Layshock, J.S. and MySpace justice – Third Circuit takes a half-step toward clarifying school authority over online speech

Young people’s near-universal ability to publish online — anytime, anywhere — has provoked a flurry of legislative responses and judicial pronouncements, many of them blurring the boundaries that once confined schools’ disciplinary authority within the proverbial “schoolhouse gate.”

Those blurry boundaries are in somewhat clearer focus today as a result of a pair of rulings by the 3rd U.S. Circuit Court of Appeals, which sent an unmistakable message that schools may not lightly extend their reach into students’ off-hours activities.

In two companion rulings issued Monday, the Philadelphia-based court decided that school officials overreached when they suspended two Pennsylvania students, one in high school and one in middle school, for creating mock MySpace profiles ridiculing their principals. The cases, Layshock v. Hermitage School District and J.S. v. Blue Mountain School District, represent the first time that the issue of school authority over off-campus online speech has come before an “en banc” appeals court comprised of all of the circuit’s active judges.

The relatively rare en-banc hearing was necessitated when separate three-judge panels of the circuit — in rulings issued on the same day in February 2010 — reached differing outcomes on the seemingly indistinguishable cases: the Layshock panel found the student’s First Amendment rights violated, and the J.S. panel saw no violation.

Monday’s rulings harmonized these discordant rulings by handing both students a victory that, unless the U.S. Supreme Court elects to hear either or both cases, will stand as final.

For those who support the First Amendment rights of student journalists, this is a positive and important development, even if the speech in these cases — childish ridicule about the principal’s weight, penis size and sexual proclivities — is hardly “journalistic.” A contrary ruling would have emboldened schools to assert control over any criticism of the school or its officials made in any medium, even a letter-to-the-editor of the local newspaper or a speech in front of the Board of Education. If even speech of this dubious value falls within the First Amendment, then students can rest comfortably that editorial commentary will be protected as well.

What the Third Circuit did not do — and what no circuit has yet managed to satisfactorily do — is to create a legal standard to guide all future exercises of discipline over off-campus online speech.

Two competing views are emerging as to when it is proper for schools to punish speech that occurs outside of school premises and school functions.

One school of thought says that, when students leave the campus and are not taking part in a school activity, their speech is governed by the same legal standards as any other citizen’s speech. They cannot threaten people with violence, commit libel or steal copyright-protected property without consequences, but otherwise, their speech is beyond the reach of government regulation, including that of schools.

Five of the circuit’s 14 judges signed onto a concurring opinion in the J.S. case, authored by Judge D. Brooks Smith, that fully embraced this protective legal standard, which is the one supported by the students’ lawyers and by the SPLC.

Six of the 14 judges signed onto a dissenting opinion in the J.S. case that urged the adoption of a less protective standard — the same standard that applies to speech uttered on school grounds during the school day. That standard, set forth in the Supreme Court’s landmark Tinker v. Des Moines Independent Community School District ruling, enables schools to prevent or punish student speech if it threatens a substantial disruption of school functions, even if the speech would otherwise fall within the First Amendment.

(In fact, the concurring judges suggested that the majority ruling in fact did recognize Tinker as the applicable standard, though the majority claimed to be doing no such thing.)

To First Amendment experts, the Tinker standard is pretty clearly unsuited to off-campus speech for this reason: Tinker is about speech to a captive audience of school listeners who cannot leave. We accept that students’ First Amendment rights on school premises within the school day are more limited than they are in the “real world,” because a student who wears a swastika T-shirt to school is forcing his classmates to see that symbol all day long. But if the swastika is on a student’s off-campus web page, viewers must affirmatively seek it out and can easily avert their eyes.

The Smith concurrence eloquently explains the perils of giving school administrators the Tinker level of control over what students say outside of the school day:

Suppose a high school student, while at home after school hours, were to write a blog entry defending gay marriage. Suppose further than several of the student’s classmates got wind of the entry, took issue with it, and caused a significant disturbance at school. While the school could clearly punish the students who acted disruptively, if Tinker were held to apply to off-campus speech, the school could also punish the student whose blog entry brought about the disruption. That cannot be, nor is it, the law.

The majority in the J.S. case did not find it necessary to decide whether the Tinker rule or the “real world” rule is the right one for students’ online speech, because even under the more school-friendly Tinker standard, the student’s MySpace page was so over-the-top ridiculous that no reasonable person could have taken it seriously (and indeed, no disruptive activity occurred).

While the circuit failed to conclusively resolve the central jurisdictional issue, some important secondary issues were resolved in favor of students’ rights.

First, the Circuit seems solidly united behind the proposition that schools may not punish off-campus speech merely because it uses crude and offensive imagery. In Bethel School District v. Fraser, the Supreme Court empowered schools to punish students for using “lewd” language at school events even if no disruption is foreseeable. That, not Tinker, was the school district’s basis for claiming jurisdiction over Justin Layshock’s MySpace creation. But not a single Third Circuit judge was willing to extend Fraser to off-campus activity.

Second, the fact that speech is brought onto campus by third parties is not enough to transform it into “on-campus speech” for purposes of school jurisdiction. In neither the Layshock nor the J.S. case was there any evidence that the student creators themselves used school time to show off their MySpace handiwork to their classmates. (Indeed, in the J.S. case, the only way that the mock profile physically entered the campus is that the student’s principal demanded a copy of it.) This is an exceptionally significant distinction, because it is always foreseeably that a member of the audience might transport a copy of off-campus speech onto the campus. At least in the majority’s view, that foreseeability by itself does not mean online speech is functionally equivalent to in-school speech.

Third, the fact that the school itself overreacts to a student’s speech cannot be bootstrapped into a “disruption” for purposes of satisfying the Tinker standard; the disruption must arise out of how listeners react to the speech, not how the school decides to punish it. (In the J.S. case, the school actually tried to argue that the student’s lawsuit was itself a party of the disruption, leaving aside the inconvenient fact that the punishment predated the lawsuit by several months and that the lawsuit became necessary only because of the punishment.)

And finally, context matters. When adults talk about students’ online speech, they invariably talk about how electronically transmitted speech is categorically “worse” and “more dangerous” than speech on the printed page. A lot of this is overblown — try finding a letter-to-the-editor from an online newspaper that’s more than a year old, and you’re quite likely to get a “file not found” broken link, but the same letter is retrievable from the archives in the public library for centuries to come. But the Third Circuit recognized, correctly, that reasonable readers do not visit as a source of scholarly research. There is a difference between content that is widely accessible and content that is widely trusted and believed.

School attorneys undoubtedly will attempt to appeal only the J.S. case and not the Layshock case to the Supreme Court, since the J.S. case more squarely raised the Tinker issue and since the J.S. facts (the speaker was a middle-schooler, while Justin Layshock was a high school senior) are more sympathetic to the school. The close 8-6 split among circuit judges may tempt the Court to accept the case. But the Court typically does not wade into the early stages of an evolving area of the law until the lower courts have thoroughly aired it, and this issue may be sufficiently unsettled to counsel in favor of caution.