Does First Amendment protect students' online speech off-campus?

The US Supreme Court declined on Tuesday to take up three cases presenting a potentially important test of the free speech rights of minors to engage in offensive and controversial speech on the Internet.

One case involved an eighth grade student suspended from school after creating a fake MySpace page lampooning her school principal as a sex addict.

The high court also refused to take up two similar cases involving high school seniors disciplined for offensive MySpace postings.

The cases were being closely watched by First Amendment scholars because they were seen as presenting the high court with an opportunity to clarify conflicting lower court rulings on whether school officials may discipline a student for offensive comments made at home and posted on the Internet about fellow students or school officials.

Experts say it is one of the most troublesome issues facing school administrators today.

The honor roll eighth grader at Blue Mountain Middle School in Pennsylvania said she created the parody MySpace profile as a joke. In addition to accusing the principal of engaging in sex in his office and “hitting on students and their parents,” the profile said the principal’s wife looked like a man and that his son resembled a gorilla.

The offensive comments were written on a home computer during a weekend and were shared with the teen’s MySpace friends.

The student was suspended for 10 days and threatened with a civil lawsuit and criminal prosecution by the angry principal.

The girl and her mother apologized to the principal, James McGonigle, and to his family. But Mr. McGonigle wasn’t satisfied.

He asked the state police if criminal charges could be filed. The state police advised McGonigle that he could file a harassment charge, but that it would likely be dismissed. Nonetheless, at McGonigle’s request, the police summoned the student and her mother to the state police station to be questioned about the MySpace profile.

The student and her parents hired a lawyer and sued the Blue Mountain School District, claiming that school officials violated the student’s First Amendment free speech rights by punishing her for opinions she expressed on the Internet in her free time at home.

A federal judge ruled in favor of the school district, but the full Third US Circuit Court of Appeals in Philadelphia reversed, ruling 8 to 6 that the prank MySpace page caused no substantial disruption at school.

“Though disturbing, the record indicates that the profile was so outrageous that no one took its content seriously,” the majority judges said.

The court ruled that although the student speech involved a school official, the speech was protected by the First Amendment.

“Neither the Supreme Court nor this court has ever allowed schools to punish students for off-campus speech that is not school-sponsored or at a school-sponsored event and that caused no substantial disruption at school,” the Third Circuit said, ruling for the student.

“An opposite holding would significantly broaden school districts’ authority over student speech and would vest school officials with dangerously overbroad censorship discretion,” the court said.

The decision raises a difficult question of how school officials are to respond to offensive speech by students on the Internet and other social media when the comments are made off campus, after school.

In some cases the target is a fellow student, in others it is a teacher or school administrator.

Appeals courts have reached conflicting opinions in similar cases.

Some courts have upheld efforts by school administrators to censor and punish students for words the administrators found offensive and potentially disruptive at school even though the words were written off campus and after school hours.

Other courts have ruled that students enjoy a First Amendment free speech right to express their personal views about school and school officials while outside school.

“School administrators … are understandably confused,” wrote Francisco Negron of the National School Boards Association in a friend of the court brief urging the court to take up the case.

“Given the exploding role of technology in the lives of students, clear guidance from this court on how schools may regulate student speech that originates away from the traditional school campus but dramatically affects the learning environment is imperative,” Mr. Negron wrote.

The leading precedent in this area of law was announced by the Supreme Court in a 1969 case called Tinker v. Des Moines Independent Community School District. In that case, students sought to wear black armbands to school to protest US involvement in the Vietnam War. School officials refused, saying the armbands would cause a significant disruption at school.

The high court sided with the student protesters, ruling that student expressions of opinion in school were protected by the First Amendment unless school officials could demonstrate that the forbidden conduct would cause a significant disruption at the school.

The high court has also ruled that school officials may regulate lewd, vulgar, indecent, and offensive speech by students in school even when such speech might not cause a substantial disruption.

The issue in the Blue Mountain case was whether those same rulings may be applied to speech by students off campus, after school.

“When the 2012 school year opens next fall, teachers and administrators need to know whether the First Amendment requires them to sit on their hands in response to student behavior that, as painful real-world experience demonstrates, can ruin careers, disrupt and undermine the school’s learning environment, and, indeed, endanger the very health and well-being of their students,” wrote James Ryan in his brief on behalf of Blue Mountain School District.

In addition to the Blue Mountain case, the high court refused to take up two other student speech cases.

In 2005, Justin Layshock, a senior at Hickory High School in Pennsylvania, used his grandmother’s home computer to create a profile of Principal Eric Trosch. Mr. Layshock included an accurate photo of Mr. Trosch but listed fictitious answers to standard survey questions. The answers suggested the school principal engaged in illegal drug use, excessive consumption of alcohol, as well as lewd and criminal behavior.

During an in-school investigation, Layshock admitted that he created the fake profile. He was suspended for 10 days.

Layshock and his parents sued, claiming the punishment violated the student’s free speech rights. A federal judge ruled for Layshock, finding that the MySpace profile did not threaten to cause a substantial disruption at the school and that school officials could not punish a student for lewd, indecent, or offensive speech conducted off campus.

The Third Circuit upheld the decision on the same day it issued its Blue Mountain decision.

The high court on Tuesday also declined to take up the case of Kara Kowalski, who in 2005 was a senior at Musselman High School in West Virginia. Ms. Kowalski was suspended from school for 10 days and kicked off the high school cheerleading squad as punishment for creating an online MySpace discussion group where malicious comments were made about a particular female student at the high school.

Some students suggested the female student had herpes. One student posted a photo of the targeted student with red dots on her face and an arrow pointing to her pelvic area.

A notice said: “Warning: Enter at your own risk.”

Upon learning of the discussion page, the targeted student and her parents contacted the principal of Musselman High and the local police.

In response to her suspension from school, Kowalski and her parents filed suit, claiming the school district violated her free speech rights.

They argued that the discussion group was set up by Kowalski on a home computer after school hours.

A federal judge and a three-judge panel of the Fourth US Circuit Court of Appeals in Richmond upheld the school district’s authority to punish Kowalski for her involvement in the MySpace page discussion. The appeals court said that even though the speech and other conduct occurred outside school, the discussion could potentially cause a substantial disruption at the school.

“There is surely a limit to the scope of a high school’s interest in the order, safety, and well-being of its students when the speech at issue originates outside the schoolhouse gate,” Judge Paul Niemeyer wrote for the three-judge panel.

“But we need not fully define that limit here,” he said, “as we are satisfied that the nexus of Kowalski’s speech to Musselman High School’s pedagogical interests was sufficiently strong to justify the action taken by school officials.”  

Lawyers for Kowalski urged the high court to take up her case, reverse the Fourth Circuit, and announce a unified approach to off-campus student speech cases.

“Under the Fourth Circuit’s holding, school officials have carte blanche to punish any off-campus speech based solely on the speculative belief that similar speech might be repeated on school grounds,” wrote Adam Charnes in his brief to the court on behalf of Kowalski.

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