The Wall Street Journal Law Blog and the Legal Intelligencer report that the Third Circuit Court of Appeals has before it two appeals testing the limits of school authority to punish student speech on the Internet. The two cases have remarkably similar facts, but the trial courts that decided them came to completely opposite conclusions.In Layshock v. Hermitage School District, a Pennsylvania school district suspended high school student Justin Layshock and ordered him to finish high school in an "Alternative Education Program" after he created a fake MySpace profile for his school principal, Eric Trosch. Justin created the profile off school grounds using his grandmother's computer. In the profile, he included a photograph of Trosch copied from the school's website and attributed to Trosch silly and crude statements riffing on the theme "big" ("big blunt," "big keg behind my desk," "big fag," "big hard-on," "big steroid freak," "big whore," etc.).
After the school disciplined him, Layshock sued the school district for violating his First Amendment rights. A federal district court granted summary judgment to Layshock, holding that the school could not constitutionally punish him for out-of-school speech that did not substantially disrupt the school environment. The school district appealed.
In J.S. v. Blue Mountain School District, another Pennsylvania school district suspended two eighth-grade girls for creating a fake MySpace profile for their principal, James McGonigle. As in Layshock's case, the students created the profile off school grounds, used a photograph from a school website, and attributed false and embarrassing statements to their principal (in this case portraying him as a sex-obsessed pedophile).
One of the students sued the school district for violation of her First Amendment rights. A different federal district court granted summary judgment for the school district, holding that the school could constitutionally discipline lewd and vulgar out-of-school speech that had an effect on the school environment, even if this effect didn't amount to a "substantial disruption" under Tinker v. Des Moines Ind. Sch. Dist., 393 U.S. 503 (1969). The student appealed.
It is not clear whether the same panel of the Third Circuit will hear and decide both cases. One hopes, however it's done, that the Court of Appeals will hand down a single, consistent rule to govern this important issue. Oral argument in the Layshock case took place on Wednesday, and reports suggest that the judges were skeptical of the school district's argument that it had authority to punish online speech. This is not surprising, as the students seem to have the better side of the argument on this one. For more detailed treatment of this issue, see Mary-Rose Papandrea's excellent post - Schools Lack Authority to Punish Online Student Speech -- or her recently published article on the topic.