Third Circuit rehears online speech cases

PENNSYLVANIA — Two cases regarding student online speech were argued before the full Third U.S. Circuit Court of Appeals today after two three-judge panels of the Third Circuit handed down conflicting opinions last February.

In the case of Layshock v. Hermitage School District, a three-judge panel ruled in favor of Justin Layshock, a student at Hickory High School in Hermitage, Pa., who had used a computer off-campus to create a fake MySpace page for his principal, Eric Trosch. The page used a photo from the school’s Website and characterized Trosch as a habitual drug and marijuana user.

However, in the case of J.S. v. Blue Mountain School District, a panel ruled in favor of the school district’s right to discipline students for their speech outside of the “schoolhouse gates.”

J.S., who was a female middle school student at the time, had created a fake MySpace page for her principal, James McGonigle. The page, which didn’t list McGonigle’s name but had used his photo from the school Website, used sexually explicit language and described him as a bisexual who liked hitting on students and their parents.

“Both of these cases are indicative of the struggle going on in courts on this issue over what sort of control do we think school officials should have on student off-campus conduct,” said Mike Hiestand, attorney for the Student Press Law Center.

Mary Catherine Roper, a staff attorney for the American Civil Liberties Union (ACLU) of Pennsylvania, said the two cases were reheard because they were so factually similar.

“We consider these very important cases,” Roper said. “They really are exploring an area that isn’t all that clear in the law which is what is school districts’ authority over students out of school. In our cases, where no court has found that the student speech out of school caused substantialdisruption in the school, we think it’s particularly important to emphasize that students when they leave the school regain their Constitutional rights. To suggest anything else is really to say that students, just because they’re students, are less protected by the Constitution. We don’t think that’s a position you can back up.”

According to the brief filed by the ACLU of Pennsylvania for the case of J.S. v. Blue Mountain School District, extending Tinker v. Des Moines Independent Community School District to punish students’ speech off-campus would limit students’ First Amendment rights.

“Such a radical change in law would effectively empower school officials to engage in viewpoint censorship whenever and wherever students speak critically of the school or its officials and create a new class of speakers with diminished First Amendment rights, namely, public-school students,” the document states.

Students in both cases are being represented by Vic Walczak, legal director of the ACLU of Pennsylvania. The Student Press Law Center filed an amicus brief in Layshock in June 2006, and an amicus brief in J.S. in February 2009. In March, the SPLC filed an amicus brief to urge the federal appeals court to clarify the discrepancy between the decisions in the two cases.

“No one is saying these were good things,” SPLC Attorney Advocate Adam Goldstein said. “We’re just saying what you do at home to make fun of your principal isn’t any of your school’s business.”

Roper said 15 active judges in the Third Circuit heard the re-argument today.

“It is very, very rare for the court to hear cases en banc and it’s always an important case when they do that,” Roper said.

“The Third Circuit Court of Appeals where we are has always been a very strong court in terms of protecting the first amendment rights of everybody, including students,” Roper said. “Our hope is that the 3rd Circuit will continue that pattern and will make clear that there are limits on schools’ authority over students, particularly when those students are speaking out of school.”