Third Circuit sides with students in online speech fight
Landmark rulings leave some questions unanswered
PENNSYLVANIA — Public school students cannot be punished for off-campus speech that fails to cause a substantial disruption to in-school activities, the 3rd U.S. Circuit Court of Appeals ruled Monday.
In the 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 in Pennsylvania — the judges held that administrators are limited in their ability to restrict student speech that occurs outside of school.
The Third Circuit becomes the highest court in the nation to draw a clear line establishing what school districts are legally permitted to do to control student expression on the Internet.
Advocates for student free speech said the rulings were among the most significant to come down in recent years.
“‘Landmark’ is the only word that can be used to describe these rulings,” said Adam Goldstein, attorney advocate for the Student Press Law Center. “The school districts here were arguing that being a student is an impediment to your civil rights, no matter where you are. Today, the Third Circuit stood up and told them ‘there’s a line, and you’ve crossed it.’”
Both cases dealt with fake MySpace profiles created to mock school principals.
In Layshock, Justin Layshock, a former student at Hickory High School in Hermitage, Pa., used his grandmother’s computer to create a fake profile for Principal Eric Trosch. On the parody profile, Layshock wrote that Trosch had used drugs, shoplifted and taken steroids.
Apart from a photo of Trosch that Layshock took from the school’s website, all work on the page was unconnected with school.
Though a three-judge panel of the Third Circuit ruled in favor of Layshock in February 2010 — finding that the school’s decision to suspend the student was a violation of his First Amendment rights — a separate panel came out with a simultaneous, conflicting decision in J.S.
In J.S., a then-middle school student in Pennsylvania’s Blue Mountain School District used an off-campus computer to create a fake MySpace profile ridiculing her principal, James McGonigle. Like Layshock’s, the profile featured mock references to McGonigle’s past behavior, including sexually explicit language.
The three-judge panel held in J.S. that the school district’s suspension of the female student did not violate her First Amendment rights.
Chief Judge Theodore McKee wrote in Monday’s unanimous opinion in Layshock that “it would be an unseemly and 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 extent that it can control that child when he/she participates in school-sponsored activities. Allowing the [school] district to punish Justin for conduct he engaged in while at his grandmother’s house using his grandmother’s computer would create just such a precedent ...”
The majority opinion, however, did not decide whether the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District — which held that public school students have a right to speak freely, with the exception of speech that is illegal or causes a substantial disruption — should be the standard for off-campus speech.
School district officials declined to challenge prior holdings that the speech in question was not disruptive under the Tinker standard.
In reference to the applicability of Tinker, McKee wrote that “we need not now define the precise parameters of when the arm of authority can reach beyond the schoolhouse gate because, as we noted earlier, the district court found that Justin’s conduct did not disrupt the school, and the [school] district does not appeal that finding.”
Vic Walczak, who represented the students in both cases on behalf of the American Civil Liberties Union of Pennsylvania, said the court’s decision not to establish clear, replicable standards for governing off-campus student speech “fails to resolve the most important question at hand.”
Though Walczak said the ACLU was “thrilled to win cases for both of our clients,” he added that “what we got was harmony in these decisions. What we didn’t get was clarity.”
Anthony Sanchez, who represented the school district on behalf of Andrews & Price LLC, said he is “obviously disappointed by the decision,” but is still “in the mode of analyzing.”
Goldstein said the holding in Layshock “didn’t answer every question that was presented, but did answer the most important question.”
“Is there a place where a student can go that’s far enough away from school grounds to allow that student to speak freely online? Every single one of the 14 judges on that court said ‘yes,’” he said. “We may not have won every single skirmish, but don’t underestimate the significance of winning this battle.”
A two-person concurrence by judges Kent Jordan and Thomas Vanaskie argued that Tinker is applicable to off-campus speech.
The crux of the majority opinion in J.S. was much the same as Layshock’s.
In an 8-6 decision, the Third Circuit overturned a District Court ruling that, although J.S.’s profile did not cause a “substantial and material” disruption under Tinker, the school district’s punishment was constitutional because the MySpace page contained “vulgar and offensive” language.
The majority made reference to Bethel School District v. Fraser, a 1986 Supreme Court case which held that a school did not violate a student’s First Amendment rights after it suspended him for making an in-school, public speech full of sexual double entendres.
Judge Michael Chagares wrote that “under these circumstances, to apply the Fraser standard to justify the school district’s punishment of J.S.’s speech would be to adopt a rule that allows school 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 brought to the attention of a school official and is deemed ‘offensive’ by the prevailing authority ... Accordingly, we conclude that the Fraser decision did not give the school district the authority to punish J.S. for her off-campus speech.”
The majority ruled in the school’s favor on several secondary issues, holding that the school district’s policies were not unconstitutionally “vague and overbroad,” and that the constitutional rights of J.S.’s parents — Terry and Steven Snyder — were not violated when their daughter was disciplined.
Like McKee, Chagares avoided answering the question of whether Tinker is the appropriate standard to govern off-campus speech.
In a dissenting opinion, six judges argued that Tinker can and should be applied to off-campus student speech; five judges countered that claim in a concurring opinion, asserting instead that “the First Amendment protects students engaging in off-campus speech to the same extent it protects speech by citizens in the community at large.”
Rulings from the Third Circuit are binding precedent in the states of Pennsylvania, New Jersey and Delaware. The only possible route left to appeal either decision would be to petition the U.S. Supreme Court for review.
While Walczak said he would be surprised if Layshock is appealed to the Supreme Court, he does not think he has seen the last of J.S.
Regardless of the future for both cases, Goldstein said Monday’s rulings represented “a real victory for students.”
“Every student who publishes online ought to breathe a sigh of relief that administrators do in fact have limits on what they can control,” he said. “This is an extremely significant decision.”
- Read the decision in Layshock v. Hermitage Sch. Dist..
- Read the decision in J.S. v. Blue Mountain Sch. Dist..
- Conflicting online speech rulings vacated, will be heard by full Third Circuit, News Flash 4/13/2010
- Third Circuit hands down conflicting student speech rulings, News Flash 2/4/2010
- Judge upholds discipline for mock MySpace page News Flash, 9/23/2008
- Court hears arguments over student's suspension for fake Myspace page News Flash, 12/11/2008
- Tangled Web The Report, 8/20/2008
- Both sides to appeal in case over mock profile of principal The Report, 12/17/2007
- Court: MySpace suspension violated student's rights News Flash, 7/16/2007
- Principal sues former students for MySpace page News Flash, 4/10/2007
- School district blames ACLU for student's defamation claim News Flash, 3/3/2006