Chip Babcock Communiqué

Chip Babcock Communiqué In Missouri, That's Not What Friends Are For

In 1980, a 12-year-old girl was allegedly raped and molested by one of her teachers. The child did not report the abuse for 10 years and when she did, the teacher was investigated but never charged. Now, 31 years later, this sad story is the inspiration for legislation in Missouri which states in part that "teachers also cannot have a non-work-related website that allows exclusive access with a current or former student. Former student is defined as any person who was at one time a student at the school at which the teacher is employed and who is 18 years of age or less and who has not graduated."

The sponsor of this legislation (which has a number of other laudable provisions) defends the statute on the basis that "Missouri ranks No. 11 in states where teachers have lost their license for sexual abuse of students." No one, of course, favors teacher abuse of their pupils, but it is astonishing that a proposed remedy for the situation is to restrict a teacher's right to communicate with others on a website. Predictably, the Missouri Teachers Union has filed a civil rights suit seeking to have this provision of the law declared unconstitutional on First Amendment grounds. I would think the teachers' position has considerable merit.

What interests me more is how in the world the Internet became involved in this bill, which has a number of non-speech-related features that appear to make good sense. The young student whose story inspired the legislation and for whom it is named was certainly not the victim of any Internet-based crime. In 1980, the Internet as we know it had not been created. There were no statistics to indicate that teachers were using Facebook to carry out their predatory schemes. It appears to me that this is another example of the irrational fear of the Internet's power.

To that point, there was an interesting debate following the Atlantic Monthly magazine's report on the legislature. While most were critical of the "Facebook" provision, one participant in the debate said, "I don't see a First Amendment issue." He argued that protecting minors against pedophiles was "a good fit between the legislation and its aim." This provoked a lengthy rebuttal to which the supporter of the act replied, "Yes, I hate the Internet so much I'm actually communicating to you via radio. You can tune me out now."

I fear that more speech-insensitive legislation is on the horizon, fueled by this irrational hatred of a new and remarkable method of communication. Interestingly, one critic of the bill argued that "had the social networking site existed back when this new law's namesake was being abused ... her abuser, had he used the medium (Internet), would likely be in jail,” when the student 10 years later, "produced explicit Facebook messages from her old teacher. Instead, she had decade-old memories that he could deny."

— Chip Babcock is a partner at Jackson Walker. He can be reached at cbabcock@jw.com.