Appeals Court Rules that Schools' Punishment for Off-Campus Internet Speech Violated First Amendment Rights

June 13, 2011
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PHILADELPHIA - The U.S. Court of Appeals for the Third Circuit made clear today that schools cannot punish students for out-of-school speech that does not create a substantial and material disruption inside the school in its first two rulings addressing how far schools can go in punishing students for speech they post on the Internet.

In two separate opinions, the Third Circuit, sitting "en banc," ruled in favor of students who were punished for creating MySpace parodies of their respective school principals from their home computers.

"Today's court decisions state that principals can't punish students for speech outside of school simply because it offends or criticizes them," said Witold "Vic" Walczak, legal director for the ACLU of Pennsylvania and one of the attorneys for the students.

The decisions by the full Court of Appeals came more than a year after two separate three-judge panels issued conflicting rulings in the cases, finding one student's speech protected by the First Amendment but not the other's. The losing parties in each case asked the full court to rehear the cases.

In one of today's rulings, the Third Circuit reached a unanimous decision, holding in Layshock v. Hermitage School District, that Hermitage School District violated the free-speech rights of high school senior Justin Layshock when it suspended him for 10 days for creating a parody MySpace profile of Hickory High School principal Eric Trosch, even though Layshock created the profile from a computer at his grandmother's house, during non-school hours, and his actions did not disrupt the school. The court held that schools cannot punish students for off-campus speech that is lewd, vulgar or indecent even if it is directed at school officials.

"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," said Chief Judge Theodore McKee in his opinion for the court.

In the other factually similar case, J.S. v. Blue Mountain School District, the Third Circuit ruled 8-6 that Blue Mountain School District violated the free-speech rights of an eighth grader when it suspended her for ten days for creating a parody profile of her principal, James McGonigle, on MySpace.com. The court reversed the decision of the district court and rejected the school district's argument that the profile caused a material and substantial disruption inside school.

"The facts in this case do not support the conclusion that a forecast of substantial disruption was reasonable," said Judge Michael Chagares in his majority opinion. "If anything, McGonigle's response to the profile exacerbated rather than contained the disruption in the school."

Five of the eight judges who joined the majority opinion in J.S. also signed onto a concurring opinion by Judge D. Brooks Smith, stating that students' off-campus speech should be entitled to the same First Amendment protection as that of a non-student.

"The First Amendment protects students engaging in off-campus speech to the same extent it protects speech by citizens in the community at large," said Judge Smith.

The cases decided today are Layshock v. Hermitage School District and J.S. v. Blue Mountain School District.

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