Why 3rd Circuit ruled in favor of students’ off-campus Net posts

Wednesday, June 15, 2011

The much-anticipated rulings from the full 3rd U.S. Circuit Court of Appeals have interpreted a key U.S. Supreme Court precedent as inapplicable to lewd, vulgar student Internet speech made off campus.

The 3rd Circuit ruled June 13 in J.S. v. Blue Mountain School District and Layshock v. Hermitage School District that students’ First Amendment rights were violated when they were suspended for mocking their school principals on MySpace.

School administrators in both cases out of Pennsylvania made several arguments. One was that school officials had the power to regulate the student online speech because some of it was vulgar and lewd.

Their justification for such power came from the U.S. Supreme Court’s 1986 decision Bethel School District v. Fraser, in which the high court wrote: “Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.” In Fraser, the Court ruled 7-2 that public school officials could punish student Matthew Fraser for a sex-laced speech delivered to 600 students at a school assembly.

A looming question in student-speech jurisprudence has been whether the Fraser standard giving school officials the power to regulate vulgar and lewd speech applied outside school grounds — to speech created off-campus on the Internet. The 3rd Circuit answered with a resounding no:

“The School District’s argument fails at the outset because Fraser does not apply to off-campus speech,” wrote Judge Michael Chagares for the majority in the J.S. decision. “In other words, Fraser’s ‘lewdness’ standard cannot be extended to justify a school’s punishment of J.S. for use of profane language outside the school, during non-school hours.”

Similarly, Chief Judge Theodore A. McKee wrote in the Layshock ruling that “Fraser does not allow the School District to punish Justin for expressive conduct which occurred outside of the school context.”

Instead, the 3rd Circuit reasoned that such punishment could only take place if there was a substantial nexus between the student speech and the school environment and the school officials could reasonably forecast that the speech would cause a substantial disruption of school activities within the meaning of the seminal student-speech case Tinker v. Des Moines Independent School District (1969).

(See previous Ken Paulson commentary.)

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