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Supreme Court will not hear off-campus speech cases
Justices decline to address student rights online
January 17, 2012

WASHINGTON, D.C. — The U.S. Supreme Court on Tuesday decided not to weigh in on the free speech rights of students on the Internet.

The Court declined to hear appeals in three cases involving public school students who were disciplined at school for MySpace pages they created away from campus.

In a pair of Pennsylvania cases, an appeals court upheld the right of two students to create fake MySpace profiles ridiculing their principals.

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 to biographical 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 parents grounded him and took away his access to their home computer. The school district, however, continued with a formal investigation and found Layshock guilty of violating a number of rules. He received a 10-day, out-of-school suspension and was placed in an alternative education program for the rest of the year. He was also banned from participating in extracurricular activities and 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 the MySpace profile. After the lawsuit was filed, the district agreed to return Layshock to his regular classes, participate in extracurricular activities and attend his graduation ceremony.

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

In the second case, an eighth-grade student at Blue Mountain Middle School created a fake profile in 2007 for her principal, James McGonigle.

The profile did not identify McGonigle by name, but contained 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 his office and hit on students and parents. According to the mock profile:

“I love children, sex (any kind), dogs, long walks on the beach, tv, being a dick head, and last but not least my darling wife who looks like 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 computers blocked the MySpace.com website and the page was set to be viewable only by “friends.” The student also told him that J.S. created the page, according to court documents.

J.S. and her friend received 10-day, out-of-school suspensions and were banned from school dances. McGonigle also filed a formal complaint with Pennsylvania police, who summoned J.S. and her mother to the state 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 Third Circuit agreed.

Targeting other students?

The final case involves Kara Kowalski, then a senior at Musselman 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 No Herpes, We don’t want no herpes.” Kowalski claims the group is an acronym for “Students Against Sluts Herpes,” and was designed to bring awareness to sexually transmitted diseases. Others believe it stood for “Students Against Shay’s Herpes,” referring to “Shay N.” – a fellow student at Musselman.

Kowalski invited about 100 friends to the group, and court documents show about two dozen students joined. One of them, Ray Parsons, soon posted a photo of himself and a friend hold their noses and holding a sign that read “Shay Has Herpes.” Parsons also posted photos of Shay, altered with mock herpes lesions. Other group members, including Kowalski, allegedly responded with approving comments.

According to court documents, Kowalski tried to delete the group 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-school suspension, a 90-day ban from most school events, and was barred from the cheerleading team for the rest of the year and disqualified from her position as the school’s reigning “Queen of Charm.”

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

Courts struggle to apply existing law

The cases were among the first in the nation to address the First 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 addressed the 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, I think 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 landmark decision in Tinker v. Des Moines Independent Community School District should apply in today’s digital world. In that case, the Court upheld the right of students to wear black armbands to school to protest the Vietnam war. The justices declared that students 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 that advocates illegal drug use. The Court has also held that administrators can regulate “school-sponsored” speech such as plays and some student newspapers more freely, needing only to show that they have a legitimate educational reason for doing so.

Lower courts have struggled to apply those cases to situations where students speak outside of school but about school issues or people. Some argue that modern technology has made distinctions between on- and off-campus speech meaningless, while others insist students should retain full First Amendment freedom when they leave campus.

In Layshock and J.S., the Third Circuit declined to decide whether Tinker should apply to off-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 the punishment. It ruled 8-6 in favor of the student. In the Layshock case, the judges unanimously sided with the student, finding that the school had not challenged 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 in agreement that the exception to Tinker for lewd and vulgar speech should not apply away from school. Six of the judges argued that Tinker should be the standard for analyzing disputes about off-campus speech, while five countered that it should not – that students have the same speech rights away from school as do adults in the community at large. Neither position, however, gained enough support on the 14-member court to create a majority.

By contrast, the Fourth Circuit in Kowalski did decide that Tinker applies 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 at another 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 the school has full authority to discipline students for their speech that is made outside of the school and that has nothing to do with the school," Charnes said. "And that’s not only internet speech, but also the school can discipline them for comments they make at the mall or a sleepover at someone’s house or anyplace else -- as long as the school can basically speculate without evidence that there might be copycat 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."

By Brian Schraum, SPLC staff writer

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For More Information:
For a round-up of recent off-campus speech decisions:
Kowalski v. Berkely County Schools:
J.S. v. Blue Mountain School District and
Layshock v. Hermitage School District:

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© 2012 Student Press Law Center

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