High school students win free speech cases

June 16, 2011

This past Monday the federal Third Circuit Court of Appeals has ruled, En banc, that public schools cannot punish students for online speech made off-campus.

In two separate cases two students created online social profiles of their respective principals at the website Myspace.com. The profiles contained vulgar language and lewd suggestions.

In 2005, Justin Layshock, created a MySpace profile his principal’s name and completed a survey saying he was too drunk to remember his birthday, smokes “big blunts” and under “Interests” listed “Transgender, Appreciators of Alcoholic Beverages.”

The other student, named “J.S.” created a MySpace profile of her principal in 2007. J.S. said the principal’s interests are “detention, being a tight ass, spending time with my child (who looks like a gorilla).” And in the “about me” section said, “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 ) MY FRAINTRAIN….”

In response, both schools gave their students a 10-day suspension. However, Layshock’s school went further, placing him in a Alternative Education Program for the remainder of the school year, banning him from extracurricular activities such as teaching French, and not allowing him to walk at graduation. These punishments prompted the students’ parents to file for both first and fourth amendment right violations– free speech and due process respectively.

While the court was skeptical of Fourth Amendment claims, it agreed that both students’ First Amendment rights were violated. Layshock won 14-0, while J.S. won 8-6. At the heart of both cases were the questions of whether the two profiles’ satirical tones count as defamation and if schools can punish a student for online comments made off-campus.

Judge James Munley, writing for the majority in J.S.’s case, said, “The profile was so outrageous that no one could have taken it seriously, and no one did.”

Judge Theodore McKee, writing for the majority in Layshock’s case, said, “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 they can control that child when he/she participates in school sponsored activities. Allowing the District to punish Justin for conduct he engaged in using his grandmother’s computer while at his grandmother’s house would create just such a precedent and we therefore conclude that the district court correctly ruled that the District’s response to Justin’s expressive conduct violated the First Amendment guarantee of
free expression.”

Dr. Kyu Ho Youm, professor of journalism and communication at the University of Oregon, told The Daily Caller the rulings raise the fundamental question of where to draw the line on speech about school officials.

“It’s a very significant argument giving a more expansive interpretation for students off-campus,” Youm said.

He said he believes the Supreme Court of the United States will eventually have to draw that line.

Although the Supreme Court typically takes up appeals where judges issue conflicting opinions, such as the case with J.S.’s decision, Youm said he doubts the Supreme Court will accept an appeal immediately.

Will Creeley, director of legal and public advocacy at the Foundation for Individual Rights in Education (FIRE), told The Daily Caller the decision was a landmark ruling.

Creeley said although FIRE doesn’t handle high school cases, what happens in high school, especially on First Amendment grounds, often leaks over into college. He said he is glad that high school students can engage in satire, and that “they can enjoy, truly – off-campus – free speech while online.”