Update on First Amendment and Discipline for Social Networking

The full court of the Third Circuit Court of Appeals (which does not govern Illinois) issued two separate decisions finding that suspensions given to students for creating inappropriate profiles of their principals on MySpace violated the students' First Amendment rights.  In J.S. v. Blue Mountain Sch. Dist., 2011 WL 2305973 (3rd Cir. 2011) an eighth grade honor roll student created a fake profile of her middle school principal on MySpace.  The profile was created on her parents' computer at her home during non-school hours.  J.S. did not identify the principal by name but used a photograph of the principal copied from the school district's website.  The profile included profanity and a comment that suggested that the principal was a pedophile.  As a result of the profile, the school suspended J.S. for ten days.  In Layshock v. Hermitage Sch. Dist., 2011 WL 2305970 (3rd Cir. 2011) a high school senior set up a fake profile of his school principal.  Justin Layshock created the profile on his grandmother's computer at his grandmother's house. The profile referred to the principal as a "big steroid freak," a "big hard ass," and a "big whore."  Justin's action resulted in a ten day suspension.

After two separate panels of Third Circuit judges ruled in 2010, reaching opposing conclusions in the two cases, the entire court convened and has now ruled, in both cases, that the suspensions violated the students' rights to free speech under the First Amendment.  Citing Tinker v. Des Moines Independent Community Sch. Dist., 393 U.S. 503, 513 (1969), the court noted that schools may not suppress student expressions unless authorities reasonably conclude that the conduct would "materially and substantially disrupt the work and discipline of the school."  The court applied this standard to the off-campus conduct, and required that a school district establish a likelihood of disruption before discipline could be imposed.  The court concluded that neither school district could establish that disruption had occurred or would likely occur. 

In J.S., the student's speech did not cause a substantial disruption at the school nor was there a reasonable belief that her off-campus speech would cause a disruption in the future.   In Layshock, the school district tried to show a nexus between the MySpace profile and the school campus by stating that the speech was aimed at the school district and the principal.  However the court rejected this argument saying that such actions did not "constitute entering the school."  The court reaffirmed that schools may only punish off-campus behavior if it is substantially disruptive.