Pennsylvania high court upholds student’s punishment for private Web site

The Pennsylvania Supreme Court has ruledthat Nitschmann Middle School administrators did not violate a student’s FirstAmendment rights in expelling him for a disruptive Web site he created on hiscomputer at home.

The court ruled in J.S. v. Bethlehem Area SchoolDistrict that it was Swidler’s act of viewing his Web site while at schooland showing it to a friend that made him subject to expulsion.

Administrators at Nitschmann Middle School expelled Swindler afterdiscovering his Web site,, in May of 1998. Since then, Swidlerhas settled two separate suits against him, one filed by the school principaland the other by math teacher Kathleen Fulmer. Much of the Web site’scontent was aimed at Fulmer, including a list of reasons the teacher should befired, a mock solicitation of funds to “pay a hitman,” and a photograph ofFulmer’s head “morphing into [Adolph] Hitler.”

Justice Ralph J.Cappy wrote the majority opinion, in which he acknowledged a lack of precedentin cases involving student-designed Web sites, but noted that more and morestudents have access to the Internet on and off school grounds. According to themajority, the ruling hinged on the determination of where Swidler’scommunication took place.

“We hold that [when] speech that is aimed at aspecific school and/or its personnel is brought onto the school campus oraccessed at school by its originator, the speech will be considered on-campusspeech,” said the majority. Because the speech arguably took place at school, itis within the school’s authority to punish Swidler, the majoritysaid.

The school district argued that Swidler’s Web site causedmaterial disruption at the school, and the high court agreed. The schooldistrict’s evidence included Fulmer’s need to request a medicalleave of absence for the next school year and an adverse affect on students,some of whom sought counseling.

In an individual concurring opinionjoined by Justice Russell M. Nigro, Chief Justice Stephen A. Zappala agreed theexpulsion should be upheld, but for different reasons. He said Swidler’sstatements on the Web site could be reasonably considered threatening and thatthey provided an ample basis for district officials to punishhim.

Zappala said, however, that the majority’s opinion was “overlybroad and unnecessary” in its definition of speech that took place on schoolgrounds.

“The fact that a Web site is merely accessed at school by itsoriginator is an insufficient basis upon which to base a characterization of thespeech as on-campus speech,” said Zappala.

SPLC View: This case has been nothing but bad news from the startand certainly confirms the notion that “bad cases make bad law.” ThePennsylvania Supreme Court — never known for being First Amendmentfriendly — stretched things to categorize Swindler’s Web site as”on-campus speech.” In doing so, however, the court did make clear that schoolofficials cannot punish students who create Web pages at home unless thosestudents access the site at school. Courts in most other jurisdictions havelimited the ability of school officials to punish students for their private,off-campus speech.