Third Circuit Asked to Clarify Student Internet Speech Cases

Cutting-edge questions in the First Amendment arena have recently stemmed from clashes between students and school districts over the limits ' if any ' that may be imposed on speech posted on social networking sites like MySpace and Facebook.

The cases sometimes pose difficult questions because the students claim that their speech occurred entirely outside of school, while school officials contend that discipline is warranted because the intended audience was the school community and the goal was to create a disturbance.

Now lawyers on both sides of the issue are urging the Third U.S. Circuit Court of Appeals to vacate two recent ' and seemingly conflicting ' decisions by two different three-judge panels, and to hold rearguments before the full court. Both cases involved high school students who were suspended for creating fake MySpace pages on their home computers to ridicule their principals.

Similar Issues, Conflicting Rulings

Outsiders are also weighing in with amicus briefs that say the rulings have muddied the waters and left students and school officials guessing about where the lines have been drawn.

Lawyers for student journalists argue that the conflicting rulings will invite censorship. And lawyers who specialize in juvenile law argue that teenagers have always ridiculed authority figures and that courts should not condone punishing kids for their speech outside school hours and off school grounds.

While the legal issues in the two cases appeared identical, the courts reached opposite conclusions ' both at the trial level and on appeal.

In Layshock v. Hermitage School District, No. 07-4465, 2010 WL 376184, (3d Cir. Feb. 4, 2010) (available at www.ca3.uscourts.gov/opinarch/074465p.pdf), Judge Terrence F. McVerry of the Western District of Pennsylvania found that school officials went too far when they suspended Justin Layshock for creating a fake profile of Hickory High School's principal, Eric Trosch, that said he was a “big steroid freak,” a “big hard ass” and a “big whore” who smoked a “big blunt.”

In J.S. v. Blue Mountain, No. 08-4138, 2010 WL 376186 (3d Cir. Feb. 4, 2010) (available at www.ca3.uscourts.gov/opinarch/084138p.pdf), Judge James M. Munley of the Middle District of Pennsylvania upheld a 10-day suspension of a student who posted a profile on MySpace in March 2007 that showed a photo of principal James McGonigle and described him as a pedophile and a sex addict whose interests included “being a tight ass,” “fucking in my office” and “hitting on students and their parents.”

When the cases went on appeal, it became clear from oral arguments that the two panels viewed the law very differently. Those differences were set in stark relief when the Third Circuit handed down both decisions on the same day.

In Layshock, a unanimous three-judge panel declared that punishing students for off-campus speech violates their First Amendment rights. But the Blue Mountain panel split, voting 2-1 that students may be punished for lewd speech on the Internet about school officials that has the potential to create a substantial disturbance at the school.

Muddy Waters

Now the lawyers on the losing end in both cases are urging the Third Circuit to rehear their cases before the full court.

In a brief urging the Third Circuit to rehear the Layshock case, attorney Anthony G. Sanchez of Andrews & Price in Pittsburgh, PA, argues that the school districts would have won in both appeals if the panels had recognized how the Internet has transformed student speech.

“A student can more easily demean and injure the reputation of a member of the school community with vulgar and lewd language and share such pronouncements with a targeted school audience by way of the Internet than by any other means,” Sanchez wrote.

Speech in school hallways is strictly limited in terms of the number of people who hear it and exists for a finite time, Sanchez argued, whereas speech on the Internet “can be directed to the entire school community and beyond with an unlimited lifespan.”

Attorneys Witold Walczak and Mary Catherine Roper of the ACLU of Pennsylvania, along with Mary E. Kohart of Drinker Biddle & Reath, argue that the conflicting rulings cannot coexist because they confuse both students and administrators ' and lower court judges ' about the state of the law.

“These incompatible decisions from the same court will assuredly sow doubt concerning school officials' authority to punish students for expression, both inside and outside of school, and will create confusion in the district courts about how to resolve disputes in a factual scenario that is likely to recur with greater frequency as more students gain access to the Internet,” they wrote.

The Blue Mountain case, they argue, effectively ignored the Layshock ruling and introduced a “radical inconsistency” into the Third Circuit's jurisprudence on students' rights, which the judges should hear as a “clarion call for the entire court to review the decision and re-establish a coherent body of law for the circuit.”

Supporting the ACLU in its en banc petition, attorneys Marsha L. Levick and Lourdes Rosado of the Juvenile Law Center argue in an amicus brief that vulgar and offensive speech is a normal part of adolescent development.

“Given that this speech is normal, and made outside of the school setting, suspending a student for uttering the speech is unjustified,” they wrote.

The panel's ruling, they argue, “stretches the limited power of school officials to punish student speech beyond reasonable bounds. Allowed to stand, it opens the door to an unprecedented era in which adolescents can be punished for expression that is normal for teenagers, if sometimes uncomfortable for adults.”

Cutting-edge questions in the First Amendment arena have recently stemmed from clashes between students and school districts over the limits ' if any ' that may be imposed on speech posted on social networking sites like MySpace and Facebook.

The cases sometimes pose difficult questions because the students claim that their speech occurred entirely outside of school, while school officials contend that discipline is warranted because the intended audience was the school community and the goal was to create a disturbance.

Now lawyers on both sides of the issue are urging the Third U.S. Circuit Court of Appeals to vacate two recent ' and seemingly conflicting ' decisions by two different three-judge panels, and to hold rearguments before the full court. Both cases involved high school students who were suspended for creating fake MySpace pages on their home computers to ridicule their principals.

Similar Issues, Conflicting Rulings

Outsiders are also weighing in with amicus briefs that say the rulings have muddied the waters and left students and school officials guessing about where the lines have been drawn.

Lawyers for student journalists argue that the conflicting rulings will invite censorship. And lawyers who specialize in juvenile law argue that teenagers have always ridiculed authority figures and that courts should not condone punishing kids for their speech outside school hours and off school grounds.

While the legal issues in the two cases appeared identical, the courts reached opposite conclusions ' both at the trial level and on appeal.

In Layshock v. Hermitage School District, No. 07-4465, 2010 WL 376184, (3d Cir. Feb. 4, 2010) (available at www.ca3.uscourts.gov/opinarch/074465p.pdf), Judge Terrence F. McVerry of the Western District of Pennsylvania found that school officials went too far when they suspended Justin Layshock for creating a fake profile of Hickory High School's principal, Eric Trosch, that said he was a “big steroid freak,” a “big hard ass” and a “big whore” who smoked a “big blunt.”

In J.S. v. Blue Mountain, No. 08-4138, 2010 WL 376186 (3d Cir. Feb. 4, 2010) (available at www.ca3.uscourts.gov/opinarch/084138p.pdf), Judge James M. Munley of the Middle District of Pennsylvania upheld a 10-day suspension of a student who posted a profile on MySpace in March 2007 that showed a photo of principal James McGonigle and described him as a pedophile and a sex addict whose interests included “being a tight ass,” “fucking in my office” and “hitting on students and their parents.”

When the cases went on appeal, it became clear from oral arguments that the two panels viewed the law very differently. Those differences were set in stark relief when the Third Circuit handed down both decisions on the same day.

In Layshock, a unanimous three-judge panel declared that punishing students for off-campus speech violates their First Amendment rights. But the Blue Mountain panel split, voting 2-1 that students may be punished for lewd speech on the Internet about school officials that has the potential to create a substantial disturbance at the school.

Muddy Waters

Now the lawyers on the losing end in both cases are urging the Third Circuit to rehear their cases before the full court.

In a brief urging the Third Circuit to rehear the Layshock case, attorney Anthony G. Sanchez of Andrews & Price in Pittsburgh, PA, argues that the school districts would have won in both appeals if the panels had recognized how the Internet has transformed student speech.

“A student can more easily demean and injure the reputation of a member of the school community with vulgar and lewd language and share such pronouncements with a targeted school audience by way of the Internet than by any other means,” Sanchez wrote.

Speech in school hallways is strictly limited in terms of the number of people who hear it and exists for a finite time, Sanchez argued, whereas speech on the Internet “can be directed to the entire school community and beyond with an unlimited lifespan.”

Attorneys Witold Walczak and Mary Catherine Roper of the ACLU of Pennsylvania, along with Mary E. Kohart of Drinker Biddle & Reath, argue that the conflicting rulings cannot coexist because they confuse both students and administrators ' and lower court judges ' about the state of the law.

“These incompatible decisions from the same court will assuredly sow doubt concerning school officials' authority to punish students for expression, both inside and outside of school, and will create confusion in the district courts about how to resolve disputes in a factual scenario that is likely to recur with greater frequency as more students gain access to the Internet,” they wrote.

The Blue Mountain case, they argue, effectively ignored the Layshock ruling and introduced a “radical inconsistency” into the Third Circuit's jurisprudence on students' rights, which the judges should hear as a “clarion call for the entire court to review the decision and re-establish a coherent body of law for the circuit.”

Supporting the ACLU in its en banc petition, attorneys Marsha L. Levick and Lourdes Rosado of the Juvenile Law Center argue in an amicus brief that vulgar and offensive speech is a normal part of adolescent development.

“Given that this speech is normal, and made outside of the school setting, suspending a student for uttering the speech is unjustified,” they wrote.

The panel's ruling, they argue, “stretches the limited power of school officials to punish student speech beyond reasonable bounds. Allowed to stand, it opens the door to an unprecedented era in which adolescents can be punished for expression that is normal for teenagers, if sometimes uncomfortable for adults.”