Buckley: Law to protect students will have unintended consequences

It’s called the Amy Hestir Student Protection Act.

Who can be opposed to student protection? Amy Hestir was a young woman who was assaulted and molested by a junior high school teacher. Who could be opposed to a law that keeps young students from being molested by junior high school teachers? The sponsor of the legislation, a senator from the St. Louis area, Jane Cunningham, said that the practice of sexually abusive teachers moving from one district to another is a significant problem and that we ought to have legislation that prohibits that. Who can argue with that concept? Sexually abusive teachers should not be allowed to move from one district to another.

Senator Cunningham wanted legislation that allowed school districts to discuss information about employees with other school districts and to make school districts liable if they allow an employee to resign for reasons of sexual misconduct and fail to disclose those reasons in a reference request from another district. Who could oppose that concept?

School districts should be allowed to freely provide information, and if they fail to disclose that a teacher resigned for reasons of sexual misconduct, shame on the school district.

So far, this legislation that the senator introduced seems pretty good, and she is mystified that her bill, which became law in July when Governor Nixon signed it, is gaining so much media attention. Senator Cunningham claims that what is controversial is a “peripheral part” of the legislation. Her definition of peripheral is different from mine.

The part of the legislation that is drawing so much attention is found in Senate Bill 54 that states as follows:

“No teacher shall establish, maintain, or use a nonwork-related Internet site which allows exclusive access with a current or former student. Nothing in this subsection shall be construed as prohibiting a teacher from establishing a nonwork related Internet site, provided the site is used in accordance with this section.”

When I initially heard about this legislation, I was outraged as were many people, especially teachers. I did read the law and want to clarify a few things. First of all, my 24-year-old daughter, Jessi, thought this would prohibit contact with her favorite teacher from William Chrisman on Facebook. Forget that because the definition of “former student” is “any person who was at one time a student at the school at which the teacher is employed and who is not eighteen years of age or less and has not graduated.”

A nonwork related Internet site is “any Internet website or web page used by a teacher primarily for personal purposes and not for educational purposes.”

What does that mean? When is a website used primarily for personal purposes and what are personal purposes? I think Senator Cunningham has some problems here. Her problems start with the First Amendment to the Bill of Rights, and in particular the freedom of speech. Any time government restricts speech, it must do so clearly so that anyone reading the law can fully understand how to comply with it. Vague legislation that restricts free speech will not withstand constitutional scrutiny by a court. It violates the Due Process clause in the Constitution, which requires that any law be clearly written so that any person can understand it.

There is also another aspect of freedom of speech that this bill also affects. I call it killing a mosquito with a huge sledgehammer. First of all, the Supreme Court has enunciated clear standards that any restriction of free speech must have a compelling state interest and be narrowly drafted to make sure that compelling state interest is accomplished. A law limiting speech or expression can only be deemed constitutional if it is the least drastic means available for accomplishing its stated objectives.

I suspect that Senator Cunningham and all of the 34 senators and 89 representatives who voted for this legislation, and Governor Nixon who signed it, want to eliminate sexual communications between students and teachers. Yet, do you prohibit all communications in order to prevent a small number of improper communications? That’s a problem under the first amendment.

Under the laws of the United States Supreme Court, laws that regulate the time, manner, and place in a public forum receive less scrutiny by the court than do laws that restrict the content of expression. Such content-neutral laws are permissible if they serve a significant government interest and allow ample alternative channels of communication. Such laws must be narrowly drafted.

However, laws must not exercise what the Supreme Court calls “prior restraint.” Such laws are considered censorship and only under the most extreme circumstances can the government constitutionally prevent someone from speaking or expressing themselves. Senate Bill 54 is a prior restraint law. Senate Bill 54 does not regulate content. It prohibits any communication.

I suspect that this law will be challenged in the courts, and I will be shocked if it is not invalidated and declared in violation of the First Amendment. If Senator Cunningham truly wanted to protect children, there is much better way of doing it that protects the First Amendment.

Despite what Senator Cunningham says, this restriction is not peripheral to the legislation that was passed. This law will be challenged, it will be invalidated and the state will spend a lot of money on legal fees that it does not have. Why?