Third Circuit hands down conflicting student speech rulings

PENNSYLVANIA — Two three-judge panels of the United States Court ofAppeals for the Third Circuit handed down conflicting opinions today regardingstudent on-line speech: One protected a student’s right to speak freelyoff-campus, the other permitted a school to punish students for doing so.

In the case Layshock v. Hermitage School District, athree-judge panel ruled in favor of Justin Layshock, but in J.S. v. BlueMountain School District, another panel favored that school district’sright to discipline students for their speech.

“It’s difficult, if not impossible, to reconcile the twoopinions,” said Vic Walczak, legal director of the American CivilLiberties Union (ACLU) of Pennsylvania, which represented the students in bothcases.

Justin Layshock was a student at Hickory High School in Hermitage, Pa.when he used an off-campus computer to create a fake MySpace page for PrincipalEric Trosch, which said Trosch used drugs.

Walczak cited the opinion in Layshock in saying that it would be”unseemly and dangerous precedent to allow school authorities to reachinto a child’s home and control his or her actions there to the sameextent that they can be controlled in school.”

“It’s a nice victory. It’s a nice opinion. But the joyhere is greatly tempered by the decision in J.S.” Walczaksaid.The panel of the J.S. case, which also delivered their opiniontoday, ruled in favor of the Blue Mountain School District in Pennsylvania.Walczak said this ruling goes against the Layshock ruling.

J.S. was, at the time, a female middle school student who also used anoff-campus computer to create a fake MySpace for middle school Principal JamesMcGonigle of Pennsylvania’s Blue Mountain School District. This MySpacepage made accusations of McGonigle’s behavior, including sexually explicitlanguage.

Jonathan Riba, an attorney for the Blue Mountain School District, said theprevious judgment in favor of the school district in district court was upheldtoday in the Third Circuit court.

“It was permissible for the district to take the action they didbecause the profile was likely to cause a substantial disruption within theschool,” Riba said.

The Student Press Law Center filed an amicus brief in Layshock inJune 2006, and an amicus brief in J.S. in February 2009. SPLC Executive Director Frank LoMonte said the impact of thecases can be looked at side-by-side.

“The combined result of these rulings is, we have four-sixths of agood decision,” he said. “It’s encouraging that four circuitjudges sent a strong message that students are American citizens entitled to thefull benefits of citizenship when they are speaking on their own time in theirown homes.”

Walczak said there was vulgar language in both cases, though it was morevulgar in the J.S. case, but “where the line is nobody knows.”

Though Justin Layshock could not be reached by press time, his mother,Cherie Layshock said the family was pleased with the ruling.

LoMonte acknowledged some pitfalls of the J.S. case’s ruling.

“The crucial fact of the J.S. case, which the majority completelyglosses over, is that the school district had a disciplinary policy that wasspecifically designed to be constitutional because it did not allow punishmentof off-campus speech unconnected with school,” LoMonte said. “Theschool completely misapplied its own policies to reach speech that the policyplainly exempted from punishment, and that should have been the end of thiscase, full stop.”

Walczak said that a decision on whether to appeal in the J.S. case to thefull court will be made within 14 days.