First Amendment groups petition federal appeals court for favorable ruling on student online speech

The Student Press Law Center, a national non-profit devoted to defending student journalists’ First Amendment rights, filed a friend-of-the-court brief today urging a federal appeals court to clarify that schools cannot discipline students for criticizing their schools on personal web pages when they are off school grounds and not involved in school activities.

The SPLC’s brief to the Third U.S. Circuit Court of Appeals was joined by the Pennsylvania Center for the First Amendment at Penn State University and the Marion B. Brechner First Amendment Project at the University of Florida. The case, J.S. v. Blue Mountain School District, involves a Pennsylvania middle school student who was suspended for using crude humor to mock her principal on a page on the MySpace social-networking site that she created on personal time with no use of school resources.

The groups are asking the full 14-member Third Circuit to take up and reverse a 2-1 ruling from a three-judge panel in the J.S. case, issued on February 4. That panel found no First Amendment violation in the school’s decision to punish the student — referred to in court papers as “J.S.” — because the judges believe that speech loses its First Amendment protection if it uses “undoubtedly offensive, potentially very damaging, and possibly illegal language(.)” The groups contend that the ruling will create confusion because it conflicts with a 3-0 decision from a different Third Circuit panel, issued the very same day, in the factually similar case of Layshock v. Hermitage School District.

In that case — also involving a Pennsylvania student’s MySpace page ridiculing his principal — the judges unanimously ruled that the student’s off-campus writings could not be disciplined under the same legal standards that apply to on-campus student speech. (The losing school district has already petitioned the Third Circuit to grant en banc review in the Layshock case, and that request is pending before the Court.)

The SPLC brief argues that the 2-1 panel ruling in J.S. “runs the real risk of issuing unbridled censorship discretion to school officials in a setting — off-campus speech created on personal time — in which schools’ authority rightfully should be at its most limited.” Because of the rapid migration of student journalism to online publishing, “it is vital that the Circuit issue clear guidance to future student speakers and set meaningful boundaries beyond which schools may not reach to censor legitimate editorial commentary,” the brief asserts.

The First Amendment groups contend that the J.S. ruling is legally flawed in part because it suggests that online speech is categorically less protected than speech in print. This conflicts with the Supreme Court’s 1997 ruling in Reno v. ACLU that speech transmitted over the Internet enjoys no lesser First Amendment status.

“It is vital that we slam the door on the notion that is growing more prevalent in First Amendment caselaw that students have reduced First Amendment rights when they use the Internet,” said Frank D. LoMonte, an attorney and Executive Director of the Student Press Law Center. “The Internet is, and will increasingly become, the medium of choice for young people to communicate, and if we say that students never have the full benefit of the First Amendment when they speak online, that effectively turns them into permanent second-class citizens.”

“The SPLC’s concern is, of course, not for the ‘right to make fun of your principal,’ but for the right to comment on serious matters of public concern happening in the schools, even if the school considers that expression ‘offensive’ or ‘damaging’ to the school’s image,” LoMonte said. “The J.S. decision gives no clear guidance to the speaker or to the school as to when speech becomes punishable, and in fact, makes the law even less clear than it was before.”

In 2007, J.S. was a 14-year-old eighth-grader at Blue Mountain Middle School who, with a friend, created a fake MySpace.com profile using a photo of Principal James McGonigle while on her parents’ home computer during non-school hours. The profile used crude humor to poke fun at the principal as a sex addict whose hobbies included “hitting on students and their parents.”

McGonigle suspended the two student creators for 10 days. J.S. and her parents challenged the suspension as violating the student’s First Amendment rights as well as the parents’ rights to determine how best to raise, discipline and educate their child. A U.S. district court dismissed all claims in September 2008, and that ruling was affirmed by the 2-1 majority of the Court of Appeals panel, over a strenuous dissent by Judge Michael A. Chagares.

“The student in this case was fully and properly punished by her parents, which is the right remedy when a student has misbehaved off-campus on her personal time,” LoMonte said. “Given the lack of restraint that we see every day by principals who censor criticism of their schools by claiming that it is ‘offensive,’ we can’t be issuing blank checks to school officials to punish comments students write at home in their e-mails or on their blogs.”

Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, and supporting the student news media in covering important issues free from censorship. The Center provides free information and educational materials for student journalists and their teachers on a wide variety of legal topics.