Cyber Speak No Evil
In a flood of lawsuits, students are challenging punishment for ridiculing teachers and principals in cyberspace.
By Michael D. Simpson, NEA Office of General Counsel
Courts are now grappling with the question whether students have the First Amendment right to use social media to vilify, parody, or defame school employees. Does the power of school officials to punish students extend to Internet postings? To date, the courts have given conflicting answers.
In J.S. v. Blue Mountain School District, a three-judge panel of the Third Circuit Court of Appeals ruled last February that a Pennsylvania school district didn't violate a middle school student's free speech rights by suspending her for posting on MySpace a fake profile of her principal that used lewd language to describe him as a pedophile and sex addict.
Relying on the Supreme Court's landmark Tinker decision, a 40-year-old, pre-Internet case brought by students suspended for wearing black armbands in protest of the Vietnam War, the court held that students can be punished for online speech if administrators believe the posting could cause a substantial disruption of the school. The court said the profile was potentially disruptive because it undermined the principal's authority and caused the school community to question his character.
In Layshock v. Hermitage School District, however, a different three-judge panel of the Third Circuit ruled on the same day that high school student Justin Layshock couldn't be punished for his fake MySpace profile portraying his principal as a drunk, a drug user, and a big whore. The court held that such speech was protected by the First Amendment because school officials failed to show that the profile was potentially disruptive.
It would be an unseemly and dangerous precedent to allow school authorities to reach into a child's home and control his/her actions there, the court cautioned.
Recognizing the conflict between these two rulings, all 14 judges on the Third Circuit court reheard the cases last June. A new decision is expected by the end of the year.
Other courts hearing similar lawsuits have also applied the Tinker standard, with mixed results:
- EARLIER THIS YEAR, a federal court in Florida ruled that a high school student couldn't be punished for creating a Facebook group entitled Ms. Sarah Phelps is the worst teacher I've ever met, and inviting other students to express [their] feelings of hatred.
- THE FEDERAL SECOND CIRCUIT has held that it was not a violation of the First Amendment when a school district disciplined a student for calling administrators douche bags on her personal blog.
- IN CALIFORNIA, a federal court held that a student could be disciplined for posting on YouTube a slide show depicting the murder of her middle school English teacher.
- AND A FEDERAL COURT in Washington upheld the 40-day suspension of a high school student for videotaping his teacher in class and then posting the video on YouTube with sexually suggestive graphics and music.
Given the uncertainty in the courts, it is likely that the Supreme Court will step in soon with a definitive ruling on the authority of school officials to punish students for cyberspace speech.