PENNSYLVANIA — Attorneys for a Pennsylvania school districtand for a disciplined high school student debated before a federal appeals courtWednesday whether a school can constitutionally apply a Supreme Court rulingthat allows schools to punish “lewd” and “vulgar” speechto penalize a student’s off-campus Web page spoofing his principal.
While the lawyer for Hermitage School District in Hermitage, Pa., arguedthat schools must have power over off-campus speech because of the “greatchange in electronic communication,” one member of the three-judge appealspanel called the prospect of school authority without boundaries”frightening.”
“Haven’t we for years had students talking about teachers,writing notes with derogatory language, and it has not been a part of schooldiscipline,” Judge Jane R. Roth said during oral arguments in the case ofLayshock v. Hermitage School District. “Isn’t it ratherfrightening to think of where you can go with that?”
A fellow panelist, Judge Theodore McKee, called the case “troublingand perplexing,” but voiced skepticism about the school district’sargument that engaging in online speech ridiculing a school official should bepunishable just as if the student were caught selling drugs off-campus orthrowing eggs at a teacher’s house.
“There’s no right to sell drugs, no right to egg houses,”McKee told the school district’s attorney, Anthony G. Sanchez. “There is no constitutional right involved. Here we’ve got theFirst Amendment involved. The egg-throwing, drug-selling cases seem very farafield of what we have here.”
The Hermitage School District is asking the Third Circuit to rule that aU.S. district judge erred when he concluded that Justin Layshock had aconstitutionally protected right to publish a parody profile ridiculing hisprincipal, Eric Trosch, on the MySpace social networking site. Trosch learnedof the profile and suspended Layshock from school, as well as reporting him tothe police and filing a defamation suit against him. Layshock and his parentssued to challenge the suspension as overstepping the school system’sjurisdiction, since there was no evidence that Layshock used school time orschool computers to create the MySpace page.
The Student Press Law Center filed a friend-of-the-court brief, joined bythe Pennsylvania Center for the First Amendment, supporting Layshock’sposition. The groups argue that allowing school officials to disciplinestudents for purely off-campus, online speech will threaten students’ability to engage in editorial commentary about school matters, or to maintainonline “underground newspapers” that can take on controversialtopics that many school officials censor from on-campus newspapers.
On-campus student speech normally is governed by the standard coined by theSupreme Court in 1969 in Tinker v. Des Moines Independent SchoolDistrict, in which the Court ruled that students do not “shed theirFirst Amendment rights at the schoolhouse gate.” Under Tinker,school officials may penalize lawful student speech only if they show that thespeech was reasonably expected to create a substantial disruption of schoolactivities.
Playing off Tinker‘s most famous passage, Sanchez said thecourt could apply Tinker‘s “substantial disruption”standard to 21st-century online media because “this is a different era– the schoolhouse gate has changed.”
McKee shot back: “The First Amendment hasn’t.”
Attorney Witold J. Walczak of the American Civil Liberties Union ofPennsylvania, representing Layshock, picked up on the Tinker theme,telling the judges that the Supreme Court clearly meant in Tinker thatstudents enjoy the full protection of the First Amendment when they are not onschool grounds: “When you exit the schoolhouse gate, you go to the coatcheck and say, ‘I’ll pick up the rest of myrights.'”
Walczak argued that cases such as Tinker, which recognize thatstudents sometimes have a reduced level of free-speech protection, were based ondeference to schools’ need to keep order during the school day. But it isimproper to give school authorities the same level of leeway when the student isspeaking on the weekend in his own home, Walczak argued. Instead, he said, theschool should have to satisfy the extremely heavy burden to justify governmentregulation of any citizen’s speech that takes place off governmentproperty.
Although several federal courts have suggested that schools can policeoff-campus speech when it is intended to reach an on-campus audience, Walczaksaid that standard is wrong, because it would let schools punish just aboutanything a student writes that criticizes the school: “Anytime you postanything controversial or say anything negative about students or schoolofficials, it’s going to come to the attention of the school.”
The school district’s primary argument is that Layshock’sconduct was punishable under the standard recognized by the Supreme Court inBethel School District v. Fraser. In Fraser, the Court held thata school did not violate the First Amendment by disciplining a student who gavea “vulgar” and “lewd” speech filled with sexual innuendoin front of an on-campus student assembly. Sanchez called Layshock
“a very classic Fraser-type case,” except that Layshock usedeven more explicit and offensive language.
But McKee sounded skeptical: “If a school district can suspendeverybody who uses vulgar language on the ‘Net — boy, that’sgoing to solve your budget deficit, because no one’s going to show up forschool anymore.”
Sanchez suggested that the rules protecting student speech in traditionalmedia need to be re-thought in the context of online speech, because theInternet provides a “much more effective” way of getting astudent’s message to his intended audience. That brought a dubiousreaction from Roth: “Is that the standard — that if your method ofcommunication is effective, we’ll punish, but if your message can’tbe heard, we’ll leave it alone?”
Sanchez repeatedly analogized Layshock’s case to that of the studentin Morse v. Frederick, the Supreme Court’s most recent studentspeech case. In Morse, the Court ruled that the First Amendment did notprevent an Alaska high school from punishing speech on a banner (“BongHits 4 Jesus”) that a student displayed at a school-sanctioned event,because the speech encouraged the use of illegal drugs. Sanchez pointed outthat, as in Layshock, the student’s conduct in Morse tookplace off school grounds (in that case, across the street from the school on apublic sidewalk), yet was still subject to school authority.
Citing some of the “hobbies” and “interests” thatLayshock mockingly attributed to Trosch in the MySpace profile — one linein the profile called Trosch a “big steroid freak” — Sanchezsaid the profile, just like Frederick’s “bong hits” banner,was “celebratory of drug use.” But McKee said the profile clearlyintended to attribute bad qualities to Trosch, so the drug references were meantas negatives.
Sanchez also faced tough questioning over the school’s contentionthat Layshock “entered” the school — thus making his speechon-campus speech — by copying a photo of Trosch from the school Web siteto create the mock profile.
“You’ve got a lot of strong arguments in your brief –that may be the weakest one,” McKee told him, adding that the schoolassumed the risk that someone would copy and use Trosch’s photo when theschool posted it on its own Web site.
Under questioning from the judges, Sanchez acknowledged that theschool’s case for exercising jurisdiction over Layshock’s onlineactivity “would have been weaker” if not for the alleged misuse ofthe school photo. And he conceded that, if the profile had been laudatoryrather than insulting, “then we are not in a territory where the schooldistrict can discipline.”
As is customary, the panel took the case under advisement and did notindicate when it will rule. It typically takes several months for a federalappeals court to hand down a decision after hearing oral argument.