Free Speech Online? Court Offers Guidelines for Schools in Disciplining Students for Off-Campus, Online Speech

Free Speech Online? Court Offers Guidelines for Schools in Disciplining Students for Off-Campus, Online Speech
Can public schools regulate what their students say online, outside of campus? A new court ruling says yes. Learn about the ruling and what boundaries public schools can set online, even if a student is off-campus.
The First Amendment to the U.S. Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” This amendment has protected the right of young American students to express themselves throughout history, even if what they have to say is not complimentary or even popular.

However, free speech has become muddied waters since the advent of online forms of expression. A court in Pennsylvania has proven that fact with two rulings that suggest the discussion is not over in regards to off-campus speech conducted over the Internet. We’ll take a look at both of these cases that have garnered much publicity in recent months, as well as the most recent rulings by the court. We’ll also consider the questions that were not answered by these landmark cases that leave schools and students unsure of how to move forward in the era of online expression.

What the 3rd U.S. Court of Appeals Decided

 According to a report in Wired, the Philadelphia-based 3rd U.S. Court of Appeals heard two long-running cases this month involving the freedom of students to express their opinions online. Both of the students involved in these cases posted content on MySpace that mocked their principals. The students were both suspended by their schools for the content, and then sought help from the courts in protecting their right to express their opinions off of school property. These cases were appeals of the initial rulings, which had upheld the rights of the schools to discipline students for mocking school officials online, at computers away from the school campuses.
The cases paved the way to determining the boundaries on free speech by students on the Internet, although it failed to answer all the questions regarding this important issue. While student rights were upheld in both of these cases, the court agreed that not all off-campus student expression should merit the same First Amendment protection. The question shall be what content is acceptable and covered under constitutional rights, and when the schools have the right to discipline students for content that is inflammatory, disruptive or inappropriate.
Layshock vs. Hermitage School District
This particular case involved a student at Hickory High School in Hermitage, Pennsylvania, Justin Layshock. According to a report at the Student Press Law Center (SPLC), Layshock used his grandmother’s computer to post a mock profile of his school’s principal, Eric Trosch on MySpace. The profile suggested that Trosch took drugs, had been caught shoplifting and had taken steroids. A photo of Trosch, taken from the school website, was also posted on the page.
As a result of his post, Layshock was suspended from his school for 10 days. Layshock protested the decision, and took his case to the Pennsylvania court system. In February, 2010, Layshock’s freedom of speech rights were upheld by a three-judge panel of the third circuit, which found that the school violated Layshock’s constitutional rights by suspending him. However, a similar case received a different ruling, prompting the Court of Appeals to take a second look at both cases this year.
J.S. vs. Blue Mountain School District
In another situation involving a student at a Pennsylvania school, a middle school student known as J.S. constructed a mock MySpace page of her principal, James McGonigle, using an off-campus computer. The website contained offensive and sexually explicit language, although it never gave the principal’s actual name. J.S. was also subjected to a 10-day suspension by the school. When the student took her case to court, the school argued that the website had become disruptive in classrooms. This argument referred back to a 1969 case where the Supreme Court ruled that students were allowed to wear black armbands to school to protest the Vietnam War, as long as it did not “materially and substantially disrupt the work and discipline of the school," according to Wired. 
In this case, the student’s disciplinary action was upheld by the court. Although this ruling occurred in 2007 and the Layshock ruling was made last year, the inconsistency of the decisions prompted the 3rd Circuit Court of Appeals to take another look at both cases to try to form a uniform ruling on speech outside of the campus environment. The appeals court determined that in both cases, the students had a right to post their comments, even though the content was considered “rude” and “vulgar” by some, including the attorney representing the students.
The legal director of the American Civil Liberties Union, Vic Walczak represented both defendents in this landmark decision, according to WDUQ News. Walczak told United Press International after the ruling, “The one clear rule that emerges from today’s opinions is that school official’s authority to punish kids for saying offensive and critical things off campus is limited.” Walczak added that even though the comments may have been rude, they did fall under the umbrella of protected speech.
Despite the consistent ruling that recently came down from the court, the question still remains as to when schools may have the right to step in on situations where students are posting inappropriate content online. Walczak explained that since neither of these situations truly disrupted school activity, the ruling did not contain a precedent for incidents where disruption does occur. However, the appeals court may have set the stage for future decisions as to how the First Amendment will apply to online speech.
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