First Amendment Fiasco – Student Speech Confusion

From The Legal Intelligencer:

Lawyers were scratching their heads on Thursday over a federal appellate court’s seemingly conflicting rulings in a pair of closely watched student-speech cases that both involve high school students who were suspended for creating fake MySpace pages on their home computers to ridicule their principals.

Although the cases appeared at first glance to raise nearly identical legal questions about the limits on a school’s power to discipline students for off-campus speech, the 3rd U.S. Circuit Court of Appeals sided with the student in Layshock v. Hermitage School District and with the school in J.S. v. Blue Mountain School District.

In Layshock, a unanimous three-judge panel declared that punishing students for off-campus speech violates their First Amendment rights. But the Blue Mountain panel split, voting 2-1 in holding that students may be punished for lewd speech on the Internet about school officials that has the potential to create a substantial disturbance at the school.

In Layshock, Judge Theodore A. McKee concluded that the student’s suspension violated his First Amendment rights because the speech took place almost entirely off campus.

“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 they can control that child when he/she participates in school sponsored activities,” McKee wrote.

“Allowing the district to punish Justin [Layshock] for conduct he engaged in using his grandmother’s computer while at his grandmother’s house would create just such a precedent,” McKee wrote in an opinion joined by Judges Jane R. Roth and D. Brooks Smith.

But in Blue Mountain, Judge D. Michael Fisher concluded that school officials have the power to punish “student speech, whether on- or off-campus, that causes or threatens to cause a substantial disruption of or material interference with school or invades the rights of other members of the school community.”

The Constitution, Fisher said, “allows school officials the ability to regulate student speech where, as here, it reaches beyond mere criticism to significantly undermine a school official’s authority in challenging his fitness to hold his position by means of baseless, lewd, vulgar, and offensive language.”

In dissent, Judge Michael A. Chagares said he believed that “neither the Supreme Court nor this court has ever allowed schools to punish students for off-campus speech that is not school-sponsored and that caused no substantial disruption at school.”

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