Constitutional law - revising the application of Tinker and Fraser in the age of the Internet - J.S. ex rel. Snyder V. Blue Mountain School District, 650 F.3D 915 (3D Cir. 2011).

AuthorLynett, Christopher

Since the Tinker v. Des Moines Independent Community School District (1) decision, the Internet has significantly impacted the ways that schools and students exchange information. (2) School and home have long been considered separate entities, whereby students enjoy an extended veil of physical privacy shielding them once they leave school grounds. (3) With the continual development of communication technology, especially social media, such a veil no longer shrouds students in an all-protective manner. (4) In J.S. ex rel. Snyder v. Blue Mountain School District, (5) the United States Court of Appeals for the Third Circuit confronted the issue of whether speech, which occurred completely outside of the school, could be subject to either the Tinker or Bethel School District No. 403 v. Fraser (6) restrictions on school speech. (7) The court provided a thorough analysis, but failed to differentiate between the continually-accessible nature of online speech as opposed to standard forms of speech, such as the spoken word or physical documents. (8) Given the challenges schools face in terms of regulating student speech that has the capacity to reach into the classroom, courts need to develop a more defined test than either Tinker or Fraser currently offer. (9)

The Snyder incident began on Sunday, March 18, 2007 when J.S., an eighth-grade student at the Blue Mountain Middle School, used her home computer to create a fake MySpace profile for her school's principal, James McGonigle, in retaliation for him disciplining J.S. for two recent uniform violations. (10) The profile did not identify McGonigle by name, but included his official photograph from the school website, his occupation, and a reference to his wife's name, who works as a guidance counselor at the same school. (11) The structure of the profane-ridden profile suggested that McGonigle had sex in his office; that he was sexually attracted to students and their parents; that he engaged in various types of sexual activity, possibly even bestiality; and the profile ridiculed his son's appearance. (12) The profile was initially fully accessible to anyone with the Internet URL or who found it through a basic Internet search, but the page was made "private" after several students approached J.S. at school on Monday, March 19. (13) Thereafter, twenty-two students from that school district could view the full profile, but it could never be accessed from school computers because there is no access to MySpace. (14)

On Tuesday, March 20, McGonigle became aware of the profile when a student brought it to his attention; McGonigle asked the student to find out who created the profile. (15) That student later reported J.S. as the creator, and on Wednesday, March 21, the student provided McGonigle with a printout of the profile that subsequently McGonigle showed to Superintendent Joyce Romberger, Director of Technology Susan Schneider-Morgan, and guidance counselors Michelle Guers and Debra Frain. (16) On Thursday, March 22, McGonigle and Guers jointly met with J.S. to discuss the profile, which she initially denied creating, but later admitted to her involvement. (17) The school suspended J.S. for ten days, which included her being barred from all school dances, and McGonigle also contacted MySpace to have the profile removed. (18) J.S. appealed the suspension to the superintendent, but the request was denied. (19)

As a result of the MySpace profile, the school district claimed that there were several incidents of both in-class and out-of-class disruptions that required corrective actions by teachers, and resulted in several counselors modifying their normal schedules. (20) J.S., through her parents, filed a 42 U.S.C. [section] 1983 action in the United States District Court for the Middle District of Pennsylvania alleging violation of J.S.'s First Amendment rights. (21) At the close of discovery, both parties moved for summary judgment, and the court granted the motion in favor of the school district, with the district court relying on Morse v. Frederick (22) and Fraser, while also acknowledging that Tinker is less applicable due to the out-of-school nature of the speech. (23) The Court of Appeals for the Third Circuit heard the parents' appeal and affirmed the lower court decision, holding that the Tinker substantial disruption test applied because McGonigle reasonably forecasted a substantial disruption based solely on the contents of the profile. (24) The United States Court of Appeals for the Third Circuit voted to rehear the case en banc, thereby vacating previous Third Circuit review and holding. (25)

Starting with the 1943 seminal decision in West Virginia State Board of Education v. Barnette, (26) there have been a long series of cases that have specifically dealt with the issue of a student's right to free speech. (27) While Barnette dealt exclusively with school compelling speech, Tinker was the first case to determine when a school overextends its authority in suppressing student speech. (28) In Tinker, three students were suspended when they wore black armbands into school to protest the Vietnam War; however, other students were free to wear other political symbols, including one associated with Nazism. (29) In that case, the United States Supreme Court developed a constraint on a school's authority to limit student speech, requiring a "substantial and material" disruption to the school's mission, or reasonable forecast thereof, before the speech in question could be banned. (30) The Court further held that "out of class" speech is also subject to the material disruption standard. (31)

Seventeen years passed before the Court modified the Tinker standard, making the Fraser decision the first major exception to the "substantial disruption" principle. (32) The defendant in Fraser gave a speech at a school assembly attended by many younger students, where he used sexual innuendos as part of a nomination speech and was subsequently suspended for his conduct. (33) Although creating an exception to Tinker, Justice Brennan's concurrence limited its application to on-campus speech. (34) Recently, the Morse case, which involved speech that advocated the use of "bong hits," reaffirmed the principal illustrated in Justice Brennan's concurrence, noting that Fraser's application is limited to on-campus speech only. (35)

Despite the holdings of Fraser and Morse, several circuits now face new challenges when cases arise from speech that occurs over the Internet. (36) In Wisniewski v. Board of Education of Weedsport Central School District (37) the United States Court of Appeals for the Second Circuit confronted a case of Internet speech that reached campus only by the request of school officials. (38) The court held that it was "reasonably foreseeable" the speech would come to the school's attention; therefore, the forecast of a substantial disruption by school officials was proper once they became aware of the speech. (39) The Wisniewski court interpreted the Tinker decision broadly, holding that it be reasonably foreseeable that the speech could arrive on campus, regardless of where the speech occurred, who was able to view it, and from where. (40) Moreover, there is a division among district and circuit courts regarding the application of Tinker to off-campus speech generally, calling into doubt whether the material and substantial disruption test should even apply. (41)

The Snyder court opened its analysis by noting that courts have given wide authority to teachers and school administrators when it comes to the role of public schools in forwarding their educational mission, but that the authority is not "boundless." (42) Despite the political nature of the speech in Tinker, the court noted that First Amendment protections have been widely applied to student speech, regardless of the speech's nature. (43) Cases such as Fraser, Hazelwood, and Morse have carved out narrow exceptions to the general protection when student speech infringes on educational values and norms, such as protecting students from lewd speech or speech that promotes illegal activity. (44) The court then went on to note that no "substantial disruption" occurred as a result of the speech; therefore, the analysis focused on the forecast of a "substantial disruption," identical to the review the Tinker court engaged in forty years prior in the midst of the Vietnam War. (45) In applying the Tinker framework, the Snyder court noted that the MySpace profile could only be accessed by a few students, lacked any identifying information about McGonigle, was inaccessible from school computers, and only arrived on school property in a printout format when McGonigle requested a student bring it to the school. (46) Furthermore, the court determined that the profile was a "joke" because it was so "juvenile" and "nonsensical" that it could not be--and, in fact, was not--taken seriously by anyone. (47)

The Snyder court then turned to the Fraser exception to determine whether the "lewd, vulgar and offensive" nature of the speech justified the school in disciplining the student. (48) The court quickly disposed of this argument, noting that Fraser has never been applied to off-campus speech. (49) Although a physical copy did arrive on campus, the court blamed McGonigle because he made the request to a student to bring a copy to him for review. (50) Lastly, the court noted that allowing schools to punish students for any speech deemed "offensive," as long it was about the school or a school official, would massively broaden Fraser. (51) Moreover, allowing such action would deliver a serious blow to student speech occurring outside of the school, where it has the highest level of First Amendment protection. (52)

The Tinker and Fraser frameworks were established well before any notion of the Internet entered the court's mind; however, given that society has changed in some ways since those decisions, the...

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