Third Circuit Upholds Student Free Speech

Jun 15, 2011 at 1:09 PM

By Zak Slayback

The Third Circuit Court of Appeals ruled in favor of students' rights in two landmark cases on Monday. The cases were Layshock v. Hermitage School District and J.S. v. Blue Mountain School District, both of which related to students' speech rights outside of the school day and off of school property. Interestingly enough, the cases further delve into the murky realm of cyber-law.

Both Layshock and J.S. had relatively similar facts of the case. In both cases did students Remember this? make demeaning social network profiles of their principals, outside of school. In Layshock, the profile of the principal stated that he was a "big steroid freak," and in J.S., the profile stated the following of the principal: "I love children, sex (any kind), dogs, long walks on the beach, tv, being a dick head, and last but not least my darling wife [a guidance counselor at the school] who looks like a man."

Despite relatively similar facts of the cases, the decisions within the Circuit were conflicting. The Third Circuit heard the cases for this reason, to resolve this in-circuit conflict.

The en banc 14-Judge Court held that schools cannot "reach into a child's home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities," thereby upholding the rights of students to express lewd and offensive conduct outside of school without fearing repurcussion from their school officials on-campus.

The Court used Supreme Court precedent from Bethel School District v. Fraser in order to justify much of their decision. Fraser held that students may be punished for "lewd, indecent, or offensive speech and conduct" when such behavior conflicts with "essential lessons of civil, mature conduct." The Third Circuit looked towards the fact that, while deciding Fraser, the Supreme Court noted that "[h]ad Fraser delivered the same speech in a public forum outside the school context, it would have been protected."

The Third Circuit reasoned that since this conduct was in a "public forum outside of the school context," it ought to be protected. In Layshock, the Court "reject[ed] out of hand any suggestion that schools can police students' out-of-school speech by patrolling ‘the public discourse.'"

Furthermore, the Court held that, in both cases, the online profiles "could not reasonably have led school officials to forecast substantial disruption in school," which is an important facet of limiting speech under Fraser.

Both cases present landmark decisions in protecting free speech of an often-overlooked group of young Americans: high schoolers. While these cases do not affect the college arena, which is often the focus of such heated debate, they do certainly lay a great foundation for promoting free speech for all students on the internet.

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