Court of Appeals Divides on First Amendment Protection of Students’ Fake MySpace Profiles

February 5, 2010

Can a school punish students for online speech that parodies the principal by joking about his sexual behavior and penchant for illegal drugs? Two strikingly similar cases concerning a school’s ability to regulate online speech yielded two different decisions by the same court. Yesterday, separate panels of the United States Court of Appeals for the Third Circuit decided Layshock v. Hermitage School District and J.S. v. Blue Mountain School District. These cases involve speech by students at a high school and a middle school, respectively. Although the government has a much greater ability to regulate speech at these educational levels than in the college setting, these decisions may forecast some ways in which courts will approach online speech at colleges.

In both cases, the student at issue had created fictitious profiles of their respective school principals, attached a photo of each principal taken from the school’s website, and described the principal in vulgar and derogatory ways. In both cases, the student was punished by the school as a result of that speech, made on a computer off of school grounds. Yet, in only one of the cases did the court find the school’s regulation of that speech to be a violation of the First Amendment. The crux of the difference is whether the court found that the speech could reasonably cause a "substantial disruption" to the school.

In J.S., a middle school student was suspended for her creation of her principal’s fictitious MySpace profile, which contained such witticisms as, "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." The principal’s wife is a guidance counselor at the school. In Layshock, a senior in high school was suspended, placed in a special education class, and banned from extracurricular activities for his parody MySpace profile, which contained a question and answer portion, in which the principal was described as being a "big steroid freak" and in which the size of his penis was belittled.

Both panels applied the fairly speech-protective test articulated in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), where the Supreme Court held that high schools and middle schools can regulate speech if it may reasonably cause a "substantial disruption" to school activities. Although lewd or profane speech made at school is unprotected by the Supreme Court’s decision in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), the panel in Layshock deemed Fraser inapplicable to speech that was not sufficiently connected to the school. The school had not argued that Layshock’s speech caused a substantial disruption, and the panel therefore concluded that Layshock’s punishment was unconstitutional. According to the court of appeals:

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.

In direct contrast, the J.S. panel did find that the middle school student’s vulgar and potentially defamatory mockery of her principal was not protected speech. This panel did not need to decide whether the lewd speech standard in Fraser applied because the profile was deemed unprotected even under Tinker. The court held that the "minor inconveniences" that had occurred, including students chatting about the profile during class or viewing the profile, were not substantial, but that the school was reasonable in foreseeing future substantial disruption. According to this panel:

However, the School District also argues that, given the immediate impact of the profile on the Middle School, absent McGonigle’s quick corrective actions to curb its effect, the profile’s potential to cause a substantial disruption of the school was reasonably foreseeable. 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, and we proceed with our analysis with this in mind. Therefore, we are sufficiently persuaded that the profile presented a reasonable possibility of a future disruption, which was preempted only by McGonigle’s expeditious investigation of the profile, which secured its quick removal, and his swift punishment of its creators. We are especially concerned about the profile’s blatant allusions to McGonigle engaging in sexual misconduct….

In some ways, it is difficult to reconcile the two outcomes in this case, where speech of a similar nature was deemed protected by one panel and punishable by another panel. Perhaps the difference lies in the fact that punishable speech occurred at a middle school, where students are less mature and school activities are therefore more easily disrupted. A middle school also has a greater interest in instilling values of respect in younger students. The Third Circuit might be wise to rehear both cases as an entire court so as to alleviate any inconsistencies.

Of course, these cases are not controlling upon online speech made by college students, as college students are afforded much greater First Amendment protections. But, it is encouraging that the courts seem inclined to give more protection to speech made off of school grounds, so as not to reach too far into the extracurricular speech of students. We hope that when courts are confronted with cases involving college students criticizing administrators, they remember that high schools and middle schools are endowed with more deference to teach values and encourage students to respect authority than colleges have, instead of blindly applying K-12 precedent dealing with children to the adults who populate our colleges and universities.