PRESS RELEASE: First Amendment Groups Seek Reconsideration of Confusing Ruling Allowing School Discipline of Online Speech

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’s brief to the Third U.S. Circuit Court of Appeals wasjoined by the Pennsylvania Center for the First Amendment at Penn State Universityand the Marion B. Brechner First Amendment Project at the University of Florida.The case, J.S. v. Blue Mountain School District, involves a Pennsylvaniamiddle school student who was suspended for using crude humor to mock herprincipal on a page on the MySpace social-networking site that she created onpersonal time with no use of school resources.

The groups are asking the full 14-member Third Circuit to take up andreverse a 2-1 ruling from a three-judge panel in the J.S. case, issued onFebruary 4. That panel found no First Amendment violation in the school’sdecision to punish the student — referred to in court papers as”J.S.” — because the judges believe that speech loses itsFirst Amendment protection if it uses “undoubtedly offensive, potentiallyvery damaging, and possibly illegal language(.)” The groups contend thatthe ruling will create confusion because it conflicts with a 3-0 decision from adifferent Third Circuit panel, issued the very same day, in the factuallysimilar case of Layshock v. Hermitage School District. In that case– also involving a Pennsylvania student’s MySpace page ridiculinghis principal — the judges unanimously ruled that the student’soff-campus writings could not be disciplined under the same legal standards thatapply to on-campus student speech. (The losing school district has alreadypetitioned the Third Circuit to grant en banc review in theLayshock case, and that request is pending before the Court.)

The SPLC brief argues that the 2-1 panel ruling in J.S. “runsthe real risk of issuing unbridled censorship discretion to school officials ina setting — off-campus speech created on personal time — in whichschools’ authority rightfully should be at its most limited.”Because of the rapid migration of student journalism to online publishing,”it is vital that the Circuit issue clear guidance to future studentspeakers and set meaningful boundaries beyond which schools may not reach tocensor legitimate editorial commentary,” the brief asserts.

The First Amendment groups contend that the J.S. ruling is legallyflawed in part because it suggests that online speech is categorically lessprotected than speech in print. This conflicts with the Supreme Court’s1997 ruling in Reno v. ACLU that speech transmitted over the Internetenjoys no lesser First Amendment status.

“It is vital that we slam the door on the notion that is growing moreprevalent in First Amendment caselaw that students have reduced First Amendmentrights when they use the Internet,” said Frank D. LoMonte, an attorney andExecutive Director of the Student Press Law Center. “The Internet is, andwill increasingly become, the medium of choice for young people to communicate,and if we say that students never have the full benefit of the First Amendmentwhen they speak online, that effectively turns them into permanent second-classcitizens.”

“The SPLC’s concern is, of course, not for the ‘right tomake fun of your principal,’ but for the right to comment on seriousmatters of public concern happening in the schools, even if the school considersthat expression ‘offensive’ or ‘damaging’ to theschool’s image,” LoMonte said. “The J.S. decision givesno clear guidance to the speaker or to the school as to when speech becomespunishable, and in fact, makes the law even less clear than it wasbefore.” 

In 2007, J.S. was a 14-year-old eighth-grader at Blue Mountain MiddleSchool who, with a friend, created a fake 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.”

McGonigle suspended the two student creators for 10 days. J.S. and herparents challenged the suspension as violating the student’s FirstAmendment rights as well as the parents’ rights to determine how best toraise, discipline and educate their child. A U.S. district court dismissed allclaims in September 2008, and that ruling was affirmed by the 2-1 majority ofthe Court of Appeals panel, over a strenuous dissent by Judge Michael A.Chagares.

“The student in this case was fully and properly punished by herparents, which is the right remedy when a student has misbehaved off-campus onher personal time,” LoMonte said. “Given the lack of restraint thatwe see 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.”

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.

– 30 –

FOR IMMEDIATE RELEASEContact: Frank D. LoMontedirector@splc.org703.807.1904