Providing a rare study in contrasts, the federal courts in Pennsylvania have had markedly different reactions to two strikingly similar First Amendment cases involving students who were disciplined for ridiculing their principals by creating fake profile pages on MySpace.com.
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.
So far, the ACLU has won one case and lost the other. And now it appears likely that the appellate judges are also inclined to disagree. Remarks from two oral arguments revealed a sharp split among the judges about how to view the ever-evolving issue of student free speech cases within the context of the Internet and social networking sites.
If the disagreements prove to be sharp enough, it could force the appellate court to sit en banc, with one or both cases being argued before a 14-judge panel.
First the lower courts divided on the issue. In Layshock v. Hermitage School District, Western 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."
But in J.S. v. Blue Mountain School District, Middle District Judge James M. Munley upheld a 10-day suspension of a student who posted a profile on MySpace in March 2007 that showed a photo of principal James McGonigle and described him as a pedophile and a sex addict whose interests included "being a tight ass," "fucking in my office" and "hitting on students and their parents."
Munley concluded that the suspension was proper because school officials "can validly restrict speech that is vulgar and lewd and also it can restrict speech that promotes unlawful behavior."
By contrast, McVerry had concluded that since Layshock's prank took place off campus and none of the in-school events amounted to a true disruption of school activities, the school had no power to discipline him.
"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.
Now it appears that the 3rd U.S. Circuit Court of Appeals may also be dividing on the issue.
In December, a three-judge panel heard the appeal of the Western District case and seemed poised to uphold McVerry's ruling in Layshock.
Senior 3rd Circuit Judge Jane R. 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.
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.
But this week, when the Middle District case went before the 3rd Circuit, a different three-judge panel appeared to be decidedly hostile to the ACLU's view of student speech rights.
ACLU attorney Mary Catherine Roper argued that the court should overturn Munley's ruling because the U.S. Supreme Court has upheld restrictions on student speech inside the school or at school events, but has never held that speech outside of school may lead to discipline.
But visiting Judge Paul S. Diamond noted that the student had told more than 20 others about the site.
"She accused this principal of criminal conduct, did she not?" Diamond asked.
Roper seemed to know where Diamond was headed and set out to cut him off, saying it wouldn't matter if the speech were defamatory. Since it occurred off campus, she said, the school had no right to impose discipline.
In the Supreme Court's seminal 1969 decision in Tinker v. Des Moines Independent Community School District, Roper said, the justices clearly explained that student speech cannot be punished unless it created a substantial disruption at the school.
But Judge D. Michael Fisher interrupted and said the justices had adopted a new test in Bethel School District v. Fraser that said lewd speech is always punishable.
Roper conceded Fisher's point but insisted that when the lewd speech occurs off campus, school officials must satisfy the Tinker test and show disruption.
Diamond pressed the point that the fake profile, if believed, could have harmed the principal.
But Roper insisted that the profile was clearly parody and that, although adults might not find it funny, it was funny to an audience of eighth-graders.
No one could mistake the profile as one created by the principal himself, she said, because "no one would say those things about himself."
Roper said Chief Justice John G. Roberts Jr. has recognized the strong distinction between in-school and out-of-school speech when, in his opinion in Morse, he noted that the court's decision two decades earlier in Fraser would have been different if the student had not been in school at the time.
But the school district's lawyer, Jonathan P. Riba of New Britain, Pa., argued that, although the MySpace page was created off campus, it was designed to have in-school effects.
Riba said the ACLU lawyers have labeled the fake profile as "humor" and "parody," but that the student's clear intention was to belittle and harm the principal by creating the impression that he was unstable and a sexual deviant.
But in what may have been the most important question of the argument, Riba told Fisher that there was nothing about the facts of the case that would distinguish it from the Layshock case argued more than five months ago.
In a brief rebuttal argument, Roper said that public officials are expected to have a thicker skin and that the principal in J.S.' case seemed to recognize that when he testified: "As a principal, you don't make it until you get your name on the bathroom wall."