Lawyers were scratching their heads on Thursday over a federal appellate court's seemingly conflicting rulings in a pair of closely watched student-speech cases that both involve high school students who were suspended for creating fake MySpace pages on their home computers to ridicule their principals.
Although the cases appeared at first glance to raise nearly identical legal questions about the limits on a school's power to discipline students for off-campus speech, the 3rd U.S. Circuit Court of Appeals sided with the student in Layshock v. Hermitage School District and with the school in J.S. v. Blue Mountain School District.
In Layshock, a unanimous three-judge panel declared that punishing students for off-campus speech violates their First Amendment rights. But the Blue Mountain panel split, voting 2-1 in holding that students may be punished for lewd speech on the Internet about school officials that has the potential to create a substantial disturbance at the school.
For lawyers watching the cases, it became clear during oral arguments in December 2008 and June 2009 that the two panels weren't likely to agree. Since federal appellate courts cannot issue conflicting opinions, court watchers predicted that the entire court might be forced to rehear both cases before an en banc court.
Since Layshock was argued six months before Blue Mountain, some lawyers predicted that Layshock would be handed down first and its ruling would bind the panel in Blue Mountain.
But now the court has confounded the prognosticators by handing down a pair of decisions on the same day that reached opposite results.
The court's explanation for the seeming conflict came in the Blue Mountain case, where the majority found there was no conflict at all, but instead that there were differences that made the two cases factually and legally distinguishable.
In Layshock, Judge Theodore A. McKee concluded that the student's suspension violated his First Amendment rights because the speech took place almost entirely off campus.
"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," McKee wrote.
"Allowing the district to punish Justin [Layshock] for conduct he engaged in using his grandmother's computer while at his grandmother's house would create just such a precedent," McKee wrote in an opinion joined by Judges Jane R. Roth and D. Brooks Smith.
But in Blue Mountain, Judge D. Michael Fisher concluded that school officials have the power to punish "student speech, whether on- or off-campus, that causes or threatens to cause a substantial disruption of or material interference with school or invades the rights of other members of the school community."
The Constitution, Fisher said, "allows school officials the ability to regulate student speech where, as here, it reaches beyond mere criticism to significantly undermine a school official's authority in challenging his fitness to hold his position by means of baseless, lewd, vulgar, and offensive language."
In dissent, Judge Michael A. Chagares said he believed that "neither the Supreme Court nor this court has ever allowed schools to punish students for off-campus speech that is not school-sponsored and that caused no substantial disruption at school."
Chagares complained that Fisher's decision "significantly broadens school districts' authority over student speech" and "vests school officials with dangerously overbroad censorship discretion."
Fisher, who was joined by visiting U.S. District Judge Paul S. Diamond of the Eastern District of Pennsylvania, said in a lengthy footnote that he was aware of McKee's decision in the Layshock case, but said "we find the two cases distinguishable."
In Layshock, Fisher said, the school district's lawyers never argued that there was "a nexus between the student's speech and a substantial disruption of the school environment."
By contrast, Fisher said, the defense lawyers in Blue Mountain had argued at every step that the fake MySpace profile of the principal had caused actual disruptions at school and had the potential to cause more extensive disruptions if school officials had not responded quickly by punishing the students.
Fisher was impressed by the second prong of that argument, saying, "We are sufficiently persuaded that the profile presented a reasonable possibility of a future disruption, which was pre-empted only by [the principal's] expeditious investigation of the profile, which secured its quick removal, and his swift punishment of its creators."
Although the two cases at first appeared to represent a split of authority at the district court level, the 3rd Circuit's rulings effectively declare that there never was a split and, instead, that both of the lower court judges got it right.
In Layshock, Judge Terrence F. McVerry of the Western District of Pennsylvania 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."
In Blue Mountain, Judge James M. Munley of the Middle District of Pennsylvania 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.
Both students were represented by the American Civil Liberties Union of Pennsylvania.
Witold Walczak, the ACLU's legal director, said Thursday that he found the two decisions "difficult to reconcile," and that he is considering whether to petition for a reargument of the Blue Mountain case before the full court.
The Blue Mountain decision, Walczak said, "gives school principals a seat at the dining room table in students' homes."
But the winning lawyer in the Blue Mountain case, Jonathan P. Riba of Sweet Stevens Katz & Williams in New Britain, Pa., said he believes Fisher properly recognized that a substantial disturbance was imminent and would have occurred if the principal had not acted quickly.
Attorney Anthony G. Sanchez, the losing defense lawyer in the Layshock case, said he believes the issue is ripe for review by the U.S. Supreme Court because the lower courts are struggling with a framework of student-speech jurisprudence that was laid down in the late 1960s and early 1970s.
The Internet, Sanchez said, has fundamentally changed speech in ways that cry out for new guidance because a student's off-campus speech can now be directed at the school community in ways that defy the temporal and geographic constraints that applied to speech of a few decades ago.
