In the face of two conflicted rulings in online student speech cases, a federal appeals court in Pennsylvania nullified the rulings pending a hearing in June by the full appeals court panel. At issue is the standard for the extent to which a school can discipline a student for off-campus speech. -db
Student Press Law Center
April 13, 2010
By Katie Maloney
This order nullifies the previous decisions, which were each made by panels of three judges each, and will replace them with decisions made by the entire panel of 3rd Circuit judges, after a hearing on June 3.
The American Civil Liberties Union (ACLU) represented the students in both cases, which were both ruled on Feb. 4. In the case Layshock v. Hermitage School District, a three-judge panel ruled in favor of high school student Justin Layshock on his First Amendment claim.
Justin Layshock was a student at Hickory High School in Hermitage, Pa. when he used an off-campus computer to create a fake MySpace page for Principal Eric Trosch, which mockingly said Trosch used drugs, took steroids and engaged in other deviant behavior. The court found Layshock’s speech protected by the First Amendment.
However, in J.S. v. Blue Mountain School District, a different three-judge panel favored that school district’s right to discipline students for their speech.
J.S. is a female who, at the time, was a middle school student who also used an off-campus computer to create a fake MySpace for middle school Principal James McGonigle of Pennsylvania’s Blue Mountain School District. This MySpace page also made mocking accusations about McGonigle’s behavior, using sexually explicit language.
Sara Rose, a staff attorney with the ACLU of Pennsylvania, said the new oral arguments for both cases will be heard en banc June 3, which means the entire 3rd Circuit will hear the cases.
New decisions will be made for both cases, since they are factually similar but the rulings pointed in opposite directions last time.
“The facts of both cases were so similar that it was very odd for the court to reach two different decisions,” Rose said.
The ACLU is hoping that the new rulings will both favor the students, Rose said, since it is important to establish a standard for how far a school’s disciplinary reach extends.
“Our position is the same in both, which is that schools don’t have authority to restrict out of school speech,” she said.
Student Press Law Center Executive Director Frank LoMonte said the standard must be set for off campus speech for the sake of both students and administrators/
“School administrators, teachers and students need clear guidance as to where the lines are drawn when it comes to school authority over off-campus, online speech,” LoMonte said. “The end result of the Layshock and J.S. cases left a lot of people scratching their heads over what type of speech could and could not be punished, so it makes sense for the 3rd Circuit to hear both cases together and set a consistent legal standard.”
If the new 3rd Circuit rulings were to go against the students, the next appeal would be to the United States Supreme Court, Rose said.
Copyright 2010 Student Press Law Center