Constitutional law - Third Circuit holds First Amendment protects off-campus internet speech from school discipline - Layshock ex rel. Layshock v. Hermitage School District.

• Author: Soutter, David C.
• Position: CASE COMMENT

Constitutional Law--Third Circuit Holds First Amendment Protects Off-Campus Internet Speech from School Discipline--Layshock ex rel. Layshock v. Hermitage School District, 650 F.3d 205 (3d Cir. 2011).

Although the First Amendment protects the right of free speech, the Supreme Court of the United States has held that certain types of speech made by students on campus may be restricted in public schools. (1) The Court has not addressed, however, student speech originating off campus on the internet, requiring the circuit courts to develop and apply methods of dealing with this type of speech, including the Second Circuit's approach, commonly referred to as the Tinker test. (2) In Layshock ex rel. Layshock v. Hermitage School District, (3) the Court of Appeals for the Third Circuit considered whether the Hermitage School District could discipline a student, Justin Layshock, for creating an offensive profile on the social-networking website, MySpace, while off campus. (4) The court held that the school district could not regulate Layshock's speech because not one of the limited circumstances permitting regulation--as prescribed by the Supreme Court--was present. (5)

In December 2005, Layshock, a Hickory High School student, created a profile that mocked his Principal, Eric Trosch, on MySpace. (6) Layshock created this profile using his grandmother's computer, at her house, during nonschool hours. (7) Layshock granted access to fellow students, and, not surprisingly, news of the profile "spread like wildfire" spawning at least three copycat profiles. (8) Layshock did access the profile he created twice at school, but school officials took action based on the belief that Layshock's speech was entirely off campus. (9)

On December 21, school officials learned that Layshock may have created one of the false profiles and decided to call Layshock and his mother to a meeting with the Superintendent. (10) At that meeting, Layshock admitted to creating the profile and, without any prompting, walked to Principal Trosch's office to apologize. (11) School officials took no disciplinary action at the meeting; however, in January 2006, school officials held a disciplinary hearing concluding Layshock had violated the school's discipline code and instituted various punishments, including a ten-day suspension and placement in an alternative education program. (12)

On January 27, 2006, the Layshocks filed a three-count complaint alleging that the school district had violated Layshock's First Amendment right to free speech. (13) The district court granted summary judgment in favor of Layshock because the school district failed to demonstrate a sufficient nexus between the profile Layshock made and a substantial disruption at the school. (14) A threejudge panel from the Third Circuit affirmed on appeal; however, the Third Circuit vacated this decision and that of a factually similar, yet differently decided, case, J.S. ex rel Snyder v Blue Mountain School District, (15) opting to rehear both en banc to resolve the apparent intracircuit split. After the rehearings, the court reversed J.S. and reaffirmed the earlier holding in Layshock, that the regulation of Layshock's speech violated the First Amendment. (17)

The Supreme Court first considered the extent of student free-speech rights in Tinker v. Des Moines Independent Community School District, (18) but was careful to note, "[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (19) The Court determined that student speech that "materially [or] substantially interfere[s] with the requirements of appropriate discipline in the operation of the school" may be prohibited. (20) The Court discussed two other circumstances in which disciplining speech would not violate the First Amendment--first, when school officials could reasonably forecast the speech would cause a material disruption, (21) and second, when speech actually does cause this type of disruption even if the speech occurs off campus. (22)

Following Tinker, the Court carved out three additional circumstances in which school officials can prohibit student speech without a substantial disruption or a foreseeable risk of one. (23) In Bethel School District No. 403 v. Fraser, (24) the Court held that school officials could discipline a student for on-campus speech that was plainly offensive, lewd, or vulgar. (25) Just two years later, the Court issued its next exception in Hazelwood School District v. Kuhlmeier, (26) allowing school officials to exercise editorial control over "the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." (27) Most recently, the Court held that school officials had a compelling interest in preventing messages that promote illegal drug use. (28)

Application of Tinker to off-campus speech had its beginnings in the Second Circuit, where the court held school officials could not discipline students for an off-campus, underground newspaper because the speech was beyond Tinker's "schoolhouse gate." (29) The court recognized the possibility that school officials could discipline a student for off-campus expression, provided the off-campus speech caused a material disruption on campus. (30) Nearly thirty years later, the Second Circuit dealt with this possibility and created a two-prong reasonable-foreseeability test to address off-campus student speech. (31) In Doninger v. Niehoff, (32) the Second Circuit applied this test and held that school officials could regulate the student's internet speech originating off campus. (33) Finally, prior to the development of the reasonable-foreseeability test, the Supreme Court of Pennsylvania considered the off-campus internet speech as "on campus" because there was a sufficient nexus between the speech and the school. (34) Despite several cases from separate circuits addressing off-campus, internet, student speech in 2011--applying disparate standards under Tinker--the Supreme Court denied certiorari to each of these, leaving the circuits to continue to explore the limits of student First Amendment protections in the internet age. (35)

In Layshock, the Third Circuit considered the Supreme Court's jurisprudence and concluded that Tinker, and not Fraser, applied because the Supreme Court in Morse precluded Fraser's application to off-campus speech. (36) Because the school district did not challenge the district court's finding that no material and substantial disruption had occurred, the court adopted the Thomas reasoning. (37) The school district argued that when Layshock took a picture of the principal from the district's website to use in the profile, the speech came on campus and created a nexus sufficient for the school to regulate the speech under Fraser because of the vulgar and defamatory nature of the profile. (38) The court rejected this argument and relied heavily on Thomas's interpretation of Tinker because, as in Thomas, Layshock did not intend for the speech to come onto campus. (39)

The school district offered similar cases in support, but the court distinguished Layshock because those cases involved off-campus expressive conduct that resulted in a substantial disruption. (40) First, the court distinguished Layshock from J.S. ex rel H.S. v. Bethlehem Area School District (41) because J.S.'s threatening, off-campus website had created a disruption of the educational environment that justified regulation of J.S.'s speech. (42) Second, the court distinguished Layshock's circumstances from Wisniewski v. Board of Education of Weedsport Central School District (43) because Wisniewski's icon depicting the killing of his teacher posed a reasonably foreseeable risk of a material and substantial disruption. (44) Finally, the court distinguished Layshock from Doninger v. Niehoff (45) because Doninger's off-campus blog post had created a foreseeable risk of a material and substantial disruption. (46) The court distinguished Layshock's actions from these three cases, but supported the underlying reasoning...