School officials in different districts violated the First Amendment rights of two students when they suspended them for posting raunchy faux profiles of their principals on the social-networking site MySpace, according to a pair of 3rd Circuit opinions decided by the full court. The federal appeals court revisited both cases after three-judge panels came to differing conclusions on each case in February 2010.
In western Pennsylvania's Hermitage School District, Justin Layshock used his grandmother's computer to post a phony profile of Hickory High School principal Eric Trosch. Layshock posted fake answers to online surveys and listed Trosch's interests as "Transgender" and "Appreciators of Alcoholic Beverages." He also listed "Steroids International" as a club to which Trosch belonged. Word of the profile spread quickly among students at Hickory High School, and students soon created three other bogus profiles of Trosch on MySpace, each more vulgar and offensive than Layschock's.
But Layshock was the only student punished for his profile. He was suspended for 10 days, placed in an alternative program for the rest of the year, banned from extracurricular activities and barred from attending graduation.
In central Pennsylvania's Blue Mountain School District, J.S., an eighth grader at Blue Mountain Middle School in Orwigsburg, Pa., was also suspended for 10 days for posting a profile insinuating that her principal, James McGonigle, was a sex addict and pedophile.
In the "General Interests" section, J.S. listed "detention, being a tight ass...spending time with my child (who looks like a gorilla)...fucking in my office, hitting on students and their parents."
In the "About Me" section, J.S. wrote: "For those who want to be my friend ... 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)."
J.S. allegedly created the profile because she was "mad" at McGonigle for the way he handled a dress-code violation. Both J.S. and Layshock had used photos of their principals from school websites.
The students and their parents sued over the schools' punishments, claiming it violated their constitutional rights, because the offense had taken place off school grounds. Last February, a panel of appellate judges said Layshock's profile "did not result in any substantial disruption," but a different panel said J.S.'s profile "presented a reasonable possibility of a future disruption."The ruling on Layshock's remained the same after a rehearing, and the judges were unanimous. "We have found no authority that would support punishment for creating such a profile unless it results in foreseeable and substantial disruption of school," Chief Judge Theodore McKee wrote.
Judge Michael Chagares, who authored the decision on J.S.'s case last year, wrote the lead opinion with regard to that student following the rehearing. The majority acknowledged that J.S.'s profile was puerile, profane and "disturbing," but found it to be "so outrageous that no one took its content seriously."
As such, it was unconstitutional to punish J.S. with a 10-day suspension for the "shameful" personal attacks on a school principal and his family, Chagares wrote.
A pair of Supreme Court rulings set the standard for the ability of school administrators to stifle student expression. Under Tinker v. Des Moines Independent Community School District, restriction is warranted when speech threatens "substantial disruption of or material interference with school activities." Bethel School District v. Fraser governs student expression that is sufficiently lewd.
While J.S.'s profile was lewd, the speech was made outside the school, during nonschool hours, according to the ruling. It furthermore did not cause "substantial disruption, the majority wrote, rejecting the trial court's conclusion that that there was a "connection between the off-campus action and on-campus effect."
Extending actions and their effects beyond schoolhouse walls "would vest school officials with dangerously overbroad censorship discretion," Chagares wrote. In a concurring opinion on behalf of four other jurists, Judge D. Brooks Smith advised against basing the origin of speech "on where the speaker was sitting when the speech was originally uttered."
"Regardless of its place of origin, speech intentionally directed towards a school is properly considered on-campus speech," Smith wrote. "On the other hand, speech originating off campus does not mutate into on-campus speech simply because it foreseeably makes its way onto campus." J.S.'s speech clearly occurred off campus, the judges found.
"J.S. created the MySpace profile at home on a Sunday evening; she did not send the profile to any school employees; and she had no reason to know that it would make its way onto campus," Smith wrote. "In fact, she took steps to limit dissemination of the profile [by only allowing approved MySpace viewers to access it], and the MySpace website is blocked on school computers. If ever speech occurred outside of the school setting, J.S.'s did so."
Six dissenting 3rd Circuit judges, however, said the majority was dead wrong, and that it was far from clear that the profile constituted off-campus speech.
"The line between 'on-campus' and 'off-campus' speech is not as clear as it once was," Judge D. Michael Fisher wrote. "Today, students commonly carry cell phones with internet capabilities onto school grounds. ... With near-constant student access to social networking sites on and off campus, when offensive and malicious speech is directed at school officials and disseminated online to the student body, it is reasonable to anticipate an impact on the classroom environment."
The J.S. decision "allows a student to target a school official and his family with
malicious and unfounded accusations about their character" and "leaves schools defenseless to protect teachers and school officials against such attacks and powerless to discipline students," Fisher wrote.
"The majority claims that no one could take the contents of J.S.'s post seriously," the dissent continues. "But stating that the principal of a middle school has sex in his office and is a 'sex addict' who enjoys 'hitting on children and their parents' are serious allegations," and the majority opinion makes light of their potential impact."
It was reasonable for administrators to anticipate that the speech would soon disrupt school operations, Fisher added, noting that the accusation of sexual impropriety undermines "the authority of school officials to perform their jobs."
It was reasonably foreseeable that the accusations made in the MySpace profile would be shared with parents and teachers," according to the dissent. "McGonigle's character would come under investigation, and his fitness to occupy a position of trust with adolescent children would be questioned. It is inevitable that as more students and parents learned of the profile, the school would experience disruption."
"Parents would become concerned that their children were supervised by a man accused of having sex in his office, being a 'sex addict,' and 'hitting on' their children," he added. J.S.'s profile could also constitute "cyberbullying" against teachers that "may cause teachers to leave the school and stop teaching altogether," the judge also wrote.
"The Middle School protected its employees against such a vicious and personal attack, thereby preventing substantial disruption of the classroom environment. I believe our court errs in precluding schools from protecting teachers and officials against such harassment," Fisher found.