Third Circuit Mulls Student Suspensions for MySpace Postings

Fourteen federal appellate judges spent more than two hours talking about high school pranks on June 3 as the Third U.S. Circuit Court of Appeals sat en banc to consider a pair of cutting-edge First Amendment cases brought by students who were suspended for ridiculing their principals on MySpace.

The American Civil Liberties Union of Pennsylvania (“ACLU”) is representing both students and argues that school officials have no power to impose discipline for such off-campus speech.

ACLU attorney Witold Walczak said the U.S. Supreme Court has limited the free speech rights of students while in school ' allowing for discipline if the speech creates a real disruption or is lewd ' but has never authorized punishment for off-campus speech.

But lawyers for the school districts argued that the Internet has fundamentally altered the nature of speech, and that courts need to recognize that old-fashioned notions of speech occurring in a specific place at a defined time simply don't apply.

“It's not a matter of where you throw the grenade ' it's where the grenade lands,” attorney Anthony G. Sanchez of Andrews & Price in Pittsburgh argued.

The nature of the cases ' and the ribald speech at issue ' made for spirited arguments in which nearly all of the judges peppered the lawyers with questions, often posing hypothetical scenarios and asking if the imagined conduct could be punished.

Chief Judge Theodore A. McKee elicited laughs when he asked if a group of students could be punished if they were overheard in a baseball stadium calling their principal a “douchebag.”

Same Issue, Different Results

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

In Layshock v. Hermitage School District, No. 07-4465, 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, 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.”

Both cases were appealed and the Third Circuit also proved to be split. (See, “Third Circuit Asked to Clarify Student Internet Speech Cases” in the April 2010 issue of Internet Law & Strategy, www.ljnonline.com/issues/ljn_internetlaw/8_4/news/153558-1.html.)

In Layshock, a unanimous three-judge panel declared that punishing students for off-campus speech violates their First Amendment rights (available at www.ca3.uscourts.gov/opinarch/074465p.pdf). But the Blue Mountain panel went the other way, 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 (available at www.ca3.uscourts.gov/opinarch/084138p.pdf).

Rehearings

The seemingly conflicting opinions, handed down the same day, left some lawyers scratching their heads. Soon after, the Third Circuit announced that it would rehear both cases en banc.

In the argument on June 3, Sanchez urged the judges to see that “the Internet has changed the nature of the game.”

The Pennsylvania Supreme Court understood that, Sanchez said, in its 2002 decision in J.S. v. Bethlehem Area School District that instructed judges to consider three things: 1) the audience to whom the speech was directed; 2) whether the speech was about school officials; and 3) whether it could be accessed at school.

Judge Marjorie O. Rendell asked why the direction and content of the speech mattered.

“The First Amendment allows people to say things that aren't nice,” she said.

Judge D. Brooks Smith pressed Sanchez on how the Internet would change the court's analysis.

Sanchez explained that the Internet enables a student from his home or any location to target a specific audience of his fellow students with speech about the school that is destined to create a disturbance during school hours.

But Rendell was unimpressed, saying she sees the Internet as enhancing the efficiency of speech, and that “it would turn the First Amendment on its head to say it justifies further burdening speech.”

Walczak, in his two turns at the lectern, was hit with a barrage of questions about where the courts should draw the line on the power of school officials to respond to Internet conduct that later reverberates among students during school hours.

For most of the scenarios posed, Walczak insisted that school officials would have no power to discipline, but insisted they would always be free to call a student's parents in or simply talk to the student.

Judge Kent Jordan asked whether discipline would be appropriate if the student's postings were being accessed by other students at school.

Walczak said schools have the power to carefully regulate Internet access on school computers and that MySpace and other social networking sites can easily be blocked.

Judge Thomas L. Ambro asked about “cyberbullying” in which students harass other students by e-mail and on the Internet.

Walczak said such bullying usually continues on school grounds and that on-campus conduct can be punished. School officials also have the power to call in police or social services, he said, but still cannot impose suspensions for off-campus speech.

Attorney Jonathan P. Riba of Sweet Stevens Katz & Williams in New Britain, PA, arguing for the Blue Mountain School District, told the judges that school officials have “no interest in becoming censors of the World Wide Web.”

But Riba said the shocking allegations made about the principal on the MySpace page ' including charges of child molestation ' warranted a swift response that prevented it from having a disruptive effect.

Judge Dolores K. Sloviter pressed Riba, saying she was worried that his notion of a “reasonable forecast” of a future disruption would have “fantastic implications.”

Riba insisted that schools must have the power to take action “before it reaches the chaos level.”

Judge Joseph A. Greenaway Jr. quibbled with Riba's description of the facts and asked if the analysis would be different if no one would take the student's speech as true. Other judges joined in, saying they believed anyone who viewed the fake MySpace profile would know it was intended as a joke.

The en banc court consisted of 14 judges in each case, but the panels were not identical. Judge Thomas Hardiman had recused from the Layshock case, but sat on the Blue Mountain case; and Senior Judge Jane R. Roth, by virtue of being on the original three-judge panel for Layshock, was invited to sit for the en banc rehearing for that case only.

To win an en banc case, either side needs a majority, in these cases that means eight votes. If the court splits evenly, voting 7-7, the result would be to uphold the lower court rulings.

Further complicating the prognosticating, the court could face a conundrum if Roth and Hardiman disagree. Potentially, one of the cases could be decided by an 8-6 vote, while the other would be tied.

Fourteen federal appellate judges spent more than two hours talking about high school pranks on June 3 as the Third U.S. Circuit Court of Appeals sat en banc to consider a pair of cutting-edge First Amendment cases brought by students who were suspended for ridiculing their principals on MySpace.

The American Civil Liberties Union of Pennsylvania (“ACLU”) is representing both students and argues that school officials have no power to impose discipline for such off-campus speech.

ACLU attorney Witold Walczak said the U.S. Supreme Court has limited the free speech rights of students while in school ' allowing for discipline if the speech creates a real disruption or is lewd ' but has never authorized punishment for off-campus speech.

But lawyers for the school districts argued that the Internet has fundamentally altered the nature of speech, and that courts need to recognize that old-fashioned notions of speech occurring in a specific place at a defined time simply don't apply.

“It's not a matter of where you throw the grenade ' it's where the grenade lands,” attorney Anthony G. Sanchez of Andrews & Price in Pittsburgh argued.

The nature of the cases ' and the ribald speech at issue ' made for spirited arguments in which nearly all of the judges peppered the lawyers with questions, often posing hypothetical scenarios and asking if the imagined conduct could be punished.

Chief Judge Theodore A. McKee elicited laughs when he asked if a group of students could be punished if they were overheard in a baseball stadium calling their principal a “douchebag.”

Same Issue, Different Results

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

In Layshock v. Hermitage School District, No. 07-4465, 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, 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.”

Both cases were appealed and the Third Circuit also proved to be split. (See, “Third Circuit Asked to Clarify Student Internet Speech Cases” in the April 2010 issue of Internet Law & Strategy, www.ljnonline.com/issues/ljn_internetlaw/8_4/news/153558-1.html.)

In Layshock, a unanimous three-judge panel declared that punishing students for off-campus speech violates their First Amendment rights (available at www.ca3.uscourts.gov/opinarch/074465p.pdf). But the Blue Mountain panel went the other way, 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 (available at www.ca3.uscourts.gov/opinarch/084138p.pdf).

Rehearings

The seemingly conflicting opinions, handed down the same day, left some lawyers scratching their heads. Soon after, the Third Circuit announced that it would rehear both cases en banc.

In the argument on June 3, Sanchez urged the judges to see that “the Internet has changed the nature of the game.”

The Pennsylvania Supreme Court understood that, Sanchez said, in its 2002 decision in J.S. v. Bethlehem Area School District that instructed judges to consider three things: 1) the audience to whom the speech was directed; 2) whether the speech was about school officials; and 3) whether it could be accessed at school.

Judge Marjorie O. Rendell asked why the direction and content of the speech mattered.

“The First Amendment allows people to say things that aren't nice,” she said.

Judge D. Brooks Smith pressed Sanchez on how the Internet would change the court's analysis.

Sanchez explained that the Internet enables a student from his home or any location to target a specific audience of his fellow students with speech about the school that is destined to create a disturbance during school hours.

But Rendell was unimpressed, saying she sees the Internet as enhancing the efficiency of speech, and that “it would turn the First Amendment on its head to say it justifies further burdening speech.”

Walczak, in his two turns at the lectern, was hit with a barrage of questions about where the courts should draw the line on the power of school officials to respond to Internet conduct that later reverberates among students during school hours.

For most of the scenarios posed, Walczak insisted that school officials would have no power to discipline, but insisted they would always be free to call a student's parents in or simply talk to the student.

Judge Kent Jordan asked whether discipline would be appropriate if the student's postings were being accessed by other students at school.

Walczak said schools have the power to carefully regulate Internet access on school computers and that MySpace and other social networking sites can easily be blocked.

Judge Thomas L. Ambro asked about “cyberbullying” in which students harass other students by e-mail and on the Internet.

Walczak said such bullying usually continues on school grounds and that on-campus conduct can be punished. School officials also have the power to call in police or social services, he said, but still cannot impose suspensions for off-campus speech.

Attorney Jonathan P. Riba of Sweet Stevens Katz & Williams in New Britain, PA, arguing for the Blue Mountain School District, told the judges that school officials have “no interest in becoming censors of the World Wide Web.”

But Riba said the shocking allegations made about the principal on the MySpace page ' including charges of child molestation ' warranted a swift response that prevented it from having a disruptive effect.

Judge Dolores K. Sloviter pressed Riba, saying she was worried that his notion of a “reasonable forecast” of a future disruption would have “fantastic implications.”

Riba insisted that schools must have the power to take action “before it reaches the chaos level.”

Judge Joseph A. Greenaway Jr. quibbled with Riba's description of the facts and asked if the analysis would be different if no one would take the student's speech as true. Other judges joined in, saying they believed anyone who viewed the fake MySpace profile would know it was intended as a joke.

The en banc court consisted of 14 judges in each case, but the panels were not identical. Judge Thomas Hardiman had recused from the Layshock case, but sat on the Blue Mountain case; and Senior Judge Jane R. Roth, by virtue of being on the original three-judge panel for Layshock, was invited to sit for the en banc rehearing for that case only.

To win an en banc case, either side needs a majority, in these cases that means eight votes. If the court splits evenly, voting 7-7, the result would be to uphold the lower court rulings.

Further complicating the prognosticating, the court could face a conundrum if Roth and Hardiman disagree. Potentially, one of the cases could be decided by an 8-6 vote, while the other would be tied.