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3rd Circuit Finds 1st Amendment Violations In School Discipline For Online Postings

PHILADELPHIA - (Mealey's) In rulings issued June 13 in two cases that it reheard en banc, the Third Circuit U.S. Court of Appeals found that schools do not have the authority to regulate students' speech that occurs off school grounds if the speech does not pose a significant threat of substantial disruption.  Affirming its earlier ruling in one case and reversing in part the other, the Third Circuit found that the schools in each of the closely watched cases overstepped their bounds and violated the respective students' First Amendment rights by punishing them for postings they made on the MySpace social network (J.S., a minor, through her parents Terry Snyder; Steve Snyder v. Blue Mountain School District, et al., No. 08-4138; 2011 U.S. App. LEXIS 11947; Justin Layshock, a minor, by and through his parents, et al. v. Hermitage School District, et al., No. 07-4465 and 07-4555, 3rd Cir.).

In Blue Mountain, the U.S. District Court for the Middle District of Pennsylvania upheld a school's 10-day suspension of a 14-year-old for her creation of a "profanity-laced" MySpace profile of her middle school principal.  In Layshock, by contrast, the Western District of Pennsylvania held that a school's suspension of a 17-year-old boy, which he received for creating a similar MySpace profile about his principal, violated his First Amendment rights.  The MySpace profiles in both cases were created after school hours, off campus, using non-school computers.  On appeal, the Third Circuit upheld both rulings in separate rulings handed down in February 2010.  The losing parties in each case moved for rehearing en banc

The Third Circuit considered relevant case law over free speech and schools, most notably Tinker v. Des Moines Independent Community School District (393 U.S. 503 [1969]).  The majority in Blue Mountain concluded that while Tinker permits schools to discipline students for off-campus behavior if it presents a likelihood of causing a substantial disruption, there was no such likelihood because the profile was viewable only to a select number of the student's friends.  The court also noted that although the profile was "indisputably vulgar," it "was so juvenile and nonsensical that no reasonable person could take its content seriously."  Thus, the majority overturned the trial court's ruling on First Amendment issues.   

In a concurring opinion, several judges agreed with the ultimate ruling on the student's First Amendment rights but expressed their concern over whether Tinker should ever apply to off-campus speech, stating that such an application "would create a precedent with ominous implications" and "would empower schools to regulate students' expressive activity no matter where it takes place, when it occurs, or what subject matter it involves-so long as it causes a substantial disruption at school."  However, several judges dissented, stating their belief that the majority's ruling "severely undermines schools' authority to regulate" behavior that is disruptive.  The dissent held that the school did not violate any free speech rights by disciplining the student for her "lewd and offensive speech."  The dissent clarified that "[i]n student free speech cases, courts must grapple with the issue of promoting freedom of expression while maintaining a conducive learning environment." 

Tinker also was a focus in the Layshock rehearing ruling, with the court concluding that "[i]t 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 it can when the child "participates in school sponsored activities." As in Blue Mountain, the court held that the school district failed to show that the offensive profile created any on-campus disruption to merit the discipline it handed down to the student.   

Although the ruling in Layshock was unanimous, unlike that in Blue Mountain, several justices also issued a concurring opinion noting the unresolved "issue of high importance on which we are evidently not agreed," pertaining to the applicability of Tinker to off-campus behavior.  Judge Kent A. Jordan noted his concern "that the combination of our decisions today in this case and in [Blue Mountain] may send an 'anything goes' signal to students, faculties, and administrators of public schools," emphasizing that the court in no way means to undercut schools' authority.  Instead, Judge Jordan stated that school officials still need to use common sense while balancing First Amendment rights, noting that the "substantial disruption" standard of Tinker is valid in considering off-campus speech and behavior. 

[Editor's Note:  Full coverage will be in the June issue of Mealey's Litigation Report: Cyber Tech & E-Commerce.  In the meantime, the opinions are available at or by calling the Customer Support Department at 1-800-833-9844.  Opinion in Blue Mountain.  Document #24-110616-034Z.  Opinion in Layshock.  Document  #24-110616-033Z.  For all of your legal news needs, please visit] 

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