Layshock and J.S.: The 3rd Circuit Attempts to Define the Circumstances under Which a School Can Punish a Student for Creating a Defamatory MySpace Profile
In twin February 4, 2010 decisions, the Third Circuit reached opposite rulings on whether a school violated a student's First Amendment rights by disciplining him for creating a defamatory MySpace page about the school principal. In both cases, a student used an off-campus computer to create the profile. In both cases, the profile created a reaction on campus, and enraged the school principal. In both cases, the principal reacted by suspending the student. However, the 3rd Circuit found the suspension was only proper in one of the two cases. Here's why.
In the Layshock case, Justin Layshock, a 17 year old high school senior, created a "parody profile" of his principal, Eric Trosch, using his grandmother's computer. The profile included a photograph copied from the school district website and characterized Trosch as a habitual drunk and marijuana user, a "steroid freak", a "big whore" and a "big fag." Layshock "friended" several fellow students on the webpage. This caused news of it to "spread like wildfire" to most of the school's student body. The webpage was viewed by students in the school's online computer class, and three other students also created parody sites about Trosch.
Trosch complained to the local police and also instituted disciplinary proceedings against Layshock at the school. After a hearing, the school district found Layshock guilty of "gross misbehavior", "obscene, vulgar and profane language" and computer policy violations -- for use of school pictures without authorization. The school then imposed a ten-day, out-of-school, suspension on Layshock, placed him in an Alternative Education Program (for children who are unable to function in a normal classroom setting), banned him from all extra-curricular activities and prohibited him from participating the school's graduation ceremony. See Layshock v. Hermitage School District, 3d Circuit, N0. 07-4465, Opinion, Feb. 4, 2010).
In the J.S. case, J.S., a 14 year old middle school student, created a fake MySpace page for her principal, James McGonigle, using her parent's computer. The profile did not list his name, but included his photograph, which was taken from the school district's website. The website described McGonigle as a bisexual who liked "hitting on students and their parents" and "love[d] sex (of any kind)." J.S. initially set the MySpace profile as "public", but then changed the setting to private and granted "friend" status to about 20 children at the school. However, because the school computers block access to MySpace, students were only able to view the page from off-campus computers.
After learning about the website from a student, McGonigle called J.S. into his office. He told her that he was very hurt by the site and that he planned to take legal action against J.S. and her family. He later imposed a ten-day suspension on J.S., and prohibited her from attending school functions.
According to the school, the profile caused a minor disruption on campus. Two teachers had to quiet their classes while students talked about the profile, one guidance counselor had to proctor a test so another administrator could sit in on the meetings between McGonigle and J.S., and two students decorated J.S.'s locker to welcome her back following her suspension. J.S. v. Blue Mountain School District, 3rd Cir.., No. 08-4138, Opinion (Feb. 4, 2010).
In both cases, the students challenged the schools' discipline in Federal court on First Amendment and other grounds.
In both of these case, the Third Circuit relied on the same precedent. The leading case relied on by the court was Tinker v. Des Moines Indep. Cmty Sch. Dist., 393 U.S. 503 (1969). In Tinker, school officials suspended several students who ignored a school ban and wore black arm bands protesting the Vietnam war to school. The Supreme Court held that the First Amendment "reach[es] inside the schoolhouse gate" and that speech cannot be suppressed unless school officials reasonably conclude that it will "materially and substantially disrupt the work and discipline of the school."
Here, in both the Layshock and J.S. cases, the 3rd Circuit concluded that relevant school conduct -- the creation of the parody MySpace profiles occurred off-campus. Following Tinker, the issue for the Third Circuit thus was whether this off-campus speech "would substantially disrupt school operations or interfere with the rights of others.' J.S. v. Blue Mountain, Slip Opinion at 20.
In the Layshock case, the District Court had found that Justin Layshock's conduct had not resulted in any substantial disruption. The school district did not contest this finding on appeal. The Third Circuit noted: "We have found no authority that would support punishment for creating such a profile unless is results in foreseeable and substantial disruption of school. According, the Third Circuit found that the discipline imposed on Layshock violated his First Amendment right of free expression. Layshock v. Hermitage School District, Slip Opinion at 47
On the other hand, in the J.S. case, the school district did claim that J.S.'s actions had caused disruption at the school -- pointing to two the two disquieted classes and other disturbances noted above. However, the Third Circuit brushed this evidence aside, aside finding that "these incidents did not amount to a substantial disruption of the Middle School sufficient to discipline the students for their speech." J.S., Slip Opinion at 23.
However, it found that under Tinker, the school was permitted to discipline J.S. because "the profile presented a reasonable possibility of future disruption, which was preempted only by McGonigle's expeditious investigation of the profile, which secured its quick removal, and his swift punishment of its creators." Id. at 24. Here, the Third Circuit was persuaded by evidence that the statements about McGonigle's sexual proclivities on the MySpace page had caused several eighth-grade girls to express concern about McGonigle and his family to a teacher at the school, and had also reportedly caused a severe deterioration in discipline at the school.
The fact that the MySpace profile was created off-campus made no difference. Rather, the Third Circuit held that "off-campus speech that causes or reasonable threatens to cause a substantial disruption of or material interference with a school need not satisfy any geographical technicality in order to be regulated under Tinker." Id. at 27.
The fact patterns in these case were virtually identical. With a little different spin from the school district litigators, both cases could have gone the other way. So this is yet another dinner-table lecture for parents to give their kids: You risk school discipline for writing defamatory things about your teachers, coaches and principals -- even if you post them on your home computer.
David Johnson's practice focuses on complex litigation and science, technology and health law. David can be contacted at (415) 399-6032 or DJohnson@ebglaw.com.
Notes:
Thanks to Eric Goldman for notifying me of these cases on his blog. For a different analysis of these cases, see his blog entry for February 7, 2010.
