Supreme Court will not hear off-campus speech cases

WASHINGTON, D.C. — The U.S. Supreme Court on Tuesday decidednot to weigh in on the free speech rights of students on the Internet.

The Court declined to hear appeals in three cases involvingpublic school students who were disciplined at school for MySpace pages theycreated away from campus.

In a pair of Pennsylvania cases, an appeals court upheld theright of two students to create fake MySpace profiles ridiculing theirprincipals.

Justin Layshock, then a 17-year-old high school senior,created a profile mocking Hickory High School principal Eric Trosch in 2005.The page contained a picture of Trosch and embarrassing, made-up answers tobiographical questions, with the fictitious Trosch describing himself as a “big steroid freak” and a “big whore.”

Trosch’s daughter, also a student, made him aware of the“parody” profile and several others created by other students.

Layshock later apologized to Trosch, and his parentsgrounded him and took away his access to their home computer. The schooldistrict, however, continued with a formal investigation and found Layshockguilty of violating a number of rules. He received a 10-day, out-of-schoolsuspension and was placed in an alternative education program for the rest ofthe year. He was also banned from participating in extracurricular activitiesand his graduation ceremony, despite being classified as a “gifted” student.

Layshock’s parents sued the school district in early 2006,claiming officials violated his First Amendment rights by punishing him for theMySpace profile. After the lawsuit was filed, the district agreed to returnLayshock to his regular classes, participate in extracurricular activities andattend his graduation ceremony.

The lawsuit continued, however, and in June 2011, the 3rdU.S. Circuit Court of Appeals sided with Layshock.

In the second case, an eighth-grade student at Blue MountainMiddle School created a fake profile in 2007 for her principal, JamesMcGonigle.

The profile did not identify McGonigle by name, butcontained his picture and a biographical section made up by the student –identified in court documents only as “J.S.” – and her friend.

The profile claimed McGonigle liked to have sex in hisoffice and hit on students and parents. According to the mock profile:

“I love children, sex (any kind), dogs, long walks on thebeach, tv, being a dick head, and last but not least my darling wife who lookslike a man….”

McGonigle found out about the profile from another student,whom he asked to bring in a print-out of the page. The school’s computersblocked the website and the page was set to be viewable only by“friends.” The student also told him that J.S. created the page, according tocourt documents.

J.S. and her friend received 10-day, out-of-schoolsuspensions and were banned from school dances. McGonigle also filed a formalcomplaint with Pennsylvania police, who summoned J.S. and her mother to thestate police station. No criminal charges were ever filed.

The mother, Terry Snyder, sued on her daughter’s behalf,claiming the punishment violated the First Amendment. In June 2011, the ThirdCircuit agreed.

Targeting other students?

The final case involves Kara Kowalski, then a senior atMusselman High School in West Virginia, who created a group on MySpace in 2005.

The was called “S.A.S.H.” and featured the tagline “No NoHerpes, We don’t want no herpes.” Kowalski claims the group is an acronym for“Students Against Sluts Herpes,” and was designed to bring awareness tosexually transmitted diseases. Others believe it stood for “Students AgainstShay’s Herpes,” referring to “Shay N.” – a fellow student at Musselman.

Kowalski invited about 100 friends to the group, and courtdocuments show about two dozen students joined. One of them, Ray Parsons, soonposted a photo of himself and a friend hold their noses and holding a sign thatread “Shay Has Herpes.” Parsons also posted photos of Shay, altered with mockherpes lesions. Other group members, including Kowalski, allegedly respondedwith approving comments.

According to court documents, Kowalski tried to delete thegroup after Shay’s parents complained, but was unable to do so. The next morning,Shay and her parents filed a harassment claim at school.

Kowalski ultimately received a five-day, out-of-schoolsuspension, a 90-day ban from most school events, and was barred from thecheerleading team for the rest of the year and disqualified from her positionas the school’s reigning “Queen of Charm.”

Kowalski sued, claiming the discipline violated her right tofree speech, but in July 2011 the 4th U.S. Circuit Court of Appeals upheld thepunishment.

Courts struggle to apply existing law

The cases were among the first in the nation to address theFirst Amendment rights of students in cyberspace. The Supreme Court on Tuesday declined to hear appeals in any of the three cases.

The Court has never ruled on the issue, and has addressedthe in-school free speech rights of K-12 students only four times in history. Its decision Tuesday leaves the debate over online student speech rights unresolved.

“Given the uniquely unsympathetic facts of these cases, Ithink you have to count this as a victory for student rights,” said Frank LoMonte, executive director of the Student Press Law Center.“Sometimes it’s a win just to live to fight another day.”

Central to the debate is how the court’s 1969 landmarkdecision in Tinker v. Des MoinesIndependent Community School District should apply in today’s digitalworld. In that case, the Court upheld the right of students to wear blackarmbands to school to protest the Vietnam war. The justices declared thatstudents have the right to express themselves, except when they create a“material and substantial” disruption of school or invade the rights of others.

Three subsequent cases have created exceptions to that rule,allowing schools to discipline lewd and vulgar speech, and speech thatadvocates illegal drug use. The Court has also held that administrators canregulate “school-sponsored” speech such as plays and some student newspapersmore freely, needing only to show that they have a legitimate educationalreason for doing so.

Lower courts have struggled to apply those cases tosituations where students speak outside of school but about school issues orpeople. Some argue that modern technology has made distinctions between on- andoff-campus speech meaningless, while others insist students should retain full FirstAmendment freedom when they leave campus.

In Layshock and J.S., the Third Circuit declined to decidewhether Tinker should apply tooff-campus speech. Rather, it found that even assuming the standard does apply,not enough of a disruption was created in the J.S. case to justify thepunishment. It ruled 8-6 in favor of the student. In the Layshock case, thejudges unanimously sided with the student, finding that the school had notchallenged a lower-court finding that the speech was not disruptive.

The appeals court, sitting en banc with all of its judges participating, seemed to be inagreement that the exception to Tinkerfor lewd and vulgar speech should not apply away from school. Six of the judgesargued that Tinker should be thestandard for analyzing disputes about off-campus speech, while five counteredthat it should not – that students have the same speech rights away from schoolas do adults in the community at large. Neither position, however, gainedenough support on the 14-member court to create a majority.

By contrast, the Fourth Circuit in Kowalski did decide that Tinkerapplies to off-campus speech – and became the first appeals court to do so.There, a three-judge panel unanimously held that Kowalski’s group, aimed atanother student, created a substantial disruption that warranted discipline.

Lawyers react

Adam Charnes, attorney for Kowalski, said he was disappointed the high court refused to take up the case.

“It’s clear under the Fourth Circuit precedent that theschool has full authority to discipline students for their speech that is madeoutside of the school and that has nothing to do with the school,” Charnes said. “And that’snot only internet speech, but also the school can discipline them for commentsthey make at the mall or a sleepover at someone’s house or anyplace else — aslong as the school can basically speculate without evidence that there might becopycat behavior or other effects on school grounds.”

Amy Smith, who represented the school district before the high court, said she was pleased with the Court’s move. She encouraged school officials to read the Fourth Circuit opinion.

Charnes said the case — binding only in Maryland, North Carolina, South Carolina, Virginia and West Virginia — greatly expanded school authority and needs to be addressed by the justices.

LoMonte agreed, but said the Court should take up future cases involving more substantive speech.

“It’s very clear that the Tinker rule is the wrong rule for off-campus speech,” he said.

While the Kowalski case is officially over, the Pennsylvania cases will return to the lower courts. A judge will decide how much the Blue Mountain School District owes in damages in the J.S. case, and how much the districts in both cases owe in attorney fees.

Vic Walczak, an attorney with the ACLU of Pennsylvania who represented the students in both cases, said the fees will be substantial. Justin Layshock’s case has been litigated for nearly six years, in which time Layshock has gone from being a high school senior to a college graduate now working in the insurance field, Walczak said.

“He told me that he was surprised at how moved he was, even though this is such a distant thing, it still really moved him to know that he finally won the case,” Walczak said.

Mary Catherine Roper, also with the ACLU of Pennsylvania, declined to comment on her clients from the J.S. case.

Walczak said he was pleased with Tuesday’s developments but recognizes the Court will have to weigh in eventually.

“This is an issue that needs Supreme Court guidance,” he said. “They probably should take one of these cases sooner rather than later.”