceballos, if a public employee such as a teacher is not expressing his/her opinion as a citizen, but as an employee of the government, the expression will not be protected. And if he or she is speaking as a citizen, then a court will decide whether his or her speech is a matter of public concern. Furthermore, his or her statement fits a matter of public concern, then, under the Pickering test, the court will weigh the interests between the state as an employer and the teacher as a citizen. The U.S. cases and ideas regarding speech of public employees have some suggestions, because, unlike the U.S., the Korean public employees are prohibited from making a political statement since the Korean laws including, but not limited to, the Constitution of the Republic of Korea, require their political neutrality.

Citation status

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