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U.S. appeals court deciding if high school students can parody administrators online

A Pennsylvania federal court is deciding if adolescents can be punished for ridiculing school principals online using lewd and outrageous language. -db

June 4, 2010
By Nathan Gorenstein

A federal appeals court in Philadelphia is considering whether adolescents with home computers and lewd vocabularies can be punished for ridiculing school principals on the Internet.

Web parodies of public officials have existed for years, but unsettled issues about what students can say about school officials on a widely available social networking site means the U.S. Court of Appeals for the Third Circuit will likely set a legal precedent.

Two students from Western Pennsylvania school districts were suspended after using home computers to post fake profiles of school administrators on MySpace.

One student’s parody profile, posted in 2005, described the principal as smoking marijuana “blunts.” The other student’s fake site, created in 2007, asserted that the principal was a pedophile. In both cases the issue is whether school districts can punish students if the fake profiles did not disrupt school activities and were not distributed on school property.

A decision is months away, but most questions from the bench indicated sympathy for student free-speech rights. Tightening restrictions on student speech because of how the comments are disseminated would be “turning the First Amendment on its head,” one judge at Thursday’s hearing said.

Chief Judge Theodore A. McKee said there was nothing new about students demeaning school principals, even if their comments can now travel in an instant to cell phones and portable computers.

In 2005, a senior at Hermitage High School, north of Pittsburgh, created a fake MySpace profile in which he described the principal as a “big steroid freak” with a fondness for blunts who was “too drunk to remember” his birthday.

The district suspended the student, Justin Layshock, but a federal three-judge panel later said Layshock had been within his rights. He worked from his grandmother’s computer and the parody never caused a substantial disruption in the high school, the court said. The school district appealed.

In the 2007 case, a 14 year old in Schuylkill County was suspended for 10 days after creating a fake MySpace profile in which her middle school principal was described as a pedophile and sex addict. According to testimony, the eighth grader was angry over being punished for a dress-code violation.

She used her parents’ computer. Another three-judge panel upheld her suspension, ruling that the district could punish “lewd and vulgar speech” about the school official. The language “could have supported criminal charges” against her, a lower court said. The girl’s parents appealed.

On Thursday the full appellate court convened a hearing that lasted two hours, with 14 judges trying to sort out the law.

Both students were represented by the American Civil Liberties Union.

McKee wanted to know whether Layshock would have been punished if he had been at a Phillies game with fellow students, discovered his principal sitting nearby, and in a deliberate act of provocation loudly described him as a “douchebag.”

“Probably not,” Anthony G. Sanchez, attorney for the Hermitage School District, conceded.

Sanchez contended that Layshock was legally “on campus” when, working at home, he took a copyrighted photo of the principal from the district’s website for use in the MySpace profile.

The Internet has changed the nature of the game, and traditional geographic boundaries between home and school no longer apply, he said.

Judges noted an earlier Supreme Court decision that student speech can be punished or banned only if it results in substantial disruption of school activities. That was not found to have happened in either case.

The eighth grader at Blue Mountain Middle School in Orwigsburg, Pa., identified in court papers as J.S., gave 22 people permission to look at the fake MySpace website.

The principal did not see it online and was later given a printed version by a student. J.S. was suspended for violating school rules against making false accusations.

An earlier court decision upholding the suspension cited a 1986 Supreme Court ruling that found there is no First Amendment protection for lewd, vulgar, indecent, and plainly offensive speech in school.

But J.S.’s comments were produced outside school, and were physically brought into school by someone else, judges noted. Students were overheard discussing the fake profile by at least one teacher.

Jonathan P. Riba, lawyer for the Blue Mountain district, said the school could punish J.S. because the “lewd and vicious” fake profile and was an attack, not a parody, and that chaos could have resulted if it had been allowed to circulate. In earlier hearings, no actual disruption in the school was cited.

Pennsylvania ACLU lawyer Witold J. Walczak said he did not contend that school officials had no right to react to off-campus speech that provokes disruption, only that “you punish not the speaker; you punish the wrongdoer.”

Layschock could not immediately be reached for comment after the hearing.

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