It's going to be back to the drawing board for the 3rd Circuit Court of Appeals in Pennsylvania after two separate panels of the court issued opinions reaching opposite results in two very similar student speech cases. Both cases concerned parodies of school principals, one by a middle-schooler and one by a high school student set up as fake MySpace pages. The result? According to an attorney in one of the suits, "a state of chaos."
In cases involving the First Amendment rights of students, the courts must balance the student's right to free speech against the impact that speech has on the school's ability to do what it is set up to do: give all students an education. In these two cases, the courts came to their opposite conclusions because they viewed the facts of the cases differently.
In each case the student, J.S., a middle-schooler with quite a vocabulary, and Justin, a high school student, posted fake MySpace pages "parodying" their principals. Both parodies were fairly abusive and the 14 year-old J.S.'s had a great deal of what the court daintily termed "lewd and vulgar" content. In both cases, the students involved apologized and in both cases they received 10 day suspensions, among other punishments.
Both courts relied on essentially the same cases which have built up the body of law governing student speech. Both courts first tried to determine if the speech happened (in these cases virtually) within the "schoolhouse gate," and therefore could be controlled by school authorities. Second, the courts balanced the students' free speech rights against the possibility of "materially and substantially disrupt[ing] the work and discipline of the school."
The courts simply interpreted the facts differently. The court in J.S.'s case found that although created off campus, the parody was still "student speech," so then proceeded to look at the potential for disruption of the school. Specifically, because J.S.'s MySpace page included comments regarding the principal's sexual proclivities, the parental reaction to it could have created a significant disruption to the functioning of the school. Therefore, the school did not violate J.S.'s First Amendment rights when it punished her for her speech.
In Justin's case, the court found the opposite. Justin's use of the School District's website from his grandmother's computer did not swing open the virtual "schoolhouse gate," so could only have been punished if there was a significant impact on the functioning of the school. In this case, the court found no such disruption to the school. Thus, Justin's First Amendment rights were violated when he was punished for his speech by school authorities.
A note to parents, both courts found no violation of the parents' identical claims that the schools' punishment of their children violated their Fourteenth Amendment due process rights to "raise, nurture, discipline and educate their children."
The moral? Children, beware. Sometimes your amusing parody of those in power is protected by the First Amendment, and sometimes it is not.