IMPERSONATING EDUCATORS ON SOCIAL MEDIA: IDENTITY THEFT & DEFAMATION & IIED, OH MY!

By Ameleigh B. Bippen

It is no secret that the rise of social media has changed the world. Social media impacts the way we communicate on a daily basis, broadcast news across the globe, and the clothes we purchase for everyday wear. For many of us, the use of social media has become common practice, because it makes life easier in a number of ways. However, all good things come with consequences.

The number of teenagers who are “almost constantly” using the internet has nearly doubled from 2015.[1] As teenagers use the internet and social media at a growing rate, experts worry that this will lead to serious consequences.[2]Even school officials, such as Alabama State’s Superintendent of Education, Dr. Eric Mackey, have expressed a desire “to talk about getting cell phones out of the schools and getting kids off social media.”[3] Rationales for the push to limit teenagers’ use of social media range from a simple desire to get teenagers outside to the role that social media plays in distracting students in learning environments, an increase in cyberbullying, and even threats of school shootings.

Pinpointing a prevalent issue involving the use of social media and schools, this Article examines the development and significance of the use of social media to impersonate educators. This Article dives into recent case history on this topic and the punishments available for a student’s inappropriate use of social media. By analyzing the current case law and evaluating how schools and courts are handling these cases, this Article presents the rising need for the protection of the identity of educators and their reputations as social media use continues to spiral.

Part I of this Article reveals a number of stories from school officials and educators who have become victims to student impersonation schemes and how this growing issue has affected them personally. Part II details the uniqueness of a student’s First Amendment right to free speech and the Supreme Court opinions that lower courts rely on when managing cases involving social media impersonations of educators. Part III discusses the punishments that are available to the schools and court systems.

     I.        The Victims of Social Media Impersonations: Teacher Edition

Patrice Motz, a middle school Spanish teacher at Great Valley School District in Malvern, Pennsylvania, became the victim of a social media impersonation scheme conducted by seventh and eighth graders earlier this year.[4] After being warned that some middle schoolers created a fake account on TikTok impersonating teachers, Motz created an account herself.[5] Motz discovered a fake TikTok profile named “@patrice.motz” with actual photos of her and her family at the beach.[6] One post in particular encompassed the question “Do you like to touch kids?” written in Spanish over the family’s beach photo with “Answer: Sí.” written down below.[7]

Shawn Whitelock, a faculty advisor at Great Valley Middle School, was another victim of this impersonation attack.[8]Whitelock discovered that a fake TikTok account named “@shawn.whitelock” posted a photo of him at his wedding. The caption named a member of the school’s student council, implying that Whitelock and the student had gotten married.[9] The imposter later commented “I’m gonna touch you.”[10]

Bettina Scibilia, an eighth-grade English teacher of nineteen years, had a graphic death threat posted on TikTok by a student.[11] Despite Scibilia reporting this threat to the police, that did not stop students from creating a second TikTok account impersonating her and creating several videos mocking her later in the year.[12] “Many of my students spend hours and hours and hours on TikTok, and I think it’s just desensitized them to the fact that we’re real people,” she said.[13] “They didn’t feel what a violation this was to create these accounts and impersonate us and mock our children and mock what we love.”[14] After hearing the stories of impersonation victims, Part II of this Article details student’s right to free speech and the Supreme Court opinions on cases involving student’s social media use.

     II.       The First Amendment Right to Free Speech: Student Edition

Applicable to the States through the Fourteenth Amendment[15], the First Amendment to the United States Constitution prohibits the government from “abridging the freedom of speech.”[16] More specifically, the First Amendment’s Free Speech Clause protects “the right to speak freely and the right to refrain from speaking at all.”[17]Although the freedom of speech is broadly phrased, it is not unlimited, as “[e]xpression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions.”[18]

Although students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,”[9] their First Amendment rights “are not automatically coextensive with the rights of adults in other settings.”[20]Therefore, a student’s right to free speech applies “in light of the special characteristics of the school environment.”[21]Since Tinker v. Des Moines Independent Community School District, schools have held a special interest in regulating on-campus student speech that “materially disrupts classwork or involves substantial disorder or invasions of the rights of others.”[22] In 2021, the Supreme Court extended a school’s interest in regulating speech noting that “the special characteristics that give schools additional license to regulate student speech do not always disappear when that speech takes place off campus.”[23]

The case of Mahanoy Area School District v. B.L. involved a high school student who posted two images on Snapchat expressing frustration after failing to make the school’s varsity cheerleading squad.[24]The posts, directed at the school and the school’s cheerleading squad, contained vulgar language and gestures.[25]Upon school officials learning of the post, the student was suspended from the junior varsity cheerleading squad for the upcoming year.[26]Holding that the suspension violated B.L.’s First Amendment right to free speech, the Supreme Court noted that B.L. “did not identify the school in her posts or target any member of the school community with vulgar or abusive language.”[27]From the holding in Mahanoy, lower courts can presume that where there are impersonations targeting specific members of a school community with vulgar and abusive language, these libelous impersonations are punishable offensive. For example, students could be punished both by the school and, if they violate civil law or criminal law, could also face consequences in civil cases, and either delinquency or adult criminal court depending on how the law regarding transfers of juveniles to adult court applies in the state.

Although the suspension in Mahanoy violated the student’s free speech rights, three features of off-campus speech that “diminish the strength of the unique educational characteristics that might call for special First Amendment leeway” were identified.[28] First, the Court found that a school rarely stands in loco parentis when a student speaks off campus.[29]Therefore, “off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.”[30] Second, regulations on free speech cover “all the speech a student utters during the full 24-hour day,”[31] which means that “courts must be more skeptical of a school's efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all.”[32] Third, “the school itself has an interest in protecting a student's unpopular expression, especially when the expression takes place off campus.”[33] Since the holding in Mahanoy, the courts and schools themselves have had more guidance on how to appropriately handle issues with student’s social media posts and their First Amendment freedom of speech by applying the three features of off-campus speech. Keeping these features in mind, Part III of this Article turns to the punishments available to the schools and the courts.

     III.      WHAT CONSEQUENCES ARE THERE FOR STUDENTS, IF ANY AT ALL?

Ultimately, schools are an incredibly unique environment and while school officials must be able to punish inappropriate social media behavior by students, schools also have an interest in preserving their student’s First Amendment right to free speech.[34] Despite the Supreme Court’s guidance, these seem to be difficult cases for educators to receive any justice for as the case of Draker v. Schreiber provides an example of an assistant principal, Anna Draker, who sought an intentional infliction of emotional distress claim after two students created a website on MySpace.com that appeared to have been created by Draker herself.[35] Eventually, the assistant principal’s claim was dismissed for being more appropriately describing defamation.[36]

Additionally, even the officials for Great Valley School District have said “legal action cannot be taken outside of school because the accounts were created on students’ personal time and may represent their right to free speech.”[37]However, unlike the case in Mahanoy, the students at Great Valley School District did target individual members of the school community with vulgar and abusive language. For example, the students implied that the educators were pedophiles and even targeted their families.[38] Therefore, given the conduct in the teacher impersonation cases at Great Valley School District, the students in these cases could be punished.

There are steps that schools and the courts have taken at punishing students who impersonate and defame school officials, such as the students involved in the imposter scheme at Great Valley Middle School being chastised and suspended from school due to their actions.[39]In a similar case, the Sixth Circuit recently held that because the student speech at issue involved serious or severe harassment, the school district did not violate the student’s right by disciplining him.[40]Additionally, there is at least one case in which a student was charged with defamation, which is a misdemeanor in Alabama.[41] Although students are accorded a unique right to free speech, the First Amendment is not a limit on the punishments available to schools and courts when it comes to vulgar or abusive social media posts specifically targeting members of the school community.

Conclusion

As this Article displays, there are a growing number of educators having their identities stolen and being victimized online by students. As displayed in the First Amendment of the United States Constitution, prohibiting the government from restricting one’s freedom of speech is a crucial right that United States citizens are provided. Since students have a modified right to free speech, the schools and courts have an ability to reprimand students for intentionally inflicting emotional distress on educators through the use of vulgar or abusive language to impersonate individual educators on social media. As the identity and reputation of educators cries out for protection, it is important for the Supreme Court to stand by their previous holding that the First Amendment cannot be used as a shield for this incredibly harmful conduct. As the access to and usage of social media by students continues to rise, this Article predicts that this will be a prevalent topic of argument in courts across the country in the near future.

[1] Teens, Social Media and Technology 2023, Pew Research Center (Dec. 11, 2023), https://www.pewresearch.org/ internet/2023/12/11/teens-social-media-and-technology-2023/.

[2] How Using Social Media Affects Teenagers, Child Mind Institute (May 24, 2024), https://childmind.org/article/ how-using-social-media-affects-teenagers/.

[3] Why Alabama Schools Continue Pursuing Cell Phone Bans, AL.com (Jul. 15, 2024), https://www.al.com/news/ 2024/07/why-alabama-schools-continue-pursuing-cell-phone-bans.html.

[4] Students Target Teachers in Group TikTok Attack, Shaking Their School, New York Times (July 6, 2024), https://www.nytimes.com/2024/07/06/technology/tiktok-fake-teachers-pennsylvania.html.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Students Target Teachers, supra note 5.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] See Gitlow v. People of State of New York, 268 U.S. 652, 664 (1925) (applying the First Amendment’s free speech protections to the states for the first time).

[16] U.S. Const. amend. I.

[17] Wooley v. Maynard, 430 U.S. 705, 714 (1977).

[18] Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).

[19] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

[20] Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986).

[21] Tinker, 393 U.S. at 506.

[22] See id.

[23] See Mahanoy Area Sch. Dist. v. B.L., 594 U.S. 180, 180 (2021).

[24] See id.

[25] See id.

[26] See id.

[27] Id. at 181.

[28] Id. at 190.

[29] Mahanoy, 594 U.S. at 181.

[30] Id. at 189.

[31] Id.

[32] Id.

[33] Id. at 190.

[34] See Defamation is More Than Just a Tort: A New Constitutional Standard for Internet Student Speech, BYU Educ. & L.J. (2013), https://digitalcommons.law.byu.edu/elj/vol2013/iss2/8.

[35] See Draker v. Schreiber, 271 S.W. 3d 318, 323-24 (Ct. App. Tex. 2008).

[36] Id.

[37] Middle Schoolers Suspended for Creating Fake Teacher Social Media Accounts with Offensive Content, Fox 10 News (Jul. 9, 2024), https://www.fox10tv.com/2024/07/09/middle-schoolers-suspended-creating-fake-teacher-social- media-accounts-with-offensive-content/.

[38] See Students Target Teachers in Group TikTok Attack, Shaking Their School, New York Times (July 6, 2024), https://www.nytimes.com/2024/07/06/technology/tiktok-fake-teachers-pennsylvania.html.

[39] Id.

[40] See Kutchinski v. Freeland Sch. Dist., 69 F. 4th 350, 358 (2023).

[41] See East Limestone Student Charged with Defamation for Mocking Up Sex 'News Report' on Teacher, AL.com (Apr. 6, 2016). https://www.al.com/news/huntsville/2016/04/east_limestone_student_charged.html.