Contact: Frank D. LoMontedirector@splc.org703-807-1904
The Student Press Law Center, a national non-profit devoted to defendingstudent journalists’ First Amendment rights, filed a friend-of-the-courtbrief today urging a federal appeals court to clarify that schools cannotdiscipline students for criticizing their schools on personal web pages whenthey are off school grounds and not involved in school activities.
The SPLC joined the Pennsylvania Center for the First Amendment at PennState University in filing a brief on behalf of a Pennsylvania middle-schoolstudent who created a fake MySpace profile that ridiculed her principal. Although the student’s comments were distasteful, they were immediatelyrecognized by readers as a prank, and the student was punished by her parentsfor her crude language.
The brief filed in the Third U.S. Circuit Court of Appeals in Philadelphiain the case of J.S. v. Blue Mountain School District urges the court toreverse a decision by the U.S. District Court, which ruled that student”J.S.” could be disciplined for vulgar off-campus speech that hadsome “effect” on campus, even though the “effect” didnot cause any real disruption.
“It was forty years ago this week that the Supreme Court ruled thatstudents –even when they are on campus during class time — have aFirst Amendment right to express their opinions as long as they do not’substantially disrupt’ school. Students must have at least thatmuch protection when they speak away from campus,” said Frank D. LoMonte,an attorney and Executive Director of the Student Press Law Center.”Students need to be confident that they can safely criticize theirschools without fear that a principal will take advantage of fuzzy legalstandards to punish legitimate criticism by claiming it ‘had aneffect’ on the school.”
In 2007, J.S. was a 14-year-old eighth-grader at Blue Mountain MiddleSchool who, with a friend, created a fake MySpace.com profile using a photoof Principal James McGonigle while on her parents’home computer during non-school hours. The profile used crude humor to poke funat the principal as a sex addict whose hobbies included “hitting onstudents and their parents.”
Word of the site made its way around the campus, and days later toMcGonigle, who suspended the two student creators for 10 days, citing a schooldisciplinary code that prohibits making false accusations against school staffmembers. The code, however, says that it applies only where students are underthe supervision of school officials or are using school computers.
J.S. and her parents challenged the suspension as violating thestudent’s First Amendment rights as well as the parents’ rights todetermine how best to raise, discipline and educate their child. The districtcourt dismissed the parents’ claims in September 2008, ruling that theschool could discipline lewd and vulgar off-campus speech that had an effect oncampus.
LoMonte noted that J.S. made “some terrible and uncalled-for commentsabout her principal, and she fully deserved to be punished — by herparents, which she was. That is the proper remedy when a student hasmisbehaved off-campus on her personal time. Given the lack of restraint that wesee every day by principals who censor criticism of their schools by claimingthat it is ‘offensive,’ we can’t be issuing blank checks toschool officials to punish comments students write at home in their e-mails oron their blogs.”
In their brief in support of the student’s appeal, the SPLC and thePennsylvania Center point out that the District Court’s ruling sets adangerous precedent that would endanger legitimate discussion of cultural oreducational issues by student bloggers: “The District Court’s methodof analysis is not one recognized by any court, and if allowed to stand, wouldeviscerate the well-established distinction between the level of protectionafforded to off-campus versus on-campus speech — a distinction reaffirmedin every one of the Supreme Court’s student speech cases since
Tinker.” Tinker v. Des Moines Ind. Sch. Dist. is thelandmark February 24, 1969, decision that found students do not shed theirrights at the “schoolhouse gate,” and authorities may disciplinestudents for their speech only if it “materially disruptsclasswork.”
The brief concludes: “If we tell students that off-campus speech thatmay provoke discussion at school can bring suspension, then we are teachingthese young people — most of whom are old enough to drive a car, many ofwhom are old enough to marry, and some of whom are oldenough to vote, or to strap on a gun and fight for their country — thatfree speech is too dangerous for them, and that it must be parceled out stingilyby the same government that the students wish to criticize. What could
‘disrupt the educational mission’ more?”
Since 1974, the Student Press Law Center has been devoted to educating highschool and college journalists about the rights and responsibilities embodied inthe First Amendment, and supporting the student news media in covering importantissues free from censorship. The Center provides free information andeducational materials for student journalists and their teachers on a widevariety of legal topics.
For More Information: