Two panels of the same federal appeals court reached seemingly opposite conclusions today about whether parodies of school principals on MySpace created by students off campus are protected by the First Amendment.
In one case, a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled unanimously that a high school senior’s parody profile of his principal, created on a computer at his grandmother’s house, did not disrupt school and thus was protected free speech.
But in a second case, 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 first case is Layschock v. Hermitage School District, which involved high school senior Justin Layshock’s MySpace parody of his principal, Eric Trosch. According to court documents, the profile 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’s profile of the principal was viewed by students at Hickory High School in Hermitage, Pa., for several days before access to MySpace from school computers was shut down. Layshock was charged with violating the high school’s discipline code and suspended for 10 days, placed in an alternative education program for the rest of the school year, and barred from his graduation ceremony.
Layshock and his parents sued, alleging that school officials violated the student’s free-speech rights. A federal district court ruled for Layshock on the First Amendment speech claim.
In its Feb. 4 opinion, the 3rd Circuit panel said it was uncontested that the parody MySpace page did not substantially disrupt school, and that Layschock was disciplined solely for creating it.
“We have found no authority that would support punishment for creating such a profile unless it results in foreseeable and substantial disruption of school,” the court said.
The second decision is J.S. v. Blue Mountain School District. In that case, the fake principal profile was created by a 14-year-old student identified in court papers as J.S and another student. The profile identified interests such as “being a tight ass,” “spending time with my child (who looks like a gorilla),” and “hitting on students and their parents.” The profile contained this statement (among other more vulgar remarks):
“For those who want to be my friend, and aren’t in my school
I love children, sex (any kind), dogs, long walks on the
beach, tv, being a dick head, and last but not least my
darling wife who looks like a man (who satisfies my needs)”
This fake profile was noticed by the students of Blue Mountain Middle School in Orwigsburg, Pa., and soon Principal James McGonigle learned who had produced it. He suspended J.S. and the second student for 10 days (as well as threatening other, personal legal action.)
The school district said the profile disrupted school in several ways, including that two teachers had to quiet their classes when they were talking about it, and some students welcomed the two offenders back from their suspensions by decorating their lockers to congratulate them on their actions.
J.S.'s parents sued the school district, alleging that the discipline of their daughter violated her First Amendment free-speech rights, among other claims. A federal district court upheld the discipline, and in its opinion today, so did the 3rd Circuit panel. (Again, one that was made up of different judges from the one in the first case.)
The majority on the panel said the actual disruptions identified by the school district—the classroom discussions and the locker decorations—did not rise to the level of being “substantial.” But the fake profiles’ potential to continue to cause disruption was “reasonably foreseeable,” the court said.
“It is apparent that the underlying cause for McGonigle’s concern about the profile was its particularly disturbing content, not a petty desire to stifle speech critical of him,” the majority said. “The girls embarrassed, belittled, and possibly defamed McGonigle. They
created the profile not as a personal, private, or anonymous expression of frustration or anger, but as a public means of humiliating McGonigle before those who knew him in the
context of his role as middle school principal.”
“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,” the majority said.
The dissenting judge, Michael A. Chagares, said that “neither the Supreme Court nor this court has ever allowed schools to punish students for off-campus speech that is not school-sponsored and that caused no substantial disruption at school.” The majority’s holding “significantly broadens school districts’ authority over student speech; I believe that this holding vests school officials with dangerously overbroad censorship discretion.”
(Hat Tip to How Appealing on these decisions.)
A version of this news article first appeared in The School Law Blog.