A pair of February 4 federal appeals court decisions from Pennsylvania involving ACLU clients made the important issue of how much authority school officials can exercise over students' out-of-school Internet speech as clear as, well … mud. See if you can figure it out.
In one case, student Justin Layshock used his grandmother's computer to post a mock profile of his principal on MySpace, using the principal's name and picture to pretend it was the principal. The profile said things like the principal was "too drunk to remember" his birthday and has been drunk many times; was a "big steroid freak" and belonged to "Steroids International," in the past month smoked a "big blunt" (I'm guessing most of you don't need me to explain what blunt means in a footnote, like the court did!), and took "pills"; does not have a "big dick," is a "big fag" and is "transgender."
Justin's principal was displeased (go figure!) so he suspended him for 10 days, kicked him out of all interscholastic activities, removed him from AP classes and stuck him in a class with low-performing students. The ACLU sued and got Justin back into classes pretty quickly.
In the other case, student J.S. used her parents' computer to post a mock profile of her principal on MySpace, not using his name but including his picture and suggesting he was a principal in Alabama. The profile said things like the principal was a "tight ass," "wonderful, hairy expressionless, sex addict, fagass put on this world with a small dick"; spent time with his child who "looks like a gorilla"; likes "fucking in [his] office" and "hitting on students and their parents"; and loves "sex of any kind," being a "dick head," and his "darling wife who looks like a man."
J.S.'s principal wasn't pleased either, so he suspended J.S. for 10 days.
So you've got two mock profiles of principals, both of which are sophomoric, crude and vulgar. Both were created from a home computer, without school resources, and were never physically brought into the school. Both schools claimed that the MySpace postings were "disruptive," but all four of the courts that reviewed the two fact patterns agreed there was minimal disruption, and certainly not enough to justify punishment by the school. Pretty similar facts so you'd expect the same result. But you'd be wrong.
In Layshock, the appeals court ruled that the school violated Justin's First Amendment free speech rights. The court observed that, "It 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 they can control that child when he/she participates in school sponsored activities," and allowing the school to punish Justin "would create just such a precedent." Clear enough.
But in the other case, the court upheld J.S.'s punishment. Two of the judges wrote (the third judge dissented) that just because the speech "originates from a computer located off campus," school officials should not be "left powerless to discipline the student." Ultimately, school officials have the same power, in and out of school, to regulate student speech "challenging" a school official's "fitness to hold his position by means of baseless, lewd, vulgar and offensive language."
So, you ask, how are the cases really different? Ok, here's what I can come up with. Justin was a high school senior and J.S. was in middle school. Justin lives in Western Pennsylvania, on the Ohio border; J.S. is in Northeastern Pennsylvania, near Scranton. Justin is a boy. J.S. is a girl. Justin didn't say "fuck" in his profile; J.S. did. Hmmm. It's hard to imagine any of these factors could explain the inconsistent result. One of our legal panel members may have summed it up best when he simply wrote, WTF!
Oh, one more difference: the judges. Six different judges on the two cases. Justin won his case 3-0. J.S. lost her case 2-1. So four appeals court judges thought that the schools violated the students' rights. Two judges, one of whom was district court judge specially assigned to hear the case, thought otherwise.
The issue of how much power school officials have over students' off-campus speech is growing in importance, as more kids have access to computers. The ACLU of Pennsylvania had hoped these cases would help clarify how to analyze these cases, but as you can see there was no such luck.
Over the past 40 years, courts have given school officials fairly broad latitude to regulate students' speech in school. All four of the Supreme Court's student-speech cases are based on the "special circumstances of the school environment," a factor that doesn't exist when the students aren't in school. And the Supreme Court has never ruled on this issue of how much power principals have over kids outside of school.
The ACLU's position is that school officials should not — and under the First Amendment do not — have the same authority to control what kids say when they are off campus as when they are in school. Out of school, kids' parents or guardians call the shots. School officials can talk to the parents if the kids post vulgar, disrespectful things on the Internet about teachers and principals, but we don't think they can use their official powers to punish the kids. At least one court got it right.