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3rd Circuit: Schools Can't Punish Students for Off-Campus Speech

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By Tanya Roth, Esq. on June 14, 2011 10:09 AM

The unsettled question of involving freedom of speech in schools and social media sites became a bit more settled this week, at least in Pennsylvania. On June 13, the Third Circuit Court of Appeals ruled in favor of two students who created vulgar online parody profiles of their principals, holding that the students could not be disciplined by the schools for off-campus speech.

The cases were both similar and at the end of the day, the essential question was the same: Are public schools in violation of constitutional rights of free speech if they punish students for online speech activities when away from school grounds?

The cases:

In 2005, Justin Layshock of Hickory High School created a phony profile of his principal on MySpace, reports The Wall Street Journal. The profile was created at his grandmother's house and not on school grounds.

The school argued that the disciplinary power was necessary to keep order, especially since off-campus activities affect school life.

"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 it can control that child when he/she participates in school-sponsored activities," wrote Chief Judge Theodore A. McKee.

In the second case, a female student identified only as "J.S." created a fake online profile of her principal and was suspended in 2007.

The standard that the court applied to Justin Layshock was that his conduct didn't create a disruption in school. The fake profile was relatively harmless, stating that the principal had an interest in "big" things, such as smoking a "big blunt," or having been drunk a "big number of times." The court ruled unanimously in the student's favor.

However, in the case of J.S., the court was more divided. The profile created by J.S. depicted her principal as a sex addict and a pedophile. In their dissent, the dissenting judges said that the decision severely undermines the authority of schools to regulate students who disrupt the discipline of the school.

Interesting point: While the attorney for the students agreed that these cases protected the off-campus speech of students, he did make the distinction between this type of speech and off-campus speech such as bomb threats or threats to teachers.

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