Finally! Court clarifies murky online speech rulings

June 16, 2011 by Claire Knight

Posted in: Free Speech, In this week's e-newsletter, Latest News & Views, Legal News

Can school officials discipline students for out-of-school speech posted on the web? The Third Circuit has finally answered that question.

The American Civil Liberties Union (ACLU) announced the findings of two separate opinions that clarified schools’ murkiest tech challenge: online, out-of school speech.

In 2010, two cases with similar facts ended in seemingly controversial rulings.

The Third Circuit agreed to rehear both cases, which it did this month.

Sitting en banc, fourteen circuit judges ruled that school officials “can’t punish students for out-of-school speech simply because it offends or criticizes them,” according to ACLU Legal Director Witold Walczak.

What happened in 2010

In the first case, eighth-grader J.S. created a fake profile of her principal on her home computer. The profile:

showed the principal’s photo
claimed he was a bisexual and a sex addict, and
hinted that he was a pedophile.

During the school’s investigation, J.S. admitted her involvement and was suspended for 10 days. She filed suit, claiming the school violated her speech rights.

The court ruled that the suspension did not violate J.S.’s speech rights. It found the profile created a reasonable possibility of causing a future school disruption.

Cite: J.S. v. Blue Mountain School District (2010)

In the second case, 17-year-old senior Justin Layshock created a parody profile of his school principal at his grandmother’s home. Layshock included a photo of the principal on the fake profile, which described him as a drunken drug user.

After he was suspended, Layshock sued, claiming a violation of his speech rights.

This time, a different panel of judges in the Third Circuit held that the school district violated Layshock’s First Amendment rights by disciplining him for creating the profile.

Cite: Layshock v. Hermitage School District (2010)

After the rulings, Walczak, who represented both students, said there’s “less guidance than ever” in the gray area of online, out-of-school speech.

The updated rulings

Sitting en banc, fourteen circuit judges reheard both cases this month.

J.S. v. Blue Mountain School District: In an 8-6 split decision, the full panel reversed the earlier decision, noting that J.S.’s speech did not cause a substantial disruption at school.

The court pointed to three key factors:

J.S. created the profile at home
she didn’t intend for the speech to reach the school and took steps to make the profile private so it wasn’t accessible to everyone, and
the school’s “response to the profile exacerbated rather than contained the disruption at school.”

Layshock v. Hermitage School District: The panel unanimously affirmed the 2010 decision that found the school violated Layshock’s speech rights.

In this case, the court pointed out:

Layshock didn’t create the profile at school, and
his speech didn’t cause a disruption at school.

“It is no accident that [the two cases] were taken en banc at the same time, were argued on the same date, and are being decided simultaneously,” Circuit Judge Jordan wrote in his opinion for the court.

The U.S. Supreme Court has yet to address the issue of out-of-school speech.

So for now, the rulings are clear: Students can’t be disciplined for out-of-school speech that doesn’t cause a disruption — or a foreseeable disruption — at school.

Do you agree with the rulings, or do you think the decisions send an “anything goes” message to students about their online speech? Sound off below — and don’t forget to follow us on Twitter.

Tags: ACLU, American Civil Liberties Union, Blue Mountain School District, First Amendment, Free Speech, Hermitage School District, MySpace

Terri Main

Honestly, the problem here is not free speech per se or school disruption, but libel. If such things were published in a newspaper they would be actionable through a civil suit unless it was clear these were parodies and not real. Not having looked at the profiles I wouldn’t know for sure how realistic they were.

Now, something where a student simply criticizes a teacher or school like “Mr. So and So is such a bad teacher” or “I hate Principal _____ She isn’t fair” should not be actionable since it is fair comment and criticism.

Things, though, which imply as truth illegal or immoral acts on the part of another without proof and featuring actual malice should be dealt with, but not through the school, rather through civil action.
Carl Bonner

The issue is not only free speech but the responsibility that comes with freedom of speech. Indeed it is not an issue that the school would need to deal with. However, this sort of electronic “grafitti” should be dealt with as an issue of libel. (Hats off to Terri Main!)
Macherb

I agree with Terri. If I were the principle I would have simply sued the students in court for libel. It would have been a great educational moment for the students and the student body, showing that you may have free speech but you also have to be responsible for what you say. The students also violated most use policies of most IAP’s and web sites by posting under a fraudulent ID so there may have been other action that could have been taken. Issues of copyright violation and likeness rights could have also resulted in the sites being taken down.

There was a great scene in the TV show Boston Public that dealt with it very well. Every time the student would post something, she would be suspended. The girls’s father would have his lawyer go down and demand reinstatement. The assistant principle would agree (the father of course would be billed for the hours). After enough go rounds the father put a stop to it. Hmmm, are you listening Blue Mountain and Hermitage?
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