Full 3rd Circuit Weighs Student Web Speech

By Mark Walsh — June 04, 2010 3 min read
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A federal appeals court on Thursday weighed whether students may face school discipline for speech created off campus that parodies school administrators, sometimes in vulgar and offensive terms.

The full U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, heard some two hours of arguments in two closely watched cases involving parodies of school principals posted by students on the MySpace social-networking site. Separate three-judge panels of the 3rd Circuit issued rulings on Feb. 4 that had upheld a student’s discipline in one case and overturned it in another. That prompted confusion for schools and students, and the full 14-member court agreed to reconsider both cases.

“Can a student demean and say scandalous things about a school district administrator or a principal, and how does that affect the administration of a school district?” Anthony Sanchez, the lawyer for the Hermitage, Pa., school district, said during the arguments. “The Internet has changed the nature of the game.”

[I am basing this post on listening to the 3rd Circuit’s audio of the two arguments. However, because I was not present in the courtroom, I cannot identify members of the court who asked questions. The arguments can be downloaded from this page.]

Sanchez represents the district that disciplined Justin Layshock, who created a 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.”

Layshock was suspended, and he and his parents sued under the free-speech clause of the First Amendment. The 3rd Circuit panel decision in Layshock v. Hermitage School District, which has been set aside amid the full court’s reconsideration, said the parody did not disrupt school and thus the student’s discipline violated his speech rights.

Witold Walczak, the lawyer representing the student, said during the arguments, “As hurtful as this speech may be, there is a countless line of cases where the Supreme Court has protected speech that is offensive, that’s provocative, that involves opprobrious words [and] abusive language.”

In the other case, a 3rd Circuit panel had ruled 2-1 in J.S. v. Blue Mountain School District 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.” That panel decision was also set aside by the full court.

Walczak, the legal director of the American Civil Liberties Union of Pennsylvania, also represented J.S. before the full 3rd Circuit. He said school administrators can have “conversations” with students who create offensive speech off campus, but the Supreme Court’s school speech cases do not extend to parodies created off campus.

“No court has upheld punishment of off-campus speech without a finding of substantial and material disruption” of school, Walczak said.

Jonathan Riba, the lawyer representing the Blue Mountain school district, said J.S.'s fake profile “did create an immediate disruption which required an immediate action.”

“The district has no interest of becoming the censor of the World Wide Web,” Riba said. “However, the district does have an interest in maintaining an environment in which student speech does not invade the rights of others.”

The judges threw various hypotheticals at the lawyers, and both sides drew sympathetic comments from the bench.

“The First Amendment allows people to say things that aren’t nice,” one 3rd Circuit judge said.

Another judge asked, “Is there no way a school administrator can act to protect his or here reputation unless there is a physical trespass on the property?”

The 3rd Circuit court took the two cases under advisement.

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