In First Amendment law, the frontier is often defined by students in grade school and high school whose activities -- and antics -- have consistently forced the courts to grapple with new and difficult questions.
A pair of cases now before the 3rd U.S. Circuit Court of Appeals present strikingly similar facts -- both involve students who were disciplined for ridiculing their principals by creating fake profile pages on MySpace.com.
But the lower courts divided on the issue. A Western District of Pennsylvania judge ruled that school officials violated the First Amendment by suspending a student for off-campus speech; but a Middle District judge found that school officials have the power to restrict speech that is vulgar or lewd. The first of the two cases came up for oral argument Wednesday before 3rd Circuit Judges Theodore A. McKee, D. Brooks Smith and Jane R. Roth.
The American Civil Liberties Union of Pennsylvania has sided with the students in both cases, arguing that since the parody profiles were created outside of school, the school officials had no right to impose any discipline.
In J.S. v. Blue Mountain School District, U.S. District Judge James M. Munley ruled that an eighth-grade student was properly suspended for 10 days after she created a fake MySpace page that depicted her principal as a pedophile and a sex addict.
"A school can validly restrict speech that is vulgar and lewd and also it can restrict speech that promotes unlawful behavior," Munley wrote in his 20-page opinion.
According to court papers, J.S. and another student posted a profile on MySpace in March 2007 that showed a photo of principal James S. McGonigle taken from the district's Web site. Although it did not use McGonigle's name, the profile identified the person pictured as a "principal," and described him as a 40-year-old, married, bisexual man whose interests included "being a tight ass," "fucking in my office" and "hitting on students and their parents."
But in Layshock v. Hermitage School District, U.S. District Judge Terrence F. McVerry found that school officials went too far when they suspended Justin Layshock for creating a fake profile of Hickory High School's principal, Eric Trosch, that said he was a "big steroid freak," a "big hard-ass" and a "big whore" who smoked a "big blunt."
McVerry described the suit as "an important and difficult case, in which the court must balance the freedom of expression of a student with the right and responsibility of a public school to maintain an environment conducive to learning."
The suit began, McVerry said, "with purely out-of-school conduct which subsequently carried over into the school setting" when students viewed the fake profile on school computers.
But McVerry concluded that Layshock's prank took place off campus and that none of the in-school events amounted to a true disruption of school activities. As a result, he said, the school had no power to discipline Layshock for creating the Web site.
"The mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the world-wide web," McVerry wrote.
"Public schools are vital institutions, but their reach is not unlimited. Schools have an undoubted right to control conduct within the scope of their activities, but they must share the supervision of children with other, equally vital, institutions such as families, churches, community organizations and the judicial system," McVerry wrote.
In Wednesday's 3rd Circuit argument, attorney Anthony G. Sanchez of Andrews & Price in Pittsburgh urged the judges to overturn McVerry's ruling, arguing that the Internet has "blurred the lines as to what constitutes on-campus and off-campus."
Sanchez argued that the U.S. Supreme Court's recent decision in Frederick v. Morse showed that the justices are willing to extend the power of school officials beyond the campus when they upheld discipline imposed on a student who unfurled a banner that said "Bong Hits 4 Jesus" at an Olympic torch rally.
But Sanchez was soon fielding aggressive questions from all three judges.
McKee said Morse involved a school-sponsored event and asked if it truly supported extending the power of school officials to punish conduct that took place in a student's home.
Sanchez insisted it did because Layshock used the school's Web site to obtain the principal's photo and had clearly designed the site with the school community as his target audience, specifically reaching out to some students by having the fake profile send a message asking to "friend" them.
In a moment of levity, all of the judges chuckled over the word "friend" being used as a verb.
'TROUBLING AND PERPLEXING'
But the judges clearly considered the case an important one. McKee said he found the issues "troubling and perplexing" and said the court's ruling "is going to have an incredibly far-reaching effect."
The two Pennsylvania cases are among more than a dozen cases across the country that are currently wending their way through the courts involving so-called "cyberbullying" and the explosion of social networking sites. At one Texas high school, the volleyball coach banned student Facebook and MySpace profiles. And Missouri passed a law against "cyberbullying" in the wake of Megan Meier's suicide, which was allegedly triggered by a hoax MySpace account.
Since the U.S. Supreme Court has never addressed the parameters of online student speech, the lower courts have been forced so far to interpret the justices' student-speech decisions stemming from other contexts.
Sanchez urged the judges to look beyond those cases, saying lower courts have upheld the right of school officials to discipline students for throwing eggs at a teacher's home and for selling drugs off campus.
McKee balked, saying, "There's no constitutional right to throw an egg."
Roth said students have always used "derogatory" language about teachers and school officials in their off-campus conversations and said she found it "rather frightening" to think of the effect of a court ruling that upheld disciplining a student for speech on the Internet.
Sanchez tried to persuade Roth that the discipline served a salutary purpose by promoting the school's mission of teaching civility.
But Pennsylvania ACLU Legal Director Witold Walczak told the judges that school officials could have accomplished all of their goals without imposing any discipline.
Layshock could have been called into the principal's office and given a lecture about how his conduct had hurt the principal and his family, Walczak said, and school officials also could have notified Layshock's parents of the incident.
But Walczak said McVerry got the First Amendment issue exactly right because the case is all about what happens to the school's power to discipline when a student exits the school.
McKee asked if it made any difference that Layshock knew that his out-of-school speech was "going to ripple inside the school" as students began using school computers to view the fake site.
Walczak insisted it wouldn't matter because the school officials have always said that Layshock was punished for creating the site and have never taken the position in court that the discipline stemmed from any "disruption" at the school.
Even if they had, Walczak said, the disruption never rose to the level that would justify discipline.