Law Byte
A "Third" of the Way to the Supreme Court:
Two Recent CyberSpeech Cases
Lex-IS Services
Legal Instruction and Support for School Leaders
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February 12, 2010
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e-Law Update
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What Happened...
Something fascinating and important occurred last week in the
world of school Free Speech and Cyberlaw. Two different panels of judges on the United States Third
Circuit Court of Appeals handed down two separate - but seemingly conflicting -
opinions on the same day.
Both
cases, arose from separate Pennsylvania school districts, involved students
posting lewd and derogatory MySpace parodies about their school principals. Each
MySpace profile included a picture of the principal copied from the district's
website and contained "biographical" statements appearing to indicate the
principal's interests in such things as elicit sex, pedophilia, illegal drug
use, and promiscuous, lewd and inappropriate behavior.
In one case, the court ruled that
the student did have a free speech right to post the page. In the other case, the court ruled the
student did not have a free speech right to post the page.
What explains these opposite conclusions involving
near-identical circumstances? What is the significance of these cases and what can school
leaders learn from them? Details are
provided further below for those who wish to read on.
Up-Coming...
School Technology Law Update
February 23, Smithfield,
North Carolina
We will address these new opinions and related issues in
much greater detail at our School Technology Law Update. See the adjoining panel for information.
Finally...
School law development continues to affect the decisions and practices of
school leaders in 2010. We will
continue to keep you abreast of further news and changes in the law.
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A Brief Summary of the Law
In cases involving off-campus speech, the courts typically apply one or more Free Speech "tests." The predominant test is based on the 19969 U.S. Supreme Court case of Tinker v. Des Moines, which established the rule that school officials may restrict speech that causes or is likely to cause a "substantial disruption" to school operations. In that case, the Court held that school officials could not prohibit students from wearing black armbands at school in silent, non-disruptive protest of the Vietnam War.
In the 1986 case of Bethel v. Fraser, the Court held that school officials have the authority to restrict "on-campus" speech that is lewd, vulgar, or profane because schools play a role in promoting civil conduct. In that case, school officials disciplined a high school student who gave a campaign speech laced with sexual innuendo on behalf of a friend running for school office at a mandatory school assembly.
When and how courts will apply these and other precedents and standards is not always easy to predict. Recent cyberlaw cases demonstrate courts' varying approach.
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Case #1: Layshock v. Hermitage School District
2010 U.S. App.
LEXIS 2384 (3rd Cir. Feb. 4, 2010)
In the court's words, "It all began when Justin Layshock
used his grandmother's computer to access [MySpace] to create a fake internet
"profile" of his high school principal..."
Justin created "bogus answers" to the site's survey questions, applying
a theme of "big" because the principal was, apparently, a large man. Without going into graphic detail, some
of these answers included numerous self-designating and demeaning statements:
"big steroid freak," smoking a "big blunt" (marijuana), "big pills," "skinny
dipping," getting drunk a "big number of times," "big whore," and "big fag." Interests included references like
"Transgender, Appreciators [sic] of Alcoholic Beverages..."
News of the site "spread like wildfire" at the school. Some students, including the
principal's daughter (also a high school student), alerted the principal to the
site's existence. After
investigating, the principal determined the profile to be "degrading,"
"demeaning," "demoralizing," and "shocking." He then filed a complaint with the police and
threatened criminal action against Justin and his parents. The school system eventually suspended
Justin for ten days and imposed other discipline. Justin and his parents sued the school system, the
superintendent, and the principal.
The court, in this case, upheld the trial court ruling in
favor of the Layshocks under the First Amendment. There was no sufficient evidence that the off-campus profile
substantially disrupted the school under the Supreme Court's Tinker v. Des
Moines decision. (The school
district itself acknowledged this.)
The court then rejected the district's argument that the profile became
"on-campus" speech that could restricted when Justin opened the website on a
school computer (to show his classmates) and because he copied a picture of the
principal from a school webpage.
Consequently, Justin could not be disciplined under Bethel v. Fraser,
which allows school officials to discipline students for on-campus speech that
is lewd or vulgar. According to
the court,
"we will not allow the School District to stretch its
authority so far that it reaches Justin while he is sitting in his
grandmother's home after school."
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Case #2: J.S.
v. Blue Mountain School District
2010 U.S. App. LEXIS 2388 (3rd Cir. Feb. 4, 2010)
J.S. and her friend created a fictitious MySpace profile of
their middle school principal to get back at him for a prior disciplinary
action. Although the profile did
not include the principal's name, it included a picture of him, copied from the
district's website. The profile
was laced with statements that insinuated that the principal was a sex addict
and pedophile. For example his
"interests" included "hitting on students and their parents," "watching the
playboy channel," and having "sex in his office." The "About Me" section included statements like using
MySpace to "pervert the minds of middle school students." The profile was initially "public" but
J.S. later made it private so only "invited" friends could view it. Numerous students saw the profile and
it "created quite a buzz" at the school.
No one, however, considered the content to be true or suspected the
principal of any of the activities indicated. The principal, after investigating, threatened criminal
action against the student and her parents and successfully requested MySpace
to remove the site. In addition,
school officials eventually suspended J.S. for ten days based on the school
conduct code prohibiting false accusations against staff members, and based on
the acceptable use policy (AUP) prohibiting unauthorized use of copyrighted
material without permission (due to the fact that J.S. copied the principal's
photo from the district website).
The court determined that this case was strictly governed
only by the Tinker v. Des Moines "Substantial Disruption" standard. Thus the court focused on whether the
off-campus personal profile caused or was likely to cause a substantial
disruption to the school's operations.
The court noted that the site caused some actual disruption at the
school due to time spent investigating and the need to alter some meetings and
to quiet students in classrooms who were discussing the site. The court viewed these, however, as
minor, not "substantial" disruptions.
Most important to the court was its conclusion about the "potential" for
disruption due to the extensively lewd and vulgar content. If more students and parents were to
see the profile, reasoned the court, they would be likely to question the
principal's character and ability to lead the school. Had the principal not taken prompt preventative actions,
reasoned the court, additional disruption was reasonably foreseeable.
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Reconciling and Explaining These Two Cases
So what accounts for the different and seemingly
contradictory conclusions of these two judicial panels from the same
court? In a footnote, the J.S.
court stated,
[W]e find the two cases distinguishable. Unlike the instant [J.S.]
case, the
school district in Layshock did not argue on appeal that
there was, under
Tinker ... a substantial disruption of the school environment.... Rather, the
Layshock panel held that the school
district failed to establish that ... that
the student's speech [could
be characterized as] "on-campus" speech
just because it was
targeted at the Principal and other members of the school
community and it was reasonably foreseeable that school district
and Principal
would learn about the MySpace profile.
In other words, each case was decided under two different
Supreme Court Free Speech standards: J.S. under Tinker's "substantial
disruption" standard and Layshock under Fraser's "on-campus," "lewd speech"
standard. Specifically, the
school district, in Layshock, made no attempt to prove there was a substantial
disruption In J.S., the
school district argued and the court applied the Tinker standard and found
there to be a likelihood of disruption.
Some experts might argue that the J.S. case was not properly decided: that J.S., like Layshock, also had the right to post her profile. This was the position taken by the dissenting judge in the J.S. case in opposing the decision of his majority colleagues . In essence, that judge reasoned that the majority holding in J.S. relied, improperly on speculative determinations, not based on any evidence, to rule that a substantial disruption was "foreseeable."
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Practice Points and Reminders
These Third Circuit Court of Appeals cases are not binding
on schools in the Fourth Circuit's jurisdiction (North Carolina, South
Carolina, Virginia, West Virginia, and Maryland). They are, however, very informative of how the Fourth
Circuit and other courts may apply the law. In
addition, these two cases, if either is appealed, could lead to the U.S. Supreme
Court deciding its first School Cyberlaw case.
Here are some specific points: - We still cannot always predict, with great certainty, what free
speech standard(s) a court will apply and how it will do so (e.g., Tinker
and/or Fraser, or others). Normally, however, Tinker applies as a "baseline"
test; if school official actions pass muster under the Tinker test, the court is likely to
uphold such actions.
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Any disruption, actual or foreseeable, must be
"substantial," not incidental or minor.
The J.S. court concluded that the various actual disruptions were only
minor, not substantial, ones: e.g., investigation efforts, teachers having to
change some meeting times due to the investigation, teachers have to take
several minutes to quiet their classes when students were discussing the
website, a student showing the website to a few other students and being told
by the teacher to shut it down.
- Avoid hasty, "knee jerk" reactions to such speech, even if
you think the speech in question is outrageous, improperly subjects school
personnel to ridicule, or seems to require that "something must be done" to
"teach students a lesson."
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Avoid conclusory speculation that a substantial disruption
will "surely" or "very likely" occur.
Such foreseeability must be "reasonable," i.e., you must be able to articulate convincing reasons to
support your prediction.
(Arguably, the J.S. court determination of foreseeable disruption was
entirely speculative - the dissenting judge in that opinion thought so.) Other courts, including the Fourth
Circuit, may demand more convincing evidence of foreseeability than the J.S.
court required; for example, (1) a history of racial tensions and conflicts at
a school, warranting the prediction that a racially-charged, off-campus
personal website is likely to cause on-campus, disruptive conflicts or fights;
(2) an actual case involving a student website containing graphic, vulgar, and
seemingly threatening statements about his teacher causing the teacher to take
a leave of absence for the remainder of the year due to her distress.
- School officials have various alternative or additional remedies available to them,
even if the First Amendment precludes or is unclear as to whether it precludes
suspending a student for off-campus speech. Depending on the circumstances, these could
include one or more of the following:
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Confer with the student and parents - explain concerns and
potential disciplinary actions. (Responsible parents may be ally.)
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Impose discipline that doesn't infringe on a student's
"property" right to education; e.g., deny extra-curricular
activity.
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Request an Internet Service Provider or social networking
company, like MySpace, to shut down a site that violates the providers rules.
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Threaten and press criminal charges if criminal activity can
be determined. Personal website content that is
harassing or intimidating may, for example, violate one or more state or
federal criminal statutes. Provide
a copy of those statutes and the school's AUP to the student and parents.
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Remind individual school staff members who are the targets
of such websites that they may have individual civil and criminal remedies
available, e.g., defamation, invasion of privacy, civil assault.
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Review and revise school conduct codes and AUP's to give
notice of when students and staff could be subject to discipline for off-campus
behavior. These policies should
contain Tinker-based "substantial disruption" language.
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As always, consult your supervisors and school attorney as
necessary.
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