Pa. student loses case in fake MySpace profile of principal

Tuesday, September 23, 2008

A middle school student suspended for 10 days for creating a fake MySpace profile featuring vulgar, lewd comments about her principal has lost her free-speech lawsuit in federal district court in Pennsylvania.

The student, known in court papers as J.S. because she’s a juvenile, created with her friend K.L. a MySpace profile page of James McGonigle, principal of Blue Mountain Middle School in Orwigsburg, Pa. The students created the page on the popular social network at J.S.’s home in March 2007 because they were upset at being cited by McGonigle for dress-code violations. The profile made numerous false statements about the principal, including describing him as a pedophile who enjoyed pornography.

The students set the page to “private” but allowed more than 20 other students to view it. Apparently the profile page was printed out and distributed at school; McGonigle learned of it from a teacher. He also learned that J.S. and K.L. had created it. When he confronted J.S. in the presence of the school guidance counselor, she initially denied involvement, but later admitted that she had created the profile with K.L. McGonigle suspended both students for 10 days for violating school policies prohibiting the making of false statements about school staff and using copyrighted material (McGonigle’s photograph) without permission.

J.S., through her parents Terry and Steven Snyder, sued the school district, the superintendent and McGonigle in federal court, contending that school officials violated J.S.’s First Amendment rights for punishing her for content that was created off-campus and that did not create a substantial disruption at school. (K.L. did not sue.) The plaintiffs argued that the appropriate standard to apply was from the U.S. Supreme Court’s seminal student-speech decision Tinker v. Des Moines Independent Community School District (1969). In Tinker, the Court ruled that public school officials violated the free-speech rights of several students who wore black armbands to protest U.S. involvement in Vietnam. The Court, emphasizing the political speech associated with the armbands, ruled that school officials could not censor student expression unless they reasonably forecast that the student speech would cause a substantial disruption of school activities or invade the rights of others.

McGonigle and the other defendants countered that the appropriate standard was not Tinker but that of a later Supreme Court decision, Bethel School District v. Fraser (1986). In Fraser, a public school student was punished for delivering a vulgar, lewd speech before the student assembly. The Court ruled that public school officials could discipline the student for such speech.

U.S. District Judge James M. Munley ruled Sept. 11 in J.S. v. Blue Mountain School District that the principal did not violate the First Amendment because J.S.’s Web page was vulgar and lewd. He reasoned that “the Tinker analysis … is not always applicable to freedom of speech in public school settings.”

“The speech does not make any type of political statement,” Munley wrote. “It is merely an attack on the school’s principal. It makes him out to be a pedophile and sex addict. This speech is not the Tinker silent political protest. It is more akin to the lewd and vulgar speech addressed in Fraser.”

Munley found additional support from the Supreme Court’s most recent decision on student speech, Morse v. Frederick (2007). In Morse, a public school principal suspended a student for unveiling a banner on a public street across from campus with the message “Bong Hits 4 Jesus.” The Court ruled that public school officials may punish students for engaging in speech that officials reasonably believe advocates illegal drug use.

Munley reasoned that J.S.’s profile page “is also akin to the speech that promoted illegal actions in the Morse case” and “could have been the basis for criminal charges against J.S.” The judge also rejected the plaintiffs’ argument that the school simply had no power to punish J.S. for material created off-campus. Munley decided there were sufficient connections with the school: “The website addresses the principal of the school. Its intended audience is students at the school. A paper copy of the website was brought into school, and the website was discussed in school.”

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