Does First Amendment protect students' online speech off-campus?
The Supreme Court declined to take up Tuesday three potentially important test cases of the First Amendment of students engaged in controversial speech on the Internet.
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During an in-school investigation, Layshock admitted that he created the fake profile. He was suspended for 10 days.Skip to next paragraph
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Layshock and his parents sued, claiming the punishment violated the student’s free speech rights. A federal judge ruled for Layshock, finding that the MySpace profile did not threaten to cause a substantial disruption at the school and that school officials could not punish a student for lewd, indecent, or offensive speech conducted off campus.
The Third Circuit upheld the decision on the same day it issued its Blue Mountain decision.
The high court on Tuesday also declined to take up the case of Kara Kowalski, who in 2005 was a senior at Musselman High School in West Virginia. Ms. Kowalski was suspended from school for 10 days and kicked off the high school cheerleading squad as punishment for creating an online MySpace discussion group where malicious comments were made about a particular female student at the high school.
Some students suggested the female student had herpes. One student posted a photo of the targeted student with red dots on her face and an arrow pointing to her pelvic area.
A notice said: “Warning: Enter at your own risk.”
Upon learning of the discussion page, the targeted student and her parents contacted the principal of Musselman High and the local police.
In response to her suspension from school, Kowalski and her parents filed suit, claiming the school district violated her free speech rights.
They argued that the discussion group was set up by Kowalski on a home computer after school hours.
A federal judge and a three-judge panel of the Fourth US Circuit Court of Appeals in Richmond upheld the school district’s authority to punish Kowalski for her involvement in the MySpace page discussion. The appeals court said that even though the speech and other conduct occurred outside school, the discussion could potentially cause a substantial disruption at the school.
“There is surely a limit to the scope of a high school’s interest in the order, safety, and well-being of its students when the speech at issue originates outside the schoolhouse gate,” Judge Paul Niemeyer wrote for the three-judge panel.
“But we need not fully define that limit here,” he said, “as we are satisfied that the nexus of Kowalski’s speech to Musselman High School’s pedagogical interests was sufficiently strong to justify the action taken by school officials.”
Lawyers for Kowalski urged the high court to take up her case, reverse the Fourth Circuit, and announce a unified approach to off-campus student speech cases.
“Under the Fourth Circuit’s holding, school officials have carte blanche to punish any off-campus speech based solely on the speculative belief that similar speech might be repeated on school grounds,” wrote Adam Charnes in his brief to the court on behalf of Kowalski.