Third Circuit sides with students in online speech fight

PENNSYLVANIA — Publicschool students cannot be punished for off-campus speech that fails to cause asubstantial disruption to in-school activities, the 3rd U.S. Circuit Court ofAppeals ruled Monday.

Inthe majority opinions for Layshock v.Hermitage School District and J.S. v. Blue Mountain School District — two simultaneous opinions filed by the entire Third Circuit inPennsylvania — the judges held that administrators are limited in their abilityto restrict student speech that occurs outside of school.

TheThird Circuit becomes the highest court in the nation to draw a clear lineestablishing what school districts are legally permitted to do to controlstudent expression on the Internet.

Advocatesfor student free speech said the rulings were among the most significant tocome down in recent years.

“‘Landmark’is the only word that can be used to describe these rulings,” said AdamGoldstein, attorney advocate for the Student Press Law Center. “The schooldistricts here were arguing that being a student is an impediment to your civilrights, no matter where you are. Today, the Third Circuit stood up and toldthem ‘there’s a line, and you’ve crossed it.’”

Bothcases dealt with fake MySpace profiles created to mock school principals.

InLayshock, Justin Layshock, a formerstudent at Hickory High School in Hermitage, Pa., used his grandmother’scomputer to create a fake profile for Principal Eric Trosch. On the parodyprofile, Layshock wrote that Trosch had used drugs, shoplifted and takensteroids.

Apartfrom a photo of Trosch that Layshock took from the school’s website, all workon the page was unconnected with school.

Thougha three-judge panel of the Third Circuit ruled in favor of Layshock in February2010 — finding that the school’s decision to suspend the student was aviolation of his First Amendment rights — a separate panel came out with asimultaneous, conflicting decision in J.S.

InJ.S., a then-middle school student inPennsylvania’s Blue Mountain School District used an off-campus computer tocreate a fake MySpace profile ridiculing her principal, James McGonigle. LikeLayshock’s, the profile featured mock references to McGonigle’s past behavior,including sexually explicit language.

Thethree-judge panel held in J.S. thatthe school district’s suspension of the female student did not violate herFirst Amendment rights.

Becauseof the inconsistent opinions issued in the two similar cases, the Third Circuit ordered that both were to be reheard en banc — in front of the entire14-judge court — in June 2010.

ChiefJudge Theodore McKee wrote in Monday’s unanimous opinion in Layshock that “it would be an unseemlyand dangerous precedent to allow the state, in the guise of school authorities,to reach into a child’s home and control his/her actions there to the same extentthat it can control that child when he/she participates in school-sponsoredactivities. Allowing the [school] district to punish Justin for conduct heengaged in while at his grandmother’s house using his grandmother’s computerwould create just such a precedent …”

Themajority opinion, however, did not decide whether the 1969 Supreme Court case Tinker v. Des Moines Independent CommunitySchool District — which held that public school students have a right to speakfreely, with the exception of speech that is illegal or causes a substantialdisruption — should be the standard for off-campus speech.

Schooldistrict officials declined to challenge prior holdings that the speech inquestion was not disruptive under the Tinkerstandard.

Inreference to the applicability of Tinker,McKee wrote that “we need not now define the precise parameters of when the armof authority can reach beyond the schoolhouse gate because, as we notedearlier, the district court found that Justin’s conduct did not disrupt theschool, and the [school] district does not appeal that finding.”

VicWalczak, who represented the students in both cases on behalf of the AmericanCivil Liberties Union of Pennsylvania, said the court’s decision not toestablish clear, replicable standards for governing off-campus student speech“fails to resolve the most important question at hand.”

ThoughWalczak said the ACLU was “thrilled to win cases for both of our clients,” headded that “what we got was harmony in these decisions. What we didn’t get wasclarity.”

AnthonySanchez, who represented the school district on behalf of Andrews & PriceLLC, said he is “obviously disappointed by the decision,” but is still “in themode of analyzing.”

Goldsteinsaid the holding in Layshock “didn’tanswer every question that was presented, but did answer the most importantquestion.”

“Isthere a place where a student can go that’s far enough away from school groundsto allow that student to speak freely online? Every single one of the 14 judgeson that court said ‘yes,’” he said. “We may not have won every single skirmish,but don’t underestimate the significance of winning this battle.”

Atwo-person concurrence by judges Kent Jordan and Thomas Vanaskie argued that Tinker is applicable to off-campusspeech.

Thecrux of the majority opinion in J.S. wasmuch the same as Layshock’s.

Inan 8-6 decision, the Third Circuit overturned a District Court ruling that,although J.S.’s profile did not cause a “substantial and material” disruptionunder Tinker, the school district’spunishment was constitutional because the MySpace page contained “vulgar andoffensive” language.

Themajority made reference to Bethel SchoolDistrict v. Fraser, a 1986 Supreme Court case which held that a school didnot violate a student’s First Amendment rights after it suspended him formaking an in-school, public speech full of sexual double entendres.

JudgeMichael Chagares wrote that “under these circumstances, to apply the Fraser standard to justify the schooldistrict’s punishment of J.S.’s speech would be to adopt a rule that allowsschool officials to punish any speech by a student that takes place anywhere,at any time, as long as it is about the school or a school official, is broughtto the attention of a school official and is deemed ‘offensive’ by theprevailing authority … Accordingly, we conclude that the Fraser decision did not give the school district the authority topunish J.S. for her off-campus speech.”

Themajority ruled in the school’s favor on several secondary issues, holding that theschool district’s policies were not unconstitutionally “vague and overbroad,” andthat the constitutional rights of J.S.’s parents — Terry and Steven Snyder —were not violated when their daughter was disciplined.

LikeMcKee, Chagares avoided answering the question of whether Tinker is the appropriate standard to govern off-campus speech.

Ina dissenting opinion, six judges argued that Tinker can and should be applied to off-campus student speech; fivejudges countered that claim in a concurring opinion, asserting instead that“the First Amendment protects students engaging in off-campus speech to thesame extent it protects speech by citizens in the community at large.”

Rulingsfrom the Third Circuit are binding precedent in the states of Pennsylvania, NewJersey and Delaware. The only possible route left to appeal either decisionwould be to petition the U.S. Supreme Court for review.

WhileWalczak said he would be surprised if Layshockis appealed to the Supreme Court, he does not think he has seen the last ofJ.S.

Regardlessof the future for both cases, Goldstein said Monday’s rulings represented “areal victory for students.”

“Everystudent who publishes online ought to breathe a sigh of relief thatadministrators do in fact have limits on what they can control,” he said. “Thisis an extremely significant decision.”