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Lawyers in two online speech cases will seek Supreme Court review
J.S., Doninger would be the high court's first cases addressing student expression on the internet
June 28, 2011

WASHINGTON, D.C. — Earlier this year, federal appeals courts decided three key cases focusing on online student expression rights. Now, lawyers in two of those cases will ask the nation’s highest court to weigh in.

Less than two weeks after the 3rd U.S. Circuit Court of Appeals found 8-6 in favor of a middle school student who mocked her principal on MySpace, the school district announced its intention to appeal to the Supreme Court. The district authorized its legal counsel to petition the Court to grant certiorari, or “cert” for short.

"We feel we have to pursue [an appeal] because we feel we have an obligation to protect our faculty and staff from the misuse of social media and other things," said Carl Yeich, board president of the Blue Mountain School District, at a school board meeting covered by the Republican-Herald newspaper.

“J.S.” was a student at Blue Mountain Middle School in Pennsylvania in 2007 when she was suspended for 10 days after creating a MySpace profile mocking the school principal, James McGonigle. Her parents sued the school district on her behalf for violating her First Amendment rights and their due process rights to discipline their child as they wished.

Both the district court and a three-judge panel of the Third Circuit found in favor of the school district. However, when the full Third Circuit court reheard the case along with an extremely similar one, Layshock v. Hermitage School District, it found in favor of the students in both cases.

“It’s their prerogative [to appeal the case],” said Witold “Vic” Walczak, legal director of ACLU Pennsylvania. “We don’t believe that this is a cert-worthy case, but obviously the Supreme Court will make up its own mind.”

Lawyers for Hermitage School District did not return calls asking whether they would file for an appeal. The district has until Sept. 12 to ask the Supreme Court to grant them an appeal.

On April 25, a panel of judges from the 2nd U.S. Circuit Court of Appeals concluded that Connecticut student Avery Doninger’s First Amendment rights were not violated when she was prevented from running for class office, and later prevented from accepting the office she was elected to by write-in ballot, after calling school administrators “douchebags” on her blog in 2007.

The Second Circuit determined that the district had been “objectively reasonable” in their decision to punish her for her blog post. It granted the district immunity from the lawsuit but did not address whether Doninger’s rights were violated.

Doninger attorney John Schoenhorn wrote in an email that he intends to ask the Supreme Court to hear an appeal in this case as well because the conflict between the Second Circuit and Third Circuit’s decisions could create confusion.

Doninger must file for appeal with the Supreme Court by July 25, and Blue Mountain School District must file by Sept. 12. The Supreme Court will then decide if it will hear either of the cases. They would be the first rulings from the high court on students’ right to free speech on the Internet.

By Emily T. Gerston, SPLC staff writer

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