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Rights Watch

Mauled on MySpace

Federal courts curb the power of school officials to punish student Internet speech.


Two landmark decisions this summer have greatly expanded the free speech rights of students in cyberspace. Unfortunately, educators who are the victims of vicious personal attacks posted on the web by spiteful students may have little legal recourse. Both cases arose in Pennsylvania and were decided by the Third Circuit Court of Appeals on June 13, this year.

In the first case, J.S. v. Blue Mountain School District, an eighth-grade student was ticked off because her principal, James McGonigle, had twice punished her for violating the dress code. So she created a fake profile of McGonigle and posted it on MySpace using her parents’ computer.

In a vulgar assault on McGonigle and his family, J.S. accused him of having sex in his office, “hitting on students and their parents,” and being a “sex addict.” In addition to using obscene language about male genitals and GLBT persons, she wrote that the principal’s wife, a school counselor, “looks like a man” and that his son “looks like a gorilla.”

Confronted by McGonigle, J.S. admitted creating the profile as a “joke.” She later sent a written apology to McGonigle and his wife. Unmoved, McGonigle suspended her for 10 days.

J.S. then sued McGonigle and the school district claiming a violation of her right to freedom of speech.

She won.

In the second case, Layshock v. Hermitage School District, Justin Layshock, high school senior, also took to MySpace to belittle his principal, Eric Trosch. He used his grandmother’s computer to create a “parody profile” of Trosch, using a photo of the principal he had copied from the school’s website.

In addition to using vulgar language and homophobic slurs, Layshock accused Trosch of being a “drunk,” smoking a “big [marijuana] blunt,” using illegal drugs, and shoplifting.

Based on rumors, Trosch called Layshock and his mother in for a chat. Layshock admitted creating the profile and later apologized. His parents grounded him and took away his computer access.

The school district subsequently suspended Layshock for 10 days, transferred him to an “alternative” high school, banned him from all extracurricular activities, and prohibited him from participating in the graduation ceremony.

Claiming a free speech violation, Layshock and his parents sued Trosch and the school district. On June 13, he too won his case.

How is that possible? Are school officials powerless to punish this type of vulgar, demeaning, and wildly disrespectful speech posted by students on the Internet? The answer’s a little complicated.

This much we know: students can be punished for their off-campus speech, such as Cyberspeech, if their speech is likely to cause a substantial disruption of the school, e.g., a Facebook posting calling for a student walkout during school.

And the same rule applies to student Internet speech that threatens harm to employees or fellow students.

But what about student Internet speech that does not cross the substantial disruption or threatening speech line, i.e., speech that “merely” ridicules or demeans school employees?

Emphasizing that the fake profile did not disrupt the school, all 14 judges on the Layshock court declared, “We do not think that the First Amendment can tolerate the School District stretching its authority into Justin’s grandmother’s home and reaching Justin while he is sitting at her computer after school.”

The vote in the J.S. case was much closer, eight-six. The majority ruled that schools can’t punish students for posting nondisruptive speech on the Internet, even if it is “lewd, vulgar, and offensive.”

The dissent argued that the profile was disruptive because it interfered with the ability of McGonigle and his wife to do their jobs. The court’s ruling, they said, “allows a student to target a school official and his family with malicious and unfounded accusations…in vulgar, obscene, and personal language.” We “fear that our Court leaves schools defenseless to protect teachers and…powerless to discipline students for the consequences of their actions.”

Educators who are victimized by insulting and mean-spirited online attacks are not entirely “powerless” to respond.

The first thing Principal McGonigle did was to tell MySpace that an imposter had posted a fake profile of him. MySpace promptly removed it. Both Facebook and MySpace have rules prohibiting fake profiles and bullying or harassing others.

Next, McGonigle contacted the police, who called in J.S. and her mother to discuss the matter. No criminal charges were filed, however, and based on two recent court decisions from Arizona and Georgia, criminal prosecution probably is not a viable option, even when a student calls a teacher, to her face, a “f—ing bitch” or shouts the F bomb at a teacher in school.

Eric Trosch filed a lawsuit against Justin Layshock for libel and identity theft. But libel actions are hard to win, and students usually don’t have any money.

The Supreme Court eventually will have to decide the extent of student free speech on the Internet. And it may be sooner, rather than later. School officials in the J.S. case already have announced that they will ask the High Court to overturn the circuit court decision.

—Michael D. Simpson, NEA Office of General Counsel

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