News for August 2011

If a Tree Falls on a Fence

During storms like this weekend’s Hurricane Irene, trees often fall from people’s yards into their neighbors’. Which raises the question: is the person whose tree fell into her neighbor’s yard is liable for any resulting damage? The answer varies somewhat from state to state. But as a general rule, the owner of the tree is not liable in such cases unless he or she was somehow negligent in caring for it. If a “reasonable person” could foresee that the tree or a branch was likely to fall and cause damage that the owner could have readily prevented, there might be liability. In most cases, however, the owner is not liable, especially if the tree was knocked over by an “act of God” like a storm. Findlaw has a helpful explanation here, as well as a discussion of other property law issues arising from trees.

Even if you believe you do have a good case against your neighbor, you should think carefully before you start a lawsuit over a fallen tree. Given the high cost of litigation, the money you win might not be much more than what you end up paying the lawyers — unless the damage is really severe. The loss of time and aggravation inherent in suing are also relevant costs, even if nonmonetary ones. And then there’s the cost of damaging your relationship with your neighbor, which is especially important if you plan to live in the neighborhood for a long time. In most cases, it’s worth trying to settle your dispute with a neighbor informally instead of going to court.

As an attorney, it’s probably against my interest to encourage people to think twice about suing over minor property disputes. But it’s good advice nonetheless. And part of being a good property lawyer is knowing when to tell your client that a lawsuit may not be the best course of action for them.

Posted: August 29th, 2011
Categories: Property
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Judge Blocks Missouri Law Banning Teachers from being Facebook Friends with Students

The freshly-enacted Missouri Revised Statutes § 162.069.4 provides,

No teacher [in a Missouri public school] shall establish, maintain, or use a nonwork-related internet site [i.e., a “website or web page used by a teacher primarily for personal purposes and not for educational purposes”] which allows exclusive access with a current or former student [i.e., “any person who was at one time a student at the school at which the teacher is employed and who is eighteen years of age or less and who has not graduated”]. 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.

The law’s reference to “exclusive access” likely includes Facebook pages, because “exclusive access” is defined as “the information on the website is available only to the owner (teacher) and user (student) by mutual explicit consent and where third parties have no access to the information on the website absent an explicit consent agreement with the owner (teacher).” I also assume that “eighteen years of age or less” covers only people up to and including the day they turn 18, rather than including all former students who are 18-plus-up-to-364-days; I infer this based on the assumption that the state is trying to protect minors, though the text could also be literally read as covering anyone who hasn’t yet turned 19.

Wednesday, the court temporarily blocked the law from going into effect:

Even if a complete ban on certain forms of communication between certain individuals could be construed as content neutral and only a reasonable restriction on “time, place, and manner,” the breadth of the prohibition is staggering. The Courts finds [that] based upon the evidence adduced at the preliminary injunction hearing, social networking is extensively used by educators. It is often the primary, if not sole manner, of communications between the Plaintiffs and their students. Examination of the statute indicates that … it would prohibit all teachers from using any non-work-related social networking sites which allow exclusive access with current and former students. It clearly prohibits communication between family members and their teacher parents using these types of sites…. Plaintiffs have established a substantial likelihood of succeeding on the merits.

The reasoning here is quite summary, which is not uncommon in state court grants of preliminary relief. Presumably there will be more details in the final decision on the merits, after the parties litigate the matter to that point. A few quick thoughts:

1. To the extent that the plaintiffs’ objection is that class-related communications between teachers and students are restricted by the law, I think that objection won’t fly as a First Amendment matter. The government has nearly unlimited authority to control its employees’ speech that constitutes part of their jobs, including not just the time, place, and manner but also the content of their speech to customers and other clients (such as students).

2. The government probably also has substantial authority to control its employees’ speech on matters of “purely private concern,” see Connick v. Myers, probably including such off-the-job speech, see City of San Diego v. Roe, especially when the speech is to people whom the employees met on the job. This doesn’t mean such control is a good idea — just that the First Amendment has been read as not barring the government from exercising such control over its employees.

3. Nonetheless, the law also applies to teachers’ communication to students that are on matters of public concern — e.g., political, social, and religious commentary that teachers (like others) could spread to people (including students) via Facebook and similar sites. Such a categorical restriction might well be unconstitutional under United States v. National Treasury Employees Union, especially since this mode of speech is banned without any limitation to speech that is likely to be more disruptive to the school than valuable to the speaker and listeners (the showing required by Pickering v. Board of Ed.).

4. The government’s rationale for the law seems to be that it helps prevent teachers from sexually preying on students and former students; and if such speech really seemed likely to have this effect, then perhaps on balance the Pickering showing could be made. But my sense is that it’s quite hard to groom someone for an illicit sexual relationship using Facebook postings, which are available to everyone. And while Facebook e-mail might be hidden, that stems from the use of e-mail generally, and not of “exclusive access” “internet site[s]” such as Facebook.

So I’m inclined to say that the law is likely unconstitutional, though the question is closer than the court’s brief order suggests.

Posted: August 28th, 2011
Categories: First Amendment
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