Third Circuit: Students' Off-Campus Use of MySpace Not Punishable

In a pair of cutting-edge First Amendment cases, the Third U.S. Circuit Court of Appeals has ruled that school officials cannot discipline students for ridiculing their principals on MySpace during their hours away from school.

The court's 14 judges sat en banc to rehear two cases. In the first, J.S. v. Blue Mountain School District, No. 08-4138, the judges were sharply split, voting 8-6 to overturn a 10-day suspension of a student who posted a fake profile on MySpace that portrayed the principal as a pedophile and a sex addict. (We covered the original hearing in last July's issue: “Third Circuit Mulls Student Suspensions for MySpace Postings,” www.ljnonline.com/issues/ljn_internet law/8_7/news/153962-1.html.)

School Can't 'Reach Into Child's Home'

The second case, Layshock v. Hermitage School District, No. 07-4465, proved to be less divisive. The court was unanimous in finding that the school district had waived any so-called Tinker defense that focuses on speech that causes disturbances at school.

In the U.S. Supreme Court's seminal 1969 decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the justices upheld students' rights to wear anti-war armbands and said student speech cannot be punished unless it created a substantial disruption at the school.

But Hermitage's lawyers focused on a later case, Bethel School District v. Fraser, 478 U.S. 675 (1986), in which the justices recognized that lewd speech is always punishable.

The ACLU argued in Layshock that when the lewd speech occurs off campus, school officials must also satisfy the Tinker test and show disruption.

But Hermitage's lawyer, Anthony G. Sanchez of Andrews & Price in Pittsburgh, argued that school officials need only show a “nexus” between a student's lewd off-campus speech and the school community to open the door to discipline.

Chief Judge Theodore A. McKee, writing for a unanimous court in Layshock, said 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.”

The rulings are victories for attorneys Witold J. “Vic” Walczak and Mary Catherine Roper of the American Civil Liberties Union of Pennsylvania, who represented the students in both cases.

'Overbroad Censorship'

But it was the Blue Mountain case that forced the court to tackle the more difficult legal questions because the school district in that case had fully pressed a Tinker defense, arguing that a student's off-campus and off-hours lewd speech can be punished if it has the potential to disrupt school the next day.

Writing for the majority, Judge Michael A. Chagares rejected the school district's argument that the discipline was proper because the student had targeted school officials and aimed it at the school community.

Such a ruling, Chagares said, “would vest school officials with dangerously overbroad censorship discretion.”

Chagares said the student had created the fake profile “as a joke,” and took steps to make it private so that it would be accessible only to her and her friends.

And while it was “indisputably vulgar,” Chagares said, it was also “so juvenile and nonsensical that no reasonable person could take its content seriously.”

Chagares concluded that lewdness and a connection to the school community was not enough to satisfy the Tinker and Fraser tests.

To rule in favor of the district, Chagares said, the court would be forced 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.”

Under such a test, Chagares said, “two students can be punished for using a vulgar remark to speak about their teacher at a private party, if another student overhears the remark, reports it to the school authorities, and the school authorities find the remark 'offensive.' There is no principled way to distinguish this hypothetical from the facts of the instant case.”

In a concurring opinion, five of the judges who joined Chagares said they would have taken the case one step further by holding that off-campus speech cannot ever serve as the basis for proving a Tinker-style disturbance during school hours.

“Speech originating off campus does not mutate into on-campus speech simply because it foreseeably makes its way onto campus,” Judge D. Brooks Smith wrote in a concurrence joined by McKee and Judges Dolores K. Sloviter, Julio M. Fuentes and Thomas M. Hardiman.

Although the student's speech was “thoughtless,” Smith said, it must be tolerated “in order to provide adequate breathing room for valuable, robust speech ' the kind that enriches the marketplace of ideas, promotes self-government, and contributes to self-determination.”

But in dissent, Judge D. Michael Fisher complained that the majority was severely undermining the ability of school officials to maintain discipline.

Fisher argued that the majority “allows a student to target a school official and his family with malicious and unfounded accusations about their character in vulgar, obscene, and personal language.”

As a result, Fisher said, the court “leaves schools defenseless to protect teachers and school officials against such attacks and powerless to discipline students for the consequences of their actions.”

Fisher's dissent was joined by Judges Anthony J. Scirica, Marjorie O. Rendell, Maryanne Trump Barry, Kent A. Jordan and Thomas I. Vanaskie.

Attorney Jonathan P. Riba of Sweet Stevens Katz & Williams in New Britain, PA, who argued the for the Blue Mountain School District, could not be reached for comment.

Sanchez, who represented Hermitage, says he is studying the decision and has not yet discussed with his client whether to seek U.S. Supreme Court review.

In a pair of cutting-edge First Amendment cases, the Third U.S. Circuit Court of Appeals has ruled that school officials cannot discipline students for ridiculing their principals on MySpace during their hours away from school.

The court's 14 judges sat en banc to rehear two cases. In the first, J.S. v. Blue Mountain School District, No. 08-4138, the judges were sharply split, voting 8-6 to overturn a 10-day suspension of a student who posted a fake profile on MySpace that portrayed the principal as a pedophile and a sex addict. (We covered the original hearing in last July's issue: “Third Circuit Mulls Student Suspensions for MySpace Postings,” www.ljnonline.com/issues/ljn_internet law/8_7/news/153962-1.html.)

School Can't 'Reach Into Child's Home'

The second case, Layshock v. Hermitage School District, No. 07-4465, proved to be less divisive. The court was unanimous in finding that the school district had waived any so-called Tinker defense that focuses on speech that causes disturbances at school.

In the U.S. Supreme Court's seminal 1969 decision in Tinker v. Des Moines Independent Community School District , 393 U.S. 503 (1969), the justices upheld students' rights to wear anti-war armbands and said student speech cannot be punished unless it created a substantial disruption at the school.

But Hermitage's lawyers focused on a later case, Bethel School District v. Fraser , 478 U.S. 675 (1986), in which the justices recognized that lewd speech is always punishable.

The ACLU argued in Layshock that when the lewd speech occurs off campus, school officials must also satisfy the Tinker test and show disruption.

But Hermitage's lawyer, Anthony G. Sanchez of Andrews & Price in Pittsburgh, argued that school officials need only show a “nexus” between a student's lewd off-campus speech and the school community to open the door to discipline.

Chief Judge Theodore A. McKee, writing for a unanimous court in Layshock, said 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.”

The rulings are victories for attorneys Witold J. “Vic” Walczak and Mary Catherine Roper of the American Civil Liberties Union of Pennsylvania, who represented the students in both cases.

'Overbroad Censorship'

But it was the Blue Mountain case that forced the court to tackle the more difficult legal questions because the school district in that case had fully pressed a Tinker defense, arguing that a student's off-campus and off-hours lewd speech can be punished if it has the potential to disrupt school the next day.

Writing for the majority, Judge Michael A. Chagares rejected the school district's argument that the discipline was proper because the student had targeted school officials and aimed it at the school community.

Such a ruling, Chagares said, “would vest school officials with dangerously overbroad censorship discretion.”

Chagares said the student had created the fake profile “as a joke,” and took steps to make it private so that it would be accessible only to her and her friends.

And while it was “indisputably vulgar,” Chagares said, it was also “so juvenile and nonsensical that no reasonable person could take its content seriously.”

Chagares concluded that lewdness and a connection to the school community was not enough to satisfy the Tinker and Fraser tests.

To rule in favor of the district, Chagares said, the court would be forced 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.”

Under such a test, Chagares said, “two students can be punished for using a vulgar remark to speak about their teacher at a private party, if another student overhears the remark, reports it to the school authorities, and the school authorities find the remark 'offensive.' There is no principled way to distinguish this hypothetical from the facts of the instant case.”

In a concurring opinion, five of the judges who joined Chagares said they would have taken the case one step further by holding that off-campus speech cannot ever serve as the basis for proving a Tinker-style disturbance during school hours.

“Speech originating off campus does not mutate into on-campus speech simply because it foreseeably makes its way onto campus,” Judge D. Brooks Smith wrote in a concurrence joined by McKee and Judges Dolores K. Sloviter, Julio M. Fuentes and Thomas M. Hardiman.

Although the student's speech was “thoughtless,” Smith said, it must be tolerated “in order to provide adequate breathing room for valuable, robust speech ' the kind that enriches the marketplace of ideas, promotes self-government, and contributes to self-determination.”

But in dissent, Judge D. Michael Fisher complained that the majority was severely undermining the ability of school officials to maintain discipline.

Fisher argued that the majority “allows a student to target a school official and his family with malicious and unfounded accusations about their character in vulgar, obscene, and personal language.”

As a result, Fisher said, the court “leaves schools defenseless to protect teachers and school officials against such attacks and powerless to discipline students for the consequences of their actions.”

Fisher's dissent was joined by Judges Anthony J. Scirica, Marjorie O. Rendell, Maryanne Trump Barry, Kent A. Jordan and Thomas I. Vanaskie.

Attorney Jonathan P. Riba of Sweet Stevens Katz & Williams in New Britain, PA, who argued the for the Blue Mountain School District, could not be reached for comment.

Sanchez, who represented Hermitage, says he is studying the decision and has not yet discussed with his client whether to seek U.S. Supreme Court review.