Court hears arguments over student's suspension for fake Myspace page





PENNSYLVANIA -- Attorneys for a Pennsylvania school district and for a disciplined high school student debated before a federal appeals court Wednesday whether a school can constitutionally apply a Supreme Court ruling that allows schools to punish "lewd" and "vulgar" speech to penalize a student's off-campus Web page spoofing his principal.

While the lawyer for Hermitage School District in Hermitage, Pa., argued that schools must have power over off-campus speech because of the "great change in electronic communication," one member of the three-judge appeals panel called the prospect of school authority without boundaries "frightening."

"Haven't we for years had students talking about teachers, writing notes with derogatory language, and it has not been a part of school discipline," Judge Jane R. Roth said during oral arguments in the case of Layshock v. Hermitage School District. "Isn't it rather frightening to think of where you can go with that?"

A fellow panelist, Judge Theodore McKee, called the case "troubling and perplexing," but voiced skepticism about the school district's argument that engaging in online speech ridiculing a school official should be punishable just as if the student were caught selling drugs off-campus or throwing eggs at a teacher's house.

"There's no right to sell drugs, no right to egg houses," McKee told the school district's attorney, Anthony G. Sanchez. "There is no constitutional right involved. Here we've got the First Amendment involved. The egg-throwing, drug-selling cases seem very far afield of what we have here."

The Hermitage School District is asking the Third Circuit to rule that a U.S. district judge erred when he concluded that Justin Layshock had a constitutionally protected right to publish a parody profile ridiculing his principal, Eric Trosch, on the MySpace social networking site. Trosch learned of the profile and suspended Layshock from school, as well as reporting him to the police and filing a defamation suit against him. Layshock and his parents sued to challenge the suspension as overstepping the school system's jurisdiction, since there was no evidence that Layshock used school time or school computers to create the MySpace page.

The Student Press Law Center filed a friend-of-the-court brief, joined by the Pennsylvania Center for the First Amendment, supporting Layshock's position. The groups argue that allowing school officials to discipline students for purely off-campus, online speech will threaten students' ability to engage in editorial commentary about school matters, or to maintain online "underground newspapers" that can take on controversial topics that many school officials censor from on-campus newspapers.

On-campus student speech normally is governed by the standard coined by the Supreme Court in 1969 in Tinker v. Des Moines Independent School District, in which the Court ruled that students do not "shed their First Amendment rights at the schoolhouse gate." Under Tinker, school officials may penalize lawful student speech only if they show that the speech was reasonably expected to create a substantial disruption of school activities.

Playing off Tinker's most famous passage, Sanchez said the court could apply Tinker's "substantial disruption" standard to 21st-century online media because "this is a different era -- the schoolhouse gate has changed."

McKee shot back: "The First Amendment hasn't."

Attorney Witold J. Walczak of the American Civil Liberties Union of Pennsylvania, representing Layshock, picked up on the Tinker theme, telling the judges that the Supreme Court clearly meant in Tinker that students enjoy the full protection of the First Amendment when they are not on school grounds: "When you exit the schoolhouse gate, you go to the coat check and say, 'I'll pick up the rest of my rights.'"

Walczak argued that cases such as Tinker, which recognize that students sometimes have a reduced level of free-speech protection, were based on deference to schools' need to keep order during the school day. But it is improper to give school authorities the same level of leeway when the student is speaking on the weekend in his own home, Walczak argued. Instead, he said, the school should have to satisfy the extremely heavy burden to justify government regulation of any citizen's speech that takes place off government property.

Although several federal courts have suggested that schools can police off-campus speech when it is intended to reach an on-campus audience, Walczak said that standard is wrong, because it would let schools punish just about anything a student writes that criticizes the school: "Anytime you post anything controversial or say anything negative about students or school officials, it's going to come to the attention of the school."

The school district's primary argument is that Layshock's conduct was punishable under the standard recognized by the Supreme Court in Bethel School District v. Fraser. In Fraser, the Court held that a school did not violate the First Amendment by disciplining a student who gave a "vulgar" and "lewd" speech filled with sexual innuendo in front of an on-campus student assembly. Sanchez called Layshock

"a very classic Fraser-type case," except that Layshock used even more explicit and offensive language.

But McKee sounded skeptical: "If a school district can suspend everybody who uses vulgar language on the 'Net -- boy, that's going to solve your budget deficit, because no one's going to show up for school anymore."

Sanchez suggested that the rules protecting student speech in traditional media need to be re-thought in the context of online speech, because the Internet provides a "much more effective" way of getting a student's message to his intended audience. That brought a dubious reaction from Roth: "Is that the standard -- that if your method of communication is effective, we'll punish, but if your message can't be heard, we'll leave it alone?"

Sanchez repeatedly analogized Layshock's case to that of the student in Morse v. Frederick, the Supreme Court's most recent student speech case. In Morse, the Court ruled that the First Amendment did not prevent an Alaska high school from punishing speech on a banner ("Bong Hits 4 Jesus") that a student displayed at a school-sanctioned event, because the speech encouraged the use of illegal drugs. Sanchez pointed out that, as in Layshock, the student's conduct in Morse took place off school grounds (in that case, across the street from the school on a public sidewalk), yet was still subject to school authority.

Citing some of the "hobbies" and "interests" that Layshock mockingly attributed to Trosch in the MySpace profile -- one line in the profile called Trosch a "big steroid freak" -- Sanchez said the profile, just like Frederick's "bong hits" banner, was "celebratory of drug use." But McKee said the profile clearly intended to attribute bad qualities to Trosch, so the drug references were meant as negatives.

Sanchez also faced tough questioning over the school's contention that Layshock "entered" the school -- thus making his speech on-campus speech -- by copying a photo of Trosch from the school Web site to create the mock profile.

"You've got a lot of strong arguments in your brief -- that may be the weakest one," McKee told him, adding that the school assumed the risk that someone would copy and use Trosch's photo when the school posted it on its own Web site.

Under questioning from the judges, Sanchez acknowledged that the school's case for exercising jurisdiction over Layshock's online activity "would have been weaker" if not for the alleged misuse of the school photo. And he conceded that, if the profile had been laudatory rather than insulting, "then we are not in a territory where the school district can discipline."

As is customary, the panel took the case under advisement and did not indicate when it will rule. It typically takes several months for a federal appeals court to hand down a decision after hearing oral argument.


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