Full 3rd Circuit to Rehear Web Parody Cases

By Mark Walsh — April 12, 2010 1 min read
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A federal appeals court has announced that it will re-examine two panel decisions on whether parodies of school principals created by students on MySpace were protected by the First Amendment.

The full U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, set aside rulings by separate three-judge panels that upheld legal protection for one parody but held that the other had the potential to disrupt school and thus was not protected speech. Some legal observers said the rulings were inconsistent or difficult for lower courts and school administrators to apply. I blogged about the cases, which were both decided Feb. 4, here.

In Layshock v. Hermitage School District, the court considered a student’s fake MySpace profile of his principal, which played on the principal’s purported interest in “big” things, such as smoking a “big blunt,” being a “big steroid freak,” having stolen a “big keg,” and having been drunk a “big number of times.”

The student was disciplined, and he and his parents sued under the free-speech clause of the First Amendment. The 3rd Circuit panel said the parody did not disrupt school and thus the student’s discipline violated his speech rights.

In the other case, J.S. v. Blue Mountain School District, a different panel ruled 2-1 that a middle school student’s MySpace parody of her principal, which depicted him as a sex addict and a pedophile, had a substantial likelihood of disrupting school, and thus its creator could be disciplined by school officials. The fake profile said the principal had interests such as “being a tight ass,” “spending time with my child (who looks like a gorilla),” and “hitting on students and their parents.”

“We conclude that the Constitution allows school officials the ability to regulate student speech where, as here, it reaches beyond mere criticism to significantly undermine a school official’s authority in challenging his fitness to hold his position by means of baseless, lewd, vulgar, and offensive language,” a 2-1 majority in the Blue Mountain case said.

Those opinions were vacated on April 9 by the full 3rd Circuit, which agreed to hear new arguments in both cases. The order in the Hermitage School District case is here, and the one in the Blue Mountain district case is here.

The orders indicate that the cases will be reargued on June 3 at 10 a.m.

A version of this news article first appeared in The School Law Blog.